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REPORTS
O F
CASES
ADJUDGED IN THE
Cotttt of %in^si 3tnt^
since the Death of Lord Raymond;
In FOUR PARTS,
Diftributed according to the Times of his four Succeffors,
Lord HARDWICKE, Sir WILLIAM LEE,
Sir DUDLEY RYDER, and Lord MANSFIELD;
By
JAMES B U
R R O W
Efq;
P
A R
I the
F
o
U R 1
H.
V o
Beginning ■
L U M E the F
with Michaebnas Term
I R S T.
, 30 G. 2. 1
1756.
LONDON:
Printed fpr John Work all, ntzr Lincoln's Inn.
M DCC LXVI.
3
3 6^
REPORTS
O F
CASES
ADJUDGED IN THE
Court of %m0 3tm%
Since the Death of Lord Raymond;
In FOUR PARTS,
Diftributed according to the Times of his four Succeffors,
Lord HARDWICKE, Sir WILLIaM LEE,
Sir DUDLEY RYDER, and Lord MANSFIELD.
By J A M E S B U R R O W Efq;
Majier of the Crown-Office^ and One of the Benchers of the
Honourable Society of the Inner 'Temple.
With TWO TABLES,
One, of the Names of the CASES; the Other, of the Matter
contained in them.
LONDON:
Printed by His Majefty's Law-Printers ;
For John Wo r r a l l, at the Do'ue in Bell-Yard^ near Lincoln's Inn.
M DCC LXVI.
PREFACE.
IT may naturally be afked — " Why I publifh at
" allf " Why I begin from Lord Raymond's
" Deathy rather than from any j!^r/c?r ^Era ?" "Why
I have poJ}po?jed the three former Parts of this Work ;
and publifhed the fourth Part, JirJ}'' I' " Why I
venture to print, without the Sandion of a Lice?7cey
to authenticate my Reports" ?
In Answer to the Jirji Queftion. —
I found myfelf reduced to the Neceflity of either de-
Jtroying or publiJJjing thefe Papers ; (which were in-
tended for my own private Ufe, and not for public In-
fpedion.) For as it was become generally known
" that I had taken fome Account, (good or bad,) of
*' all the Cafes which had occurred in the Court of
" King's Bench for upwards of 40 Years", I was fub-
jed; to continual Interruption and even Perfecution, by
inceffant Applications for Searches into my Notes ; for
Tranfcripts of them ; fometimes for the Note-books
themfeives, (not always returned without Trouble and
Solicitation ;) not to mention frequent Converfations
upon very dry and unentertaining Subjedls, which my
Confulters were paid for confidering, but I had no Sort
of Concern in. This Inconvenience grew from bad to
worfe, till it became quite infupportable : And from
thence arifes the prefent Publication.
In Answer to the y^C';??/*:/ Queftion —
My Notes taken at the Bar, previoufly to my be-
coming Ck?'k of the Crown, had no particular Claim to
a the
ii PREFACE.
the Icaft Degree of Authenticity : — Therefore I do
not prefiime to expofe thejn to public View. But when
I entered upon that Office, I thereby came to have all
the Records and Rule- books on the CVoiew-fide of the
Court in my own Power, and could infpeft or tran-
fcribe them at Pleafure: Befides which, as I never af-
ter that Time ftirred out of Court till it rofe, I was
fure to mifs nothing that paffed in it. Add to this,
That I had 7iow^ by my Situation in the very Middle of
the Court, better Convenience both of Hearing and
Writing, than I had had at the Bar, in the outermoft
Rows. I then came to have alfo better Opportunities
of procuring true States of the Cafes on the Civil Side
of the Court.
Lord Rayiviond and my immediate Predeceilbr in
* Hilary Office happening both to die in the * fame Vacation,
Vacation, 6 J ^^g fvvom iuto mv prcfcnt Office as foon as the Court
viz.' Mr. fat alter Lord Raymond's Deceafe, viz. on the firft
fhf^TanJDay oi EaPr Term 6 G. 2. 1733. Lord Ray-
Lord Ray- mond's Death feems therefore to be the fittell:ySr<3 from
1a' March, whence to begin : and the rather, becaufe his Lord-
fhip's own Reports (ending with Trinity Term 5** ^ 6*^
G. 2. 1732.) have been publiilied fince his Death.
* From * At this Time alfo, the Garb of Common-law
^5'*^ '^'"''■* Pleadings was entirely changed, and modernized. * A
J733. t) y t3 '
*4Gm. 2. Statute took Place, for converting them from a fixed
'■• ^^- dead Language to a fludluating living one ; and for al-
tering the ftrong folid compact Hand (calculated to lafh
for Ages) wherein they were ufed to be written, into
a Species of Hand-writing fo weak, flimfy and diffufe
that (in Confequence and Corruption of this Statute,
though undoubtedly contrary to it's Intention,) many
a modern Record will hardly out-live it's Writer, and
{v^\ perhaps will furvive much above a Century.
In
PREFACE. iii
In Answer to the third Queftion. —
There are 77ia7ty Reafons which induced me to fol-
low the Example let by the Publiflier of Croke's Re-
ports. * * See Sir
'■ Marehotle
Grim/ion's
Late Cafes are moft fought after: And therefore ^^.^^^^%'''
that Delire of being delivered from daily Importunity,
which obliged me to publifK, is a ftrong Motive to mv
publilliing in this Order.
As my Reports can be of 7io Authority^ Gentlemen
may fupply that Defedl, where the Cafes are fo recent,
from their own Notes : And my Book may be of \3{^j
as an Index.
By Beginning with this Part, (where many Gentle-
men now alive can fet me right,) I fliall make an Ex-
periment " Whether my Faults and Miftakes are fo
*' great, as to make it advifeable for me to fupprefs the
*' Reft."
I the rather begin with this Part, to prevent the "
Publication of worfe and more inaccurate Notes. Some
Encouragement to the moft faulty might be expeded,
from the Impatience of the Profellion, for Reports
during this Period. And their Impatience is not to be
wondered at. There never was more Buftnefs. The
Reafoning and Opinions of the Judges never gave more
Satisfaction. All the Seats were never fo filled together.
And (what never happened before, during a like Peri-
od, ) fince the i\th Day ol Novcfiiber 1756 to this
Day, there never has appeared in Court the leaft Diffe-
rence of Opinion : Every Rule, Order, Certificate and
Judgment have been tmanimous. The Books of Re-
ports are fo full of frequent Difi^erence of Sentiments in
the Court, (both hafty and deliberate,) that for ^// to
agree
iv PREFACE.
agree fo long, through fuch an infinite Variety of Biifi-
nefs, in every Conclulion upon every Queftion of every
Kind, argues uncommon Knowledge, Capacity and
Temper in All. The Authority of right Judgments,
upon right Principles, given unanimoufly by Magiftrates
who add Weight and Dignity to the higheft Offices,
inftead of deriving any from them, is fo great, that the
dired: Point determined becomes a Rule for ever, and
eftabliflies Certainty, the Mother of Security and Peace.
7%e extraordinary Ability with which every Seat upon
the Bench has been filled during this Period, has fuf-
fered nothing to hang undecided. A new Plan of Dif-
fatch has brought every Matter fpeedily to a Co?iclujion ;
in Spite of the Parties themfelves, their Counfel and At-
tornies ; in Spite of mutual Dilatorinefs, Negligence
and Complaifance ; in Spite of Artifice by that Side
which finds an Intereft in protra(Sing ; in Spite of every
Contrivance which can be fuggefted to a Defendant
who means only Delay.
Some hundred Caufes end, every Year, at the Sit-
tings, which are not heard of in Court ; (For the
Judgment is confequential, and of Courfe :) Many of
them, within a few Months after their Commence-
ment. Where there is a fpecial Cafe or Verdidt at the
Sittings, it is dictated by the Court, and figned by the
Counfel befo7-e the Jury is difcharged. It, in fettling
ii, any Difference arifes about a FaB, the Opinion of
the Jury is taken, and the Fad: is ftated accordingly :
Whereas they ufed to be left to future fettling ; which
often occafioncd much Altercation and many Attendances
before the Judge ; fometimes, a new Trial, to fix a
Fad: ; always, a great Delay. They muft now be fet
down in the Paper, for Argument, within four Days;
They muft be argued in Courfe, as they ftand : Altho'
both Sides fliould confent ; they cannot be put off, but
for fpecial and fufficient Reafons appearing by Affidavit
3 (if
PREFACE.
(if neceffary,) and upon Motion a Day or two before.
Nothing ftops on Account of the Abjmce of any of
the Judges : Whereas nothing ( of this Kind) ufed to
come on, unlefs the Court wzs, full.
'The "Judges being apprized of the Cafe and Queftion,
from their Paper- books, give Judgment, in many Cafes,
immediately^ upon the firji Argument ; and refufe a fe-
cond^ unlefs they themfelves think the Queftion requires
more Examination. It very feldom happens that there
are more than two Arguments : Whereas I remember
three or four to have been common ; and it was not
thought proper, to refufe hearing a lecond, third, or
even fourth Argument, if either Side prefled for it,
though the Court themfelves had no Doubt.
All Motions or Rules in Matters of Le?2gth or Co7ife-
quence are appointed for particular Days^ and called on
firJi-: Whereas they ufed to take their Chajjce of being
moved by Counfel in their Turn ; and thereby were
often kept back till the lafl: Day of the Term, and then
(for Want of Time ) neceffarily put off to the 7text
'Term^ and fo on (with good Management) from Term
to Term.
Bejides ^]\q(q fpecial Appointments, all efdarged Rules
muft come on, peremptorily, during the Jirji Week of
the Term.
There ^xtmore Opinions of the Court, during this
Period, upon important Points, than ever were given
during the like Number of Years : And I do not re-
member a fingle Inftance where the Determination did
not give general Satisfadion. In every Cafe which the
Anxiety of Parties has carried to the Houfe of Lords,
it has been unanimoujly affirmed.
b Sir
vi PREFACE.
— r-^"^"'^^— Mil ■!! ' - - -- — w
Sir John Strange was obliged to omit many of the
beft and moft interefting Arguments ; becaufe they
were in Caufes not adjudged., and therefore ot no Ufb
to the Public : But during this Period, that Reafon
does not hold for omitting fuch Arguments clofed. And
among the Queftions decided, there are fome that had
lail:ed very long indeed.
As the Public are already poffefled of Sir John
St range's Reports, comprehending all my firji^ and
a great Part of my fecond Period, That is another Rea-
fon inducing me to publifh mine in the Order I have
* Pref to chofen : Though I think the Authority of Sir Hare-
Cro.Car. BOTLE Grimston, and the Reafons he * urges, are alone
fufficient to juftify it.
In Answer to the fourth Quejftion. —
This Difficulty alarms me mojl.
I know it is a Contempt of this Court to publifh
their Proceedings : It is againft a ftanding Order of
the Houfe of Lords to publilli Proceedings there, upon
Appeals or writs of Error. They ought to be pub-
lifhed under authoritative Care and Infpe(5lion : But
SINCE the Tear-books., no judicial Proceedings have
been fo publiOied, either by the Houfe of Lords, or
by any Court in lVeJl?mnJ}er-Hall, except State-Trials.
Licences by the Chancellor and Judges proceed
upon the Charader of the Reporter only ; without fay-
ing a Word of the Work itfelf, or that the Licenfers
ever fazv it. Such Licences ( to allow and approve of
the printing and publifhing) took their Rife from the
Neceflity ot a Licence to print, as the Law formerly
flood ; and have co7ttinucd in the faf?ie Form of Words
(without any Meaning,) fuice the Reafo?z of them has
ccafed. I have
PREFACE. vii
.1 have been affured that some now pofleffed of ju-
dicial Offices have declared " They 77ever would figa
" one; becaufe it hangs out falfe Colours, and mif-
" leads thofe who think it gives the lead: Approbation
"or Authority to the Work."
Such a Licence, could it have been obtained, would
ftill have left my Reports to ftand upon their own me-
rit : And I flatter myfelf that I am too well known in
IVefiin'Difler-Hall., to want a Teftimonial to my Cha-
racter.
I had not the Impudence to attempt getting an Ap-
probation of the Work. It is impoffible that the
Judges fhould find the Time or take the Trouble to
revile it ; or that they would do it, upon any Applica-
tion whatfoever. (Which makes it the more to be la-
mented that the Ufage of Year-books hath ceafed.)
Upon thefe Confiderations, I have ventured to follow
'the Example of Mr. yujlice Foster, and to publifli my
Notes without any Leave or Licence.
There are many Inftances where Men who have pub-
liflied Matter relative to a Caufe dependi7jg^ ov foon after
it was over, have been punifhed as guilty ot a Con-
tempt ; moft juftly and wifely, for many Reafons : But
a Publication of Reports at a Diflance of T'ime^ merely
as Matter of Science^ has not been animadverted upon ;
though within the Letter of the Law. Where they
have been publilhed furreptitioujly^ without Confent of
the Reporter, the Printers have been proceeded againft
civilly upon the Foundation of his Property ; but not a^i-
yninally : And after the furreptitious Edition has been
Hopped by an Injunction, the Book has been publiihed,
with
via PREFACE.
with Confent of the Reporter, without Leave or Li-
cence ; and no Notice taken, or Complai?it made of it.
I truft my Excufe, (as Mr. Juftice Fojler did) to my
Intention. If I iind I have done wrong, or that I
give Offence, I will certainly put a Stop to this Part,
and fupprefs the othe?- three.
The Work mufl: make it's Gu-n Way in the Profef-
fion. It's Merit coniills in the Corrcclnefs of the States
of tlie Cafes. In this Refped:, it muft be oifome Ufe ;
efpecially when compared with other Notes. In all
other Refpecls, I know it is very faulty : And I do mofc
humbly beg Pardon of the Bar, and much more of the
Bench, for innumerable Injuries I muft have done
them, as to Language and Argument. I do not take
my Notes in Short-hand. 1 do not always take down
the ReJlriBio?is with which the Speaker may qualify a
Proportion, to guard againft it's being underftood uni-
verfally, or in too large a Senfe. And therefore I cau-
tion the Reader, always to ijnply the Exceptions which
ought to be made, when I report fuch Propofitions as
falling from the Judges. I watch the Senfe, rather
than the Words ; and therefore may often ufe fome of
my own. If I chance not to underfland the Subjed;,
I can then only attend to the Words \ and muft, in
Juch Cafes, be liable to Miftakes. If I do not happen
to know the Authorities fhortly alluded to, I muft be
at a Lofs to comprehend (fo as to take down with Ac-
curacy and Precifton) the Ufe made of them. Un-
avoidable Inattention and Interruptions muft occafion
Chafms, Want of Connexion, and Confulion in many
Parts of my Notes : which muft be patched up and
tied together as vi^ell as one can, by Memory, Guefs or
Invention ; or thofe Paffages totally ftnick out, which
-are fo inexplicably puzzled, that no Glimpfe of their
Meaning remains to be feen,
2 J am
PREFACE. ix
I am thoroughly aware of all thefe Faults. I am
confcious too, that not having had the good Fortune
of acquiring that Knowledge in the Science of the
Law, which is gotten only by a lucrative Experi-
ence at the Bar, (from which I was very early remoV-
ed;) and not being bleffed with the quickeft natural
Parts, I may have mifapprehended Topics and Allu-
Hons ; I may have made Blunders in the Senfe, by en-
deavouring to r edify thofe of my Pen. Thefe are Im-
perfeftions which Diligence could not cure. I am only
concerned, left my Errors fhould be imputed, not to
myfelf, but to thofe whofe Difcourfes 1 may happen
(through my own Infirmities) to mifreprefent.
Therefore let me, once for all, caution the Reader,
efpecially the young Student: 1 pledge my Credit and
Character, only " that the Cafe and yt(dgment, and
" the Out~lines of the Ground or Reafon of Decifion
" are right." As to the Refl — I took the Notes, for my
own Amufement and Ufe, as corredly as I was able :
where the Matter or Manner is liable to Objedlion, I
may and probably have miftaken.
I have omitted all Cafes where the Queftion turned
upon Facts and Evidence only ; or where the Order
followed almoft of Courfe^ in Confequence of Maxims
fully fettled ; or was not co^^tefled.
I have omitted common Sejitences in ordinary crimi-
nal Profecutions , and, in fhort, every thing which I
thought could not be of general Ufc : (though I took
Notes of all thefe.)
Before I conclude, I muft again entreat the Indul-
gence and Forgivenefs of the Bar., and ftill more, of
the Bench, for the wrong I may have done them.
c And
X
PREFACE.
And I hope likewife for another Favour from all who
have honoured me with their Acquaintance ; which is,
that they will be fo good as to excufe my not fending
them Books.
Such a Number have a Right to expeSi Prefents, if
I make any, that I have been advifed to make none.
It is not juft that 1 fhould lofe by the Pains I have
taken for the Service of the Profeflion : I am not foli-
citous to gain.
If the Candid and Judicious fhall give a favourable
Reception to this Part, it will encourage me to iinifh
my Defign, and publifli the preceding Periods.
l;rNJ:iTr\)i\. james burrow.
ADVERTISE-
ADVERTISEMENT.
' I 'HE Body of this Book is calculated for fuch as
-■- may be inclined to look into it at their Leifure :
The Abridgment, for fuch as deilre only a Summary
Account of the Determinations.
The FORMER is therefore defignedly copious : For
" Imperfect Reports of Fadls and Circumftances,
efpecially in Cafes where every Circumftance weigh-
eth Something in the Scale of Juftice, are the Bane
of all Science that dependeth upon the Precedents
and Examples of former Times *." The latter* See Mr.
was meant to be as concife as the Nature of a complete j^/^^- 1'
Abridgment would bear. "»''/" »« '*^
Crown-
Law, pa.
It is hoped that Nothing very trifling is inferted in ^94-
the One ; Nor any Thing very material omitted in the
Other.
A Chronological TABLE of the Names of
the CASES contained in this Volume,
according to the Order of their Deter-
mination.
Michaelmas Term 1756,
30 Geo. 2.
Page 2
9
10
RAYNARD V. Chace,
Roades v. Barnes,
Rex V. Fonfeca,
Macrow v. Hull, 1 1
Harrifon, Knt. Chamberlain of London
V. Godman, 12
Rex V. Killinghall, 1 7
Oppenhein, qui tarn, v. Harrifon, 20
Cooper and Another v. Chitty and
Blackifton Efqs; 20
Robinfon v. Robinfon, 38
Rex V. Inhab. of Aythrop Rooding, 53
Farewell Efq; v. ChafFey et al', 54
Rex V. Jofeph Smith, 54
Shadwell, Eiq; v. Angel, Efq; c,^
Hilary Term 1757, 30 Geo. 2.
■ Kilwick V. Maidman, 59
Taylor ex dimifT. Atkyns Efq; v. Horde
Efq; et al'. 60
Green v. Mayor of Durham, 127
Goodtitle, ex dimifl". Chefter, v. Alker
and Elmes, 133
Tooker v. Duke of Beaufort, 146.
Rex V. Maurice Jarvis, 148
Royal-Exchange Afllirance Company v.
Vaughan, 155
St. John's Coll. Cambridge v. Todington,
Clerk, 158
Earl of Bath v. Abney, Spinfter, 206
Trelawney, Bart. v. Bijhop of Winchefter,
219
Gofs V. Nelfon, 226
Goodtitle, ex dim. Hayward, v. Whitby,
Vintner's Company v. Pafley,
Wilfon, Clerk, v. Greaves,
228
235
240
Woolley et al. v. Cobbe et al. Page 244
Rex V. Gayer Efq; 245
Rex V. Inhab. of Chidingfold, 247
Plummer v. Bentham, 248
Rex V. Strong, 251
Views in Civil Caufes, 252
Eajierli&rm. 1757, 30 C^o. 2.
Cooper V. Marfliall, > 259
Cope V. Marfhall, 268
Hope, ex dimiff. Brown et ux', v. Taylor,
268
Denn v. Lord Cadogan et al. 273
Hawkins v. Colclough, 274
Perry v. Nicholfon, 278
Whight, ex dimiff. Plowden Efq; v. Cart-
wright, 282
Lant Efq; -y. Norris, 287
Frazer's Cafe, 291
Pierfe Efq; v. Lord Fauconberg, 292
Rex V. Roger Phillips, Mayor of Carmar-
then,
Rex V. Inhab. of Fremington,
Rex V. Inhab. of Alton,
Paxton V. Knight,
Rex V. Hankey, Efq;
Robinfon v. Raley,
Roberts v. Peake,
292
306
308
314
316
316
Denn, ex dimiff. Burges, v. Purvis et al.
326
Whifkard, Affignee, v. Wilder, 330
Henry, Earl of Carlifle, v. Armftrong
etal. 333
Rex V. White and Ward, ^-^^
Bond V. Ifaac, 339
Capron v. Archer, 340
Pelly, jun. v. Royal-Exchange Affurance
Company, 341
Anderfon v. George, 352
Rex V. Inhab. of Bentley, 354
d 'Trinity
A Chronological Table, S^fr.
'Trinity Term
30^31
i757>
Geo. 2.
Rex V. Inhab. of Great Torrington, Fage
357
Rex V. Inhab. of Keynfliam,
Weller v. Goyton and Vv'alker,
Hall et ux' v. Woodcock,
■Far, Spinfter, v. Denn,
Ball, qui tam, v. Cobus,
Tarrant v. Haxby,
Rex V. Inhab. of UfTculme,
Rex V. Inhab. of Milwich,
Harris v. Huntbach,
Hammond v. Brewer,
Rex V, Manning,
Cogan V. Ebden and another.
Rex V. Goddard Williams,
Bright, Ex'or of Crifp, v. Eynon,
A black Merchant of Bombay v. Dorrell,
398
Rex V. Middlehurft, 399
Michaelmas Term iJSl-)
3 1 Geo. 2.
358
359
362
S66
367
368
37^
373
376
377
383
3^
390
'Mailers v. Manby,
Bennett, qui tam, v. Smith,
Rex V. Robert Chappel,
Rex V. Williams,
Bond V. Ifaac,
Sheepfhanks et ux' v. Lucas,
Windham Efq; v. Chetwynd Efq;
Rex V. Strong,
Jenkin v. Whitehoufe and another,
Rex V. Stephens,
Rex V. Inhab. of Lower Swell,
Cockerill, Affignee, v. Owfton,
401
401
402
4.02
409
410
414
431
431
433
434
436
Hilary Term 1758, 31 Geo. 2.
Rofe V. Green, 437
Waring v. Griffiths et al. .440
Rex V. Loxdale and 4 others, 445
Miller v. Race, .452
-Rex ■:'. Dr. Shebbeare, 460
Rex V. Inhab. of Flecknow, 461
Turner v. Turner, 466
Worfeley et al. AfTignees of Slader a
Bankrupt, v. DeMattos and Slader, 467
2
Rex V. Wakefield et al. Page 485
Godin et al. v. London- AfTurance Com-
pany, 489
Rex •:;. Inhab. of Bifliops Hatfield, 495
Roflell, qui tam, v. Kitchen, 497
Hex V. Inhab. of Auftrey, 499
Rex V. Inhab. of Cold Ailiton, 502
Rex v. Martha Gray, 5 1 o
Rex V. Inhab. of Mayfield, 513
Fairley v. Mc Connell, 514
Rex V. Elizabeth Sarmon, 516
T7
after
Term 1758, 31 Geo. 2^
Rex V. Richardfon,
Rex V. Mary Mead,
Rex 1;. Wright, Clerk,
Rex V. Inhab. of Bank Newton,
Rex V. Peach et al.
Carleton, ex dimilT. G'-iffin, v. Griffin, 549
a
5ri
542
543
545
548
\
Rex V. Young and Pitts Efqs;
Rex v. Inhib. of Macclesfield,
Rex V, Eijhop of Durham,
Rex V. Peters ei al.
or
C wil V. Burnaford et al.
Rex V. Collingwood Fofter, ^r,
Clialloncr v. Walker,
Rex V. Inhab. of the Tything of Milland,
57^
Johnfon v. Houlditch,
Hutchins v. Chambers et al.
Rex V. Inhab. of Caverfwall,
Baldwin et ux' v. Blackmore Efq;
Thomas v. Powell,
Dearden, Affignee &c, v. Holden,
55^
564
567
568
57Z
57\
57^
579
59^
595
603
6b ii
Trinity Term 1758, 31 Geo. 2.
Rex V. James Clarke Efq-, 606
Wilford V. Berkeley, 609
Rex V. Little, 609
Doe, ex dimilT. Hitchings and another,
V. Lewis, Efq; 614
Rex V. Inhab. of Painfwick^ 62 1
Cottingham v. King, 623
Rex V. Earl Ferrers, 631
Rex ^'. Thomas Dawes, 61,6
Rex v. Andrew Keflell,' 637
Rex V. Davis, 638
Chefterton v. Middlehurft, 642
Rex V, Florence Henfey M. D. 642
An
An Alphabetical TABLE of the Names of
the CASES comprifed in this Volume.
Anderfon v. George, Page 352
B.
Baldwin et ux' v. Blackmore Efqj 595
Ball, qui tarn., V. Cobus, 366
Bath (Earl of) v. Abney, Spinfter, 206
Bennet, qui tarn, v. Smith, 401
Bombay (a black Merchant of) v. Dorrell,
Bond V. Ifaac, 339, 409
■Bright, Ex'or of Crilp, v. Eynon, 390
Capron v. Archer, 340
Cariifle (Earl of) v, Armllrong et al. 333
Carleton, (exdimiff. Griffin) 1;. Griffin, 549
Cavil V. Burnaford et al. 568
Challoner v. Walker, 574
Cheiterton v. Middlehurft, -€42
Cockerill, Afllgnee, v. Owfton, 436
Cogan V. Ebden and another, 383
College of St. John Cambridge v. Tod-
ington, Clerk, 158
Cooper and another v. Chitty and Black-
ifton, 20
Cooper V. Marfliall, 259
Cope V. Marfliall, 268
Cottingham x'. King, 623
,D.
Dearden, Affignee, v. Holden, 605
Denn v. Lord Cadogan, 273
Denn, ex dimilT. Burgefs, v. Purvis et al. 3 2 6
Doe, ex dimiff. Hitchings and another, v.
Lewis Efq; ^14
Fairley v. Mc Connell, 514
Farewell Efq; v. Chaffey et al. 54
Farr, Spinlter, v. Denn, 362
Frazer's Cafe, 291
G.
Godin et al. v. London-Afilirance Com-
pany, 489
Goodtitle, ex dimilT. Chefter, v. Alker and
Elmes, 133
ex dimiff. Hay ward v. "Whitby, 228
Gofs V. Nelfon, Page 226
Green v. Mayor of Durham, 127
H.
Hall et ux' v. Woodcock, 359
Hammond v. Brewer, 376
Harrifon, Chamberlain of London, v. God-
man, 12
Harris v. Huntbach, 373
Hawkins v. Colclough, 274
Hope, ex dimiff. Brown et ux', v. Taylor,
268
Hutchins v. Chambers et al.
>79
Jenkins v. Whitehoufe and another, 43 1
57^
59
aSy
II
401
452
2Q
Johnfon 1;. Houlditch,
K.
Kilwick V. Maidman,
L.
Lant, Efq; v. Norris, |
M.
Macrow v. Hull,
Mafters v. Manby,
Miller v. Race,
o. •
Oppenhein, qui tarn, v. Harrifon,
P.
Paxton ■:'. Knight,
Peirfe Efq-, v. Lord Fauconberg,
Pelly V. Governor &c. of Royal-Exchange
Affurance, 341
Perry v. Nicholfon, 278
Plummer v. Bentham, 248
R.
Raynard v. Chace, 2
Rex V. InJjabitajjts of Alton, 30?
Cold Afhton, 502
Auftrey, 499
— - Aythrop Roodings 53
Rex
314
292
An Alphabetical Table, ^c.
Rex V. Inhabitants of
Bentley,
Bifhops Hatfield^
Caverfwall,
Chidingfold,
Cold Afhton,
Flecknow,
Fremington,
Great Torrington,
Bifhops Hatfield,
Keynfhain,
Lower Swell,
Macclesfield,
Mayfield,
Milland,
Milwich,
Newton (Bank)
Painfwick,
Swell (Lower)
Bank Newton,
354
495
59^
247
502
461
306
357
495
358
434
564
513
57^
37^
5^5
621
434
Inhabitants of Great Torrington,
■ — Uffculme,
Rex-y. Robert Chappel,
V. James Clarke Eiq;
V. Davis,
— — V. Thomas Dawes,
V. Bifhop of Durham,
V. Laurence Earl Ferrers.,
V. Fonfeca,
V. Fofter, &c.
V. Gayer Efq;
V. Martha Gray,
V. Hankey Efq;
V. Florertce Henfey, M. D.
V. Maurice Jarvis,
V. Andrew KelTell,
V. Killinghall,
V. Little,
V. Loxdale and 4 others,
V. Manning,
V. Mary Mead,
V. Middlehurft,
■ V. Peach et al.
• V. Peters et al.
V. Phillips, Mayor of Carmarthen,
292
— — 1;. Richardfon, ^17
V. EHzabeth Sarmon, 5 1 6
357
36S
402
606
638
636
631
10
573
245
510
316
642
148
^37
17
609
445
377
542
399
548
568
Rex V. Dr. Shebbeare,
V. Jofeph Smith,
V. Stephens,
V. Strong,
V. Wakefield et aL
V. White and Ward,
V. Goddard Williams,
V. Williams,
V. Wright, Clerk,
V. Young and Pitts Efqrs,
Page 460
54
433
25»>43i
485
333.
3^5
402
543
55^
9
323
316
38
437
Roads V. Barnes,
Roberts v. Peake,
Robinfon v. Raley,
Robinlon v. Robinfon,
Rofe V. Green,
Roflell, qui tam, &c, v. Kitchen, 497
Royal-Exchange AfTurance Company v.
Vaughan, 155
St. John's College, Cambridge, v. Toding-
ton, Clerk, i^g
Shadwell Efq; v. Angel Efq; g^
Sheeplhanks et ux' v. Lucas, 410
Tarrant v. Haxby, 367
Taylor ex dimifT. Atkyns Efq; v. Horde
Efq; et al. 60
Thomas v. Powell, 603
Tooker v. Duke of Beaufort, 146
Trelawney, Bar', v. Bifhop of Winchefter,
219.
Turner v. Turner, 466
V.
Views in Civil Caufes, 252
Vintner's Company v. PalTey, 235
W.
Waring v. Griffiths et al. 440
Weller v. Goyton and Walker, 5c8
Whifkard V. Wilder, 330
Wilford V. Berkeley, 609
Wilfon, Clerk, v. Greaves, 240
Windham Efq; v. Chetwynd Efq; 414
Woolley et al. v. Cobbe, 244
Worfeley et al. Affignees of Slader a
Bankrupt, v. De Mattos and Slader, 467
Wright, ex dimifi^.Plowden, v. Cartwright,
282
Errors
Errors of the Prefs.
SOME Deviations from the exa6l Nicety of accurate Punctua-
TioN have efeaped the Corredor's Attention, and may fcarcc
be thought worthy of the Reader's. But
As to the following Errors, The Reader is requefted to correft
the more material of them, with his Peti : They are marked thus ^^
Page Line
lo. 23. Dele w^i : Or add TO^/Vi6
19. 13. For quijition:) r. quifition"; And for But — it. r. " Bui
— " it."
21. 12, 13. Yox Sheriff V. Sheriffs
(fc^' 170. 20. For q\}is read qd Is
^^ 172. 9. For eundem read eiwt diim
ij^'i^JI- 16. Y ox. comone fieri r. commonefieri
1^:^176. 18. For prohibiiiffe X. perhibuiffe
22. For extra r. extra —
(i^i77' 30- Yox exiftant -^ a Magijlro x.exijlwit, ac Magifiro
191. 27. For 1647, ''• 17475
206. 15. Dele) [after Admittance :]
213. 28. Vox Adminijlration; x, Adminijlrator -y
216. 10. For proves X. prove
223. ulf. For Iffo the x. Jf fo, The
246. 5. Dele to me
247. 5. For concurred, They r. concurred. They
"Zj. For ^ejlion ivhich x. ^ejiion ; ivhich
249. in margine, line penult'. For -cate to this r. -cate as to this
273. For Him, fo r. Him : So
295. 10. Dele that
315. 2. For Ayclife r. ^//^
23. For they x. He
320. 20. For Rejidio x. Refiduo
357. 19. For in x. into
363. 14. For waive x. wave
378. 24. For laying x. lying
383. 32. T>dQB.R.
0^399* 7* ^o^ °^ ^ffifl^'^S ^' -^''^ l/ftfl'^'^S And dele the follow-
ing Words — "John Chefterton the Tenant of Sir Tho-
mas Fleetwood,
1^401. 24. For Defe7idant r. Plaintiff
402. 16. For Country x. County
421. 18. For come r. came
425. 12. Fox Seige r. Siege
e Page
Errors of the Prefs.
Page Line
442. ult'. For 518.] Watfon 709.] r. 518.] Watjon. 709.
449. 23. For nvas r. ivere
452. 5, 6. For any further r. any thing further
465. 27. r. adjoin to
467. 14. r. Flaintifs
^^i^'jb, 9. After -fary, put a Semi-colon-, After /5>y?, a Comma.
For, /j^/Y, the yz/y? Pointing is neceffary, to preferve
Perfpicuity of Meaning : (Which is the Cafe much
oftener than moft People are aware of.)
477. 2. r. is anxioiifly
16. r. Mortgagee
3 1 , r. declining
513. 2. IndiSlment, for dele the Co;«;;w.
^527. 34. [Marginal Note,] Dele all the Note : And inftead of
it, put V. Pojt. 540.
595. 26. For attd having r. /W
616. 5. Add (after A/rtr^i) Who argued for the Flaiittiffy
618. 4. ¥ov John Hitchim's r. 'Thofnas Lewis's
627. II. For Tivyden r. Tivyfden
{^ Delete the Word " ^/jcr/" in the Title of the Table, or Re-
ference : For, after Title 2)ffiCC0, that Epithet is far from being
applicable to it.
Michaelmas
Michaelmas Term
30 Geo. 2. 175(5.
The Court of K I N G's BENCH
(When it became complete, on the 3d Day of the
Term, as below,) was compofed of
{d) Lord Mansfield,
(b) Sir Thomas Denifon,
(f) Sir Michael Foiler, and
Id) Sir John Eardley Wilmot.
faj His Lordjhip was fworn in upon the 8 th of No-
vember 1756: And took his Seat upon the Bench
on the I ith of the fame Month.
(b) Mr. Juftice Denifon was fworn in upon the i ith
of February 17 4.1: And took his Seat the next
Day.
(c) Mr. Juftice Fojler was fworn in upon the 2 2d of
April 1745 : ^^^ took his Seat upon the ift of
May following, (being the hrft Day of Eajler
Term 1745-)
(d) Mr. Juftice Wihnot was fworn in upon the i ith
of February 1755 : And took his Seat upon the
Bench the next Day.
B Michaelmas
Michaelmas Term 1756. 30 Geo. 2. B.R.
Mojtday 8th November 1756,
His Majefty's Attorney General, the Honourable
TVilliam Murray^ was, this Morning, called
Serjeant ; and about eight in the Evening, was
fworn in Lord Chief Juftice of this Court, (in
the Room of the late Lord Chief Juftice, Sir
Dudley Ryder, who died on 25th May 1756J
before the Lord Chancellor (the Earl of Hard-
wicke^) at his Houfe in Great Ormond-Jlreet, in
the Prefence of the three Judges and of moft
of the Officers of the Court of Kind's Bench.
His Lordfhip took the Oaths of Allegiance
and Supremacy on his Knee ; and the Oath of
Office, ftanding. Immediately afterwards, the
Great Seal was put to a Patent, which had be-
fore pafled all the proper Offices, creating his
Lordfhip Baron of Mansfield in the County
of Notti77gham, to Him and the Heirs Male of
his Body.
'Thiirfday 1 ith Noveinher 17 156. Lord Maitsjicld
took his Place, as Lord Chief Juflice.
Friday 12th Raynard verfus Chace.
^'^ ' f IP^HIS was an Adtion of Debt for a Penalty on 5 Elix. c. 4.
for exercifing the Trade of a Brewer, without having
ferved an Apprenticefliip. In the Declaration there were
two Counts. To the former " 7iil debet" was pleaded :
And there was a general Verdid: for the Defendant ; {viz. " That
" the Defendant does not owe, &c.") But on the 2d Count there
was a Special Verdift : Which was to the following EfFedl ; viz.
that the Defendant Chaje and one Coxe, were, and have been, da-
ring
Michaelmas Term 30 Geo, 2.
ring all the Time charged in this Count, Partners in the Trade ;
and that the Trade was carried on, and had been for 4 Years car-
ried on, in their joint Names ; that Coxe did ferve an Apprentice-
fhip, &c. but Chafe never did; and that Coxe is a worh'ng
Brewer, and was paid a Salary for his Labour ; which Salary was
always dedudted, and allowed to him, previous to a Divifion of the
Profits ; and the Entries at the Excife-otiice were in their Joint
Names : But that the Defendant Jobn Chafe never exercifed the
'Trade himself; (which was wholly managed and carried on by
Coxe ;) but 072ly fmred the Profits, and jlood the Rifques of the Part-
nerfhip. And they find it to be a Trade within 5 Eliz. c. 4.
Queftion, on 5 Eliz. f. 4. § 31. " Whether the Defendant John
" Chafe is within the Adl, upon this fpecial Finding".
Mr. Morton pro ^ler'.
This Attempt to evade the Force of the Act by the Scheme of a
Partnership with a qualified Trader, would entirely fruftrate the
htention, and is diredly contrary to the IVords of the Adt.
The fhort of this Cafe is, — Chafe not being Himself qualified, takes
a Partner who is qualified : which quahfied Partner is the only
aSiifig Perfon in carrying on the Trade ; and Ch^fe never ijiterfered
in it.
There was the like Point before the Court in P. 18 G. 2. B. R,
Rex V. Dri field.
But, per Denifon and Fo/ler Juflices, that Cafe was never deter-
mined : it went oifupon an Objedtion to the Jurifdidtion.
Morton: — But the Lord Ch. J. Lee then faid, " that he had
" never known a Perfon exempted from the Statute, who had not
" ferved an Apprenticefhip."
And as to his not interferirig in the Trade, the Cafe oi Hobbs qui
tarn, &c. verf. Toung, reported in 2 Salk. 610. and in Carthew 162.
and in 3 Mod. 313. is a Determination in Point, and not to be di-
ftingui{hed from the prefent Cafe.
Therefore he prayed Judgment for the Plaintiff.
Mr. Bifjop contra, pro Defendant, faid, He would firfl confidcr
how this matter flood before the Statute, with regard to the free and-
unlimited Right that every Man naturally and legally had, of exer-
cifing whatever Trade he pleafed ; 2dly, The ConfirudHons that have
4 been
Michaelmas Term 30 Geo. 2.
been favourably made upon it, in Extenfion of the Qualifications to
exercife Trade j and 3<i/v, Diftinguilh this Cafe from the Cafes cited.
And firft, The Liberty of Trade is a natural and Common-law
Right; and was long unreftrained. The Statute of 37 £. t^. c. 5.
which 7?r/? rcftrained it, was very foon repealed by 38 Ed. 3. c. 2.
And Lord Coke in 4 Inji. 31. fays, " That fuch Adts of Parliament
never live long." He cited the Cafe in 2 Buljir. 186. Dominus Rex
and Allen Plaintiffs againfl: Tooley, Defendant, as an Authority for
him ; tho' the Court did not indeed formally pronounce any final
Judgment therein. And he alfo cited i i Co. 53. the Cafe of the
Taylors of Ipficich. Secondly, The before mentioned Cafe in
2 Butjir, I 86. The King and Allen v. Tooley, proves tlie Conftrudlions
to have been favourable, fenk. Cent, cafe 15. pa. 284. " A pri-
" vate Brewer is not within the Statute." Keilwey 96. pi. 6. proves
that the Statute ought to be taken flridly; being penal, and in De-
rogation of the Common Law. And Judges have difpenfed with
the Rigor of it : As in Frotlfs Cafe, i Salk. 67. where 7 Years
Apprenticefliip beyond Sea, though without binding, was holden
fufficient. So ^ieen v. Maddox, 2 Salk. b\T^. S. P. accordingly:
And the Court there call this Statute of the 5th of Eliz. a hard
Law. Ccmberb. 254. Rex v. Coller, per Eyre Juftice, One Brother
living with another 7 Years (at the Trade of a Tallow-chandler)
though not bound, may fet up the Trade. i Mod. 26. pi. 69.
Domitius Rex v. Tarnith, proves too that this Statute ought not to
be extended further than Neceflity requires.
Now it is not found by the prefent Special Verdid, in the Affir-
mative, " That this Man has occupied, ufed and exercifed the
" Trade:" But it is found, (on the contrary,) negatively, " That
" he has not interfered in it ; but it was wholly carried on by
" Coxe:' And Hob. 298. fays the Rule is, " That Affirmatives
in Satutes that introduce new Laws, imply a Negative, G"^." How-
ever, here is an exprefs Negative.
Thirdly, with regard to the Cafes cited. —
As to Rex V. Driffield, Whatever was found in the Affirmative in
that Cal'e, is found in the Negative here. And as to the Cafe of
Hcbbs V. Touiig, there was no Partner fkilful in the Trade ; but only
Sej-vafits : Whcre.iS here, is a fkilful Partner to condudl it ; and the
Servants are employed and fet to work by this Partner, who is fkil-
ful ; and are not employed and fet on work by the Defendant.
Then he added, (4thly,) fome Arguments ab inconvenienfi.
Firft, This will afFecft all great Undertakings : for it feldom hap-
pens, in fuch great Undertakings, that all the Partners are duly
3 qualified,
Michaelmas Term ^o Geo. a.
qualified, in Stridtnefs. So likewife, it would afFeft all C^fes where
Infants and trujlees are intituled to Shares of profitable Trades.
So, where Creditors have Shares in them.
And ApprejtticeJhipSy in great Breweries, are not, in Fafl, ufual
or cuftomary,
Mr. Morton, in Reply, premifed that the Rule of Conflruftion
upon this ACt muft be uniform, with regard to all the Trades within
it : And Breweries cannot be difliiiguifhed from the reft.
In anfwer to Mr. BiJJxp's Argument, He obferved,
ift. It is of no Importance what was the Right before the Sta-
tute: The Statute was made, exprefly, to restrain fuch Right
in future, for the Good of the Public.
2dly, He faid, He did not want to extend this Law : this Cafe
is fully and completely within it, without ftraining it at all. And
the Conftruftions that Mr. Bifiop calls favourable, in the Inftances
which he has cited, are no more than juft and reafonable upon the
Circumftances of the refpedlive Cafes in which they were made.
3dly, As to the Negative Finding in the prefent Cafe, it
amounts to no more than " that this Man didv^o/ mind his Bufinefs;"
(which the other Partner did.)
And as to fetting to work, it is plain that Coxe is fet to work by
Chafe: and, 'virtually. He fets all the Servants to work. Indeed,
Coxe is here both a Journeyman and a Partner to Chafe : For Chafe
pays him as a Journeyman ; and, hefides that, gives him a Share of
the Profits. And my Lord Ch. J. Holt's Opinion in the Cafe of
Hol^is and Young is quite applicable to the prefent Cafe.
4thly, He endeavoured to fliew that the conftruing this Man to
be within the Penalty of the Statute, could not be attended with
any fort of Inconvenience.
Therefore He prayed Judgment for the Plaintiff.
As this was the firft Argument, it was expedted (as of Courfe)
that it would be argued again : But Lord Mansfield gave his Opinion
immediately, to the following EfFeft.
Lord Mansfield : Where We have no Doubt, We ought not to
put the Parties to the Delay and Expence of a farther Argument ;
nor lep.ve other Perfons who may be interefted in the Determination
of a Point fo general, unneceffarily under the Anxiety of Sufpence.
C The
Michaelmas Term 30 Geo. 2.
The Defendant is to fhare the Profits with Coxe, in Moieties ;
and is liable to the Debts of the PartncrHiip : But it is poftiveh and
exprcjly found, " That during all the Time charged, He never
ACTED in or exekcised the Tirade." He was not, by the Therms
of his Agreement, to acl in the Trade : The Other Partner was to
do the Whole, and had a particular Salary on that Account. It is
not found that either Coxe or any Servant under him was fct to work
by Chase ; nor that Chaje did any A^ whatever of exercifing the
Trade : He was only concerned in the Profits.
Now though this may be, to some Purpofcs, exercifing a Trade,
in refpedl of third Perfons who deal with the Partnerlhip as Cre-
ditors, and within the Meaning of the Statutes concerning Bankrupts -^
yet the prefent Queftion is, " Whether it be exercifing a Trade,
" CONTRARY TO THIS AcT."
I thinjc Mr. BiJJjop has laid his Foundations right, againfl: extend-
ing the penal Prohibition beyond the exprefs Letter of the Statute.
ift. This is a pe}ial Law;
2dly, It is in Rejlraint of natural Right ; And
3dly, It is contrary to the general Right given by the Common
Law of this Kingdom : I will add
4thly, The Policy, upon which the Afl was made, is, from Ex-
perience, become doubtful. — Bad and unfkilful Workmen are rarely
profecuted.
This Aft was made early in the Reign of Queen Elizabeth. Af-
terwards, when the great Number of Manufadturers who took Re-
fuge in Ergltind irom the Duke D' Alva's Pcrfecution, had brought
Trade and Commerce with them and inlarged our Notions, the
Reftraint introduced by this Law was thought io unfavourable, that
in 33 Eliz. in the Exchequer, 4 Leon. 9. pi. 39. it was conftrued
away: For it was holden clearly, by the Judges, in that Cafe, (which
Conitrudion, however, I take ?20t to be law noiv,) that " if One
" hath been an Apprentice for 7 Years at any One Trade men-
" tioned within the fiid Statute, he may exercife any Trade named
" in It, though He hath not been an Apprentice to it."
All thefe Obfervations only fliew " That this Adl, as to what
" inforces the Penalty of it, ought to be X:\ktn J iriSlly." And ac-
cordingly, the Conftrudions made by former Judges have been
favourable to the Qualifications of the Perfons attacked for exerci-
3 ^i"§
Michaelmas Term 30 Geo.
fing the Trade ; even where they have not actually ierved Appren-
ticefhips. They have, by a Hberal Interpretation, extended the
Salifications for exercifing the Trade, 7niicb beyond the Letter of
the Adl ; and have confined the Penalty and Prohibition to Cafes
precifely within the exprefs Letter.
Let Us confider whether the prefent Cafe be within the Letter^
or even the Meaning of this Adl.
The General Policy of the Aifl was to have Trades carried on,
by Perfons who had Skill in them.
Now here, the perfonal Skill of the Defendant makes no real
Difference in the Cafe. For the Perfon who is fkilful, aSis every
Thing, and recei'ves no IDireBion from this Man : He neither did,
nor was to interfere.
The Cafe of Hobbs and Toiing is not parallel. There, the De-
fendant, a fingle Man, diredled the whole Trade ; was the Mafter ;
and direSled AH the Servants. As between Mafter and Servant, no
doubt, it is the Mafter, who carries on the Trade ; and not the
Servant. ' But in Hobbs and Toung there was no Partnerftjip ; nor
(what is the diftinguifhing Charader of the prefent Cafe) a mere
naked (haring of the Profits, and rifquing a Proportion of the Lofs ;
without his afting or direding at all, in any Manner whatfoever.
In many conliderable Undertakings, it is abfolnteiv necelTary to
take in Perfons as Partners, to fhare the Profits and riique the Lofs.
And the general Ufage and Pradice of Mankind, ought to have
Weight in Determinations of this Sort, affeding Trade and Com-
merce, and the Manner of carrying them on.
It is notorious that many Partnerfhips are entered into, upon the
Foundation of one Partner contributing; Induftrv and Skill, and the
other, Money.
Many great Breweries and other Trades have been carried on for
the Benefit of Infants and Refiduary Legatees, under the Diredion
of the Court of Chancery.
. Now if the Plaintiff's Conftrudion was to hold, the whole Di-
redion and Decree of the Court of Chancery was contrary to Law
and to an exprefs Ad of Parliament.
So it is likewife pradifed in other great Trades. The late Mr.
Child direded his Bufinefs of a Banker, to be carried on for the
Benefit of his Children and other Perfons. — Many other Inftances
might be mentioned.
It
8 Michaelmas Term 30 Geo 2.
It would introduce the utmoft Confufion in Affairs of Trade and
Commerce, if this Conflrudion fhould prevail.
On the other Hand, I fee no Inconvenience: It is exadly the
fame Thing as to the Trade, in every Iota, " whether this Partner
" has or has not ferved an Apprenticefhip."
Therefore I think the Defendant not liable to the Penalty of
5 Eltz.
Mr. Juft. Demfon faid That this was a new Cafe.
For though the Cafes of Rex v. Driffield, and Adcock v. Gf//, were
indeed before the Court, yet no Opinion was delivered in either of
thofe Cafes.
He concurred that it was not an Exercife of the Trade ivithin
5 Eliz.
The true Intent of that Adl was, That no Man fhould exercife
any of thofe Trades, unlefs He had Skill in them. It has never
been extended, by any liberal Conllruftion of it, in Point of in-
forcing the Penalty.
And the prefent Queftion is, " Whether this Man has exercifed
" the Trade, within the Meaning of it j fo as to be liiil>le to the
" Penalty."
Now it is here found, " That He never did interfere in the
" Trade, Hiwftlj." h\ the Cafe of Hobbs v. Toung, the Defen-
dant was the Super-htetidcr of the Work ; and did exercife tlie
Trade, without having any Skill in it. — And this is the Point in
^leflion, and the principal Determination, in that Cafe of Hobbs v.
Toung ; whatever ehe might drop from the Judges in giving their
Opinion. But here, the Defendant never meddles at all ; but leaves
all the Management to a Partner, who had Skill : He himfelf never
aSfcd, in carrying on the Trade.
It may be faid indeed, " that Chafe is liable to the Statutes of
" Bankn^pts." — True : But the Conrtrudlion of thofe Ads, made
for the Benefit of the Bankrupt's Creditors, is very different from
the Conftrudion of this prohibitory and penal Ad ; which ought to
receive a firi^ Conftrudion, in Point of extending the Penalty.
Therefore, for thefe Reafons, and thofe given by the Lord Ch.
Juft. He held " That this was ?wt an exercifng the Trade 'within
" the A£l." 2
Mr.
Michaelmas 1 erm 30 Geo. 2.
Mr. Jufl. Fojler concurred ; and faid He had prepared Himfelf
to give his Reafons at large : But as the Lord Chief Juftice had
gone through them fo fully, and inforced them in fo clear and fatif-
fadlory a Manner, He would only, in general, declare his Con-
currence.
Mr. Jufl. Wilmot of the fame Opinion.
By the Court unanimouiiy Judgment was given for the Defendant.
REGULA GENERALIS.
THE Court declared, That all enlarged Rules to fliew Caufe,
which were made in the laft Term, fhould be moved before the
lafl Week of the prefent Term ; XJnlefs Leave for poflponing them
fhould be particularly applied for, and granted : And this Rule to
prevail hereafter, in all future Terms, in the fame Manner.
Monday 15th November 1756. Lord Mansfield iook the Oaths:
He was (as is ufual) fworn fir ft and alone.
Roades verftis Barnes. W</<»,> 16th
THIS was a Plea of 1 fiated Accoimt, pleaded to an Adlion
upon Simple Contrast j To which Plea there was a bad Re-
plication, and a Demurrer to that Replication : Confequently, the
Queftion was only upon the Validity of the Flea.
After a long Argument for the Defendant in fupport of the Plea,
The Court, without hearing the other Side, held the Plea bad in
Sidyfiance : And fo, they faid, it had been determined in this Court,
laft Hilary Term, in a Cafe of Atherley v. Evans. A promiflbry
Note cannot be pleaded in Bar to an Adion upon Simple Contradt :
Though a Bond may, becaufe it extinguifhes the Debt. One Bond
cannot be pleaded to an Adtion brought upon another Bond.
Judgment for the Plaintiff.
No-vembir
1756.
D Rex
lo Michaelmas Term 30 Geo. 2.
vved',''fday Rcx vcrf. Fonfcca.
I 7th Novem-
ber 1756.
MR. Norton, on Behalf of the Profecutor, fhewed Caufe againft
difcharging the Defendant's Recognizance.
This was a Recognizance entered into by the Defendant and two
other Perfons, upon his removing this Indidment (which was for
an AiTault, with Intent to ravifli) from Hicks' s Hall, where it was
originally found.
The Defendant had been tried, convided, and fined in this
Court ; and had paid his Fine.
After which, Mr. Morton had moved to difcharge the Defendant's
Recognizance ; it being a Recognizance at Common La'u:, and all
the Terms of it having been complied with. For he infifted,
I ft, That it is not within the Statute of 5 G? 6 TT. ©■ M. c.w.
§ 2. being from the Court of Oyer and Terminer, not from the
Seflions : And this Statute relates only to Indidments found at the
Sejions.
2dly, That the Principal is here bound, as well as the Securities:
Therefore alfo, it is not within the faid Ad ; which requires only
Two Manucaptors, without the Principal.
3dly, The Sum is alfo different : For it is not a Recognizance in
20/. but in 100/. Himfelf, and each Security 50/. Therefore for
this Reafon too, it is not within the faid Ad. In Proof of which,
he cited 2 Salk. 564. Regifia v. Eicer, was a Scire Jacias on a Re-
cognizance taken before a Judge, upon granting a Certiorari to
remove an Indidment from the Seflions of the Peace, in the Sum
of 40/. whereas the Sum prefcribed by the Statute, is 20/. And
there. Lord Ch. J. Holt, held this Recognizance to be good at
Common Law ; but not to be a Recognizance according to this
Statute.
M. 15 G. 2. B. R. Rex v. Sidney, was alfo cited and relied upon
by Him, as in Point to the prefent Cafe.
In anfwer to which Mr. Norton urged,
ifl. That the Court at Hicki's Hall is both a Court of Oyer and
Terminer, and also a Court of garter ScJ}v.m, And as to the
2d
Michaelmas l^erm 30 Geo. 2. n
2d and 3d Objedions. The Defendant has availed himfelf of
this Recognizance ; and has, upon it, removed the Record : And
therefore he ought to be bound by it, as by a proper Recognizance.
And Sidney'^ Cafe was, He faid, upon different Circumftances.
Here, he is not to depart the Court without Leave : There-
fore the Court will firfl: oblige Him to do Us Juftice, and pay the
Cojis, in the fame Manner as if the Recognizance had been re-
gularly taken under this Adl.
N. B. The Seffions at Hicks' s Hall fit in both Capacities, liz. of
Seffions, and alfo of Oyer and T^erminer ; and they draw up their
Orders with the One Title, or with the otber^ according to the
Degree of the Offence; {^viz. Common Affaults, and Offences
of a low Nature, under the Title of a Court of Sejjiom^ and Ai-
laults with Intent to ravifh. Riots, ^c. and Offences of a high Na-
ture, under the Title of a Court of Oyer and Terminer :) And the
Certiorari's are dircdled accordingly. And the prefent Certiorari
was direfted to them as a Court of Oyer and 'Terminer.
The Court looked upon that Cafe of Rex v. Sidney to be in
Point :
And accordingly, Mr. Morton's Rule for difcharging the Defen-
dant's Recognizance, was made abfolute.
Macrow verf. Hull.
TH E Defendant's Council fhewed Caufe againfl: the Court's
granting a new Trial upon Payment of Cofts ; which had
been moved for, by the Plaintiff's Council, upon the Foot of the
Verdidl's being againfl Evidence: (Which Verdifl was for the 'De-
fendant ; and, confequently, the Application to fet it afide, had
been made on the Part of the Plaintiff.)
Mr. Juft. Toiler (who tried the Caufe) reported it to be an Ac-
tion of Trefpafs, extrentely fri-voloiis ; but fufficiently proved. He
faid that the Defence was a very ftrong One indeed, in Mitigation
of Damages •, but yet was not a fuficient Denial of the Trefpafs :
fo that, in Stridtnefs, the Verdift was undoubtedly againfl: Evidence.
However, he thought the Adion fo trifling, frivolous, and vexations,
that he fhould have thought Sixpence Damages to have been enough.
Whereupon
12 Michaelmas Tei'm 30 Geo. 2.
Whereupon The Court held, that, notwithstanding it's be-
ing a FerdiSl against Evidence^ (which in general is a good
Realbn for fetting afide a Verdidt and granting a new Trial,) yet
the Adion appearing, in this Cafe, to be frivolous, trijUng, and
•vexatiotts, and the real Damages little or none, they ought to re-
fufe, and accordingly did refufe to fet afide the VerdicS : And
Lord Mansfield added that it would even be a Cruelty to the
Plaintiff, to grant his Motion : As he muft pay the Cofts of the
former Trial, if he fliould prevail in it ; and yet could hope for
fuch very fmall Damages upon a new One.
Rule difcharged. Vide Pojl, Farewell v. Cbaffey, S. P. accord'.
Thurfd^i i8th Harrifon Knt. Chamberlain of London v£?~f. Godman.
November
^''^ ■ TV /f ^- Serjeant Poole and Mr. Eliab Harvey fhewed Caufe againft
It J. the iffuing of a Procedendo in this Caufe.
It came into this Court, upon the Return of a Habeas Corpus cum
Catifa, diredted to the Mayor, Aldermen and Sheriffs of London^
commanding them to bring up the Body of the Defendant, toge-
ther with the Caufe, ^c.
The Return was to the following Effedl, viz. That there is a
Cuftom in London, " that if any ancient Cufom, hard and defcBive
" in any Thing 7ie'wly arijing, wants Amendment, the Mayor and
" Aldermen, with the Confent of the Commonalty, have always,
" ©"<:. appoittted ft Remedy, for the common Good of the Citizens:
" So as fuch their Ordinances be confonant to Faith and Reafon,
" and in no wife prejudicial to the King or his People, nor repug-
" nant to the Laws or Statutes oi England." And that the Cuftoms
of London are confirmed by A<fl of Parliament, 7 R. 2.
They then certify, that there is within the City of London, a
Company of Butchers ; and that at a Common Council holden on
the 27th of June 20 G. 2. they (the Lord Mayor, Aldermen and
Common Council) made an Ordinance, " That whereas many Per-
" fons who exercife the 'Trade of Butchers, have obtained Freedoms
*' of oTHv.K Companies, by Redemption or otherwife; by Reafon
" whereof the Company of Butchers is much dimimjhed and fallen
" into Decay ; ¥ or Remedy the rf.of. It is Ordained That every
*' Perfon, not being already free of the City, occupying, ufing or
'* exerciling, or who fliall occupy, ufc or exercife the Art, Trade
" or Mifery of a Butcher within the fliid City or its Liberties, fhall
4 " take
Michaelmas Term 30 Geo. 2. 13
" take upon Himfelf the Freedom of the Company of Butchers;
" and that no Pcrfon now ufing, or who fliall hereafter ufe or exer-
" cife the Trade of a Butcher within the faid City or Liberties,
*' fhall be admitted into the Freedom of the Hiid City, by the
" Chamberlain thereof, of or in any other Company than the faid
" Company of Butchers : Provided always That every Perfon not
" being already free of the faid City, who are or Hiall be intitled to
" Freedom of any other Company by Patrimony or Service, y7W/
" be ADMITTED into THIS Company of Butchers, upon Payment
*' of like Fine and Fees as are ufually paid upon Admifilon of a
" Child or Apprentice."
And that it was then and there further enaded, " That if any
" Perfon or Perfons, (except fuch as are already free, Qfc.) fliall
''' ife the Trade of a Butcher, not being free of this Co!i:pany of
" Butchers, He, &c. fliall pay 5/." And Directions are given how
the Penalty of 5 /. fliall be levied, and alfo concerning Cofts.
They then further certify " That tlie Defendant was taken, on
" an Aftion brought againft him in the Mayor's Court of London^
" for the Penalty of this By-Law."
Upon this Return, Mr. IVilliams, on Behalf of the Plaintiff in
the Mayor's Court, had .moved for a Procedendo.
Mr. Serjeant Pool and Mr. Eliab Harvey, of Council for the De-
fendant, objeded to this By-Law, as being a bad one : And they
principally relied on the Jollowing ObjeEl'ton to it; viz. " That it
" was a By-Law in Restraint of Trade ; and therefore could
" not be good, without fetting forth a special aiid parti-
" cu L AR Cuftom to fupport it :" Which is not done by the prefent
Return. And they argued that this By-Law is by no Means fup-
ported by the Authority which is fet forth in the Return, as it's
Foundation ; viz, " A Cuflom to apply fit Remedy for the Com-
" mon Good of the Citizens^ where any ancient Cuflom, hard and
" defedive in any Thing 7iewh ari/ing, wants Amendment:" For
neither is here any fuch ancient Cuftom ft forth, and fpecified,
which wanted Amendment; nor any Hard fliip or Defedt ftatcd ;
Nor is there any Pretence to fay that this is " a Matter ne'wly ari~
"7^'',S";" '^o^ (^oes the Return fo much as even alledge, either that
there was anv fuch ancient Cuftom w^anting Amendment, or any
Hardfhip or Defed, or that the Subjed of this By-Law was a Mat-
ter newly arifen.
The Cafes adduced by Each of them in Proof of their Pofitions,
were as follow :
J£ That
14 Michaelmas Term 30 Geo. 2.
That it is a bad By-Law, and void, as being in Restraint
of Trade, appears by Wagamf% Cafe, 8 Co. 125. «. ^.
Therefore it is bad, without a Cufloin to fupport it. Ibid, in
Point.
Yet NO Cu/Iom is here returned, for Support of any Rcftraint of
Trade at all : And thcrcforg the Court cannot take Notice that there
is any fuch Cuftom. 2 Strange 1 187. Sir John Hartop v. Hoare &
ai'. The Cour/t could not judicially take Notice " that every Shop
*' in London is a Market Overt;" that Cuftom 7iot being found nor
flatcd. I Strange 187, Argyl v. J^z/a/ (there cited) is in Point, to
the fame Purport. ^ Mod. 108. Robinfon v. Grofcourt \s in Point
with the prefent Cafe. Carthew j^. Watfon v. CJerke. The Court
cannot, ex Officio, take Notice of the Cuftoms of London. Salk.
125. Hodges v. Stiivard, the fourth Refolution, is very ftrong to the
fame Purport. And Co. Lit. 175. b. proves the fame Pofition.
Now here, though the general CuOiom " to make By-Laws," is
fetout; yet, the particular Cuiioxn " to make y<!^t7j a By-Law as
*' this is, in Reftraint of Trade," is not fet out.
As to the Cafe oi IVannelv. Camerar' Civit' London, in i Strange
675. There the particular Cuftom ivas fet forth, as appears upon
fearching the Record of that Cafe : (Though it has been called, as
cited from Sir J. S. a Cafe in Point.) In Sir T. Ravm. 289. Player
V. Vere, The By-Law made for the better and more regular Order-
ino; of Cars and Carts, was holden to be jrood : But in i Ro. Abr,
364. />/. 5. {enter Payne v. Hawghton) a By-Law for reflraining the
Liberty of the Trade of a Carman, was holden bad.
Mr. JVilliajvs and Mr. Norton, on the other Side, argued for the
Procedendo, and confequently for the Validity of the By-Law.
This, they faid, is not a By-Law in Restraint of Trade :
'Tis only in Regulation of it. And the Court will take Notice
of the Cufiom of London', " That no Man can exercife a Trade in
"" London, without being y/vY of the City, and of fome Company
" of it." 2 Stoice, B.\. e.g.
A'Ve have returned a Cuftom, " That we have Power to alter
" and amend any ancient Cufiom, and to appoint fit Remedy for
" the Common Good of the Citizens, ivhere there is HardHiip or
" Defed in it."
1 Strange 675. is this very Cafe, in the Joiners Company : And
there is ?io Return there mentioned or hinted at, of any particular
3 Cufiom }
Michaelmas Term 30 Geo. 2. 15
Cuftom ; though it is indeed returned " That by the Cultom, no
" Perfon can be free of the City, without being free of One of the
'^' Companies."
In 5 Co. 62. Chnmherlain de Londres Cafe, The By-Law about
bringing Broad-Cloths to Blackwell-hall to be fearched, &c. was
held a good By-Law : And yet there is no particular Cuftom fet
forth, on which to found the By-Law,
Li 2 Rol. Abr. Tit. Bv-La%us, pa. 365. pi. 9. " That none fliall
" mabe, or ufe a Hot-Prefs in London." There is no particular
Cuftom, on which the By-Law is founded : Yet it was holden a
good By-Law.
8 Co. 126. a. Waganor"^ Cafe, and alfo Sir T". Raym. 288, Player
V. Vere^ prove that Cuftoms in Londo?i may partially reftrain Trade.
They admitted that a particular Cuftom impowering them to
make this particular By-Law, is not minutely kx. out : But at the
fame Time infifted that they had fet forth enough of a particular
Cuftom, to warrant this By-Law. For it is fet forth, " That if
*' any ancient Cuftom, hard or defeftive, &c. wants Amendment,
" the Mayor and Aldermen with the Confent of the Commonalty,
" have by Cuftom a Power of appointing /iV Remedy for the Com-
" mon Good of the Citizens: So as, &c." Which is a general
Power of making By-Laws by Cuftom : And this Power, confirmed
too by Adl of Parliament.
Now the prefent By-Law falls wit]iin the Provifion of this
general Power.
The Subftance of this By-Law is, " That no Butcher by Trade,
*' though free of the City, ftiall exercife this Trade in the City,
*' without being free of the Butchers Company." And it was both
a HardJJ.ip and DefeSl, that they might do Jo, previoiijly to this By-
Law.
Here is a Cuftom fhewn, " to reftrain all gram or grouping
" Evils, within the City :" Which is a Cuftom to reftrain Trade.
And there are Hundreds of By-Laws in London, founded upon this
general Power.
And TVaniiell"?, Cafe, is, in Subftance, in Point : It is a general
Return of an Authority to make By-Laws under their general
Power ; and the fame Sort of By-Law with the prefent one, is efta-
bliflied as a good One.
Lord
1 6 Michaelmas Term 30 Geo. 2.
Lord Mansfield : I fuppofe it is a Slip in the Return.
I don't take the Objedion to be " that it is necefTary that it
" miift be a particular Cuftom to make s. particular By-Law:" But,
" that there is m general Power here fliewn, under the Cuftom, to
" lay fuch a Refiraint upon Trade."
This By-Law is a Re/lraint of Trade ; and not a mere Regula-
tion of it : The Preamble don't frete7id it to be made to regulate
the Trade ; but merely for the Benefit of the Butchers Company. It
is founded upon the general Power of making By-Laws in the City
of London.
Now under a general Bower to make By-Laws, it is certain,
that a By-Law cannot be made " to restrain Trade."
And by the general Cuftom of London, every Freeman may ex-
ercife tf^_y Trade, without being free oi ii particular Company: V/hich
this By-Law requires Him to be.
The Cafe in i Strange 675. WannelH Cafe, is not a full State of
the Pleadings. But it appears that the Return ftatcd " that no
" Pcrfon could be a Freeman of the City, till he was a Member of
" one of the Fraternities ;" then ftated a Power to make By-
Laws ; (but how that Power was fet out, don't appear:) Then the
By-Law itfelf is there fct out ; which profeffes to be a Regulation of
Trade, and recites " that feveral Perfons not free of the Joiners
*' Company had exercifed the Trade of a Joiner in an unskilful and
" fraudulent Manner, which could not be redreffed whilll fuch
" Perfons were not under the Orders and Regulations of the Com-
" pany j" and therefore it enads th;-it no Perfon fliall ufe that Trade,
who is not free of the Company.
The By-Law for ordering and difpofing of Carts and Cars, in
Sir Tho. Raym. 2 8 S, 289, is a mere Regulation of Trade.
And as this Power to make By-Laws to reftrain Trade, is not
ft cut, in the prefent Cafe, We cannot prefume it, from any printed
Book, or any other way whatfoever. We cannot take judicial No-
tice of any particular Cuftom fupporting fuch a By-Law as this ;
when no fuch particular Cuftom is fet out : And it certainly is not
good under the general Power, which is fet out.
Mr. Juft. Denifon concurred, that the Court could not take ju-
dicial Notice of any fuch particular Cuftom to warrant this By-Law,
without it's being Jet out.
2 And
Michaelmas Term 30 Geo. 2. 17
And the Cuftom here fet out, of a Power " to mend any hard
" or defedive Cuftoms," is not fiifficient : For here is no hard or
defedlive Cuftom particularly fet out. And every Man, free of the
City, had a Right to fet up any Trade : Which original Right is
here taken away by this By-Law.
Indeed they may make By-Laws to regulate Trade ; but not to
refirain it, unlefs they have a particular Cuftom to fupport fuch By-
Laws. As to the Cafe of the ordering and difpofing of Carts, Cars,
Carters and Carmen, in Raym. 288. Player v.P'ere, That was a By-
Law for Regulation of Trade, and Prevention of Nufances in the
Streets and Lanes : But this is a By-Law to restrain Trade, not
warranted by any particular Cuflom. Therefore he held it bad.
Mr. Juft. Fojler concurred ; and fpoke to the fame Effect.
Mr. Juft. JVilmot exprefled Himfelf to the fame Purport.
By the Court unanimoufly The By-Law was holden a bad One :
And the Rule for lliewing Caufe " why a Procedendo fhould not
" go," was difcharged.
Rex verf. Kiliinghall.
MR. Serjeant Poole and Mr. Clayton fliewed Caufe againft a
Rule which had been moved for by Mr. Norton, " to quafh
" a Prefentment or Inquifition found by the Grand Jury of the
" County of Tork, at the General Seffions of Oyer and Terminer^
" for that County :" Which Mr. Norton objedted to, as being
cora?n non Judice ; For, he faid, the Grand Jury had no Autho-
rity to make fuch a Prefentment, or find fuch an Inquifition, wider
their general Charge from the Judge of Affize ; whatever might
be the Cafe if the Judge had particularly dired:ed and prefided
over an Inquifition of this kind, on the Negled of the Coroner.
The Fad found, was " That the Mare of John Kiliinghall,
*' Efq; was the Caufe of the Death of one William Stellitig j and
" was of the Value of 10 /."
It happened that the Coroner had not taken any Inquifition at
all, upon this Death : So that the Lord of the Manor finding Him-
felf likely to lofe his Deodand, had made this Application at the
Aflizes ; where the Grand Jury found this Inquifition or Prefent-
ment ; which was afterwards removed hither, by Cc?-tiorari.
Mr. Serjeant Poole and Mr. Clayton endeavoured to fupport it.
F This
1 8 Michaelmas Term 30 Geo. 2.
This Inquifition, they faid, before a Grand Jury is traverfable,
(which a Coroner's Inquifition is not ;) and therefore does No Body
any Injury. And as the Coroner had taken none, at all, upon the
prefent Occafion, this Method was necejfary to be taken, in order to
come at the Deodand.
1 H. H. P. C. 419. c. 32. Of Deodands, (hews mofl: exprcfly
that this may be done, before Commiflioners of Gaol Delivery,
Oyer and Terminer, or of the Peace, if omitted by the Coroner. So
does I H, P. C. 414. in treating of Inquilitions ; where Laiighton's
Cafe, H. ij Eliz. is cited; and it is faid to be " inquifible before
" the Juftices of Oyer and Terminer ; yea, or of the Peace ; and
" that it had oeen adjudged accordingly, M. 1656. in Gr^w^'sCafe.
3 Iu(l. 55, c. 8. Note b. in Margine, makes a Difference between
Inquifnions taken before the Coroners, and Inquifitions taken before
Juftices of the Peace, as to having a Traverfe.
2 Ro. Ahr. 96. fl. 3. proves that an Indidment may be taken be-
fore Juftices of Peace, and of Oyer and Terminer.
2 hev. 140. Rex v. Parker is in Point, " that the Coroner's
" Omiffion may be fupplied by Commiftion of Inquiry; or the
" Juftices of Peace, or of Affize may inquire of it, without Com-
" miftion."
2 H. H. P. C. 58. cap. 8. concerning the Coroner and his Court,
and his Authority in Pleas of the Crown, proves that Grand Juries
have this Jurifdidtion in Cafe the Coroner negleds it.
2 H. H. P. C. 59. y4d idem. It is there faid " that Juftices of
" Peace, or Oyer and Terminer, or of the King's Bench may in-
" quire, if the Coroner do not: But that that Prefentment is
" traverfable ; which the Prefentment of the Coroner of a Felo de
" fe, h7iot:'
Upon thefe Authorities, they faid, my Lord Fakonbridge (the
Lord of the Manor) was advifed to take this Method : But the
Judge of Affize (Mr, Juft. Birch) declined to meddle with it, or
to have the Inquifition taken before him particularly, or to give
any particular Dired;ion about it.
They added thefe Cafes alfo, i Ventr. 352. in the Note at Bottom.
Poph. 209. Ajion' : and S. C. (apparently,) in Noy 87. " It 7nay
" be done before Ju/lices of Peace." iVcntr. 181, I'ii. Stanlack's
Cafe. " If a Coroner omits to inquire, this Court may do it, as
" fupreme
Michaelmas Term 30 Geo. 2. 19
" fupreme Coroner of England-, or may make Commiflloners to
" inquire: Or Commiffioners of Oyer and Terminer may inquire.
" But then it is not fuper vifum Corporis j and therefore may be
" traverfed."
Mn Norton contra.
This is a Prefentment ex parte ; and a Prefentment of intitling,
in order to found an odious and fuperjlitious Claim ; and all tranfaSled
IN Secret.
The Cafes cited only prove, " That, in Default of the Coroner's
" having inquired, the Juftices of Oyer and Terminer, and of the
" Peace, may make the Inquiry ; and that it is traverfable."
They fay " That we could not have traverfed the Coroner'^ In-
*' quifition :" (Which, however, I deny :) But this we may tra-
verfe J and therefore can't be injured by it.
But will it be faid " that the putting a Man to a Traverfe, is jw
" Injury ?
^Inji. 196, 197, 198. enters largely into the Subjedl of Tra-
verfes j and condemns fecret Inquefts and Offices.
Now this is an Office of Intitling ; and therefore ought to be
publickly and openly found.
Lord Mansfield: By exprefs Statutes.
And I remember a Cafe of the late Duke of Buckingham' % Heirs -,
where, upon Application to the Court of Exchequer, Notice was
direded to be given : Though, in general. Notice is iiot necefliiry.
Therefore I think this Inquifition can't be fupported.
And Inquifitions before the Coroner are traverfable. [F. 2 H. H.
P. C. 416. where that Author declares his own Opinion accordingly.]
Mr. Juft. Denifon : I think it cannot be fupported.
Mr. Juft. Fojer : I am of the fame Opinion.
By the Court, Rule to quafh the Prefentment made abfolute-
Friday
20 Michaelmas Term 30 Geo. 2.
Friday 19th Novemh. 1756.
MEMORANDUM, On this Day, The Great Seal was
put into Commission ; being delivered by his Majefty (immedi-
ately upon the Earl of Hardwicke's Refignation of it,) to Sir
John Willes Lord Ch. J. of the Common Pleas, Sir Sidney
Stafford Smythe third Baron of the Exchequer, and Sir
John Eardley Wilmot youngeft Judge of this Court: Which
prevented Mr, Juftice Wilmot from fitting much in this Court,
during the Remainder of the prefent Term and the Whole of the
two fubfequent Terms.
Oppenhein qui tarn verf. Harrifon.
5a/;W«)i2oth ' I 'HE Proceedings v^'ere fet afide, for Irregularity, in the want
i M,.« er j^ ^j- ^^^ ylttornev's Name being duly fet to them : It appearing
that although they had the Name of a regular Attorney, in FaSf,
fet to them ; yet it was fo fet, without afiy Authority from Him.
And the Court alfo granted an Attachment againft one Habin,
who aded as Attorney for the Plaintiff, and had fo put Mr.
Grafiger's Name (an Attorney of this Court) 'without Authority or
Leave from Mr. Granger.
Cooper and Another, Aflignees of William Johns, a
Bankrupt, verf. Chitty and Blackifton Efquires, She-
riffs of London. Hil. 27 G. 2. Rot. 869.
7i/e/dny 23d '' I 'HIS Caufe was twice argued: It came firft before the Court,
No'vcmher J_ qu Mcuday 9th fiiue ^J SS '■> ^^^ '^g^'^j upou Tucfday the
'"^^' i6th Inftant. It was an Adion of Trover brought by the Affignees
of William Johns, a Bankrupt, against the Sheriffs o'i London,
who had taken and fold the Goods of fohns in Execution under a
Fieri facias which had iffued againft fohns, at the Suit of on^Wil-
liam Godfrey.
On the Trial, a fpecial Cafe was fettled :
Which Cafe ftates. That fohns was regularly declared a Bankrupt
on the 8th of Decemb. 1753. And as to the Reft, the following
Times and Fafts were ftated ; viz. That on the 5th of December
1753. one Godfrey obtained Judgment in the Common Pleas,
againft the faid Johns; and on the fame Day (5th December 1753)
2 Fxeciition
Michaelmas Term ^o Geo. 2. 21
Execution upon the faid Judgment was taken out againft Him by
Godfrey, and the Goods feized by the Sheriffs, under it ; That Johns
committed the Adt of Bankruptcy /i^th December 1753, and on the
8th of the fame December, a CommifTion of Bankruptcy was taken
out againft Him ; and on the very fame Day, the CommiHioners
of Bankruptcy ^ATcz^/f'^ an Assignment; and afterwards, viz. on
the 28/'/' of December, a Bill of Sale of the Goods was made, by
the Sheriffs, The Plaintiffs are the AfTignees under the Commif-
fion : The Defendants are the Sheriffs of London, who feized the
Goods under the Execution.
The Point was, Whether the Aflignees under the CommifTion
of Bankruptcy can maintain an Adion of Trover, againft the Shk-
RiFF (who executed this Proceis under a regular Judgment and
Execution ;) for feizing the Goods, under a Fieri facias ilfued and
executed after the Aft of Bankruptcy was committed ; and felling
them, after the Affignment was executed.
The Counfel, who argued for the Plaintiffs, made two Que- Argumenr 'br
ftions, viz. the Plaint.fFs.
ift. Whose Property the Goods were, TO/6d';/ ^/z^^ by the She-
riffs, by Virtue of this Fieri facias ;
zdly, Whofe Property they were, tvhen sold by the Sheriffs.
iftQueftion. ylfter \\\t AB of Bankruptcy, they ceafed to be
the Property of the Bankrupt Himfelf they laid ; wherefoever elic,
the Property might be between the A<5t of Bankruptcy and the Af-
Hgnment.
This Relation to the Aft of Bankruptcy is like that of Admini-
flrations to the Time of the Death : And they cited Kiggil v.
Player, I Saik. 1 1 1. as S. P. with the prefent Cafe, exaftly.
The utmoft that the Bankrupt Himfelf could be pretended to
have, was a fpecial Property, defeazible by the Affignment. It is
like the Cafe of a Diftrefs for Rent ; where the Seizor may fell the
Diftrels, after 5 Days ; but if the Money be paid within the 5
Days, he can't fell : So that in the Liter im, the Right is defeazablc.
Here, the Plaintiffs have declared as Affignees under the Com-
milfion of Bankruptcy : Therefore their Intereft vefs as from the
'Time of the Act of Bankruptcy.
If the Bankrupt Him/elf had delivered the Goods to a Stranger,
it had been the fame Thing : The Stranger would be anfwerable
to the Affignees.
G Sheriffs
22 Michaelmas Term 30 Geo. 2.
Sheriffs execute Procefs at their Peril : They are anfvverable civi-
litcr, for what they do upon it. 1 1 77. 4. 90. 14 H. 4. 25.
A Man may, without his own Fault, be pofTefled of a Horfe
which has been ftolen : But neverthelefs he is anfwerable, civilitt-r,
to the true Owner, for it.
The Sheriff had no Autliority to take any Goods in Execution,
hut the Goods of the Defendant : If he does take any ofber Good:-.,
he is a TrefpalTer.
In Writs of Execution, it is at their Peril, if they take ancthcr
Man's Goods. In Cartbcw 38 J. Hallett v. Byrt, 'Tis fo laid down
by Ch. J. Holt, expreily.
Now thefe were Goods of the Affignees. And they may main-
tain an Acflion, cither agsinft the Plaintiff \n the Caiife, or the She-
riff', OR the Vendee of the Goods : And t]:ie Sheriff is the propercjl
I'crfon, againft whom to bring the A(fi:ion.
The Gijl of an Adion of Trover is the Conversion : The Find-
ing is not the material Part.
And they cited feveral Nifi prius Cafes, of Adlions brought by
Affignees of Bankrupts : Fiz.
M. 1 1 G. I. Trover by Vanderhagen & al. Affignees of Daniel, a
Bankrupt, v. Rewife, a Serjeant at Mace of the City of London ;
S. P. with the prelent. Lord Ch. J. Pratt held the Adlion main-
tainable.
The S. P. was alfo before Lord Ch. Juft. Lee, in a Cafe of B!ox-
hohn, Affignee of Mills a Bankrupt, v. Oldham 0" al at the Sittings
after Tr. ij^o. at Guildhall: In Trover againft a Sheriff, and the
former Plaintiff, and the Vendee, (all of them together.)' It was
objedted " That the Sheriff ought to be acquitted :" But over-
ruled ; and Verdift againft all three.
The Seizure there Vi^as before the Commiffion, but after the Act
of Bankruptcy.
The fecond Qucftion is, " Whofe the Goods were, at the Time
" OF THE Sale." The Writ only commands the Sheriff, " to
" fell the Defendant's Goods:" And if he fells the Goods of
another YzxioYi^ it is a Conversion. "
2 It
Michaelmas Term 30 Geo. 2. 23
It is beyond Doubt, that the Affignment has Relation to the AB
of Bankruptcy: And the AlTignees ftand in the Bankrupt's Place,
from that time, i Ventr, 193. Monk v. Morris and Clayton proves
this.
Here then the Affigjiees had all the Property that the Bankrupt
had, at the Time of his AB of Bankruptcy. Confequently, the ab-
folute Dominion was in thetn : And the Sheriff" could not, after
luch Affignment, fell them, as the Defendant's. Indeed Sheriffs
feldom do, in Fa£l, fell the Goods, without Indemnity. But the
Sheriff has here committed an Error, in felling them at all : For
they were not the Defendant's. He might, it is true, have fum-
inoned a Jury to inquire " Whofe Goods they were." But {till, even
their Verdidl cannot afFedt the Right of the true Owner of the Goods.
The Point about Relation backwards, does not at all affcdl the
Queftion, as to the Sale. For the Affignment was prior to tlie
Sale, though not to the Seizure.
And they affirmed that the Sheriff not only might, but even
ought, in this Cafe, to have returned '' Nulla bona :" That would
have been the proper, and the true Return. And if it had been
difputed, he then might have brought the Money into Court. There
is a Cafe, oi Rex v. Brein Bailiff of the Savoy, i Keb. 901. where
the Goods were claimed under a Bill of Sale ; the Sheriff returned
" Nulla bona;" and the Money was Ordered to be brought into
Court by the Sheriff; and the Return to be made agreeable to the
Event of a Trial of the Validity of the pretended Bill of Sale, after
fuch Validity fliould be tried in an Adion.
In the prefent Cafe, the Defendants knew of the Affignmenr,
BEFORF they POLD the Goods; whatever they might do, when
they feifid them. And they, could not poffibly be obliged to fell
them : It is contrary to an exprefs Aft of Parliament, which vefts
the Property in the Afjignees. So 'that here the Sheriff has fold the
Goods, not of the Bankrupt, but of the Jl[jignees.
And fuppofmg that the Plaintiffs may bring an Acflion againft the
Plaintiff in the original Adion, or againft the Vendee of the
Goods ; yet they feem. Both of 'em, to have better Excufes than
the Sheriff has ; and are niore innocent. Therefore why fliould the
Affignees be turned round to them, when they can undoubtedly
maintain either Trefpafs or Trover againft the Sheriffs, who have
fold_ the Goods ; which is a Converfion, and will fupport an Adlion
of Trover ? That the Plaintiffs have this Eleftion, to bring either
Trefpafs
24 Michaelmas Term 30 Geo 2.
Trefpafs or Trover, appears from Cro. Eliz. 824. Bijhop v. Lady
Montagiie, and Cro. Jac. 50. S. C.
Therefore they concluded that the Adllon was well brought.
^/S"^f ' ^°' The Counfel who argued for the Defendants, the Sheriffs, agreed
the Oeien- ^ ' * o
dints. that the Matter would turn upon the Solution of the two Queftions
made by the other Side.
As to the firrt: Queftion, They faid it would be very hard, if this
A(flion fhould lie against the Sheriffs ; and they be put to con-
trovert the A(5l of Bankruptcy, which is a Matter not at all within
tiieir Knowledge.
They argued that the Sheriffs fliall not be confidercd as Wrong-
Doers : And to prove it, cited i Lev. 95. Turner v. Felgate. Rayjn.
73. S. C, 2 Siderf. 126. S. C. and i Keble 822. S.C. i Lev. 173.
Bavly V. Biiiwvig. 1 Siderf. 271. S.C. 2 Keble 32, 33. S.C.
and 2 Side?/. 126. and R^yin. 73. Turner v. Felgate.
The only Adls of the Sheriffs that can be coniidered as a Convert
fiot:, are the Ads of Seizure and Sale.
Now They were compellable by the Writ oi Fieri facias to feize
the Goods and levy the Debt.
For TILL the Commifion and Afignnient, the. Property was in the
Bankrupt : And it did ttot appear that a CommilTion ever would
be taken out.
1 Salk. 108, Cary v, Crifp, is exprefs in Point, " that the Pro-
" perty is in the Bankrupt, //// Affignment." It was there refolved
" that the Property of the Goods is not transferred out of the Bank-
" rupt //// Affignment. 2 Str. 981. BraJJ'ey & al' v. Daiifon & al'
accord'.
I Lev. 173. Baily v. Bunning. Judgment was for the Officer;
He being obliged to execute the V/ritj and could not know of the
Adt of Bankruptcy, or that any Commiinon would ever be fued :
And the Sheriff was holden not to be liable, although he had No-
tice of the Affignment.
1 Siderf 272. S. C. The Taking was holden lawful.
Comberb. 123. Lechmere v. Thoroivgcod. The Officer fhall not be
made a Trefpaffer, by Relation. 3 Mod. 236. S. C. i Shower
12. S. C.
The
Michaelmas Term 50 Geo. 2. 25
The ComtniJJio72 of Bankruptcy makes no Alteration, till AJjlgn-
ment : And after AffigJitnent there fliall be a Relatio?i, fo £'.r as to
avoid all mefne Afts of the Bankrupt, and even to over-reach this
JuJgfnent-Crcdkor. Thus far, they admitted.
But they infifted that the Adion ought not to have been brought
againft the Sheriff,
The Sheriff is to feize, fell, and return his Writ. In Proof of
this, they cited 2 Ld.Raym. 1072, 1074. Clerk v. Withers, i Salk.
'^22, 323. S. C. (3d Point,) 6 Mod. 293, 299. S.C. i Siderf. 29.
Harrifonv. Bowden. Cro.Eliz.^'i,^,. Mountncy v. Andrews, i Ro.
Abr, Execution 893. Letter B. pi. 2. Dy-cr 98. b. and 99. a. § SJ.
and the two Cafes there cited in the Margin. And Cro. Eliz. 597.
Charter v. Peeter. From all which Cafes, it appears that the
Sheriff is not liable to be molefted.
1 Salk. 321. Kifigfdale v. Mann proves that the Seizure is the
EJfential Part of the Execution : And an Execution is nn entire
Thing ; and cannot be ftopped, after it is once begun. 2 Show. 79.
Cockram v. Welhye.
And after the Sheriff had feized thefe Goods, the original Plain-
tiff, {William Godfrey) could oblige the Sheriff to return his Writ:
And yet, upon the Principles advanced, the Sheriff muff be put
under the greateft Hardfhips : And he had no Method to make
the Affignees of the Bankruptcy to give him any Jfjijlance towards
proving the Adl of Bankruptcy.
Indeed the Execution is good, though the Writ be never returned.
5 Rep. 90. a. Hoe's Cafe; (iff Refolution.)
The only Return the Sheriff could make muff be, " That he
" had levied the Money :" (which could only be by Sale.) There-
fore he was obliged to fell. Confequently the Law will not make
him a Wrong-doer, by felling.
The following Cafes, they feid, were in Point for them ; viz.
1 Lev. 173. Baily v. Bmining. 2 Keble 32, 33. S.C. 1 Siderf.
271. S.C. 3 Lev. 191. Philips v.Thompfon. i Shew. 12. Lech-
more C? ar V. Tborowgood & al'. Comb. 123. S.C. 3 Mod. 236.
S. C. and Cole v. Davies & al', i Ld. Ray?n. 724. per Holt in Point,
as againft the Sheriff, mofl exprefly.
And the prefent Plaintiffs may have an adequate and complete Re-
medy, againft the Plaintifi in the original Adioh,
H As
2,6 Michaelmas Term ^o Geo. 2.
As to the Cafes cited, The Gentlemen who have argued on the
other Side, put it upon the Queftion, " Who had the Property of
" the Goods,"
Now the Property was in the Bankrupt, at the Time of the
Execution : It was not i?i Abeyance ; as it is in the Cafe of an Ad-
miniftration. (Which is an Anfwer to the Cafe of Kiggil v. Player.)
The Sheriff" is not in the Cafe of a Stra?2ger. For he was
OBLIGED to execute and return the Writ.
Indeed the Sheriff is to execute the Writ at his Peril ; and
Carthew 38 i. is fo : The Reafon is, becaufe the Sheriff" may impanel
a Jury, to inquire " whofe the Goods are." But here, there were
jio Means for the Sheriff to indemnify himfelf : The Goods were
undoubtedly then the Goods of William 'Johns ; even though he
had then committed an Ad of Bankruptcy.
. The -Affjgnees have not a Right to recover the specific Goods j
but only Damages.
Trefpafs will lie againft the Plaititiff in the original Adlion, even
before he receives the Money : though 'Trover indeed would not,
till AFTER.
It is not certain that an Adlion will lie againft the Vendee of the
Sheriff".
As to Vanderhagoi's Cafe, it is not fufficiently clear, how it was j
or why it was determined.
But as to the Cafe of Bloxham v. Oldham, Mr. Henley did not *
.infift on the Objedion, " That the Adion would not lie againjl
" the Sheriff;" becaufe it would not help h\5 Client: For in that
Cafe, the Sheriff, and the Plaintiff in the Original Adion, were
Both of them Defendants. And the Cafe of i Lee. 173. was not
irxieed by Lord Ch. J. Lee, thought appofite to that Cafe: But 'it
was not over-ruled by Him. And the Goods were certainly the
Goods of the Bankrupt, //// Affignment.
* A^. B. Mr. HtiJne, who was Counfel for the Defendant in that
Cafe of Bloxham v. Oldham, agreed, " That the Objedion
" againft the Sheriff's being a Defendant," was not infijlcd
upon ; becaufe the Plaintiff in the Original Adion (who was
alfo a Co-Defendant with the Sheriff there) had indevmified
2 the
Michaelmas Term 30 Geo. 2. 27
the Sheriff : So that it was, really, a Point quite immaterial to
the Plaintiff J (who was at All Events liable to the Adtion.)
They added, that this was a Point of great Confequence to all
Sheriffs and Officers : On the other Hand, Creditors cannot be in-
jured, though Sheriffs fhould be excufable, and the Original Plaintiff
only fhould be liable to the Adlion.
As to what has been faid of Security taken by the Sheriff. The
Court can take no Notice of a Sheriff's taking Security ; nor can
they fuppofe Him conafant of a private unknown Ad: of Bank-
ruptcy : And it would be very hard if an innocent Officer fliould be
hurt by RelrcfpeStion and Relation,
They agreed that this Execution may be avoided, as againfl the
Original Plaintiff': % Strange 981. BraJTey & al. v. Da-wjbn '& al.
is a Proof " that it may." But they denied it, as to rendering the
Officer liable to an Adtion : For He is excufable ; as appears from
the Cafes before cited.
As to the fecond Queftion. The Foundation of this Aftion of
Trover, is Property in the Plaintiff', at the Time of the Seifure^
and a Tortious and Illegal AB of Converjion : For without doth thefe
Circumftances, this Adion will not lie.
Now the Property is in the Bankrupt, ttil Affignmenf :
And the fubfcquept Sale cannot make the Sheriff a Wrong-doer, by
^ fiUitioui Relation. Raym. 16 1. Bilton v. Johnfon & al\ " The
"'Relation of a Tefte fliall not juftify a Tort."
It is faid that " this Relation is given by AB of Parliaments
But there are no Words in the Ad of Parliament that can make the
Sheriff a IVrong-doer.
If the Seifia-e was lawful, the Sale was fo too. 2 Ld Raym.
J0.74, 1076. Clerk v. Withers. Cro. Jac. 515. Sh v. Fijtch. Cro.
Eli z. 4.4.0. Boucher v.JVifeman. March 13. Parkinjon v. Colli ford
& al' Executors of a Sheriff. Cro. Car. 539. S.C. i fones 430.
S. C. Hob. 206. Speake v. Richards. Cro. Eliz. 237. Mounteney v.
Andrews. The Law confiders the u'hole Execution, as one entire
Ad : The intermediate Days are only allowed for the Sake of the
Sheriff. Confequently, He may execute the Whole at once: He
may feife, and fell diredly. The Execution is an entire Thing ;
and can Jiot be /lopped. Cro. Eliz. 597. Charter v. Peeler. 6 Mod.
293. Clerk V. Withers. Therefore the OJicer fliall be protected.
Suppofe
28 Michaelmas Term 30 Geo. 2.
Suppofe an ASiion fliould be brought egainfl the Sheriff for the
Money. He might avail Himfelf perhaps by fpecial Pleading ; pro-
'oided He was able to make out the Fads he fhould fpecially plead :
But hoip could He be able to prove the A6t of Bankruptcy, Trading,
or AfTignment ; to all which, He is an entire Stranger ? Therefore
it would be hard to AifFer fuch an Adlion to be maintained againft
Htm, But all thefe Matters are in the Privity of the Original Plain-
tiff: Againft ivhom, therefore, the Ad:ion ought to be brought.
It is faid, " the Sheriff ads at bis Peril."
But it is admitted tliat the Method of impanelling a Jury would
be no ProteSllon to Him.
^=P'>'- The Counfel for the Plaintiffs replied, That it is dated " That
" the Alignment by the Commiffioners of Bankruptcy was previous
"' to the Bill of Sale by the Sheriffs."
The Sheriff's being always a rejponfible Perfon, and therefore
moft likely to be made Defendant, is the very Reafon why He
ought to be liable to the Party who has received the Injury.
The Finding, or even the Taking Poffel/ton of Goods found, is )io
Wrong: But 'tis the Conversion that makes the Perfon a Tort-
feafor.
They admitted that the Sheriff is not anfwerable for the Irregu-
larity of a Judgment : (For He is bound to execute the Command
of the Writ.) But if He take the Goods o/^ another Person, in-
Jlead of the Goods of the Defendant, He is anfwerable for that.
It has been faid indeed, that " they were at that Time the
" Goods of the Bankrupt Himfelf."
But be the Taking lawful, or not lawful, yet here is an a^iial
CoNVFRbUJN, an aSlual Disposition of the Goods: Which
makes him a Trefpaffer ab initio.
It has likewife been faid, that " the Court will protedl the She-
" riff." But the Relation goes back, quite up to the Act of Bank-
ruptcy.
They denied that the Execution is fo eiitire that the Sheriff can
not fop in it, af'er Seifure and before Sale of the Goods. Suppofe
the Six riff had conx-ffedly feifed another Perfon'% Goods, (hould He
be obliged to fell them f DakoJi's Office of Sheriff fays " The She-
" riff
Michaelmas Term 30 Geo. 2. 29
" rilF may impanel a Jury ; and after that, fliall not be anfwer-
" able." Now here He might either have impanelled a Jury ; or
have kept the Money in his Hands, or brought it into Court, till
the Property of the Goods had been determined.
They admitted the general Principle of the Cafes cited on the
Head of Executions ; but denied the Application of them to the
prefent Cafe. They alfo denied the Principle, " That a Sheriff
" fhall never be a Tort-feafor by Relation." For He fliall in fome
Cafes be fo ; as where He takes the Goods with a bad Original In-
tention.
As to Baily v. Butming, They endeavoured to diilinguifli it. In
order to which, they remarked, that there is no Finding of an
Actual Ccwuerfion, or of what could be called fo by the Court :
It is on\y a Demand and Refufal ; which is only Evidence to a
Jury. And the Opinion of the Court there went upon the Taking;
which they held to be legal : Whereas here is an Actual Conver-
fion ftated. An Adlion would lie, One would think, againft the
Vendee of the Sheriff, in Point of Reafon : And the PraStice does
ftrongly lupport it ; for Nine in Ten of thefe Actions are brought
againfl the Vendees of the Sheriff.
In the Cafe of Bloxham v. Oldham, there was a very material
Dijf'erence, " Whether the Sheriff Hiould have a Verdidt /cr Him,
" or a Verdidt again/l him:" For in the one Cafe, He would re-
ceive Cofts ; in the other, He mult pay them.
The Plaintiffs had no Right to call upon the Sheriffs, till the
Re lURN of the Writ: And they might then have returned
" NuUa bona." Therefore this is 7iot fuch a hard Cafe upon the
Sheriffs, as is fuggefted. And this is not the only Cafe where the
Sheriff is to ad: at his Peril: For in taking of Bail, ^c. He muft
do fo, as well as here.
If the Sheriff liad returned " NuUa bona," the Onus probandi
would have lain upon the Original Plain :iff".
In the Cafe of Turner v. Felgate, the Sheriff was certainly ex-
cufable, by Virtue of his Writ.
In the Cafe of Cole v. Davies & al' in i Ld. Raym. 724. The
Goods were fold before the Commiffion and AfUgnment, For the
Cafe is there put, of a Commiffion and Affignment, both of them
SUBSEQUENT to the Sale of the Goods. The Words are, " If He
" feizes At^D fells," and then a Commifllon is granted, and the
" Goods affigned, the Affignee may maintain Trover againff the
I " Vendee :
30 Michaelmas Term 30 Geo 2.
" Vendee : But No Action will lie againft the Sheriff, becaufe
*' he obeyed the Writ." But our Reafoning in the prefent Cafe is
founded upon the Sale's being an unlaitful Act.
In the Cafe of Brajfey & al' v. Dawfoji & al' there was no Af-
iignment, previous to the Seizure.
They did not deny that the Bankrupt had in the prefent Cafe, a
Sort of Property, a defcazable Property^ in Him at the Time of
taking the Goods. But in the Cafe of Clerk v. Withers (reported
in 6 Mod. 290. and in i Salk. 323. and in 2 Ld. Raym. 1072.) the
Defendant in the Adion had the whole indefeazable Property m
Him J and the Sheriff ought to have gone on : But that Cafe is not
applicable to the prefent Cafe; where the Property was onlv de-
J'eazable.
As to the Cafes cited from Hob. 206. and March 13. They agreed
to them.
The 'Titne allowed to the Sheriff makes no Difference, (they
faid ;) becaufe He has done Wrong.
And however entire a Thing an Execution, in general, may be ;
yet here it was irregularly executed.
The Truth of the Return of " Nulla bona^' in this Cafe, de-
pends upon the prefent Queftion.
It is very frequent for Sheriffs to be intangled in Difficulties about
their Returns. Here, he might have taken a Writ de Proprietate
probaiidd.
Bailey v. Bunnitig turned upon the 'Taking.
Lechmere & al' v. Thoroitgood only proves " That the Goods
*' were in Cuftodia Lrgis." And fo they were : But to the Pur-
pofes of the Law ; which, in the prefent Cafe, is for the Benefit of
the Creditors of the Bankrupt.
Curia advisare vult.
And now (Tuefday 23d Novem. 1756.) Lord Mansfield, deliver-
ed the Opinion of the Court ; and faid They were All agreed, as
well his two Brethren then prefent in Court, as his Brother Wilmot j
(who was at prefent engaged in another Place,) in their Opinion.
There are few Fads ejfential to this Cafe ; and it lies in a nar-
row Compafs.
Pie
Michaelmas Term 30 Geo. 2. 31
He then ftated the Cafe, (which fee in p. 20. ante :) And was
very particular in fpecifying the Dates of the feveral Tranfadlions.
The Genei-al Queflion is, " Whether or no the Adlion is main-
tainable by the Affignees, againft the Defendants, the Sherifs, who
have taken and sold the Goods-
it is an Adion of Trover.
The bare Defining the Nature of this kind of Adion, and the
Grounds upon which a Plaintiff is intitled to recover in it, will go a
great Way towards the Underftanding, and confequently towards
the Solution of the Queftion in this particular Cafe.
In Form, It is a Fidion : In Subflance, a Remedy to recover the
Value of Perfonal Chattels wrongfully converted by another to his
own Ufe.
The Form fuppofes the Defendant may have come lawfully by
the PofTeffion of the Goods.
This Adion lies, and has been brought in many Cafes where, in
Truth, the Defendant has got the Poffeflion lawfully.
Where the Defendant takes them wrongfully, and by Trefpafs,
The Plaintiff, if He thinks fit to bring this Adion, waves the
Trefpafs, and admits the Poffeffion to have been laitfully gotten.
Hence, if the Defendant delivers the Thing upon Demand, No
Damages can be recovered in this Adion, for having taken it.
This is an Action of Tort : And the whole Tort confifts in the
'wrongful Co7iverfon.
Two Things are neceffary to be proved, to intitle the Plaintiff to
recover in this kind of Action : ift, Property in the Plaintiff; and
adly, A wrongful Cowoerfon, by the Defendant.
As to the firft, It is admitted in the prefent Cafe, that the Pro-
perty was in the Plaintiffs, as on and from the j\th of Dccetnber,
(which was before the Seizure,) by Relation.
This Relation the Statutes concerning. Bankrupts introduced, to
avoid Frauds. They veft in the Affignees, All the Property that
the Bankrupt had, at the Time of what I may call the Crime com-
mitted, (for the old Statutes confider him as a Criminal:) They
make
32 Michaelmas Term 30 Geo. 2.
make the Sale by the Commiffioners good againfl All Perfons who
claim by, from, or under the Bankrupt, after the Act of Bank-
ruptcy ; and againft all Executions not Served and Executed before
thi. Act of Bankruptcy.
Difpofitions by Procefs of Law are put upon the fame Foot with
Dilpofitions by the Party : To be valid, they muft be completed be-
fore the Act of Bankruptcy.
Till the making of 19 G, 2. c. 32. If the Bankrupt had bond
fide bought Goods, or negotiated a Bill of Exchange ; and there-
upon, or otherwife in the Courfe of Trade, paid Money to a fiiir
Creditor, after He himfelf had committed a fecrct Adl of Bank-
ruptcy, Such bond fide Creditor was liable to refund the Money to
the Affignees, after a CommilTion and Alignment : And the Pay-
ment, though really and bond fide made to tiie Creditor, was avoided
and defeated by the fecret Adl of Bankruptcy.
This is remedied by that Adt, in Cafe No Notice was had by the
Creditor, (prior to his receiving the Debt,) " That his Debtor was
" become a Bankrupt, or was in infolvent Circumftances."
Therefore as to the ^/Z Point, It is mofl: clear, that the Pro-
perty was in the Plaintiffs, as on and froju the \th oi December,
when the Adl of Bankruptcy was committed.
adly. The only Queftion then is, " Whether the Defendants are
guilty of a wrongful Conveksion."
That the Converfion itfelf was wrongful, is manifeft.
The Sheriffs had no Authority to sell the Goods of the Plain-
tiffs ; but of WtlUam Johns, only : They ought to have delivered
tiiefe Goods to the Plaintiffs tlie Affignees. Upon the Foundation
of the legal Right, the Chancellor, even in a fummary Way, would
have ordered them to be delivered to the Affignees.
It is admitted on the Part of the Defendants, That the innocent
Vendee of the Goods fo feized can have no Title under the Sale, but
is liable to an Adfion ; and that Godfrey the Plaintiff would have
no Title to the Money arifing from fuch Sale, but if He received it,
would be liable to an Adlion to Refund.
If the Thing be clearly wrong, the only Qucflion that remains
• is " Whether the Defendants are excifablc, though the Act of
" Converfion be WrongfuU."
Though
Michaelmas Term 30 Geo. 2. 33
Though the Statutes concerning Bankrupts refcind all Contradls
and Executions not completed before the A6: of Bankruptcy, and
veft the Property In the Affignees by Relation, in order to an equal
Divifion of his Eftate among his Creditors, yet they do nof make
Men Trefpajfers or Crimmal by Relatio?t, who have innocently re-
ceived Goods from Him, or executed legal ProcefS; not knowing
of an Adl of Bankruptcy : That was not necefTary, and would liave
been unjuft.
The Injury complained of by this Adion, for which Damages
arc to be recovered, is Jiot the Seizure, but the wrongful Converfion.
The JjJ^gnmcnt was made upon tlie %th of December ^ the Sale.
not till the z^th oi December ; the Return, not till the Ocflave of
Saint Hilary, (which is the 20th of Jariuary.)
The Sheriff ads at his Peril ; and is anfwerable for any Miflake :
Infinite Inconveniences would arife, if it were not fo.
At the Time of the Sale and Return, it was more notorious
" that thefe Goods belonged to the Plaintiffs," than it could pro-
bably have been in the Cafe of any third Perfon ; becaufe Commif-
fions of Bankruptcy and the Proceedings under them are public in
the Neighbourhood, and indeed all over the Kingdom.
This Converfion is 20 Days after the Affignment.
The Defendants have here made a direct falfe Return : They
have returned " That they took the Defendant's Goods, &c.'"
whereas they were, (at the Time of the Return,) notorioufly the
Goods of the Assignees, when they were taken. They certainly
might, and ought to have returned, " Nulla 'bona ;" which was the
Truth : For the Goods taken, were, beyond all Manner of Doubt,
the Goods of the Jjignees, at the Time when the Sheriffs took them ;
and the Bankrupt could have no Goods, after the /[th of December,
when he had committed an Act of Bankruptcy. They would
have been jufiified by the Truth of the Fact, if they had made
this Return : For the Bankrupt neither had nor could have any
Goods of his oivn, at that Time. It is arguing in a Circle, to fay
" That they could not return Nulla bona, becaufe they were obliged
" to fell ; and they were obliged to fell, becaufe they could not
" return Nulla bona."
The Seizure is, here, out of the Cafe : For the Point of this Ac-
tion turns upon the i?ijurious Conversion.
Therefore
34 Michaelmas Term 30 Geo. 2.
Therefore We are All of Opinion that the Plaintiff is intitled to
recover, in this Action.
But Objections have been made, by the Gentlemen who have
argued this Cafe on Behalf of the Defendants.
Objedlions. It has been faid " That the Execution is entire ; for
the Debt is difcharged by a Seizure in Fi. Ja. That being entire, if
once lawfully begun it muft be completed ; for Goods taken by ai^z.
ja. lluill be fold by the Reprefentative of the Sheriff."
" That they (liall be fold, though the Plaintiff dies; and the
Money arifing by the Sale fliall not be recovered back by the De-
fendant: Which is the Cafe oi Clerk v. Withers, i aSVZ^. 323.
2 Ld. Raym. 1072. S. C. and 6 Mod. 290. S. C."
" That a Writ of Error is no Supcrfedcas."
" That the Sale by the Sheriff fliall not be avoided againf]: the
Vendee, by a fubfequent Writ of Error and Reverfal : Which is
the third Point in Mattherj Mcmning's Cafe in 8 Co. 96."
Anfwer. All this is true, (and upon the plained Reafon,) as
between the Plaintiff and Defendant, Parties to the Judgment in
Confequencc of which the Execution iffues j but no way applicable
to the Cafe of a third Perfon.
None of thefe Cafes authorize the Sheri^ to fell the Goods of a
THIRD Perfjn : And it is admitted that the Fe/idce is not prote(fied,
here ; becaufe at the Time of the Sale the Sheriff had no Authority
to fell.
[He then went minutely through the Cafes; flievving the Grounds
upon which the Determinations proceeded, as againft the Parties to
the Judgment, who are bound by it and every Thing done in Con-
fequence of it.]
But the Argument from thefe Principles to the prefent Cafe, Is
this : " Here the "Takitig was Lmful ; and therefore the Sheriff was
" bound to complete the Execution, by a Sale." Anfwer. The
Premiffcs are not true 3 and if they were, the Conclufion would not
follow.
The Taking was net lawful ; becaufe they were then the Gooes
of a third Perfon,
2
But
Michaelmas Term 30 Geo. 2, 35
But if the Taking were lawful, the Sheriff ought not to go on to
a Sale, after a full Difcovery that the Goods then belonged to a
third Perlon.
■ To prove the Taking lawful, and that therefore the Sheriffs fhall
not be liable to an Atftion, were cited the Cafes of Bailey v. Bun-
ning, reported in i Leo7i. 173, 174. i Siderf. 272. and 2 Keble
32, 33. [V. Ante 24, 25.] Lechmere v. Thorowgood, in Co?7ib.
123. I Siiower 12. and 3 Mod. 236. [V. Ante 24, 25.] and Cole
V. Davies & al\ i Ld. Raym. 724. \_F. Ante 25. j
The Fallacy of the Argument from the Autlrority of thefe Cafes^
turns upon ufing the Word " lawful,'' Equivocally in two Senfes.
To fiipport the A61, It is not lawful ; but to exciife the Millake
of the Sheriff through unavoidable Ignorance, It is lawful. Or,
in other Words, The Relation introduced by the Statutes, binds
the Property ; but Men who adl innocently at the Time, are not
made Criminals by Relation ; and therefore they are excufable from
being puniOiable by Action or Indictment, as Trefpaffers : What
they did, was Innocent, and in tbat Senfe, lawful ; but as a
Ground to fupport a wrongful Converlion, by Sale after a Com-
miffion publickly taken out and an actual Affignment made, It was
not lawful.
In the Cafe of Bailey v. Bunriing, the Goods were clearly bound
b\' the Te/le. It is beft reported in Levinz. The Qjeftion referred
by the Special Verdidl was upon the Taking ; viz. " Whether
" the Party was guilty in the Taking :" and the Court excufe the
Bailiff for his innocent executing his Writ. The Cafe oi Philips v.
'Thompfon, in 3 Levinz. 192. exprefly fays " that this Refolution in
" the Cafe of Baily and Bunning was only in Excufe of the Bailiff
" for executing; the Writ."
'to
Siderfin does not fcem to know what the Court was going upon :
For the Court tied it up to the Taki?ig ; whereas he does not feem
to diftinguilh between the Trover and the Trefpajs. [F. i Siderf^
272.]
The Cafe of Lechmere v, Thcroicgood Is bcfl reported in i Show.
J 2. And this Report (which is the only clear State of it in anv of
the Reports) puts it fnglv upon the making the Officers, who had
good Authority and took the Goods lattfully, Trejpajcrs by Rela-
iJON.
Comber"
36 Michaelnias Term 30 Geo 2.
Comberhach, in g'foing the Judgment of the Court, which is
the only feiifiblc Part of his whole Report, (for it is plain to me,
that he did not underftand theyirw^r Argument on the, foniicr'D^y,
which is the firft Part of his Report of the Cafe,) agrees with
Shcivcr ; and fays that " the Court were of Opinion that a Con-
" rtrudion (hould not be made, to make tlie Officer a Tt-cfpafcr by
" Relation : For the Taking was lawful,, at the Ti?ne." But Me
rnuli: be miftaken in the firft Part of this Report : For Lord Ch.
Juft. Holt could never fay " That the Property of the Goods is
" vefted by the Delivery of the Fieri facias ; and the Extent for
" the King afterwards comes too late." No Inception of an Exe-
cution can bar the Crown : This Matter was lately very fully dil-
cufTed in the Court of Exchequer in the Cafe of the Kijig and Cotton.
As to the Cafe of Cole v. Davies & al\ reported in i LJ. Raym.
724. " That no Adion will lie againft the Sheriff, who, after the
" Bankruptcy, fcifes and Jells the Goods, under a Fieri facias to him
" dircdcd ;" (which is there faid to be ruled by Lord Ch. Juft.
Holt at Nifi prius, in Hil. lo JVil. 3.) Tliefe Notes were taken in
jol'F.2- when Lord Raymond was young, as fliort Hints for his
own life ; But they are too iicorred: and inaccurate, to be relied on
as Authorities. The Note ftates four general Refolutions upon
Evidence, in a Trial at Nifi prius ; but does not ftate the Cafe or
Queilion to which the Refolutions were applied : (Though, by the
Particularity of the fourth Refolution, I conjedure that to have been
moft immediately adapted to the Cafe then in Judgment.) The
firft Refolution is an Obiter Reference to the Determination in Baily
and Btinning ; and it might not be at all material, to attend to the
Diftinftion between Trover and Trefpafs. Befides, the Cafe there
put is of a Sale by the Sheriff, biffre the Comnnffion ; and the Con-
verfion might be as excufable as the Taking, becanfe he obeyed the
Writ : VVhcreas here, the Goods were not fold, till after both
Commiffion and Afilgnment. It is a loofe Note of what was faid
Obiter : It manifeftly refers to tlie Cafe of Baily and Bunning ; but
is no Authority applicable to the prefent Cafe.
There are in the Courfe of Trade, numberlefs Adls of Bank-
ruptcy in Fa& committed, where no Commiffion is ever taken out.
Therefore it would be very hard, to make the Sheriff a Trespasser
for TAKING the Goods of a Perfon who might privately and
ftcretly liave committed an Ad of Bankruptcy, and perhaps many
l"ears before too, and on which no Commifiion might ever after-
wards iffue, and which the Sheriff could not poffibly know. But
None of thefe Reafons hold, to juftify the making s. faife Return,
and Selling the Goods after a CommifUon and an AiTignment.
Argu-
Michaelmas Term 30 Geo. 2. ^fl
Arguments have been urged from Inconvenience, if the Sheriff
fliould be made liable ; becaufe He is obliged to fell.
But the Sheriff" may take an Indemnity from the Plaintiff, in
Cafe there be a Doubt concerning the Property of the Goods.
Poffibly, this Court might interfere, if the Sheriff" was reafonably
doubtful about the Property : At leaft, they would have given him
T'itne to make his Return, Or he might have put it on the
Parties concerned in Intereft, to litigate their Right, by filing a
Bill in Chancery againfl: them, to oblige them to interplead, in
order to afcertain to isbom the Property belonged. Or He might oblige
the Affignees to prove the Adt of Bankruptcy, and the AfTignment.
And notwithftanding what has been urged as to the Hardfhips
that Sheriff's will be under, there can hardly a Cafe exift, where
there will be any Hardfhip upon the Sheriff^, where the Taking and
Sale, or even the Sole otily, are subsequent to the Ajjigmnent. But
in the prefent Cafe the Sheriff's knew of the Bankruptcy, before they
Jold the Goods.
There are much greater Hardfhips upon other third Perfons con-
cerned in pecuniary Tranfaftions with Bankrupts : Which Hard-
fhips they are neverthelefs left fubjedt to ; becaufe it was necefl'ary
that they (liould be fo, in order to fecure the End and Intention of
the Afts relating to Bankrupts ; namely, the Securing their Eff"edls
for the equal Satisfadion of their Creditors.
The Commifiion and Aflignment are, both, notorious Tranfac-
tions ; fo that a Sheriff cannot well be hurt, by being left liable to
this Adlion : Whereas there would be Danger, if it were other-
wife, of great CoUufion being pradlifed by Sheriffs, on thefe Oc-
cafions ; which might be encouraged by a contrary Refolution.
The Seizure here is after the Afl of Bankruptcy committed, and
and therefore after the Property by Relation is vefted in the Affign-
ees : But that was innocent, and excufahle ; and the Sheriff fhall
not be liable by Relation^ as a WKo^G-Doer. The Gift of this Ac-
tion is the nvrongful Conversion, by the Sale; ji.x\d falfe Return^
long after the Commilhon and Afjignment.
Therefore per Ciir. unanimoufly, The Aftion is maintainable, in
this Cafe, againfl the Defendants ; and there mufl be Judgment for
the Plaintiffs.
judgment for the Plaintiffs.
L Robinfon
38 Michaelmas Term 30 Geo. 2.
Robinfon verf. Robinfon.
Was a Cafe out of Chancery, on a Will.
ON the 27th of 'July 1723. George Robwfon of Bocbyjii in the
County of Cornwall Efq; duly made his Will : And, after
giving his Wife one Guinea, and his Father-in-Law a Groat, He
devifed as follows — " I bequeath all my real E/late (excepting
" my Eftate in tlie Paridi of Endellyon, late Mr. Ncwiiian'%, and
" all my Prefentations in the faid County,) to Lancelot Hicks of
" Plymouth in the County of Devon Gentleman, for and during the
" Term of his natural Life, and no longer: Provided that
" He alter his Name, and take that of Robinfon, and live at my
" Houfe oi Bochytn."
" And after his Deceafe, to such Son as he fhall have, lawfully
" to be begotten ; taking the Name of Robinfon. And for Default
" of SUCH Iffue, Then I bequeath the fame to my Coufin [the
" Defendant] William Robinfon, Redtor of Landcwedneck and his
" Heirs for ever."
" Item. My Will and Defire is. That He [meaning William R.
Redor of Landeioed?icck,\ have Liberty to prefent whom he
pleafes to any Vacancy that {hall happen in any of my Prefenta-
tions, during his Life ; and in Cafe any of his Children fliall
take or be defigned for Holy Orders, Then it is my Defire that
in Cafe of any Vacancy in either of my Prefentations, that Bonds
of Refignation be taken, to fuch Child or Children, if the Va-
cancy happen before He or They attain fuch Orders : And after
the fame fhall be difpofed of as aforefaid. Then I give the Per-
petuity of the faid Prefentations, to the faid Mr, Lancelot
Hicks, in the fame Manner, and to the fame Ufs, as I have given
my Eftate."
And after bequeathing fome Legacies, He gave all the Reft of his
Goods and Chattels, to2;ether with his Eftate at Endellxon, to his
faid Kinfman William Robinfon ; and made him fole Executor.
This William Robinfon was Heir at Law to the Teflator.
On the 30th o^ September 1728. The Teftator died without Ifllie;
leaving the faid William Robinfon his Heir at Law.
Lancelot Hicks was then living ; and took the Name of Robinfon :
And, after the Teftator's Death, had two Sons j George, his eldeft ;
3 and
Michaelmas Term 30 Geo. 2. 39
and the PWmhff Edmimd ; Both of them born after the Teftator's
Death. And La?icelot Hicks entered upon the Eftate, and lived at the
Teftator's Houfe at Bochym. And his Eldejl Son, George, was called
by the Name oi Robi?ifon ; and died in March 1738, an Infant;
in the Life-time of the fiiid Lancelot Hicks, his Father, and of the
Plaintift" his younger Brother.
Lancelot Hicks, alias Robinfon, died in July 1745; leaving the
Plaintiff Edmund Hickcs, alias Robinfon, his only surviving Son,
an Infant : Who brought his Bill in Chancery, to have a Convey-
ance.
Short State of the Cafe — The Title of the Plaintiff appears to be
ftated thus — That Lancelot Hicks took the Eftate, and complied
with the Condition ; and then had two Sons born : The Eldejl Son
died an Infant, in his Life-tifne. Then Lancelot himfelf died : On
whofe Death, Williatn Robinfon claims the Eftate ; the Jirjl Devife
" to the Son of the Body of Lancelot,'' being already satisfi h d
by the Birth and Death ofGeorge, Lancelot's Elde/l Son, as the
Claimant fuppofes.
Queftion. " Whether any, and what Eflate or Interefl is vefted
" in the Plaintiff Edmund Robinfon, the Infant, [Lancelot's fecond
" Son,) by Virtue of the faid Will."
This Cafe was thrice argued: ift in P. 26 G. 2. on i c Ma-}
17 (^3. by Mr. Rratt for the Plaintiff, and Mr. I'orkc for the De-
fendant. Again, in P. 29 G. 2. on 14th Mry- 1756. by Mr. A^c;r-
ton for the Plaintiff, and Sir Antony Abdy for the Defendant. And
laftly, in M. 30 G. 2. on 23d November 1756. by Sir Richard
Lloyd for the Plaintiff, and Mr. Perrott for the Defendant.
For the Plaintiff {Edmund Robinfon,) it was urged that the Tef- Argument for
tator certainly meant to give an Eftate-Tail to Mr. Lancelot Hicks
and all his Iffae : And the Intention Jl.ail prevail, ivhere it tnay.
Ow. 29. Cofen's Cafe. Cro. Jac. 448. King v. Rumball. Doe ex
dimijf. Bar.-.ard v. Rrafon, Tr. 2?, G. 2. B. R. That the Eftate to
Lancelot Hicks was intended to be an Eftate Tail : But, at leaft,
here is either an Eftate in Fee, or for Life, in his Son, the Plaintiff.
As to the Condition, " to take the Name of Robinfon ;" the
Eftate vc\u{\. fir/l vest, before the Condition can be performed.
This is a Condition fubfequent ; as appears by Ploicd. 23. Colthirfl
V. Beiufoin ; and therefore has Nothing to do with the vefling of
the Eftate. Cafes in Chancery in Lord Talbot's Time 166. Sir John
Robinfon v. Comyns. " No particular technical Words are requi-
*' fite, to make either precedent or fubfequent Conditions." And
it
40 Michaelmas Term 30 Geo. 2.
it was holden by the Lord Chancellor, in the Cafe of Trafford &
Ux' V. Sir Ralph Ajhton & al\ 2 Ver7i. 66 1. That this Ciaufe in a
Will, " Taking on Ilim the Name and Arms of Vavafor," was a
Condition fuhfequcnt, to defeat the Eftate; and not precedent.
Therefore They {hould lay this Condition out of the Cafe,
And then the fimple Limitation will ftand thus: It will he To
Lancelot Hicks for Life j Remainder to such Son as ke Jhall laiv-
f Lilly have of his Body, &c. Remainder (for Default oi fuch Iflue)
to the Teftator's Coufin William Rohinfon, in Fee. This is i\\t Jimple
Limitation ; putting the Condition fublequent, out of the Cafe.
Firfl Point. ^^d this is intended to be an Eftate Tail in Lancelot Hicks.
It may be objedled, that this cannot be an Eftate Tail in Lancelot ;
becaufe here are no Words of Limitation : For that the Word Son
is a Word of Purchafe, not of Limit atio?i, even if it was in the plu-
ral; and that here, " Son" is in the y?;7g-aA7r Number, " (and to
" fuch Son as he fliall have, lawfully begotten ;") which, it may
be urged, cannot be confidered otherwil'e than as a Word of Purchafe.
Another Objedtion may be raifed, becaufe it is limited to Lance-
lot Hicks himfelf for his Life, " A?jd no longer :" And therefore it
may be urged that the Court cannot raife an Eftate Tail by Lnplica-
tion, contrary to thefe negative Words.
But ift, The Word " So?i'' muft here be taken as a Word of
Limitation : Becaufe otherwife it would not be agreeable to the
Teftator's manife/i IntetJtion, " that the IJfue of fuch Son fliould
" have it afterwards, and that William Rsbinfon fliould not take, ////
■" the Iffue oi Lancelot Hicks fliould be ^// of them extind:".
The Change of-Natne (hews that the Intention of the Teftator ex-
tended to the whole Family of the Hickfes. So do the Words " law-
" fully to be begotten' : Which Words properly belong to Eftates
Tail. So, " for D fault of fuch J/ue."
The Words will /^f-^r this Conftrudion. They are, " To fuch
" Son as he (hall have, lawfully to be begotten:" /. e. lawfully
ifluing from his Body.
" Son" is, here Nomen collectivum. A7;;^ v. Melling is in
Point: And fo is Byf eld's Cafe, there cited, (i Fentr. 231.) And
many other Cafes there cited.
So tliat William Robin/on was not to have it, till Lancelot Hicks
fliould be dead without any JJfue.
2dly,
Michaelmas Term 30 Geo. 2. 41
2dly, As to the Words " for Life, and no longer :" There had
been no Difficulty or Impediment, if the latter Words " and Jio
" longer" had not been added. i Ld. Raym. 203. Ltiddington v.
Kime. i Peere Wms. 605. Blackborn v. Hewer Edgeley. 9 Co. 1 27. b.
Sunday'^ Cafe.
And yet they have really no Force at all in them, beyond the
former Words : They are certainly tautologous, and have no addi-
tional Effecfl. An Eftate for Life was given by the former V/ords :
And fuch an Eftate can laft no longer than that Life lafts.
In Archer's Cafe, i Rep. 66. b. it was ruled to be an Eftate for
Life in Robert Archer ; Becaufe it was an exprefs Eftate for Life,
devifed to Him. But Tautology does not make it more exprefs.
I Ro. Abr. * 837. is, in Point, contrary to what my Lord Ch. * Note; Thh
J. Hale is reported in i Ventris 231. in the Cafe ol King v. Melling, ^^^^ 'l "^'^^
to have faid. He there cites from Rolle 839. (as that Report fays) '", ,. arfrom
the Cafe of a Devife " to the Teftator's Eldeft Son, for Life, & RoUe S39:
" non aliter;" (For fo, fiys he, were the Words, tho' not printed ?!;";'h' i\^
1 n I \ 1 , 1 • T-s r 1 o r 1 • r. . Miftakeofthe
in the Book;) and after his Deceale, to the bons or his Body, page ; for it is
This, fays my Lord Ch. J. Hale was but an Eftate for Life, by rea- «aiiy in i Ro.
fon of the Words " non aliter." ^-^LeLr
P. page 837.
But the true Reafon of the Determination of that Cafe in Rolle' sP'- '3-
Abridgment^ appears from what Levinz fays in his own Argument
of King V. Melling. [V. 2 Lev. 58, 59.] For Coleman, who ar-
gued " that Bernard took only for Life," had cited that Cafe from
Rolle as an Authority on his Side. Levi77z, contra, argued that
Bernard took an Eftate Tail. And in antwering the Cafes cited
againft him, He fays, " And as to the Cafe i Rol. It there appear-
" ed, the Devifor's Intent was that the Father fliould be only Te-
" nant for Life, the Eftate Tail to the Son : For that the Claiife to
" reftrain Alienation is added only to the Eftate of the Son." So
that if this was not a Miftake of the Reporter, it is, at the moft,
but an extrajudicial Opinion of a fingle Judge, and not the Point of
the Cafe then under Confideration. Therefore that could not be
the Principle of Law upon which that Cafe was determined : It
muft have been a Regard to the Intention of the Teftator ; and the
particular Words muft have been confidered as a Key to that Inten-
tion. And the fame Obfervation will hold with regard to the Cafes
oi Lodington v. Ktme, Backhoiife v. Wells, Lomax v. Honieden, Plunket
V. Holmes, and Shai^.^ v. IVeigh ; and will ferve to reconcile them.
The true Rule is. That where the IfTue cannot take an Eftate
Tail, witliout taking it through the Father, the Father fhall have an
' M Eftate
42 Michaelmas 1 erm 30 Geo. 2.
Eftate Tail : Otherwife not. Archer'^ Cafe, i Rep. 66. Where the
Eftate is given over. Cro. Eliz. 313. Clerk v. Day. 1 Ro. Abr.
139. Letter U. pi. 4. S. C.
Backhoufe v. Wells, in Equity Cafes Abr. 184. />/. 27. in TV/'/z.
II Ann. B.R. " Devife to J. B. for hi ^ Life only, without Im-
" peachment of Wafte." J. B. was wo^ meant to be Tenant in
Tail. [See Fortefcue's Reports 133. and Lucas 181. S. C]
Langley v. Baldivin, is in Equity Cafes Abr. 185. /»/. 29. faid to
have been certified to be an Eftate for Life only. But this is a
Miftake : For it was certified, [and fo it appears, as Lord Mansfield
faid, by the Regifter's Book,] to be an Eftate Tail.
However, the Principle of that Determination vi'as to purfue the
Tertator's Intention : Which was " that it ihould go to all the
" Children of his Grandfon."
LoJdington v. Kime, 3 Lev. 432. i Ld. Raym. 203. was an
Eftate devifed to the I/fue of the IfTue Male. So no Violence done
to the Intention by conftruing the frjl Eftate to be an Eftate for
Life.
Shaiv v. Weigh, P. i G. 2. B. R. reverfed in Don" Proc' : And
determined to be an Eftate Tail. [See Modern Cafes in Law and
Equity 252, 382. Fitz-Gibbons 7. and Parliament Cafes, of April
iJ2g. and Fortefcue's Reports 58.]
Be the Circumftances as they may, yet the Teftator plainly
means, fiot merely an Eftate for Life to Lancelot Hicks ; but he atfo
means to give an Eftate Tail to the Hicks Family. Therefore let
the Intention of a Life-Eftate be never fo ftrong, yet the Court
will conftriJe his plain and clear Intention for the Benefit oj the
Family, to prevail.
Second Point. 2dly, But if it be not conftrued an Eftate Tail, but " Soti" be
confidered as a Word of Purchafe ; Then thefe Queftions will
arife : jft. Who fliall be the Taker? 2dly, At what Time?
3dly, What Estate?
ift. The prefent Cafe u-as indeed uncertain at the Creation-,
though rendered certain, by the Event. And perhaps it was not a
vefed Remainder ; from the Uncertainty who ftiould take.
2dly, But fuppofing it to be a contingent Remainder, yet the
original Uncertainty was removed within fufficicnt Time. The
Limitation over feems to confine it to the Time of the Father's
Death:
Michaelmas l^erm 30 Geo. 2. 43
Death ; And then the Plaintiff Edmund was the only Son. And
the contingent Remainder vefts, Time enough, if it veft then.
3dly, It is a Devife of all his Real Eflate, except that at Endel-
lyon: which alone would pafs the Fee-fimple. 6 Mod. 109. Countefs
of Bridgwater v. Duke of Bolton. i Salk. 236. S. C. Scott v. Al-
berry. Comym 337, 340. Ibbetfon v. Beckwith, reported by Mr.
Forrejlcr, in his Cafes in Equity, pa. 1 ^y.
And the Exception (hews that He did not mean the Reji to ^o
to his Heir at Law.
The Teflator plainly meant it to be a Fee : He would never
oblige the Devifee to part v/ith his Family-Name, and take his
Name, only for an Eilate for Life.
Then He gives the Perpetuity of all his Prefentations in the fame
Manner as he had given his Eftate : V/hich muft mean a Perpe-
tuity in both; and conlequently proves him to have meatit a
Fee in the Land.
And the Limitation over proves the fame ; viz. " That William
" Robinfon was never to take, but on L. Hicks s dying wi rnour
" Issue." However, If this was not a Devife of a Fee, it mull:
then be an Eftate T^ail. i Ventr. 225 to 232. Ki72g v. Melling.
Moore 397. pi. 15. I Anderfon £,1. N'^ 110. S. C. Be?idloe 30.
pi. 124. s. c. »
But it is at leaft an Eftate for Life : Otherwife, all this Part of
the Will muft be rejedled.
The Counfel for the Defendant William Robinfon made two Argument for
Queftions — Fir ft, What Eftate is devifed to Lancelot Hicks, the the Defen-
Father of the Plaintifi^; -oiz. Whether for Life, or in Tail? '^*"'-
Secondly, If for Life; then.whether the contingent Remainder '
is to veft UPON the Birth of a Son, during the Life of Lancelot
Hicks the Father; (which if it be fo, h^s ht&n fatisfied by the
Birth of George Hicks, the Son;) Or whether it veiled on the^
Death of the Father, in his then eldeft: Son ; (which then eldeft
Son is the now Plaintiff.)
They laid out of the Cafe —
I ft. The Words of Condition annexed to the Eftate of the Fa-
ther ; conceding that they were Conditions fubfeque7it, to defeat the
Eflate, and not precedent, to hinder it from vefting.
2dly,
44 Michaelmas Term 30 Geo. 2.
2dly, The Son's taking the Name : For they allowed that the
Conftrudlion of the Words, as to the Son, muft be the fame as of
thofe relatins to the Father.
o
But they confidered as material,
FirftQuetlion. i([^ Whether the Eftate to Lancelot Hicks be an Eftate for Life,
or in Tail. Which they fubdivided into two other Queftions ; viz.
Firfl:, " Whether the Court can raife an Eftate Tail hy Impli-
" CATION, at all, in this Cafe \ This being an express Eftate for
" Life, and even confirmed by negative Words."
Secondly, " Whether the Court can raife an Eftate Tail /5v Im~
" plication, upon either of thefe JLxprefJions ; viz. "■ After his
" Deceafe to fuch Son as he fhall have;" or, " and for Default
" of>c/jIffue."
Firft — In the Cafe of King v. Melling, Lord Ch. Juft. Hale was
the firft great Judge, who put the Cafes together, to raife an Eftate
Tail l)y Implication. But kicceeding Judges differed from Him :
And in the Cafe of Luddington v. Kime, in i Ld. Rayni. 204. Mr.
Juft. Powell argued againft Lord Hale's Opinion j Ch. Juft, Trel/y
agreeing with Lord Ch. Juft. Hale.
In I Peere Wms. 605. Blackborn v. Hewer Edgely, G? e contra,
f^ord Chancellor Parker explodes that Opinion, " That Words of
" Implication Hiould not turn an exprcfs Eftate for Life into an
" Eftate Tail :" And fliys " That a Devife to yl. for Life ; and
" after his Death without Iftiie, then to B. zoill give an Eftate Tail
" to Jl. Yet this Conftrudtion would be diredlly contrary to the
Words of the Teftator.
But the prefent Cafe is within Lord Ch. Juft. Hale's Diftindions.
He fays that " Non aliter" is fufticient to make it an Eftate for
Life only ; viz. where the Devife is, " to yf. for Life, & non aliter."
1 P'entr. 231.
In Backhoufc v. Wells, Fortefcue differs from Lord Raymond in the
Account of it ; and lays Strefs upon the Word " (.7ily," as being
explanatory and reftriftive in a doubtful Cafe. [See Backhoufc v.
IVells reported by Lucas, fo. 181. and Fortefcue 181. and cited in
2 Ld. Raym. 1439, 4°-] ■^"'^ ^" Bagpaio v. Spencer, Lord Chan-
cellor faid it was determined upon the Word " ofily," m that Cafe
of Backhoufc v. Wells. •
Iq
Michaelmas Term 30 Geo. 2. 45
In Bamjield v. Popham, i Pcere Wms. 54, ^^. Lord Ch. Juft.
'Trevor reafons againft Lord Ch. Juft. Hale. So alfo does Mr. Juft.
Powell, in the fame Cafe, fo. ^j. And furely Nothing can be
ftronger than exprefs Words, with negative Ones added to
them. And they fhall not be rejecfted ; according to 2 Buljlr. 176.
Mirrill v. Nichols ; and 2 Peere Wms. 282. Barker v. Giles. Plowden
523-
In the Cafe of Humphry v. Taylor, 5th February 1752. The
Court of Chancery held refulting Trufts to be rebutted by negative
Words.
Gcodiitle ex dimijf. Crofs v. IVadhold, Mich. jgG. 2. C. B. was a
Devife to the Teftator's eldeft Son, only for Life ; and in Cafe of
Failure of IJfue, &c. it fhall defcend and come to his (the Teftator's)
Male Children, &c. And they held this to be an Eftate for Life
ONLY; becaufe being expreiTed to be given for Life ofdy, with
Negative Words, it could not be enlarged by Implication : And Lord
Hale's Opinion in the Cafe of Kifig v. Melling, and the Determi-
nation in Backhoiife v. Wells, were there relied on by the Court of
Common Pleas.
2d Subdivifion of the firft Point, viz. Whether the Court can.
raife an Eftate Tail by Implication upon either of thefe ExpreJJio77s j
•viz. " After his Deceafe, to fuch Sen as he fliall have ;" or, " and
" for Default oi fuch IfTue."
And they argued that they could not. For
Firft, The Word " 'Son'' ,muft be taken as a Word of Pur-
chase : " And from and after his Deceafe, to fuch Son as he fhall
" have, lawfully to be begotten." " Son" is here a Word oi Pur-
chafe ; Whether it be taken fingularly, or colledively.
If One Son only be meant, Then the Words " for Default of
" fuch I/fue," refer to sjjch Son, taking an Eftate for Life. And
the Word "Son" is fingular : Not colledive ^tr^. He mi£!;ht have
ufed the Terms " Heir," " Heir Male," ^c. i Ventr. 230. 5z/r-
/(j's Cafe, there cited : Where the Remainder is limited to the
next Heir Male. Miller v. Scgrxive, M. 10 G. j. B. R. cited in
Robinfon'sTreatifeofGavelki?id()6. The Remainder was " to the
■" next Heir Male:" (Which Cafe was cited, to ftiew the Con-
^rudion of the Word " Heir," in the fingular Number.)
In Trollop V. Trollop \n C.B. (F. Robifjfon on Gavelkind 96.) Eyre
argued againft the Opinion of Lord Coke in the Cafe of Gierke v.
Day, Moore 593. (the beft Report of that Cafe.)
N They
46 Michaelmas Term 30 Geo. 2.
They cited 2 Ventr. 311. Burchett v. Durdant, only to fliew that
no Application can be made of thofe Cafes to the prefent.
2d Branch of this 2d Subdivifion, 'uiz. As to the Word " JJf"^'^
This Word, taken Technicalh, is indeed a Word of Turchafe.
King V. Melling was the firft Cafe where it was holden to operate
as a Word of Limit ation in a Will.
The Word " Children" is lefs operative than the Word " IJj'uer
Each of thefe is a Nomen ColleSlivum : But " Scri" is Defignatio
Perfonce j unlefs other Words explain it. i Ro. Abr. 837. Letter P.
pi 12, 13.
As to Byjield'?, Cafe, mentioned only in Lord Ch. Juft. Hale's
Argument in i Ventr. 231. and in no other Book — It comes the
nearefl to the prefent Cafe, of any other cited on the Part of the
Plaintiff. The Word " So7i" was there holden to be Nomen Col-
leElivuni. But there was no express Devife to the Son : It is a
Devife to A. " And if he dies, ko/ having a Son, then to remain,
" &c. Whereas here, the Words are, " to fuch Son as he fhall
" have, lawfully ifluing from his Body."
But if " Son" be taken as a Word of Purchafe — It is afked
What Son is meant i* And lohat EJlatef
Anfwer. It can mean hut One Son : The Sons of Lancelot Hich
could not ^// take as Tenants in Tail, or' as Joint-tenants. In the
Cafe of Lodington v. Kime, i Ld. Raym. 20(). Lord Ch. Jufl. T'reby
is very exprefs on his Head, " That if it had been the Word Sen,
" it had been without Controverfy."
2 Leon. 35. Leonard Lovelace's Cafe, \Cro. Eliz. 40. S. C. Savile
y^. S. C] and Moore 371. S. C. cited, is very ftrong to the fame
EfFedl. Devife to A. and to his Elde/l Ifiue Male de Corpore fuo
exeunti ; (or '■'■ fcniori exitui mafciilo fuc," according to Moore:)
'Tis only an Eftate for Life in A. Remainder to his Eldejl Son, Gff.
for Life.
Jn Cane' ; In another Part of this very (prefent) Cafe, on this
very Will, 17th April 1733. Sir "Jofcph ^ekyll held Lancelot Hicks
to be intitled to an Eftate for Life ; Remainder to his Eldeft (and
but One) Son, for Life ; Remainder to William Robinfon, the De-
vifee over. This Caufe was between the Widow of the Devifor;
and Lancelot, the firfl: Devifee. And the Deeds were brought into
Court :
Michaelmas Term 30 Geo. 2. 47
'Court : Whereas they muft have been delivered to La?iceiof, if he
had been Tenant in Tail. In 1734, Lord Talbot, on a Rehearing,
was of the fame Opinion. And We cite it for thei?- Ophiion only :
We do not fay that the prefent Plaintiff is bound by this Decree.
Then^/'ONE Son only could take, it follows, of Courfe, that the
Words " And for Default oi fuch Iffue," are rejlrained to such
One Son ONLY.
And as to the Eftate, It is only an Eftate for Life, in that One
Son : For here are no Words of Limitation, at all.
As to the Arguments drawn from the Advoisfon, and the Obli-
gation to take the Name of the Teftator. — The Jidvowfons are given
for the Benefit of any of Lancelot's Children that fhould go into
Orders . And then the Teftator gives the Perpetuity of them to
Lancelot Hicks for his Life ; and afterwards, to fiich Son as he fliall
have, lawfully iffuing from his Body. Now it can never be fup-
pofed that the Teftator meant to give Lancelot a Fee in the Land ;
becaufe he gives Him the Perpetuity of the Livings. And the lat-
ter Devlfe Ihall be conftrued by and agreeable to the former : Con-
fequently, neither did He mean to give Lancelot's Son a Fee, be-
caufe he gave Him the Perpetuity of the Livings.
As to taking the Name — No Cafe has been determined, on tbat
Point. And Lancelot Hicks is here injoined to take the Name of
Robinfon; tho' the Eftate is exprefly given to Him " for Life
" and no longer."
By Mr. Shepheard oi Cambridgefnre's Will, the Name of Shep-
heard is to be taken by the Tenant for Life. The Cafe of Ibbetfon
V. Beckwith, reported in Mr. Forre/ler's Cafes, pa. i ^y, was a De-
vife to Teftator's Mother for Life ; after which, to his Nephew
Tho. Dodfon, if he will take his Name of Beckwith; if not, only
20/. Lord Talbot thought that alone to be too /light a Ground for
a Conftrudion " that it Ihould be a Fee to Tho. Dodfon."
In order to make it an Ejlate Tail, the Expreflion ought to be
fuch as will put it beyond all Pojfibility of Doubt : According to
the Cafes oi Langley v. Baldwin, Shaw v. Weigh, and Bavifield v.
Pophatn.
The Cafe of Coidfon v. Coulfon, 2 Str.^^\\7.t^. was by way of
Remainder ; not by giving the Father an Eftate Tail ; and is di-
ftin^uilliable from all thofe that have been mentioned.
The
48 Michaelmas Term 30 Geo. z.
Second Q^e- The next Qucftion is, " TVhtm the Remainder fhall veft;" viz.
iiion (made Whether this contingent Remainder in the Son is to vcjl upon the
dlm's^Cou" Birth of a Son, during the Life of Lancelot Hicks ; or not till ispon
ieij or after the Death of Lancelot Hicks, (the Father.) [V. ante, p. 43.]
" After the Deceafe of Lancelot Hicks," (the Father) are the
Words of the Will. Which can fufpend it no longer than till the
Birth of his first Son : For here are no Words to lead to a con-
trary Determination.
It mufl vefV, either before the immediate Eftate ceafes, or eo in-
^,3;;^^ that it does ceafe. Hutton iig, Napper v. Sanders. Chancery
Cafes 33. Sackville v. Lockwood.
Swinburn, part 7. c. 11. proves " that the Words fhall not relate
" to the Time of the TeJlator& Death ; but to the Time of
" MAKING the JVill." And at that T\mQ Lancelot Hicks had no
Son ; nay, nor even at the Time of the Tejlator's Death. A con-
tingent Remainder mufl take Effedt, as foon as any Perfon is born,
v/ho comes within the Defcription : It can remain no longer con-
tincrent. Therefore // here vested by the Birth of a Son; and
laas THEN and thereby satisfied: The Eftate for Life
vefled in Him, on his Birth ; and ceafed with Him, on his Death.;
and then went over to the Defendant William Robinfon, the Devifee
over.
Indeed the Son might have been born between the making the
Will, and the Death of the Teftator; and have died before the
Teftator. Thrujlout v. Peak & al\ 2 Strange 12. And fo, in the
Cafe oi Lomax v. Holmden, 2 fuly 1749, in Cane' A Son was born
and died, in the Life-time of the Teflator. But here, the Teftator
died before either of Lancelot Hick's Sons was born. Here, the
Elder Brothej {George was the firft who could take, after the Death
of the Teftator.
And as to the Intention of the Teftator — It is out of the prefent
Cafe: For the Intention o/"/>6^ T'^^/or cannot be purfued by
ANV Conftrudtion upon this Will, without f raining the Rules of
.Law.
Therefore the Plaintif? can take Nothing by it.
Reply. The Plaintift''sCounfel replied, That the Word "Son" is here a
Word of Limitation.
Some Words are Words of Purchafe; and may, by Circum-
flances, be turned into Words of Limitation ; Others are, prima
facie
Michaelmas Term 30 Geo. 2. 49
^acii\ Words of Limitation ; and may, by Circum/laiKes, be turned
into Words of Purchafe. The Words " Son, Children, IfTue, and
" Heir," in a Will, where no Son is in in Being at the Time of
the Devife, are nomina ColkSliva, and fufficient (in a Will) to
create an Eftate of Inheritance.
Now, he7'e are fiicb Circinnftances as fhall determine the Word
" Soil" to be, HERE in this Will, a Word of Limitation.
The Cafe of Taykr v. Sayer, 4 r Eliz. is not Law : Lord Cb«
Juftice Hale fays, " it is too rank." [i Ventr. 229.J
Tliey agreed to the Cafe of Trollop v. Trollop; as the Words
ftand fingly there : But alledged the Rule to be, " That the In-
" TENT I ON of the Teftator fliall Jix the Conftru6lion of fuch
" Words, as may be conflrued either as Words of Limitation, or
" of Purchafe."
And if this Word " Son" be a Word of Limitation, then what
hirkders this from being an E/late Tail? And they infifred that this
was fo. And They faid that though here was a necefliry Implica-
tion, yet they needed not to rely fingly on it's being an Eftate-
Tail by Implication : For here is even an express Ejlate Tail
devifed.
In the Cafe of Sbaiv v. Weigh, The Intention was plain : But
the apparent InteJition " to give a?i E/late Tail to the IlTue," over-
ruled it. And this is the laft Cafe, in Point of Time.
• In the Cafe of Backhoufe v. JFells it is not agreed, which of the
two Expredlons the Court went upon : Viz. " ivithotit Impeach-
" ment of Wafte ;' or, " for his natural Life onlyj^
Therefore they concluded that the Plaintiff is intitled to an
Eflate Tail, in the prefent Cafe.
2dly, The Son muft be Jtich a Son as could take.
They faid they never contended, that the Sons diould ta-ke as Joint-
tenants, or Tenants in Common : They were to take in SucceJJion.
They Word " Son" may be here enlarged into " IJfue.''' It 'does
•not at all appear that the Teftator meant Lancelot's Eldcfi Son, and
his Eldcjl Son only: On the contrary. His Intention appears to be
the Issue Male oi^ Lancelot, Generally.
And the Cafes cited by the other Side do not prove their Point.
For in 2 Lem, 35. Leonard Lovelace's Cafe, the Word " Elde/1"
O was
50 Michaelmas Term 30 Geo. 2.
was exprefly added to the Words " IJfue Male-," (the Devife being
" to the Father, and to his Eldeft Iffue Male:") So that it was the
flime as " Eldeft Son;" and it better anfwered the Teftator's Pur-
pofe, that the Children of this Devilee fliould take as Furchnjcrs.
As to the Determination faid to have been made in 1733 and
1734 of this Point, upon this fame Will^ by Sir Jqfeph Jckyll, and
Lord Chancellor Talbot, The Widow of the Teftator there claimed
faramoimt the Will ; She brought a Bill to eftablifli her Jointure :
And there was indeed a Crofs-Caufe. But Non conjlat ivbai Lan-
celot claimed; nor does it appear how it was defended. However,
it is plain, that the prefent Lord Chancellor does not reft fatisfied
with thefe Opinions : Becaufe He has fent it hither for the Opinion
of this Court.
The Words, " Such Son" muft let in All Sons ; and cannot ex-
clude All Sons but the Eldeft. It was a contingent Remainder,
that the Court will keep open, till there is a Necefiity to determine
it. And there is no Need to determine it, (for there is no Need
that the Remainder fliould veft,) till tl^e Death of the Tenant for
Life : Then indeed it muft veft, co iiijlante.
In Htitton 1 19. and in Chancery Cafes 33. It %vas an Eldeft Son :
Whereas here it is not neceflarily an origiyially Eldeft Son ; but may
be any other Son, who becomes Eldeft before the contingent Re-
mainder vefts.
All the Sons of Lancelot could 7iot take, imlefs the Father took
iirft : A pofthiwious Son certainly could not.
As to the contingent Remainder vefting — It is enough if it vcfted
eo inftante that the particular Eftate determined.
And as to the Devife of the Perpetuity of the Advowfons, the
latter Devife is not to be conftrued by the former : But both the
former and the latter Words are to be taken together, and a reafon-
able Conftiudion made upon them, agreeable to the General In-
tention of the Teftator.
Upon the whole, This is an Eftate either in Fee, or in Tail ; or
at loweft, for Life.
The Judges of this Court, on the lii of December 1756,
unanimoufly certified to the Court of Chancery, in the
Words following :
" We are of Opinion, That, Upon the true Conftrudion of the
" faid Will of the Teftator Gfcrg-f jRcZ-zw/o/?, the {aid Lancelot Hicks
" muft, by fhxefary Implication, to effeSluate the vmnifeft gejieral
4. ' ' " Intent
Michaelmas Term 30 Geo. 2. 51
" hitent of the faid Teftator, be conftrued to take an Eftate in
■" 'Tail Male, He and the Heirs of his Body taking the Name of
" Robinfon;. Notwithstanding the express Eftate devifed to
" the {■^id Lancelot Hicks *' for his Life and no longer," "
Note ; The Courfe has always been, for the Judges not to give
any Reafons, in Court, upon a Cafe fent out of Chancery for
their Opinion. But the above Certificate feems carefully pen-
ned, to mark the Grounds upon which it was founded.
The Eftate Tail is faid to veft in Lancelot Hicks, the Father.
The ma?iifeft Intent of the Teftator, exprefled by his Will,
was, that the Eftate "fhould not go over to his Heir at Lain,
till Failure of Iftue Male of Lancelot Hicks.
The Difficulty was, how to mould an Eftate agreeable to the
Rules of Law, to effedtuate the Teftator's Intent ; and to con-
ftrue his Senfe and Meaning into apt Words of Limitation.
If the Father could have taken an Eftate for Life, and the Sons
fucceffively an Eftate in Tail Male, the whole Intention of
the Teftator would have been better anfwered : For by fuch
Conftriidlion, All the Words in the Will would have received
their natural Senfe and Meaning, without rcjcSling any Words j
and None flTould be rejeifled, iinlcfs the Teftator's Intent can-
not be otherwlfe attained. But that could net be, by Law.
An Eftate to the Heirs Male of the Body of Lancelot Hicks is
implied, though an Eftate for Life only is given to Him ; be-
caufe the Teftator's Heir was not to take, till Failure of fuch
Heirs Male. But by Law the Teftator could, by ?io Words,
have made the Father Tenant for Life, and the Heirs Male of
his Body Pur chafers.
If He had devifed " to the Father for Life, Remainder to the
" Son for Life, Remainder to the Heirs Male of the Body of
" the Father ;" Or " to fhe Father for Life, Remainder to
" the Son, and the Heirs Male of the Body of the Father :"
In either of thefe Cafes, the Father muft have taken an Eftate
in Tail Male. The Cafe put in Lit. Sec. 30. and the Deter-
mination mentioned in Lord Coke'^ Comment upon that Sec-
tion, (in pj. 26. b.) on the Gift " to Roberge and to the
" Heirs ot' "John de Mandevile, her late Huft^and, on her Body
" begotten," are no Exception to this Rule: For in both
Cafes, the Father was dlad at the Time of creating the
Entail.
It is faid too, " That he muft, by neceflary Implication, to ef-
■ . *' f equate themanifeft general Intent of the Teftator, be con-
" ftrued
Michaelmas I'erm ^o Geo. 2
y
" firued to take an Eftate in Tail Male; N>> ? w tk>7 and-
" INC the exprcfs Eftate deviled to him, for his Life, and
" no longer."
Thofe Words fcem intended to exprefs the governing Rcafcn in
this Cafe, to have been the mamfejl main Intent of the Tefta- ■
tor, colleded from all the Parts of his Will taken together ;
loithout Jhaking the Authority o^ Backhoiip v. Wells, and other
Cafes, which have laid a Strefs upon the VVords " cnly,"
" ?wt othcrwife," or like Expreftions, after an Eftate for Life,
together with other Claufes and Circiimftances ; in Favour of
the manifeft Litent of a Teftator, to make the Iflue or Heir
take as a Purchafer, defigned by a Perfonal Defcription.
This Certificate was confirmed in Chancery ; and a Decree made
accordingly.
On Appeal to the Houfe of Lords from that Decree, The
Opinion of All the Judges was afked ; which was delivered by
Lord Ch. Baron Parker, with the Reafons at large : And they una-
nimoufly agreed with the above Certificate, upon the above Grounds
fuggefted thereby.
Whereupon the Decree was affirmed by the Lords on the 14th
of February 1758.
Friday 26th November 1756.
The Court declared a new Order concerning Special Caufes in the
Paper : Which was, in Subftance, That all Caufes ftiould
come on to be argued, in the fame Order that they were en-
tered ; and that they fliould continue to ftand in the Paper, in
the fame Order, //// they ftiould be argued, (without being en-
tered anew:) And that no Caufe fliould be put oft, without
a fpecial Application to the Court, upon fome fufiicient Ground,
before the Day upon which it ftood in the Paper for Argument.
Note;
It may not be amlfs, to premife a general Rule for intitling all Cafes
arifing upon Orders of Removal : The Want of knowing, or
the Want of attending to which general Rule, lias been the Occa-
fion of infinite Confulion in tabling and citing Cafes of this Sort.
The conftant Method of entering them in the Rule-Book is to
name the King as Profecutor ; and the Parifh la/i charged with the
Paupers, and confequently appealing to this Court, as Defendants.
For inftance — Two Juftices remove a Pauper from A. to B : And
B.
Michaelmas Term 30 Geo. 2. 53
B. appeals to the Seflions. If the Seffions confirm the Order, and
B. brings the Ccrtm-ari, the Rule thereupon is intitled " Rex
" verfus Inhabitantes de B :" But if the Scffioiis di [charge the ori-
ginal Order, and confequently A. remains charged with the Pauper,
and brings a Certiorari to remove the Orders, then the Rule bears
for it's Title, " Rex verfus Inhabitantes de A."
Rex verf. Inhab. de Aythrop Roodinpr.
[Mr. Juftice Wihnot was abfent ; fitting in Chancery as one of the
Commiffioners of the Great Seal.]
TWO Juftices removed Sujanna Gates, Wife of IVUliam Gates, ^■'""^'" z^th
and her 4 Children, from Aythrop Rooding, to IV/jite Rooding : ''^'f^' ""
Which Order was quaflied by the Seffions, upon an Appeal.
The Subftance of the Cafe was, That William Gates, this Wo-
man's Hiijhand, having been legally fettled at White Rooding, went
away and left his Wife and Children. Whereupon, She and her
Children went and lived for 40 Days, without her Hiijhand, in
a Copyhold Tenement of her Hujhands own, at Aythrop Rooding.
But legal Notice " to depart" was given to Her, within the 40
Days, by Aythrop Rooding : Which She not doing, two Juftices
made this Order for removing Her, (as beitig likely to become
chargeable,) from Aythrop Rooding to WInte Rooding ; which they
adjudged to be the laft legal Settlement of her Huiband. But the
Seffions, conceiving that the Wife, though without her Hufband,
coidd 7iot be removed from her Hu(band's own Eftate, quaflied the
Order.
Sir Richard Lloyd, who was for quaffiing the Order of Seffions,
argued, That though the Hufband had it in his Power indeed to
have gained Himfelf a Settlement at Aythrop Rooding, by going and
refiding there 40 Days upon his own Eftate ; yet it could never be
his laft legal Settlement, unless he }r{\xn^&\i had refided there for
40 Days : Becaufe, if it ftiould be otherwife, a Man who had Pro-
perty in various Parifties, might be laft legally fettled in all of them
sX the SAME Time.
But The Court {viz. Lord Mansfield, Mr. Juftice Denifon, and
Mr. Juftice Fofter,) were unanimous and clear. That the two Ju-
ftices had no Povv'er to remove Her from her Husband's own Pro-
perty, upon her being only likely to become chargeable to the
Pariffi where it lay. And accordingly they
Affirmed the Order of Seffions, and quaffied the Order of two
Juftices.
P Farewell
54 Michaelmas Term 30 Geo. 2.
T
Farewell Efq; ^cerf, CliafFey and others.
HIS Caufe was tried upon the Weftern Circuit, the laft
Slimmer AfTizes, before Mr, Serjeant Willcs ; who certified
" That the l-Vcigbt of the Evidence was againjl the Vcrdidl." But
a new Trial was denied, upon the Nature of the Adion, the Value
" r. Ante, pa. of the Matter in Difpute, and other Circumjianccs of the Cafe. *
II, 12. Ma-
s. P. and Lord Alansjield faid, A New Trial ought to he granted, to
Poj} Dr. attain real Jujlice ; but not, to gratify htigious Pafiions, upon
^Zmprol' M ^^^""y I'o'nt of Summiwi Jus ; and cited Smith v. Bramfton^ and
1758. s!p. SfHtth V. Frampton, in 2 Salk. 644; and an anonymous Cafe there
alfo mentioned, of P. 8 IV. 3. B. R. and Hkewife Smith v. Page,
M. 8 fV. 2- B. R. ibidem -, alio Deerly v. 77j^ Dutchcfs of Mazari?ie,
H. SIV.2'B. R. 2 Salk. 646. and ^/-^r/^j v. Spicer, H. 10 /r. 3.
B. R. in the fiime Book, pa. 648. To which may be added,
What is faid by the Court, in the Cafe of Dunkly v. Wade, P.
5 Ann. 2 Salk. 653.
In thefe Cafes, the Verdidls were againfl: Evidence and the flrift
Rule of Law, or obtained through Surprize : But the Court would
not give a Second Chance of Succefs to a hard ASlion, or an uncon-
fcionable Dejence.
Therefore the Court, upon the fatne Principles, refufed to grant
a New Trial in the prefent Cafe, and difcharged the Rule to fhew
Caufe why there fhould not be One.
Rex verf. Jofeph Smith.
AN Indidmcnt for a Nufance had been removed by Certiorari
from the Quarter-Seffions in Devovfire, into this Court, by
the Defendant : Which Indidmcnt was afterwards tried, and the
Defendant was found Guilty. He then moved in Arreft of Judg-
ment : But his Objedlions were over-ruled. After which, tlie Pro-
fecutor moved for his Cofts j and obtained a Rule to fhcw Caufe.
And now Mr. Serjeant //t'u.'/V/', on Behalf of the Defendant, fliewed
Caufe, " Why the Proftcutor (hould not have his Co/?.r, before the
" Recognizance fliould be difcharged ; and why it (hould not be
" referred to me, to tax fuch Cofts."
His Caufe was this. That "No Name of any Perfon, as being
either the Party grieved or injured, or a public civil Oficer, is n-
DORSED upon the Indidment, according to the Diredions i)i ^,
3 6 JV.
Michaelmas Term 30 Geo. 2. 55
6 W. & M. c. \i. § 2 "S? 3. And He argued that without fuch
Indorsement, no Cofts were payable to the Profecutor.
Mr. Hi{py contra, for the Profecutor, acknowledged that there
was no Name indorfed : But, at the fame Time, infifted that an
Indorsement of the Name of the Profecutor, as being the Party-
grieved or injured, or a civil Officer, is not at all neccjjary, in order
to the Court's giving Him Cofts ; though the id Sedion does in-
deed direB the Recognizance to be certified into this Court, with
the Certiorari and Indidment, and the Name of the Profecutor (if
he be the Party grieved or injured) or fome public Officer to be in-
dorfed on the Back of the Indidment.
He faid He had an Affidavit " That the Profecutor was a
" civil Officer, ^cr And the Words of the 3^ Sedion of the Adl
" are that if He bv. fo, the Recognizance Ihall not be difcharged,
« till the Cofts ffiall be paid." But the h&. does not fay " That ,
" the Profecutor fliall tiot have his Cofts, imlefs his Name be
" indorsed."
Lord Mansfield: It is enough if it be proved " That the
" Profecutor was a civil Officer, &c. And here it is proved, by
Jffidavit : Which is fufficient.
Rule made abfolute for the Profecutor's having his Cofts, (to be
taxed by Me tit fupra,) before the Recognizance fhould be
difcharged.
Shadwell Efq; ve?f. Angel Efq;
THIS was a long Litigation concerning the Regularity of a
Judgment ; which on Mr. Nares's Motion (ex parte Def)
had been referred to the Mafter, who thought it irregular : And
nov^ yir. Norton {ex parte ^wn' ,) appealed to the Court, from the
Mafter's Opinion.
The Queftion depended upon the Meaning of a Rule of this
Court, made M. 10 G. 2. 1736, And upon the Pradice of the Court,
purfuant to that Rule.
The Import of this Rule was, tliat upon Procefs returnable the
]ft or 2d Return oF a Term, a Plaintiff may (in certain Cafes)
deliver a Declaration de bene ejfe, at the Return of the Procefs ; -with
Notice " for the Defendant to plead within Eight Days ajter
" Delivery of the Declaration :" And if the Defendant fliall not
file Common Bail, and plead within fuch Eight Days after, ^c. the
Plaintiff
56 Michaelmas Term 30 Geo. 2.
Plaintiff (having firft filed Common Bail for fuch Defendant accor-
ding to the then late Adl for preventing frivolous and vexatious Ar-
refts,) may lign Judgment for want of a Plea, a Rule to plead
being duly entered.
The prefent Faft was, That the Procefs was returnable on Satur-
day 15th November (the 2d Return of the Term.) The Declara-
tion, with Notice " to plead in 8 Days," was lkft in the Office
on Monday the 24th of November : And upon the Defendant's not
pleading within the 8 Days, nor even before the Time of figning
the Judgment ; the Plaintiff on the 3d oi "'J miuary (6 Weeks after-
wards) filed Common Bail for the Defendant, and (a Rule to plead
having been duly entred) figned Judgment upon the same Day.
The Mafter, Mr. Clarke, thought this to be irregular ; For that
when the Defendant was once in Court, the Plaintiff ought to pro-
ceed againft him as being in Court : By which Exprefhon he feem-
ed to mean, either that the Plaintiff fhould deliver a Declaration
afrejlo; or that He Hiould give a frejl:i Rule to plead.
And Mr. Nares (in fupport of the Mafler's Opinion) urged that
when the 8 Days (the Time for pleading) are out, the de bene ejfe
Declaration is at an End. And he mentioned a Cafe of Lleivellin v,
Skyrm, as in Point.
But Mr. Norton denied this ; and fald that the 8 Days were not
out ; but the Declaration de bene ejje was delivered within Time,
(though not indeed till the 9th Day ;) becaufe there were tivo Sun-
days included, viz. i6th and 23d of Nov. And that the Plaintiff
might have figned his Judgment on Tuefday the 25th.
Mafter Clarke was at firfl, inclined to think that the Sunday was
no Excufe, and that this was not a fuflicient Reafon to allow the
Plaintiff Time till the 9th Day, for delivering the Declaration de
bene effe. But all the Officers thought otherwife ; And the Court
feemed to think fo too : Whereupon Mafter Clarke feem'd to give
that Point up.
The Court were of Opinion that the Judgment was regular.
Lord AJansfield was clear, that No further Notice (befides that
given on delivering the Declaration de bene eJfe) was neceffary.
Mr. Juft. Denifon faid the Defendant had 8 Days afier the
Delivery of the Declaration de bene ejfe^ whenever it may be delivered,
(either fooner or later.)
And
Michaelmas Term 30 Geo. 2. 57
And this was left in the Office, (which He held to be a good De-
livery,) on the 24th, which was ivithin Time; And the Defendant
did not plead within 8 Days ; Wherenpo'n, the Plaintiff files Com-
mon Bail for Him, upon the 3d of Jamiary ; and figns Judgment
the fame Day : Which is regular ; For the Rule is complied wiih.
And the Defendant is not at all hurt j on the contrary. He has had
lotiger Time than he was intltled to.
Mr. Juft. Fofler : The whole Objeftion is " That the Plaintiff
" has not proceeded with fo much Speed as He might have done :"
For he tnight have figned his Judgment on the 2^th of November.
The Defendant might have filed Common Bail for Himfelf, if he
had thought proper : And then he might have had a frefh Rule to
plead.
By the Court unanimoufly, The Rule of Reference to Mafler
Clarke, for Irregularity in this Judgment, was difcharged.
MEMORANDUM.
The new Lord Chief Jufl:ice, at his firfl fetting out, inflituted a
different Method of going through the Motions at the Bar, from
that which had been ufually (and indeed almoft univerfally) prac-
tifed heretofore : Which new Method was not only advantageous
to the younger Part of the Barrifters, but alfo exceedingly conve-
nient to the Suitors, as it took away that Delay to Bufinefs which
arofe from the unreafonable Preference hitherto given to Gentlemen
within the Bar. For the repeated Pre-Audience, hitherto allowed
them, had thrown alinofl the whole Bufinefs into their Hands :
Which, as they were intitled.to move only once in a Day, could not
be fufSciently difpatched.
The Courfe had been, ever fince I remember, and was in Lord
Ch. Jiift. HOW'S, Time, (as the late Mr. Juftice Page has often told
me,) " to BEGIN, EVERY Day, with the Senior Counfel within
" the Bar, and then to call to the next Senior, in Order, and fo on,
" a« long as it was convenient to the Court to fit ; and to proceed
"' again in the fame Manner, upon the next, and every fubfeqiient
" Day ; although the Bar had not been half, or perhaps a quarter
" gone through, upon any One of the former Days : So that the
" Juniors were very often obliged to attend in vain, ivithoiit being
" able to bring on their Motions, for many fuccefTive Days."
Thi.5 was the fettled and gejieral Rule : Though perhaps the
Judges, out of mere Compafiion to the Juniors, would 2, or 3
Q_ Times
58 Michaelmas Term 30 Geo. 2.
Times in a Term, give them Leave to move, upon the next Day,
fuch Motions as were real Remanets of the former Day.
Whereas Lord Mansfield profeffed and moft pundually pradifed
the going quite through the Bar, even to the youngeft Coun-
fel before he would begin again with the Seniors ; even though it
fhould happen to take up two or three or more Days, before all
the Motions which were ready at the Bar upon the firft Day, could
be heard.
The End oti. Michaelmas Term 30 Geo, 2. 1756.
Hilary
. I
59
Hilary Term
30 Geo. 2. B. R. 1757.
(Lord Commillioner Wihnot abfent, in Chancery.)
Kilwick verf. Maidman,
TIME was given by a Judge's Order, to plead ; [i^iz. ^„^„^ ,^t,j
until 2 Days before the Eflbin-Day of this prefent Term ;) January
on the ufual Terms, " of pleading ijfuably, &c. This '757-
Order was not obtained till after the Four-Days Rule for
pleading was expired. Before the Term, and within the Time
allowed by the Judge's Order, the Defendant pleaded a Plea of
Tender : Which Plea was intitled (as it was agreed that it regularly
might,) as of the preceding Term.
Mr. y^fpinall moved, ex parte ^ier\ to fet afide this Plea, with
Cofts, as irregular ; and for Leave to fign Judgment ; and cited
I Barnes 246. Davenhill v. Barritt, in Point.
Mr. Winn pro Def. fhewed Caufe ; viz. That it was a fair ■
hotiejl Plea^ in it's own Nature ; And that it was within Time, not
being after Imparlance, but as of the last Term; And alfo that
it was an issue able Pica, within the Meaning of the Judge's
Order : Though He acknowledged that a Plea in Abatemerit, (though
in Stridlnefs indeed iffueable,) would not be fo ; becaufe it tended
to delay the Plaintiff.
The C;)URT concurred entirely in what Mr. Winn had urged
in Support of the Regularity of the Plea: And the Motion was
denied.
Tayl
or
6o Hilary Term 30 Geo. 2.
Taylor, ex dimiff. Atkyns Efq; verf. Horde Efq; & al'.
'Tmpiay 25 T ]sj Ejeclment brought in Michaelmas Term 1752. hy J ohji y^f-
J">'- I7S7- j^ j.^,j^^ m<\\ (in the Name of Cyprian 'Taylor) againft Robert At-
kym Efq; the Pleir at Law, and Others j Upon the General Ifllie
pleaded, and IlTue joined thereon, and tried at the Bar of this Court,
the Jury find a Special Verdidl : V/hich was, in Subftance, as fol-
lows.
That Sir Robert Atkyns the Elder, Knight of the Bath, on 8th
June 1669, was (amongft divers other MefTuages, Lands, Tene-
ments, zic. \n Gloucefterjhire,) feifed in Fee of the Manor of Z/Cw^r
Swell and the other Premiffes in Queftion ; and being fo I'eifed,
made and .executed Three feveral Indentures, (which are fet out in
the Special Verdidl :) One of which is dated on the nth and the
two others on the 12th of Jtme 1669.
By One of thefe Indentures, which was dated on the 12th of
yime ibbg. (which the Counfel on both Sides, for Diftindion's
Sake, called the lejjer Deed,) made between Sir Edivard Jitkyns
Knt. One of the Barons of the Exchequer, Sir Robert Atkyns Knight
of the Bath, Solicitor General to the Queen and Son and Heir ap-
parent of the faid Sir Edward, and Dame Mary (Wife of the faid
Sir Robert) Atkyns, of the one Part ; and Sir Edward Carteret Knt.
and 'John Lowe Gentleman, of the other Part j It is witneiTfd that
in Confideration of a Marriage thentofore had and folcmnized be-
tween the faid Sir Robert Atkyns and Dame Mary his Wife, and of
her releajing and acquitting a former Jointure to Her made before
Marriage, and of a new Provi/ion to be had and made for Her the
laid Dame Mary, for and in the Nature of a Jointure, in Bar and
Recompence of her Dower and Thirds at the Common Law, in
Cafe She fhould happen to furvive and over-live the faid Slir Robert
Atkyns her Hufband, He the faid Sir Robert Atkyns did thereby
covenant and grant to and with the faid Sir Edward Carteret and
"John Lowe, That He the faid Sir Edward Atkyns, and the faid Sir
Robert Atkvn and Dame Mar\ his Wife, fliould and would, before
the End of Michaelmas Term then next enfuing, levy and acknow- ,
ledge before the Juftices of the Court of Common Pleas at Wejl-
minllcr. One or more Fine or Fines Sur Conufancc de Droit come
ceo, &c. unto the faid Sir Edward Carteret and John Lowe, with
Proclamations, of the faid Manor oi Lower Swell and the other Pre-
mises in Queftion : Which faid Fine or Fines fo as aforefaid or in
any other Sort to be had, levied and executed, of the faid Manor
and Premifi'es alorie or together with any other Lands, Tenements
or Hereditaments, by or between the Parties to the faid Indenture
4 or
Hilary I erm 30 Geo. 2. 61
or any af them, alone or together with any other Perfon or Perfons,
were to be dnd enure, and were thereby declared to be and enure,
as to rhe Gid IVL.tior and all other the Premiffes, To the Ufe of the
laid Sir Robert Atkym for Life, without Impeachment of Wafte ;
and from and after his Deceafe, To the Ufe of the faid Dame
Mary for Life for her Jointure and in Bar of her Dower ; and from
and after the Dtceafe of the fiid Sir Robert and Dame Mary, To
the life of Sir Robert Athm Knt. Son and Heir apparent of the
faid Sir Rob'rt, and the Heirs Male of the Body of the faid Sir
Robert the Son, o?t the Body of Lovis Carteret his intended Wife
lawfully to be begotten ; and for Default of fuch Ifliie, To the Ufe
of the Right H^rs of the faid Sir Robert the Father for ever.
And the faid Sir Edivard Atkym and Sir Robert the Father did by
this Deed covenant with the faid Sir Edioard Carteret and 'john
Loive and their Heirs, That in Cafe any Dcfsdt fhould happen in
the faid Fine and that Aflurance, Or in Cafe there fliould not be
fome good Conveyance in the Law made according to the Intent of
that Indenture, fo that by Reafon of fuch Defedl or Failure of fuch
Conveyance and Aflurance in Law, the faid Manor and Premifles
or any Part or Parcel of them fliould not, before the thirtieth Day
oi November then next enfuing, be fufficiently conveyed according
to the Intent of the fiid Indenture, then they the fiid Sir Edward
Carteret and Jcbn Loive and their Heirs, and all and every other
Perfon and Perfons and their Heirs, ftandin<r or being fcifcd. or
which ihould ftand or be fcifed of and in the faid Manor and Pre-
milfes, fhould and would from Time to Time and at all Times
from thenceforth for ever ftand and be feifed of and in the faid
Manor and Premifles, or fo much and fuch Part and Farts thereof
whereof or concerning which any fuch Defeft fhould happen to be,
To the Ules Behoofs Intents and Purpofes therein before declared,
limited and contained, according to tlie true Intent and Meaning of
the faid Indentu^'e, and to 7ione other Ufe, Intent or Purpofe what-
foever.
One Other of thefe three Indentures was a Leafe, dated iith
yune 1669: And tlje Remaining One was a Releafe, dated 1 2th
'June i66g. This Releaf bore the vtvy fame Date with the Deed
already recited (called the lelfer Deed :) And the Counfel on both
Sides /.greed in calling this Deed of Reluife (for Diflindion's Sake)
the greater Deed, as this contained the Settlement of the whole
Eftate.
By thefe Indentures of Leafe and Releafe, dated nth and I2th
June 1669. the Releafe being Tripartite, and made between the fiid
Sir Edward Atkyns, the faid Sir Robert the Father and Dame Mary
his Wife, Fbilip Sheppard Efq; Sir Clement Farnham Knt. and Ed-
R ward
62 Hilary Term 30 Geo. 2.
ivard ^ikyns Efq; (fecond Son of the faid S>\v Ediuard Atkyus,) of
the firfl Part ; the Right Honourable Sir George Carteret Knt. and
Bart. Vicc-Chamberlain of his Majefty's Houfehold, and One of
his Majefty's mofl: Honourable Privy Council, the faid Sir Edward
Carteret and the faid John Lowe, the Right Honourable Edward
Montagu, commonly called Lord Hinchhibrooke (Son and Heir ap-
parent of the Right Honourable the Earl of Sandwich,) Sir Philip
Carteret Knt. (Son and Heir apparent of the fiiid Sir George Car-
teret,) and Edward Swift Efq; of the fecond Part ; and the fiid
Sir Robert Atkym Knt. (the Son and Heir apparent of the faid Sir
Robert Atkym,) and Locals Carteret (one of the Daughters of the
faid Sir George Carteret and of Dame Elizabeth his Wife,) of the
third Part ; It is witneffed that in Confideration of a Marriage then-
tofore had and folemnized between the faid Sir Robert Atkyns the
Father and Dame Mary his Wife, and alfo of a Marriage then
Ihortly to be had and folemnized between the faid Sir Robert Atkym
the Son and the faid Lovis Carteret, and of the Sum of 6500 /.
paid to Sir Robert the Father by the faid Sir George Carteret, for the
Marriage Portion of the faid Lovis Carteret, and of 5 s. a- piece to
the faid Sir Edward Atkym, Sir Robert Atkym the Father, Thilip
Sheppard, Sir Clement Fariiham, and Edward Atkyns, paid by the
faid Sir Edward Carteret and fohn Lowe, and for a Provifion to be
had and made to and for the faid Dame Mary (Wife of the faid
Sir Robert Atkym the Father,) for and in the Nature of a Jointure,
in Bar and Recompence of her Dower and Thirds at the Common
Law ; and alfo for a Provifion for the faid Levis Cai'teret, for and
in Nature of a Jointure, in Bar and Recompence of her Dower and
Thirds at the Common Law; and for fettling All the Manors,
Lands, Tenements and Hereditaments therein after mentioned, to
the feveral and refpedive Ufes, upon the Trufts, to the Intents and
Purpofes, and with under and fubjedl to the Provifoes Declara-
tions Limitations and Agreements therein after declared ; The faid
Sir Edward Atkyms and Sir Robert the Father did grant releafe and
confirm unto the faid Sir Edward Carteret and "John Lowe and their
Heirs, the faid Manor of Swell d.n^ other the PremifTes in Queilion
(as defcribed in the leffer Deed,) and feveral other Manors Lands
and Hereditaments therein mentioned. To hold the faid Manor of
Swell and other the Premifles in Queflion, to the faid Sir Edward
Carteret and John Lowe and their Heirs, to the feveral Ufcs therein
mentioned ; which Ufes, (as to the faid Manor of Swell and other
the PremiJJ'es in ^leflion,) are the fame as thofe before fet forth in
the lefTer Deed ; viz.
To the Ufe of Sir Robert the Father, for Life, without Impeach-
ment of Wafle ;
Remainder,
Hilary Term 30 Geo. 2. d'i^
Remainder, as to the faid Premifles (except Timber-Trees,) to
Dame Mary for Life, for her Jointure, and in Bar of Dower ;
Remainder to Sir Robert the Son, and the Heirs Male of his
Body by the faid Lovis Carteret ;
Remainder to the Right Heirs of Sir Robert the Father.
And feveral other Parts of the Eftates were hmited thereby, to
Sir Robert the Son, for Life ; Remainder to Trurtees, to preferve
contingent Remainders ; Remainder to the faid Levis Carteret for
Life, for her Jointure and in Bar of Dower ; and upon the IlTuc of
the faid intended Marriage, in ftridl Settlement.
In which Indenture of Releafe is contained a Provifo, in the
following Words —
" Provided always that it fhall and may be lawful to and for the
" faid Sir Robert Atkym the Father, the faid Sir Robert Atkytu the
" Son, and the faid Lovis Carteret, refpedivcly, when they are or
" fliall be refpedlively feifed in PolfefTion of the Freehold of fuch of
" the Premiffes as by Virtue of and according to the Limitations
" aforefaid are refpeftively limited to them for their refpedtive
" Lives, by their refpeftive Deed or Deeds in Writing fealed and
" delivered in the Prefence of two or more credible WitnefTcs, to
" make any Lcafe cr Demife, Leafes or Demifes, of all or any of the
" faid Premiffes whereof they fhall be fo refpedlively feifed in Pof-
" feffion for Life as aforefaid, (Except of the Capital Meffuage of
*' Sapperton aforefaid, and the faid Lodge in Pinbiiry Park afore-
" fiid,) unto any Perfon or Perfoiis, for One, Two or 'Three Lives
" in Pofleffion Reverfion or Remainder, to end or determine upon
'■' the Death of One Two or Three Perfons, Or for the Term of
"21 Years abfolute ; So as there be not, in the refpedive Pre-
" miffes or any Part thereof, any Eflate exceeding the Term or
" Time of three Lives or 21 Years, in Being at the fame Time;
" and fo as fuch refpedlive Leafes be not made without Impeach-
" ment of Wafte ; jiui so as the usual Rents of fuch of the
" Premiffes refpedlively as fhall be fo leafed or demifed upon Fines,
" And the best Rents that can be reafonably gotten for fuch of
" the Premiffes refpedlively as fhall be fo leafed or demifed without
" Fines, BE refpeBlvcJy resekvrd upon every fuch refpedlive
" Leafe or Leafes Demife or Demifes, to be payable puking
" the refpedlive Terms in the faid refpedlive Leafes or Demifes to be
contained ; Any Thing herein before contained to the contrary
" notwithflanding.
And
64 Hilary Term 30 Geo. 2.
And another Provifo is therein alfo contained, in the fol 'owing
Words, viz,
" Provided alfo that it (hall and mav be lawful to and for the faid
" Sir Robert Atkym the Father, at any Time or Times during his
" natural Life, After the Deceafe of the faid Dame Mai'y his Wife,
" by any Writing or Writings indented, under his Hand and Seal,
" teftified by two or more WitnefTes, to grant, affign, limit or ap-
" point the faid Manor of Sivdl inferior alias Nethr Sive'l, and
" the Lands Tenements and PremifTes in Swell inferior othcrwife
" Nether Swell, Upper Swell, r;nd Stowe in the Would, and hi either
" or any of them, or fuch Parts and Parcels thereof as He fhall
" think fit, unto or to the Ul'e of fuch lVomo.71 or Women as He the
" faid Sir Robert Atkym the Father fall marry or take to Wife,
" after the Deceafe of the faid Dame Alary his now Wife ; for and
" during the Term of the iiatural Life or Lives of fuch Wife or
" Wives only, for her or their Jointure or Jointures ; Any Thing
" herein contained to the Contrary thereof in any wife notvvith-
" ftanding."
And by another Provifo in this Deed, the like Power is given to
Sir Robert the Son, " to n)ake a Jointure of all or any of the Lands
" thereby limited to Lovis Carteret for h-.r Jointure, on any future
" Wife or Wives whom He fliould manv, after the Death of the
" faid Lovis Carteret without lifue."
And by the flime Deed, Sir Robert the Fatlier covenants with Sir
George Carteret, That Sir Edward Atkym, Pie, and D-;me Mary
his Wife, would, before the End of Michaelmas Term then next,
levy one or more Fine or Fines fur Conu/hnee de droit, &c. with
Proclamations, of the PremifTes contained in this Indenture, unto
the faid Sir Edward Carteret and John Lowe : Which, it was there-
by declared, fliould be and enure to the feveral and refpedfive Ufes,
upon the Truffs, and to the Intents and Purpofcs, and with, under
and fubjedl to the Provifues DecIar.;iions and Agreements therein
before declared limited and exprellcd concerning the fame. And
reciting " that Sir Clement Farnham and Edward Atkym were pof-
*' fefled of the Premilfos in Queffion, or feveral Parts thereof, for
" feveral Terms of Years tl:cn in Being, in Truff for Sir Robert the
" Father," It was thereby declared and agreed by Sir Robert the
Father, That Sir Charles Farnham and Edward Atkym should flanti
poffefTed of the Premiflls comprized in the faid Terms, during the
Relidue thereof. Upon Truft and to the Ufe and Benefit of the
Perfon and Perfons to whom the Premifles (by V^irtue of the Limi-
tations therein) fliould belong.
The
Hilary Term 30 Geo. 2. 65
The Jury found that the firft of the faid Indentures was executed
by Sir Ednvard Atkym^ Sir Robert Atkym the Father and Dame
Mary his Wife, and 'John Lowe ; The fecond of the faid Inden-
tures was executed, by Sir Edward Atky?is, Sir Robert the Father,
Philip Sheppard, Sir Clement Farnham, and Edward Atkym Efq;
And the laid Indenture of Releafe, by Sir Edward Atkyns, Sir Ro-
bert the Father, Dame Mary his Wife, Sir Clement Farnham, Ed-
ward Atkyns Efq; Sir George Carteret, Sir Philip Carteret, Edward
Swijt, Sir Robert Atkyns the Son, and Lovis Carteret ; and that the
Leafe for a Year was executed before the Releafe.
That in "Trinity Term 1669, a Fine was levied ; wherein the
faid Sir Edward Carteret and John Lowe were Plaintiffs, and the
faid Sir Edward Atkyns Sir Robert the Father and Dame Mary his
Wife Deforciants, of the Premiffcs in Queftion (amongfl: the faid
other Lands contained in the greater Deed :) But no Fine was ever
levied of the Lands contained in the little Deed only.
Afterwards, on the 6th of yuly 1669, Sir Robert the Son was
married to the faid Lovis Carteret.
Dame Mary (the Wife of Sir Robert the Father,) died on 2d
March 1680.
After which, viz. on 26th ^/r/V 1681, Sir Robert the Father,
being feifed of the Premiffes in Queftion, as of Freehold, for the
Term of his natural Life, without Impeachment of Wafte, (and
being then on the Point of marrying a fecond Wife, Mrs. Ami
Dacres,) duly executed an Indenture under his Hand and Seal, at-
tefted by three Witneffes, bearing Date the fime 26th of April 1681,
and made between Himfelf of the one Part, and Sir Robert Dacres
Knt. John Dacres and Ann Dacres Spinfter (Sifter of S'w Robert Dacres
and John Dacres) of the other Part : By which Indenture, (after
reciting the abovementioned Indenture of Releafe Tripartite of the
12th oi June 1669, and the Power thereby referved " for the faid
" Sir Robert Atkyns tht Father, after the Death of Dame Mary, to
" limit all or any Part of the Manor and Premift"cs in Queftion, to
" any future Wife or Wives He ftiould happen to marry, for the
" Term of the natural Life or Lives of fuch Wife or Wives only,
" for her or their Jointure or Jointures,") it is wltnefled that in
Confideration of the then intended Marriage between the faid Sir
Robert Athns the Father and the faid Ann Dacres and of her Mar-
riage-Portion, The faid Sir Robert Atkyns the Father, in Pur-
suance of the faid Power to FLim referved and of all and every
Power and Autiiority whatfoever, did grant afiign limit and ap-
point the faid Manor of Swell and other the Premiffes in Queftion,
S unto
66 Hilary Term 30 Geo. 2.
unto the faid Ann Dacres, for and during the Tirm of her
NATURAL Life, for her Jointure, and in Bar and Recompence
of her Dower and Thirds at the Common Law.
On 28th April 1681, the faid Sir Robert Atkym the Father mar-
ried the faid Ann Dacres.
On 31ft May 1698, Sir Robert Atkyns the Father, being feifcd of
the PremifTes in Queftion, as of Freehold for Life, without Im-
peachment of Wafte, executed an Indenture of Leafe, under his
Hand and Seal, attefted by 3 WitnefTes, dated on the fame 31ft
Day of May 1698, and made between Himfelf of the one Paft,
and Thomas Dacres Efq; Robert Dacres Gent, and John Dacres
Cent, (the 3 Sons of the before named Sir Robert Dacres Knf. and
Nephews of Dame An7i Atkyns then Wife of Sir Robert Atkyns the
Fathv°r) of the other Part. This Indenture of Leafe recites tlie In-
denture Tripartite of Releafe of the 12th of June 1669 ; Whereby
Sir Ediuard Atkyns and Sir Robert Atkyns the Father did (amongft
other Lands) grant releafe and confirm to the faid Sir Edward Car-
teret and John Lcwe and their Heirs, the faid Manor of Swell in-
ferior otherwife Nether Swell, with the Appurtenances, and all
thofc Rents of Afiize of the Free Tenants of the faid Manor ex-
tending to One Halfpenny and One Pound of Pepper ; and all the
Rents of Cuftomary Tenants of the faid Manor; and the Capital
MefTuage and Farm of the Bold ; and the Park called S^vell Park,
otherwife Abbot's Wood ; and all and all manner of Tenths or Tithes
of the faid Park ; and the Barcary or Sheep-houfe called Gatmow^
and the Grounds or Clofes of Meadow or Pafture adjoining or be-
longing thereto ; and the Water-Mill called Bold Mill, with the
Dams, Streams, Waters, Attachments, Fenders, Soak, Suit, Mulc-
ture, Grift and Appurtenances thereunto belonging ; All the Tolns
of the Cuftomary Tenants of the faid Manor, and all and all man-
ner of Tenths and Tithes of all the PremifTes whatfoever, which
unto the late difTolved Monaftery of Hales did belong ; All that
Common of Pafture for 400 Sheep and 20 Beafts, upon the Hills
and Fields of Nether Swell, at all Times in the Year except in the
open Time, and in the open Time Common of Pafture within the
faid Fields for all Manner of Beafts without Number Rate or Stint ;
and the feveral Paftures called Murden Leafows ; all that Barcary or
Sheep-houfe within the faid Pafture ; all that Pafiiurage or Feeding
for 600 Sheep, or for more or lefs at the Will and Pleafure of the
Tenant of the faid Pafturcs called Murden Leafows for the Time
Being, in and upon the Demefne Lands Wafte Lands and other
, Lands belonging to the faid Farm of the Bold or elfewhere, in fuch
ample Manner as the late Abbot of the faid difTolved Monaftery of
JSz/fi aforefaid and his PredecefTors had kept and occupied the fame
within the Manor of Swell aforefaid j All thofe Grounds in Nether
Sivell
Hilary Term 30 Geo. 2. 67
Swell aforefaid thentofore in the Tenure of John IVinfmore or his
Affians ; All that Half- Acre of Land in Nether Swell fometimes in
the Tenure of the Curate of the Church of S^owe in the faid County
of Gloiice/kr ; All that Fifhing of the River or Water of the
whole Manor of Nether Swell, with all Profits and Commodities
to the fame belonging ; All thofe Portions of Tithes whatfoever,
and all and all manner of Tithe of Corn Grain Blade Sheaf
Hay Wool Lambs Pafture and other Tenths and Tithes what-
foever in and upon the PremifTes or any Part of them grov/ing re-
newing or increafing ; (being the PremifTes in Qu^llion ;) To the
feveral Ufes by the faid Indenture limited as aforefaid : And it alfo
recites the Power to the faid Sir Robe}-t Atkytis the Father, " for
leafing the PremifTes, " as it is fet forth in the faid Indenture.
Then it is witnefTed by this Indenture of Leafe, That the faid Sir
Robert Athm the Father, in Confideration of the Rent thereby re-
ferved, in Pursuance of the Power to Him referved in and by the
faid recited Indenture, and by Virtue thereof and c/" all and
EVERY Power and Authority whatfoever, did, by that his prefent
Writing indented, under his Hand and Seal, teflified by the feverai
Witneftes whofe Names are thereupon indorfed, demife leafe grant
and to Farm let, to the faid Tkovias Dacres Robert Dacres and
John Dacres and their AfTigns, the faid Manor, and all and fingukir
the faid Lands, Tithes, Tenements, Hereditaments and PremifTes,
with their and every of their Rights Members and Appurtenances,
in Swell ijiferior otherwife Nether Swell; And all and every the
Rents reserved upon any Leafes or Grants ; To hold to them
the faid Thomas, Robert and John Dacres, from the making thereof,
for and during the natural Lives of them the faid Thomas Robert
and John Dacres and the Life of the longer Liver of them j
YiELLDiNG AND PAYING THfeREFORE, during the faid Term,
unto the faid Sir Robert Atkyns Party thereto, and after his Deceafe,
to fuch Perfon or Perfons refpe£tively to whom the faid Manor and
PremifTes were limited, according to their refpedive Effates and
Titles, the Yearly Rent of THKht hundred and threescore
Pounds, at Michaehnas and Lady-day, by even and equal Portions.
In which faid Indenture of Leafe is contained a Claufe, in thefe
V/ords; viz. " The tkue Intent and Meaning of this
" EUate or Term for Lives, fo hereby granted and made to the faid
" Thomas Dacres Robert Dacres and fohn Dacres and the Survivor
*' of them, being to preserve the faid Remainder fo limited in
" the PremifTes by the faid recited Indenture, to the Right Heirs
" of the faid Sir Robert Atkyns Party to thefe Prefents, and to
*' SUCH Person or Persons to whom the faid Sir Robert
" Atkyns Party to thefe Prefents fiall any way dispose of
" the fame, from being p. a r r e d o/' ^/zy Rkcoveky to be fuf-
" fered, or by any other ASi to be attempted or done for the Bar-
" RING of the fame.''
2 On
6S Hilary 1 erm 30 C'^eo 2.
On 8th jfune 1 69S, John Dncres, One of the Lcfees in the lafl
abovementioned Indenture of Leafe, alone, executed a Letter of
Attornc)', under his Hand and Seal, reciting the Tiid laft Indenture
of Leafe, and impowering and authorizing Thomas Barker Gent,
as his Attorney, to take Livery and Set/in of the Prcmiff^s Lift
above mentioned, from the faid Sir Robert Atkyns the Father ; for
Himself (the faid John Dacres) and for the faid Thomas and
Robert Dacres and every of them, in thkjk Names and for their
life, according to the Purport and true Meaning of the faid recited
Indenture of Leafe ; and to enter and take PofTcfllon of the faid
Manor and Premifles in the faid Indenture contained, to the Ufe of
THEM AND EVERY of them ; He the faid John Dacres allowing
of all and every the Ad and Adts fo done by the faid Attorney, to
be as effcdual and fufficient in Law, as if He had been perfonally
prefent and had done the fame.
On 5th July 1698, Sir Robert Afkyns the Father, being fo fcifed
as aforefaid, and then in the adual Poireflion of the faid Manor and
Premifles, did, in his own Perfon, deliver Seifin and Pofllflion
thereof unto the faid Thomas Bar Jeer, to ihf, Usk of the faid
Thomas Robert and John Dacres and of fverv of them,
and of the Survivor of them, according to the Purport and true
Meaning of the faid Indenture ; He the fliid Thomas Barker being
authorized and appoin.ed, by a Letter of Attorney under Hand and
Seal of the faid John Dacres, and by Him duly executed, " for
" Him and to his Ufe and in his Name, and for the faid Thomas
*' AND Robert Dacres and to their Vfe and in kve hy of
" THEIR Names, to take and receive the faid Livery and PofTcfiion
" of the fiid Capital MefTuage Manor and PremiiTes, accordingly :"
As by an Indorfement on the faid Letter of Attorney (which is fet
out in the Verdidt) appears.
But the Jury found that the faid Thomas Dacres Robert Dacres
and John Dacres, the LefTees named in the lafl: mentioned Inden-
ture, or either of them, nkvir v/ere in Itssksskn of the
Premiffes in Qneftion, othervv'ife than by the faid Livery and Seifm
fo given by the faid Sir Robert Atkyns the Father as aforefaid ; And
that they or either of them did not receive or pay any Rent for
or in refpedt of the faid Premifles ; and that the fiiid Indenture of
Leafe li'as ^OT found in the Custody f Thomas Dacres the
Surviving LeJJce, at the Time of his Death.
On 27th May 1708, Sh- Robert Atkyns the Father, being fo fcifed
of the faid Premilles and of the Remainder and Reverfion thereof
as aforefaid, made his Will, dated the fame 27th Day oi' May 1708,
attefted by four Witneffcs ; And thereby confirmed his Wife's Join-
4 ture ;
Hilary 1 erm 30 Geo. 2. 69
ture ; and then recited " that He was feifed of the Remainder and
*' Reverlion in Fee, of the faid Manor and other the PremifTes in
" queftion ; and that fuch Remainder or Reverfion, after the
" Djath of his Wife, was alfo further expeftant upon an Eftate
" ill fpecial Tail, fettled ugon his Son Sir Robert upon his Marriage,
" by the abovementioned Deed of 12th June 1669 ; And that He
" had made a Leafe to the faid 'Thomas Robert and John Dacres, for
" their Lives and the Life of the longer Liver of them, according
" to the Power He had referved to Himfelf upon the faid Settle-
" menf." After which Recital, He difpofed of his flud Remainder
or Reverfion in Fee, to t<he LefTor of the Plaintiff, in Tail Male.
The Whole Devife was in the following Words — viz. " I give
" and confirm unto my faid Wife Dame ^«« Atkym^ All thofe
" Lands Tenements and Hereditaments in Lower Sivell aforefaid,
" which were fettled upon Her for iier Jointure, before our Mar-
" riage : And I hereby further give and devife to Her, for Term of
" her Life, my Manor of Lower Swell, and all the Reft of my
" Lands Tenements and Hereditaments whatfoever in Lower Swell
" aforefaid, for Term of her Life, as an Addition to her Jointure.
" And whereas I am feifed of the Remainder and Reverfion in
" Fee, of the faid Manor of Lower Swell, and of the Reft of the
" faid Lands Tenements and Hereditaments in Lower Swell, fo
" fettled, and by this my Will given and confirmed to my faid
" Wife for her Life ; Which Remainder or Reverfion, after the
" Death of my Wife, is alfo further expedtant upon an Eftate in
" the faid Manor and Lands in Special Tail fettled upon my Son Sir
" Robert Atkyns upon his IVlarriage, by Deed dated the 12th of
" June J 669, and upon his Sons by his now Wife and no other
" Wife ; And whereas I have made a Leafe, dated * the 8th Day of* ^p^e -pefta-
" Jioie in the Year of our Lord 1698, executed by Livery and tor miftakes
" Seifin, to Thomas Dacres Efq; and to Robert d.nd John ^'^^''^^'^f, L,\7,°^[t
" Gentlemen, for the Lives of the faid Thomas Robert and John was3iftA%.
" Dacres and the Life of the longer Liver of them, according to a ^--^nte, pa.
" Power I referved to Myfelf upon the faid Settlement made upon
" the Marriage of my faid Son Sir Robert Atkyns; Now I give and
" devife the faid R-emaindrr or Reversion, and the Benefit
" OF THE Trusts of the faid Leafe for Lives, to my Grandfon
" John Tracy; (the now younger and fecond Son living of my Son-
*' in-Law John Tracy of Stanway in the faid County of Gloucejler
" Efq; by my Daughter Ann Tracy his Wife,) and to the Heirs
'• Male of the body of my faid Grandfon by Him to be begotten.
" And if my faid Grandfon happen to die without lilue Male, then
" I give and devife the faid Remainder or Reverfion, to the next
" younger Son of the faid John Tracy my Son-in-Law, called Fer-
" dinando Tracy, and to the Heirs Male of the body of the faid
*' Ferdinando. And for Default of fuch Iffue, then I give and de-
T " vife
70 Hilary Term 30 Geo. 2.
k -^ —
" vife the faid Remainder or Reverfion to the next Younger Son
*' my faid Son-in-Law John 'Tracy may happen to have by my faid
" Daughter, and to the Heirs Male of the body of fuch next
" younger Son j" and fo on, to other ftill younger Sons, &c.
(Thefe Devifes were All upon Condition that the faid Sons refpec-
tively fo inheriting the faid Manor and Lands, fliould conftantly ufe
to call and write themfelves by the Name of Atkyns only, for their
Surname, and by no other Surname.) And then the Will pro-
ceeds thus — " I do further give and devife all my Houfes and all
" Lands Tenements and Hereditaments fituate lying and being in
" or near Curfitor's Alley in Holbourn within the City oi London or
" the Suburbs thereof, or within the County of Middkjex, or in
" either of them ;" in like manner, and upon the like Condition,
&c. And, reciting that the Reverfion or Remainder of his Manor and
Lands in and of Sapperton aforefaid, and of the Advowfon of the
Church of Sapperton, and of and in his Manor oi Pitibitry and of
the Lands thereto belonging, as alfo of Pinbury-Park, was in Him
and his Heirs ; and alfo of the 7 Hundreds of Cirencejler^ and of
the Hundred of Bijley, (all in the faid County of Gloitcefter ;) He
devifed the fame in like manner. The Words of his Will are
thefe — " I having alfo made a Leafe for Lives, of the faid Manors
" of Sapperton and Pinbury, and of the faid Advowfon of Sapper-
" ton, and of the faid Phibury-Park, and of all the faid feveral
" Hundreds, the better to preferve and fupport the faid Remainders
" and Reverfions from being cut off or barred by any Recovery.
" And if my faid younger Grandfons happen to die without Iffue
*' Male, then I give and devife the fame Reverfions and Remainders
" to my Nephew Richard Atkym (Eldeft Son of my late Brother
*' Sir Edward Atkym deceafed) and to his Heirs."
On 9th February 1709, Sir Robert At ky>2s, the Father, died, feifed
of the Premiffes in Queftion.
Upon his Death, Dame Ann, his Widow and Rcli(fl, entered
thereupon ; claiming the fame for her Life, for her Jointure, under
and by Virtue of the above mentioned Indenture of 26th April
i68i : And was in PoJfeJJion thereof.
The Jury then find an Indenture Tripartite dated the rSth of
May T710; made between Richard Atkyns Efq; Eldeft Son and
Executor of Sir Edward Atkym (the Surviving Truftee in whom
tl:e Terms for Years mentioned in the greater Deed were verted,)
on the I ft Part ; "Jofpb Walker, Gent, on the 2d Part ; and the faid
Sir Robert Atkyn^, (the Son) on the 3d Part: By which, after re-
citing the Indenture of Releafe of 12th June 1669. and that it was
therein n-;entioned that Sir Cletneiit Farnham and Edward Atkyns
were poffeiTed of feveral Terms for Years in the Premilles in que-
4 ftion.
Hilarv Term 30 Geo. 2. 71
flion, and that they were to ftand pofrefled thereof in Truft for fuch
Perfon and Perfons to whofe Ufe and Ufes the fame were limited
by the fiid Indenture ; and reciting that the faid Sir Robert Atkyns
(the Son) then claimed the faid Manor and Premifles by and
UNDER the SAID Indenture; and that Sir Clement Farnham was
dead, and the faid Edward Atkyns (afterwards Sir Edward Atkyns
Knt, Lord Ch. Baron of the Exchequer) furvived Him, and was
alfo then dead, having firft made his Will and the fiid Edward At-
kyns Executor thereof, and that He had proved the fame ; The faid
Richard Atkyns, at the Inftance and Requeft of the faid Sir Robert
Atkyns (the Son) teftified by his executing the faid Indenture, and
in Confideration of 5 s. paid to Him by the faid Jofeph Walker, af-
figned over the faid Manor and PremifTes in quellion, to the faid
'jofeph Walker, To hold to Him his Executors Adminiftrators and
Ailigns, for all the then Refidue and Remainder of the faid Terms,
whereof the faid Sir Clement Farnham and Edward Atkyns or either
of them were polTeffed ; In Truft for the faid Sir Robert Atkyns (the
Son) and the Heirs Male of his Body by the before-mentioned
Danae Lovis his Wife ; (the faid PremilTcs being fo limited in and
by the faid Indenture of Releafe of 12th 'June \bb(^}i In which
faid Indenture, there is a Covenant from Sir Robert (the Son) to
indemnify the faid Richard Atkyns his Heirs Executors and Admini-
ftrators againft any Damages he or they might fuftain by reafon of
his making the faid Affignment to the faid "jojeph Walker as afore-
faid.
The Jury further find That Dame Ann Atkyns being fo in Pof-
fefiion of the Premiffjs as aforefaid ; In Trinity Term 1710. g Ann.
an Ejectment was brought in the Court of Common Pleas, for the
Recovery of the faid PremifTes, againfl Her the laid Dame Ann and
the Tenants in PolT^ilfion of the fame PremifTes, by John Philips,
upon the feveral Demifes of the faid Sir Robert Atkyns the Son, and
of the fiid '^'ofeph Walker : In which Ejedlment, the Demifes were
laid upon the 2 2d Day of May 9 Ann. To hold from the 2cth'
Day of the fame May, for 7 Years. And the faid Ejedment was
tried at the Bar of the Court of Common Pleas, in Michaelmas
Term following : And a general Verdidt was found for the Plaintiff;
and Judgment was entered up thereupon, againft Her and the reft
of the Defendants therein, for the faid "'John Philips ; and he reco*.
vered Terminum Jiium predi£iumy and had an Habere facias Pof-
ffjionem.
The Jury further find That upon this Trial, the faid two Inden-
tcres, called greater and IcfTer Deeds, of 12th fune 1669, were.
Both of them, read and given in Evidence to the Jury: But that
the Deed of Afjignment, of i8th May 1710. was not produced,
nor given in Evidence, to the Jury.
They
72 Hilary Term 30 Geo.
They find that foon after the faid Judgment in Ejedlmcnt, and
during the Life of Dame Ann, Sir Robert At kym (;he Son) en-
tered into and was in PoffefTion of the PremilTes in qm-fiion, and in
the faid Declaration in Ejedment mentioned.
They find that on ifi Januan' 17 lo, John Philips, the faid
Plaintiff in Ejeftment, furrendtTcd the two Terms mentioned in the
faid Declaration in Ejedlment to be demifed to him by the faid Sir
Robert Atkyns (the Son) and Jcfph Walker, to the laid Sir R. A.
(the Son) then in PoJcJJion of the Prcmiffes.
They further find that on 17th 'January 17 10, the faid Sir R. A.
the Son, being fo in PoJJ'cffion as aforefaid, and during the Life-time
of the faid Dame Anne Atkyns, Widow, made a Feoffment to fames
Earle, of the Premiffes in queftion, in Fee ; by Indenture Tripar-
tite of that Date, made between Himfelf on the iff Part; "^ames
Earle, Yeoman, on the 2d Part ; and fohn Hobndcn, Gent, on the
3d Part : Which Feoffment in Fee is therein declared to be for the
docking, barring and deflroying all Estates Tail. Vfe and
Ufes, Reverfions and Remainders, at any Time thentofore made cre-
ated or limited of and in the Manor and Premiffes in queftion ; and
for the vefting and fettling an Eftate in Fee Simple therein, to and
in the faid Sir Robert the Son. Sir Robert (the Son) did therefore,
in Confideration of 5 j. thereby grant bargain fell enfeoff and con-
fir.m unto the faid fames Earle his Heirs and Affigns, the PremiOes
in queftion, To hold to and to the Ulc of the faid fames Earle
his Heirs and Affigns for ever ; To the Infe?it and Purpofe that the
faid fames Earle might become perfcd Tenant of the Freehold of
the laid Premiffes, in order for the fuffering a Covvnon Recovery in
Hilary Term then next ; wherein the fiid fohn Hohnden was to be
Demandant, the faid fatnes Earle Tenant, and Sir Robert Himfelf
Vouchee. Which Recovery, it was thereby declared, was to be
and enure to the Ufe and Behoof of the faid Sir RoeeRt Atkyns
{^the Son) his Heirs and Affigns for ever ; and to or for no otlier Ufe
Intent or Purpofe whatfoever. And by this fame Deed, Sir Robert
Atkyns (the Son) conftituted Edward Carter and fohn Longford
his Attornies and Attorney, either jointly or feverally to enter upon
and take Seifin and Poffeffion of the Premiffes, and to give and de-
liver Seifin and Poffeffion thereof to the faid fames Earle and his
Heirs and Affigns for ever, according to the Purport and true Mean-
ing and for the Purpofes in the faid Deed mentioned.
And the Jury find that on 20th fanuary 17 10, Edward Carter,
One of the faid Attornies, entered upon the Prcmiffes, and gave
Seifin and Poffeffion thereof to the faid fames Earle, by Virtue of
the faid Warrant of Attorney contained in the faid Indenture ; As
4 appears
Hilary Term 30 Geo. 2. 73
appears by a Memorandum indorfed upon the faid Indenture, and
found by the Verdidt.
They find that in Hilary Term 9th ^;z;;. (17 10) a Recovery
was fuffered of the Premifles ; wherein John Holmden was Deman-
dant; James Earle, Tenant; and S\r Robert Atk)ms (the Son) and
Lovis his Wife, Vouchees ; And Seifin executed thereon : Which
■ Recovery they find to be profecuted had and executed to the feveral
Ufes mentioned in the faid Deed of Feoffment. And they find that
after this Recovery, Sir Robert the Son continued in PcJeJJion of the
Premifles till the 9th oi November 171 1,
They find the Death of the Hxid Sir R. A. (the Son) on 9th
November 171 1, without Iflue Male by the faid Lovis his Wife,
who furvived Him.
They alfo find that an Ejedlment was brought for the Premifles,
againfl: the prefent Defendant Robert Atkyns Efq; and his Tenants of
the Premifles in quefl:ion, in Hilary Term 171 1, 10 Ann. by John
Miles, as Plaintifi^, on the feveral Demifes (both laid to be made on
14th February 8 A>2n. 1709. which is 5 Days after S\r R. A. the
Elder's Death) of Dame Ann Atkyns the Jointrefs, and of Thomas
Dacres, the furviving Lefl"ee under the Indenture of Leafe of 3 i
May 1698. And in Eajler Term 1712, 11 Ann. a general Verdid
was given for the Plaintiff^, on both Demifes, on a Trial at Bar in
this Court: and Judgment was entered up accordingly, ". that the
" Plaintiff^ do recover his feveral Terms aforefaid." And the faid
Dame Ann Atkyns entered upon the Premifl"es in quefl:ion, imme-
diately after this laft Judgment; and continued in Poflefiion thereof
till 9th OElober 171 2 : When She died.
Soon after the Death of Dame Ann, the (original) Defendant Ro-
bert Atkps Efq; Nephew and Heir at Law to Sir R. A. the Son
(and aUo Heir at Law to Sir R. A. the Father) entered upon the
Premilit-s, and continued in Pofl^efiion thereof till his Death ; which
happened on i6th March 1753. \ Robert's, Death was jufl: 3 Months
after the now Leflbr of the Plaintifl^'s aftnal Entry : And it was
after Ifliie joined in this prefent Ejeflment.]
John Dacres, one of the Lefl"ees in the Indenture of Leafe dated
'^i^ May 1698, died in 1705.
Robert Dacres, another of them, died in 1706.
Thomas Dacres, tht third of them, furvived the other Two ; and
died on z^d July ij^z.
U TI:?y
74
Hilary Term 30 Geo. 2.
They find that Jcbn Atkyns, the Leffor of the PJaintif, n f v f. r
WAS IN Possession of the Premifles in queftion or any Part
thereof, nor in Receipt of the Rents and Profits thereof or of any
Part thereof; nor i.nteri-, d thereupon, till the 15th of
December 17^2; When Pie inade an actual Entry into and
upon the fame ; claiming the fame as Denjifce thereof under and bv
Virtue of the Will of the fi^id Sir Robert Atkyns the Father ; and
ejcdied, drove out, and removed the faid Robert Atkyns Efq; CLrr/cs
Coxe, Thomas Horde, &c. therefrom ; and was fei/ed thereof, as the
Law requires ; and being so fcifed thereof, made the Demife to the
iiiid Cyprian Taylor the now Plaintiff, on the i6th of December
1752, to hold from thence for 15 Years: By Virtue whereof, the
i'aid Cyprian T-aylor entered on the 1 8th, and was ejedied by the De-
fendants on the J 9th.
And then they conclude generally, as ufual ; fubmitting the Mat-
ters of Law to the Judgment of the Court, upon the above Fads.
This Cafe was argued four feverai Times ; Firft, on Tuefday 3d
yujie 1755, by Mr. Torke, for the Plaintiff, and Mr. Knowler for
the Defendants; Again, on Tuefday nth Ncvenibcr 1755, by Mr.
Pratt for the Plaintiff, and Mr. Perrott for the Defendants ; a 3d
Time, on Tuefday 1 ith May 1756, by Mr. Caldecot for the Plain-
tiff, and Mr. Serjeant Prime for the Defendants ; and a 4th Time,
on Friday 19th November 1756, by Mr. Caldecot for the Plaintiff,
and Mr, Kjioivler for the Defendants : But it is unneceffary to repeat
the three firfl Arguments particularly; Becaufe the lail includes the
general Subffance of them.
The Sum of what was urged on the Part of the Plaintiff was.
That the Leafing and Jointuring Powers exifted at the Time when
they were executed by Sir Robert Athns the Father ; That thofe
Powers were well executed by Him ; That the Leafe and Jointure
made by Him, in Purfuance of thofe Powers, were an Impediment
to his Son Sir Robert the Younger's Suffering a Common Recovery;
That even fuppofing that James Earle was a good Tenant to the
Pracipe, Yet the Entry of Dame Ann the Jointrefs, within the 5
Years, avoided this Recovery ; and coniequently. That the Re-
n3ainder or Reverfion in Fee, devifed to the Leffor of the Plaintiff
by Sir Robert the Father, was Not barred by the Recovery thus fuf-
fered by Sir Robert the Son.
Thefe Points were entered into very largely, by Mr. Caldecot and
die Gentlemen who had fpoken before Him, on the fame Side.
ift, They endeavoured to prove that the Powers referved to Sir
R. A. the Father by the Two Deeds of 12th fune 1669 were in
being
Hilary Term 30 Geo 2. 75
haiig and valid at the Time of the Execution of the Leafe to the
Dacres ; and fecondly, that they were well executed; and confc-
quentlv, that there were Eil:ates of Freehold fuhliffing at the Time
when Sir R. A. the Son inade the Feoffment to Earle ; vix. Dame
yf««'s Jointure, and the Leafe to \h^ Dacres. And therefore third-
ly, They infilled that thefe Life-Eftates were Impediments to Sir
R. A. the Son's Suffering the Common Recovery. For they denied
that Sir Robert Atkyns the Son was Tenant in Tail in Pojjcffion, at
the Time that He made the Feoffment to 'javiei Earle : So that
Earle could not be a good Tenant to the Frctcipe.
And They infifted that even admitting that Sir R. A, the Son
was Tenant in Tail in Poffeffion, Yet He could not upon this naked
Polkffion, without the Freehold, make a good Tenant to the Rrct-
cipe without the Jointrcfs and the Lijfre for Life's joining : And
that the Court cannot, (under 14 G. 2. c. 20. § i.) presume
a previous Surrender or Conveyance of the Eflates for Life, in order
to make the Recovery good.
4thly, They further infifted, that fuppofing Sit Robert Atkyns, the
Son, was Tenant in Tail in Poffeffion, and alfo that there was a good
Tenant to the Pracipe ; (fo that the Recovery was good, as a
Common Conveyance ;) Yet the Re-Entry of Dame Ann Atkyns,
the Jointrefs, within the 5 Years (in 171 2) adlually avoided this
Recovery; which, if not void, was at leall: voidable by the Tenant
for Life : And this Re-Entry of the Tenant for Life re-vejied all
the fubfequent Eflates.
The great Strefs of the Queftion lies (as they faid) upon the Tenant
to the Prtvcipe.
The ift Point, in Order of Time, is the Validity of the /^^^-o 'ft Point.
Powers created by the greater Deed of 1669.
But there is no Ground, either for the Suppofition of a FaSf,
" That the leffer Deed muft have been ex-ecuted laf ;" n9r for any
Inference in Point of Law, " That it operates to the Extindiion of
" thefe Powers."
The PaSl concerning the Priority of Execution of the two Deeds
cannot, noiu, be determined by any Evidence : Therefore Prc-
fumption muff determine it.
Now One of thefe Deeds is an Agreement to execute the other :
Confequently, muft have been prior to it. The leffer Deed -cove-
nants ; The greater performs that Covenant : Therefore the leffer
was prior. If it had been executed laji ; that would have deffroyed
the
76 Hilary Term 30 Geo. 2.
the very EfFedl of it and the Powers raifed by it : Dame Mary was
giving up and exchanging her former Jointure : And therefore She
might delire a fingle diftinft Deed, to fecure her own Intereft, For
which Purpofe, a Deed of Covenant was the moft proper : And
there was no Need to incumber this Lefler Deed, with the Powers
inferted in the Greater Deed ; which Powers did not concern Her.
Whereas, in order to fupport a contrary Argument, it is ncceflary to
fuppofe a new Agreement (without, and even againfl:, any Reafon
for it,) to alter and deftroy the former Agreement. But if the Par-
ties had meant fo, they would have fo exprejpd it.
However, fuppofing the lefler Deed to have been aSlually executed
lafi ; Yet being all Uno Flatu, the Law will order the Time, fo
that the proper Deed fliall be taken to be anterior, and the other
fubfequent, according to the Reafon of the 'Thing and the Intent oj the
Parties. Digges's Cafe, i Co. Rep. 173. ^Il)any's Cafe, i Co.
Rep. iQj. and 2 Rep. y^. the Lord Cro?nwell's Cafe.
And the operation of the Fine will follow the Conftruclion of the
Deed.
Countefs oi Rutla?id's Cafe, 5 Co. 26. a.
2d Point. Therefore the Exiflence of the Powers being eftabliHied, The
next Queftion is, " Whether they have been well executed."
Dame Mary's Jointure has not been objeded to : But the Leafe
made to the Dacres has ; (ift) As being without a fub/i/Iing Power
in Sir R.y^. the Elder, the Ltffor, to make it ; (2dly) As being
FRAUDULENT, even fuppofing Him to have had Power to make it;
(3dly) As the Livery and Scilin was made to the Attorney of One
only of the three LefTees, and not to All 3, or their Joint-Attorney.
Now it is true that a Tenant in Tail in Pcff- [Jion may fuffer a Re-
covery : So alfo mav a Tenant in Tail in Remainder, if he can get
in the Toiant for Life.
But the Original Donor may interpofe as many Eftates for Life,
as he pleafes, before and prior to the Tenancy in Tail. And this
Leafe to the Dacres, under the Power, is juft the fame as if it had
been originally interpofed. hvA iht Declaration cf the Intejitic?!
will NOT vitiate the Ejiate limited to thefe Dacres: If it had been
even a Condition annexed, in Reftraint of Alienation, fuch a Condi-
tion vv'ould have only been void ; and the Eflate, good. Co. Litt.
24. a. Corbet's Cafe, i Co. 84. Mary Portingtan'% Cafe, 10 Co.
3 J- ^•
% As
Hilary Term 30 Geo. 2. 'j^
As to Fraud — There is Nothing fraudulent in this Leafe. And
both the Terms have been adlually recovered at Law.
If Sir R. A. the Father's fuperfiuous Declar.nion has any Effedl,
it makes the Leafe Good : And it would have been adjudged good,
if it had been called in queftion whilft it fublifted. 2 Leon. 132.
Moore and Savill's Cafe.
And No One is hurt or defrauded by this Leafe. Not the Join-
trefi : For the full and befi; Rent is referved. Therefore Cro. Eliz.
5. The Countefs of SuJJ'ex's Cafe does not afFed: this Cafe : For theie,
the Jointrefs fufFered. Nor is the Tenant in Tail hurt : For the
fame Rcafon, as to his Rent ; And as to the poftponing his Power to
fuffer a Recovery, it was legal, and might have been done by a
real aftual Demife for Life or Lives. And the Eyes of this Court
do not pierce further than the S,hell of the Conveyance ; Not to the
Deftgn of it. As in Cafes of Terms to preferve contingent Re-
mainders, This Court cannot hinder the Truflee from deftroying
them: So, of Terms to attend Inheritances; Which this Court
cannot hinder the Mortgagee from getting in. Cro. Car, 190. The
Cafe of NaJJo v. Preflon, is a ftrong Cafe to fliew that the Court of
Law will not meddle with the Equity of the Cafe.
Now this Leafe has ptirfued the Power : And this Court will
not meddle with the Intent.
Leafes rhade by Churchmen, for the Benefit of their Families,
are generally as fidlitious as this : And yet they are always allowed
to be good.
As to the Livery and Seifin — This Livery to Thomas Barker en-
ured to the Ufe of all the three Dacres, according to the Purport
and true Meaning of the Letter of Attorney, moft explicitly therein
expreffed, and fo declared at the Time of the Livery, by Sir R. A.
the Elder who gave it.
This fufficiently appears (as the prefent Infeoffinent was by
Deed,) from Bro. Abr. Title Fcffenients de terres, pi. 16, 67, 72.
and Co. Litt. 48. b. 49. a. But 2 Anderf. 196. p\. 14. The Cafe of
Davy V. Abbot, is in Point : 'Tis moll exaftly the fame Cafe as this.
So that the LZ/'f-E dates of Dame Ann and of the 3 Dacres ap-
pear to have been well created,
Confequently therefore, a double Freehold is fufficiently eftablifla-
ed ; viz. One, in Dame Ann ; the Other, in the Dacres.
X From
yS Hilary Term 30 Geo. 2.
3d Point. From hence it follows, Thirdly, That Sir Robert Atkym the Son,
was by them precluded from .fuffering this Recovery: As he waS'
not Tenant in Tail in Pojj'fjfion, at the Time of his making the
Feoffment to James'Earle. Therefore He was to gain a Freehold
as he could ; by Right, or Wrong : And it may be faid that Either
of them will do.
But even fuppofing Him to have been Tenant in Tail in Pojif-
Jion, Yet "James Earle was ?20 good 'Tenant to the Prcccipe.
When he recovered againft Dame Am, He was 7jot Tenant in
Tail in Poffeffion : But he recovered againft Her, upon a Suppofi-
fion " that he was." Which Suppofition was grounded therefore
upon a Miftake. And the Terms which Philips recovered as his
LefTee, and furrendered to Him, were Both of them JiSIitious. So
that the Feoffment to Earle mufl: h\\ to the Ground ; having no
Foundation to fupport it. And though Livery was given to Him
by Sir Robert, yet Sir Robert Himfelf continued in Pofl'efTion till
his beath.
Which Obfervatidhs being premifed, this Part of the Cafe may
be confidered, ifl: onS'w Robert' s Verdidl and Judgment againft Dame
Ann ; and adly on his fubfequent Feoffment to Earle.
Firft — His Entry under the Judgment cannot amount to a Dif~
feifm : Nor had He thereby, an Eftate piirfuant to his Title, as
there claimed by Him ; It could not be more than an Eflate in Tail,
EXPECTANT tipon two Freeholds. It could not be a Diffeifin :
Becaufe it was an Entry under a VcrdiB. In Truth, He gained
only a bare 7iaked PofeJJion, without the Freehold. And fo is the
Writ of Habere facias PoJJeffionem : And the Judgment is " to re-
** cover the Term" only. And Cro. Eliz. 438. The Cafe of Bateman
V. Allen, (upon a Devife the fame with that in the Cafe of Ntwys
and Scholajiica his Wife, v. Larke, in Plowd. 403.) alio proves this.
Therefore the Entry under the Judgment in Eje&ment could give
iio Title to Sir R. A. the Son, to fuffer a Recovery : It was a
LAWFUL Entry; but an unlawful Holding. Co. Lit. ^j.
b. A wrongful Withholding is not a DifTeifm ; but a Deforcement.
Co. Litt. 277. b. 331. b. 354. b. 355, 356. And this is without
the Freehold,
'Tis like the'Cafes of Tenant at Sufferance: 12 AJJife 22. Co.
Lit. sy. b. I Ro. Abr. 659. Title Dijfeifin, Letter C. //. 10, 11.
Cro. Jac. 169. The Cafe of Butler v. Duckmanton. Co. Lit. 270,
271. Cro. Eliz. 238. The Cafe of Allen v. Hill. All which Cafes
concur
Hilary 1 erm 30 Geo. 2,. 79
concur to prove " That Nothing lliall operate by way of Diffeifin,
but a Tortious Entry."
And there is no middle kind of Holding, between a naked
Poffejion, that difturbs nothing; and a Fee, whicb difturbs every
Thing.
Then, fecondly, as to the Feoffment to James Earle. It gained no
Eftate to Earle. This is a very great Point to Families, for the Pre-
fervation of Intails.
If the contrary Conftrudlion fliould prevail, even Tenants at Will
might do the fame thing.
But the Line is drawn thus, "jiz. " That a Tenant in Tail,
" ''N IT n the Freehold, may bar : B\it ivithoiit \t. He can not."
A Real Feoffment indeed may do it : But -x jidlitiom One can 7iot ;
but fhall be conlidered as fraudulent and void, like that in Savile
126. Leon. White v. William Bacon. It is not a Difcontinuance :
Swift V. Heath, Carthew 109, no.
Sir R. A. the Son, gained no Fee by it, to himfelf ; nor any to
Earle : And the Court will confider it as merely collufve.
That He gained None, to himfelf, appears from i Br ownlow 2^0.
Dame Pett's Cafe. 2 Li/l. 412, 413. Cro. Car. 302. Blunden v.
Baugh. BraSlon Lib. 4. pa. 161, 162. Co.Litt. 153. Dy. 62.
1 1 ^fjize 6. Pcifly v. Bkckman, Cro. Jac. 659. Bull v. Wyat^
Cro. Car. 388.
That He gained None to Earle, Is equally true. Earle gained no
Eftate of FreJiold, by this Feoffment ; either as a Wrong-Doer,
or as a Diffcifor, i Vcntr. 360. Serjeant Maynard^ Argument in
Moor V. Pitt.
He might indeed be taken as a Diffeifor, at the Election of the
right Owner; but not againfl: it. And here was no Intention of a
Diffeifin. Cro. Jac. 643. Ferrers v. Farmer, i Mod. 107. Foun-
tain V. Cooke. In L&, here was no ABual Diffeifin : For Sir R. A.
the Son continwd in Poffeffion. Neither was here any Force or Ex-
pulfion. And it is not ev?ry Entry, that is a Diffeifin : 'Tis no Dif-
ic{\n, unlefs there be an Expulfion. Co. Lit. 181. i Salk. 246.
//. 2. moll expitfly.
Confidering this Feoffment as part of the Conveyance of a
Common Reav.ry, as a Common Afurance^ Sir Robert the Younger
had no Power to make a Feoffment.
4. It
8o Hilary Term 30 Geo. 2.
It is not hereby meant that he could not ifi FaSl make a Feoff-
ment : Eiety Man in PoJjeJJion may do it. But this Sir R. A. the
Son, could not convey an Ellate of Freehold, by any rightjid Con-
veyance, as Fine, Releafe, or Bargain and Sale. And if He cannot
do it by a rightful Mctliod, will the Law permit him to do it by a
lorongfid One ? Surely not. The Poffeffion of a Tenant at Suffe-
rance is not fufficient to build a Title upon. Co. Litt. 278. Cro.
Jac. 169. Cro . E/iz. 2T,S.
Common Recoveries are now confidered as a Mere Conveyance :
And the Recoveror is a tncre Inflrimwit and Creature of the Tenant
in Tail. 2 Rep. Jj. Cronm^elts Cafe. Popb. 23. The Cafe of Crocker
and Tork v. Dormer. Cro. Jac. 643. Sir "John Ferrers and Sir 'John
Curfon V. Sir Richard Termor and others. 2 Ro. Rep. 247. S. C. (at
the End of it.) i Mod. 107. Fountain v. Coke. So, the known
Cafe of Copyholds, 4 Co. 28, a. Coke's Compleat Copxholder j And
the Cafe in i Ro. Rep. 223. Herbert v. Binion.
From all which Cafes it is clearly to be inferred, That the whole
Tranfadlion is One Common Affurance ; that the Recoveror is a Crea-
ture and Inflrument of the Tenant in Tail ; and that it fliall not be
confidered as a tortious Entry and a Dijfeifm, in a Common Alfurance.
Such a Feoffment as this, may be made by any Perfon in Pofl"ef-
fion : And, if this fliould be eftablifhed, it may be of very mif-
chievous Confequence ; and will introduce a new Law, contrary to
all former Rules and Dodtrines.
The Stat. 14 G, 2. c. 20. confiders a Common Recovery as a
Common Ajfurance ; and has a Provifo, " That tiie Perlon had a
" Title to make a Tenant to the Pracipe." And here is not the leaft
Ground to prefume that the Tenants for Life either joined or fur-
rendered their Eflates,
Now if the Law confiders that fome Perfons have this Power,
and others have 7iot ; the Law will never fuffer that to be done by
Frauds which can not be done fairly and regularly. And this
whole Tranfr.dlion \i fraudulent and collufive, and done eo animo to
bar the fubfequent Eflates ; and is therefore void, as a Fraud,
within the Rule and Reafon of Fermor's Cafe. 3 Co. jj. b. which
confiders an Eftate made by Collufion and Fraud, as no Eflate.
4th Point. Laftly. Admitting the Fufts of Sir R. A. the Son's being Te-
nant in Tail in Polfcfiion ; and alfo that there was a good Tenant
to the Precipe; Yet the Rk-Entry of the Jointrefs adlualiy
avoided it, and revejied all the fubfequent Eflates.
3 If
Hilary Term 30 Geo. 2. 81
If the Recovery was not abfolutely void, but good as a Com-
mon Conveyance, yet it was voidable : And if it was voidable,
trien it was aEiiuilly avoided by the Entry of Dame Ann, upon
Demifes laid as far back as the 14th oi February 1709.
To prove this, they applied the Cafes in wCo, $\,b. Li^ord\
Cafe J Cro.Eliz. 540. Holcomb v. Raivlyns ; i Anderfon 352. Butler
S.Baker; Fitz-Gibbon 22^. Bunker v. Cooke ; Holt's Cafes y^'S ; i Co.
14. b. Sir William Pelham'% Cafe ; and a Cafe in C.B. in H. izAnn.
Goodtitle V. Rifden.
It is like the Regrefs of a Dijfeifee : Which avoids all intermediate
Adls, by Relation.
Mr. Knowler who twice argued this Cafe for the Defendants,
included in his laft Argument all that had been or could be urged
on that Side of the Queflion : And it was to the following EfFedt,
The main ^lefiicn upon this Cafe is, " Whether the Recovery
" fuffered by Sir R. A. the Son, be a good Recovery."
For 'tis infiftcd by the Leffor of the Plaintiff, " That the Re-
covery is void, as being fuffered by a Perfon who had only a
bare Poffeffion, and had no Power to make a Tenant to the
Pracipe."
But if the Recovery is good, the Leffor of the Plaintiff can have
no Title : Becaufe be claims under a Limitation in Fee, expectant
on the Determination of an Efrate Tail, which is barred by the
Recovery.
The- Limitations, under which All the Parties derive their Title,
are contained in two Deeds, dated 12th June 1669 : Which, from
tlieir Bulk, and for Diftinftion's Sake, have been called the great
Deed and the little Deed.
The great Deed is a Releafe, grounded on a Bargain and Sale
for a Year : The little Deed is a Covenant to levy a Fine, and a
Declaration of the Ules of the Fine.
In fpeaking to the Queftion,
Four Matters muft be taken into Confideration, viz.
Firft, The Order in which the two Deeds were executed ; and
in Vv^hat manner they influence each other. And from this Con-
Y fideration
82 Hilary Term 30 Geo. 2.
— -..-■-_. -■-__■__
fideration it will appear, Whether the Leafing and Jointuring
Powers did exist at the Time when they were exerciled by Sir
Robert Atkym the Father.
Secondly, Suppofing the Leafing and Jointuring Powers did then
exift, Then whether thofe Powers were well executed by the
faid Sir Robert the Father.
Thirdly, Suppofing they were well executed. Then Whether the
Lcafe or the yoiiiture, made purfuant to thefe Powers, were an
Impediment to Sir Robert At kyns the Son' s fuffering the Reco-
very.
Fourthly, If the Recovery was good, Then Whether the Re-
Entrv of Dame Ann, under the fecond Ejedlment, did avoid it.
ill Point. Firft, As to the Order in which the two Deeds were executed;
and in what manner they injiuence each other.
It is found by the Verdict:, That Sir R. A. the Father, being
feifed of the Eftate in queftion and of feveral other Eftates, on
12 June 1669, made and executed 3 Indentures. By the firft, He,
in Confideration of a Marriage before that Time had with Dame
Mary his then Wife, and of her releafing a former Jointure made
to her before their Marriage, covenanted that He and the faid Dame
Mary his Wife and Sir Edward Atkyns (his Father) would levy a
Fine to Edicard Carteret and John Loive, of the Eftate in queftion
only; To the U(e of Sir R. A. the Father for Life, fa?is Wafte ;
Remainder to the faid Dame Mary, for Life, for her Jointure ;
Remainder to Sir R. A. the Son, and the Heirs Male of his Body
by Levis Carteret his intended Wife j Remainder to the right Heirs
of Sir Robert the Father.
By the 2d Indenture (taken in the Order as they ftand in the
Verdid:) The Eftate in queftion is bargained and fold by Sir Edward
A. and Sir R, A. the Father, to Sir Edward Carteret and John
Lowe, for a Year.
By the 3d Indenture, Sir Edward A. and Sir Robert A. the
Father, in Confideration of a Marriage before that Time had be-
tween Sir R. A. the Father and Dame Mary his then Wife, and of
a Marriage to be had between Sir R. A. the Son and Lovis Carteret,
and of her Marriage Portion, and for a Provifion to be made for
Dame Mary, of a Jointure, releafe the Eftate in queftion {inter
alia) to Carteret and Lowe and their Heirs, To the Ufe of Sir R. A.
the Father for Life, fans Wafte ; Remainder (except Timber) to
Dame Mary for Life, for her Jointure j Remainder to Sir R. A. the
4 Son
Hilary 7 erm 30 Geo. 2. 8^
Son and the Heirs Male of his Body on the Body of Levis Carteret ;
Remainder to the right Fleirs of Sir R. A. the Father. (Thefe are
all the Limitations in this Indenture, concerning the Eftate in que-
ftion.) Sir R. A. the Father covenanted with Sir George Carteret
(the Father oi Levis C.) That for the better fecuring the Eftate in
queftion to Sir Edivard C. and John Lowe and their Heirs, He and
Dame Mary his Wife and Sir Edward Atkyns would levy a Fine to
Carteret and Lowe and their Heirs, to the Ufes before declared.
In Trinity Term 1669, a Fine with Proclamations was levied, of
the Eftate in queftion (together with other Eftates) by Sir Edward
A. Sir R. A. the Father, and Dame Mary his then Wife, to Sir
Edward Carteret and j'ohi Lowe.
It is NOT found, which of the two Deeds was executed ^r/? ;
(though it was a Matter of Fa^ :) So that the Priority of Execution
muft be determined by the Court, from Circiwijlances and Pre-
fumptions.
The Order in which the Two Deeds fland in the VerdiB, con-
cludes Nothing, One way or the other : Since they are placed there,
as they were given in Evidence.
Then He proceeded to compare the two Deeds, and to reafon
upon them ; and argued very elaborately, That either the little
Deed was executed after the great Deed; Or that the little
Deed was made with a View to control or correB the great Deed ;
Or that the great Deed, and the little Deed, and the Fine, mufl: be
confidered as One Assukancf, (though 7iot as incorporated, and
as one fmgle Acl :) And in either Cafe, there is an End of the
Leafing Power, and alfo of the 'jointuring Power.
And He argued very ftrenuoufly. That the Fine would extin-
guijh both thofe Powers ; becaufe they were Powers appendant and
annexed to Sir R. A. the Father's Eftate for Life, and not collateral
to his Eftate.
Second Point or Head — Suppofing the great Deed was lafl exe- 2d Point,
cuted. Or that it controls or correBs the little Deed, Then
Whether the Leafing and Jointuring Powers were well exe-
cuted by Sir R. A. the Father.
He chofe to fay nothing as to the Execution of the jointuring
Power ; No Circumftances attending the Execution of it, having
been laid before the Jury: But confined Himfelf to the other ^ (the * * See the
Leafing Power.) Note at .he
-^ " ' End of the
Reply, pa. /OS" accounting for curtailing this Part of the Argument.
Now
84 Hiiary Term 30 Geo. 2.
Now this Leafe is 'void, as againft Law ; being made for no other
Purpofe than to rejlrain Sir R. A. the Son from fi(ffcri?ig ii Recovery.
For that ReJIraint is again/l Law.
The Power to fuffer a Common Recovery, is a Privilege infeparably
incident to an Efiate Tail : It is a Poteftas alienandi, whicii is not
reftrained by the Statute de Bonis ; and has been fo confidered ever
fmce Taltaram'^ Cafe. [12 £. 4. 14. b. pi. 16.] And this Power
" to fuffer a Common Recovery" cannot be rejlraiiied by Condition,
Limitation, Cujlom, Recognizance, Statute, or Covenant.
That it cannot be reftrained by Condition, appears by Co. Litt.
223. b. 224. a. and Sonday'i Cafe, 9 Rep. 128.
That it cannot be reftrained by Limitation, appears by Cro. Jac.
696. Foy V. Hinde ; and by Sonday\ Cafe, and other Books.
That it cannot be reftrained by Cujlom, appears by the Cafe of
'Taylor and Sbanso, in Carter 6 Gf 22.
That it cannot be reftrained by Recognizance, or by Statute, ap-
pears by Poole' ^ Cafe cited in Moore 810.
That it cannot be reftrained by Covenant, appears by the Cafe of
Collins V. Plummer, i Pec re Wms. 104.
That an Atttmpt to fufer a Common Recovery cannot be rc-
reftrained, appears by Corbet's Cafe, in the 1 Rep. 83. Mildmay's
Cafe, in the 6 Rep. 40. And the Cafe oi Pierce v. Win, in i Ventr.
321.
And that a Conclusion to fuffer a Recovery cannot be reftrain-
ed, appears by Mary Portington's Cafe, in the lo Rep. 35.
So that the Qaeftion is reduced to this, " Whether that can be
" effefted by a i^eask made purfuant to a Power, which can not
" be attained by a Condition, Limitation, Cuftom, Statute, Rc-
" cognizance, or Covenant."
Since the Law has been thus careful to preferve this incidental
Privilege of fuffering a Common Recovery, to a Tenant in Tail,
Surely it wiFl not permit this 7iew Experiment, equally dejlruSlive to
that Privilege, to t.ike Place. This is the firft Attempt of the Kind :
And it is a found Rule of Law, " That what never has been, ought
not to be permitted."
2 The
Hilary Term 30 Geo. 2. 85
The Le ase is alfo iioid, as being fraudulent : For it was made,
to deprive Sir R. A. the Son, of the Profits of the Eftate, and of an
incidental Power over it. And the Fraud which made it void, was
apparent. And as the Eftates afFeded by the Leafe, fubfifted be-
fore the Leafe was made, the Leafe was fraudulent at Common Law.
To prove the Leafe to be fraudulent, He relied on Sarji'le 126.
The Cafe vf IVhite v. Bacon, H. 32 Eliz. In a Formedon, the Tenant
pleaded Non-tenure : On which, the Parties were at Iflue. The
Jury found " That the Tenant made a Feoffment to feveral Per-
" fons, to their own proper \5k, before the Writ purchafed ; and
" that the Feoffees ?iever took the Profits of the Land ; but that the
" Feoffor took them, until the Day of purchafmg the Writ," And
the Doubt was, Whether the Feoffment was fraudulent, as againfl
the Demandant. And the Judgment of the Court was, " That it
" was fraudulent and void." Now if the Feoffee's not taking the
Profits, but the Feoffor's taking them, was a Reafon for adjudg-
ing the Feoffment to be fraudulent againft the Demandant in that
Cafe ; The Leffee's not taking the Profits, Jiot payi7ig the referred
Rent, nor having the Leafe in his Cuftody ; but the Lessor's con-
tin u 1 n g in Pofieffion and taking the Profits to the Day of his Death,
feem in the prefent Cafe, to be full as cogent Reafons for deter-
mining this Leafe to the Dacres to be fraudulent, againfl Dame
Mary and Sir R. A. the Son.
If this Cafe fliould be anfwered by faying " The Feoffment
■*' therein mentioned was made void by 13 Eliz. c. 5. made againft
" fraudulent Grants ;" The Reply would be " That that Statute
■" was made in Affirmance of the Common Law ;" as appears by
?w/«f's Cafe in the 3 Rep. 82. b. But He argued that the Leafe was
■fraudulent not only at Common Lata, but likeiuife by the Statute. For
the Marriage of Dame Mafj with Sir R. A. the Father, and Dame
Mary's Releafing her former Jointure, were a valuable Confideration
for the Eftate limited to Dame Mary for Life : And the Marriage-
Portion of Lovis Carteret was a valuable Cojfideration, which ex-
tended to the Limitation to Sir R. A. the Son and the Heirs Male
■of his Body by Levis Carteret.
Here it hath been obferved, " That if the Leafe had been called
in queftion nvhilji it fubfifled, it could not have been avoided ; but
'■would have been adjudged abfolute, for the Benefit of the Lelfees :"
And 2 Leon. 132. Moore and Savill and other Books were cited as
Authorities to fupport the Obfervation.
Anfwer — The Objeftion to the Leafe is, " That it never
*' 1)11) fub/ift:," for the Reafons- which have been mentioned : And
Z if
86 Hilary Term 30 Geo. 2.
if the Lcafe was void from the Beginning, 'tis a Contradict icn, to
lay " it Hiall be adjudged abfolute." And the Authorities cited are,
All, of Conditions fubfequent to the Eftate created at the flune
Time with the Condition. In which Cafes, there was no Obiec-
tion to the Eftate; (for the Eftate was allowed to be weH created:)
But the Objedtions were to the Conditions, which were fubftqucnt
to the Eftate.
It has been obferved farther, " That the Eyes of the Court do
. " not pierce further than the Shell of a Conveyance ; 7iot to the
" Defign of the Maker of it." Here indeed One niuft be at a Lofs
for an Anfwer ; for want of knowing what the Shell of a Conveyance
is. But there is one Thing that appears upon this fpecial Verdifi:,
which very much favours, if it does not diredlly eflablifli what We
have been contending for : And that is the Vcrdi5f which is found
t-o have been obtained by Sir R. A. the Son, againft Dame Ann the
Second Wife of Sir R. A. the Father ; which Verdid: is a Difaj-
Jinnancc of the Leafing and 'Jointuring Powers ; and coidd not have
been obtained, if thofe Powers had fubfijled. 'Tis true, there is a
Deed found alfo in the fpecial Verdid', which was made between
the Death of Sir R. A. the Father and the Bringing the Ejedment,
* The Inden- and to which Sir R. A. the Son is a Party ; In * which Detd t'^ere
rteJIs'h'''' '^ ^ Recital " That Sir R. A. the Son then claimed the Eftate in
nuy 1710. " queftlon, by and under the great Deed :" Which Deed was
y. fa. 70. not given in Evidence on the Trial of the Ejedment. But this
Finding is a Matter of no Moment : For the little Deed was exe-
cuted either before, or at the Time, or elfe fubfequcnt to the Time
of executing tlie great Deed. If it was executed fuhfequent to the
Execution of the great Deed, then the little Deed and Fine control
the great Deed, by extinginflnng the Powers. If it was executed
before or /\t the Time of executing the great Deed, then the two
Deeds and the Fine may be taken ai One Ajjiiranee ; [V. Ante 83.)
And in that Cafe, the little Deed correSls the great One, by li-
miting the Eftate in queftion, to Sir R. A. the Father, difcharged
gf the Powers. And in either Cafe it may be faid, with great
Truth, " That Sir R. A. the Son claimed under the great Deed."
However, fuppoling the Perfon who drew the Deed, had miftaken
the Law, and made a Jalfe Recital, furely a Mif-Recital of Matter
of Lain will not conclude a Court of Jii/iice. And what Sir R. A.
the Son's oivn Opinion upon the Matter was, will appear by the re-
cent Purfuit of his Title againft Dame Ann ; for Sir R. A. the
Father died in February 1709 : And in Trinity Term following Sir
R. A. the Son brought his Ejedment againfl: Dame Ann, who was
then in PolTefTion of the Eitate under the Jointuring Power.
But it having been found, " That afterwards Dame Atin brought
" an Ejedment, and recovered the Eftate, upon two Demifes, one
" made
Hilary Term 30 Geo. 2. Sj
'" made by Herfclf and the other by the furviving Leffee for Life;"
It hath been irififted that Dame J^;;;? could not have obtained
that FerdiSl, unless the Two Powers^ or Otie of them at leafl, had
then exilh'd.
To which It may be anfwered, That it does not appear that the
Httle Deed was produced in Evidence, upon the Trial of that
Ejedment. Or perhaps the Jointuring Power o?dy might then be in
queftion : Or there might have been other Reafons for the Difference
in Opinion. But however it might happea ftill, That Verdidl is
not conchifive.
Here, Mr. Knowler argued that the Leafe to the Dacres muft
have determined in 171 1, upon the Death of Sir R. ^. the Son,
without IlTue Male : And that the Leflbr of the Plaintiff was /mar-
red of his Remedy by this A(fllon of Ejectment, (being an Ad:ion
grounded on an Entry;) becaufe it was not brought within 20 Years
after his Title accrued ; and confequently, his Entry nzas not lawful^
by 2 1 Jac. I. c. \ 6.
But thefe Parts of his Argument are omitted, for the Reafon
given in the Note pa. /oS-
Third Point or Kead. — But fuppofing the Leafing and the Join- 3^Po'"^'
turing Powers did exijl, and ivere well executed by Sir R. A. the
Father; The Matter which falls next under Confideration is,
" Whether the Leafe or Jointure made in Execution of the Pow-
" ers, were an Impediment to Sir R. A. the Son's Suffering the
" Recovery."
The Point We fhall endeavour to eflablifli, is That James Earky
the Perfon again ft whom the Writ of Entry was brought, was Te-
najit of the Freehold when Judgment was given againft him in the
Common Recovery. And We (liall begin with obferving that the
Jointure or the Leafe could be no Impediment to Sir R. A. the
Son's fuffering the Recovery ; Becaufe neither of the Leflees or
Dame Ann were in Poffjlion of the Eftates, at the Ti?ne when Sir
R. A. the Son made the Feoffment to the faid Ja??jes Earle.
* If the Court Hiould he of Opinion, on the Authority of 2 A?i- u^°^hrfirll
derfon 196. " That the Livery under the Letter of Attorney of Argument,
" John Dacres, vefted the Freehold in iiis Co-Lcffes as well as in Heiiadu.-ged.
" Himfelf ; and 720t in himfelf only ;" Then We infift that the Livery [^I'^^^rUy of
was void, becaufe the Leffees were in PoflefTion by the Deed. For Brc M>:
Title F.-ffc-
ments de terres, pi. 67.) " That no Freehold pafTed by the Liveiy, to any of the 3 Lefiecs, except John
" Dacres who executed the Letter of Attorney to take it :" Which John dying in 170J, the Leale expired
then. But He did not no-ni infill upon this Point : But fceraed, rather, to give it up.
2 if
88 Hilary Term 30 Geo. 2.
if Tenant for Life has a Power to make Leafes for Lives, and makes
a Leafe for Life />y Livery, the Livery is void; becaufe the Leafe
takes E-§c5i by /-/j? Deed : For by Sealing the Deed, the Power is
executed. 2 Levinz 14.^. Wig/o?! and Garrett, i Fentris 2g\. The
Earl of Leicejier's Cafe. And the Livery being void, the Leffees
were never ;« Possession: For it is found by the Verdift,
" That the Leffees or Either of them were never in PoflefTion othe)--
" wife than fy t}je Livery.
And as the Leafe was no Impediment, fo the Jointure could be
none. For it is found " That Dame Ann being in PofTelTion by
■" Virtue of the Deed of Appointment, and claiming the Eftate for
" her Life for her Jointure, an Ejedment was brought on the De-
" mife of Sir R. A. the Son and J. Walker his Truftee, againft
" Dame Ann and the Tenants in PofTe/Tion, for the Recovery of
" the Eflate ; and that there was a Verdift for the Plaintiff, and
" Judgment on it," And " That a Writ of PolTcfrion was award-
" ed ; and that foon after the Judgment, and during the Life of
" Dame Ajvi, Sir R. A. the Son entered into, and was in Pofe/jion
" of the Eftates ; and that He continued in Pofejion to the Day of
" his Death." By this, it appears that the Jointure and Fofcffion
of Dame Ann was rkmovud out 0/' the Way.
It can be no Objedion to the Legality of Sir R. A. the Son's
PofTeffion, " That the Judgment was not executed by a Writ of
" PofTeffion:" Since fomething equivalent to it is found, viz.
" That foon after the Judgment, Sir R. A. the Son entered into
" and avas in PofTeffion of the Eftate." And there is no Rule of
Law more uncontroverted, than " that a Recoveror may enter ivith-
" out a Writ of Execution, where the Demand is certain." The
Demandant after Judgment in a Common Recovery, may enter, or
take out Execution at his Eledlion. Shelley's Cafe, 1 Rep. i'o6,
Mary Portington'% Cafe, 1 o Rep. 38. Conufee may execute a Fine
executory (which does not take EfTedl till Execution) by Efitry.
Bro. Tit. The Plaintiff may have a Redifleifin, on the Sta-
tute of Mcrton, c. 3. (which gives it after a Recovery in an Affize
of Novel Difeijm and Delivery of Seifui by the Sheriff,) as well
where He executes the Recovery by Entry, as where the Sheriff
delivers Seifin to him. The Patron who recovers in ^lare Impedit,
may prefent, without a Writ to the BiOiop. Huttcn 66. Rudd v.
Bifxp of Lincoln. And the Leflbr of the Plaintiff may enter, after
Recovery in Ejedlment. 2 Sid. 156. Sir Robert the Son being thus
in Poffffion of the Eftate ; and the PofTeffiion which is found to
■ have been in Dame Ann, having been removed; The Effedt and
Oj5cratIon of the Peoffment, comes next in Order, to be con-
fidered.
But
Hilary Term 30 Geo. 2. 89
But Mr. Knowler faid, He would, out of the Refpeft due to
what came from the Court, take Notice of an * Intimation of one * This had
of their Lordfhips, exprefling a Defire to hear it argued hypothe- ^^^" intima-
tically, fuppofmg the lefs Deed to have been firft Executed, and 1^,^ .^j "^"^
fuppojing the Powers to have fubfifted and to have been well execu- the End of 'the
ted, and confequently that Sir R. A, the Son was only Tenant in ^^'^°"'^ ^'^^-^
Tail /« Remainder ; What would be the Efi'eB of the Entry of
fuch Tenant in Tail in Remainder, under or in Confequence of a
Judgment in Ejedtment.
And He hoped. He faid, to make it appear beyond Controverfy,
That Sir R. A. the Son, after his Entry in confequence of the
Judgment in Ejedment, became Tenant in Tail in Possession ;
i. e. became feifed of an Eftate Tail executed.
The Gentlemen who have argued for the Leflbr of the Plaintiff,
have called the PofTefTion of Sir R. A. the Son a naked PofTefiion.
But He, to maintain his Pofition, would fhew that the Right of
PoiTefllon was in Sir R. A. the Son.
There is a found Diflindlion in Law, between a naked PofiefTion,
and a Right of PolTeffion. A Diffeifor has only a naked Poffefhon :
The Dipifee has the Right of PolTeffion ; For he may enter upon
the Difieifor. But when a Defcait is caft, the Right of PofTeffion
is no longer in the DifTeifee ; but is in the Heir of the Diffeifor :
For the DifTeifee cannot enter upon the PofTefTion of the Heir. So
that a Right of RoJfeJJion^ and a Right of Entry ^ are convertible.
A 'Judgment is an A6i of Law: And whilst it continues in
Force, it de/iroys the "Title of the Adverfe Party. A "Judgment in
EjeBmeJit, by which only the PoJfeJJion is recovered, not only defiroys
the Right of PofTeflion which was in the adverfe Party; but gives
a Right of PoJfeJJion to the Recoveror. And if the Judgment in
Ejeftment did not produce thFs EfTedl, the LefTor of the Plaintiff
could not enter, or be intitled to the Writ of Habere facias PoffeJ/io-
nem : But his having a Right to enter and to fue out that Writ, injers
his Right to the PoJ'eJfion. Whilst the Judg77icnt ftands in f o r c f ,
it remcues an intervening Eflate out of the Way : And during that
Time, 'tis the fame thing as if it had nexier exited. And the Reco-
veror's Right to the PofTeffion will continue iill the Judgment is rc~
i}erfedhy^xxov, or fal/i/ied in another ACthn. Like the Cafe where
the Tenant in Tail fufTers an erroneous Recovery ; fo long as the
Recovery remains in Force, it is a Bar to the Tall, and the IfTue in
Tail has no Right to the Eflate Tail : For if the Tenant in Tail
fhould difTeife the Recoveror, and die, the IfTue would not be re-
mitted ; becaufe he has but One Title to the Land, (which is the
A a Title
90 Hilary Term 30 Geo. 2.
Title by Defcent ;) And there muft be two Titles in the fame Per-
fon to make a Remitter. Co. Litt. 349. a.
Now the Confequence of this is, That the Right to the Pojjejjion,
and the Remainder 171 Tail^ meeting in the samb Perfon ; and that
Perfon being Sir R. A. the Son ; the Poffeffion and the Remainder
in Tail united, and Sir R. A. the Son became feifed of an Ellate
Tail EXECUTED, or (in other Words) of an Eftate Tail in Pof-
If the Nature of an ASlion of 'Ejectment, and the Confequence
refulting from a Recovery in it, be confidered, this will appear in a
clearer Light.
An Ejedment is a pojfejfory A5lion ; in which almofl: all Tides to
Land are tried : Whether the Party's Tide is, to an Eftate in Fee,
Fee Tail, for Life, or for Years, the Remedy is by One and the
fame Adion. In an Adion of Ejedment, the Plaintiff recovers
only the PofTeflion of the Land : And the Execudon is, of the Pof-
feliion only. But if the LefTor of the Plaintiff recovers only the
Pojfejfion of the Land, It may be afked " How he becomes feifed ac-
" cording to his Title." To which it may be anfwered. That when a
Perfon is in Poffeffion hy Title, (as every Perfon is, who enters in
Execution of a judgment in Ejedment, becaufe the Law does no
wrong,) the Poffeffion and Title unite. For it is a Rule of Law,
" That when a Man, having a Title to an Eftate, comes to the
" Poffeflion of it by lawful 7ne am. He fhall be in Poffeffion accok-
" DING to his Title:" As where the Title is to have a Fee, H'e be-
comes feifed in Fee ; Where the Title is to have an Eftate Tail, he
becomes feifed of an Eftate Tail ; and fo on ; The Law cafting the
Eftate upon him according to his Title. And were it not fo, an
Ejedment would be the moft ineffedual Remedy for the Trial of
Titles to Eftates : And it would never anfwer the Purpofe for which
it was brought into Ufe, if (as the Counfel on the other Side would
have it) the Leffor of the Plaintiff had }io more than a bare Poffeflion,
after an Execution or Entry on a Judgment in Ejedment. But this
is not all. For a great Ahfurdity would follow, were it otherwife :
A Man would have a rightful Poffeflion, with an immediate Remain-
der to himfelf in Tail; A Notion which never exifted, till this Cafe
came to be debated.
What is it that converts an Eftate Tail in Remainder into an Eftate
Tail executed, in any Cafe ? Certainly, Nothing more or lefs than
the Possession's coming to the Remainder in Tail. For if there is
Tenant for Life with Remainder to a third Perfon in Tail, Nothing
comes to the Remainder-Man upon the Death of the Tenant for
Life, but the Poffeffion : For the Eftate Tail was in him before.
2 And
Hilary Term 30 Geo. 2. 91
And ivhilfl the Eftate Tall mitinued executed, Sir 7?. A. the
Son made the Feoffment to "James Eark : which difcontinued the
Tail, and vefted a defeafible Fee in Him : And the Pracipe, upon
which the Common Recovery was fuffered, being brought againft
him ; and Sir R. A. the Son being a Party to the Common Recove-
ry, as Vouchee ; The ComnK)n Recovery, thus circumftanced, bar-
red the Eftate Tail and the Remainders over.
And though Damey^«« faliified the Recovery in Eje€iment brought
by Sir R. A. the Son, by the Judgment in the Ejedment afterwards
brought by herfelf. Yet that Faliification had 710 other EfFedl upon
the Eftate, than to revive her Right to the Pojfeffion. Like the Cafe
juft now cited, of an erroneous Common Recovery fuffered by the
Tenant in Tail ; where, if the Iffue in Tail reverfes the Common
Recovery by a Writ of Error, the Reverfal revives his Title to the
Eftate Tail ; and confequently He is then Tenant in Tail, by Re-
mitter. So that Dame Ann, by Means of the Recovery in the Eject-
ment brought by herfelf, having the Right to the Poffeflion, became
Tena?it Jor Life again, in Polfeffion ; with a Remainder in Fee
thereupon expe^Sant to tljc Recoveror in the Common Recovery,
or to the Perfon to whofe ufe the Common Recovery was declared.
That Eftates may open and JJnit, or hs fpread and expatid, as
Events happen, is not unufual in our Law. If an Efl:ate is limited
to A. for Life ; Remainder to his firft and bther Sons in Tail ; Re-
mainder to A. and the Heirs of his Body ; Till A. has Iffue, He is
feifed of an Eflate Tail executed: Upon the Birth of a Son, that Efl:ate
opens, and lets in the Son ; and A. thereupon becomes Tenant for
Life, with Remainder to his Son in Tail. And this was Lewis
Boicle's Cafe, 1 1 Co. 80. So if Lands are limited to All the Chil-
dren, either in PoffefTion, or Remainder ; Upon the Birth of the
frjl Child, the whole Eflate vefls in Him or Her : Upon the Birth
of another Child, the Eflate opens, and takes in that Child ; and
opens in like manner on the Birth of every other Child, i Ld.
Raym. 310, 311. Earl of Suffex v, Te?nple. 2 Vern. 525. Cook v.
Cook.
But the Refolution of the Queflion now under Confideration
.does not altogether depend on the Quantity of the Eftate which
Sir R. A. the Son had, at the Time when he made the Feoff-
ment : It depends on the Quality of the Conveyance he made
Ufe of
All the Gentlemen who have argued this Cafe on the other Side,
have bhided and confounded the several Operations of dif-
ferent Conveyances; and have not coniidcred them with
that
92 Hilary Term 30 Geo. 2.
that Difti?i£iion and Precifion that is neceflary for the Solution of the
prefent Qaeftion. If due Attention were given to the Operation of
tlie feveral Conveyances which the Law has eftablifhed, the feem-
ing Difficulties of this Part of the Cafe would be removed.
All Conveyances operate as ^ Feoffment, or as ^ Grant.
A Feoffment operates on the PoJfeJJioni •without any Regard to
tlie Eftate or Intereft of the Feoffor: A Grant operates on the
Eftate or Intereft which the Grantor has in the Thing granted.
But, to be more particular — According to Lord Coke's Enumeration,
a Man may purchafe or convey Lands by Ten Manners of Convey-
ance ; viz. by Feoff jnent^ Grants Fine, Common Recovery, Exchange,
Releafe, Conjirmation, Grant of Reverjion with Attor7tment, Bargain
and Sale, Will.
To make a Feoffment good and valid, Nothing is wanting, but
Toff-Jjion : And where the Feoffor has Poffeffion, though it be as
bare and naked as the Gentlemen would have it, yet a Freehold
or Fee-Simple paffes, by reafon of the Livery. Poph. 39. Litt.
§ 595. 599, 611, 698. Co. Litt. 366. b. 367. a.
A Gratit paffes Nothing but what the Grantor may lawfully
grant. Poph. 39. Litt. § 608.
A Fine and Common Recovery are likened to a Feoffment : For
One is called a Feoffment of Record, and the other is faid to be in
Nature of a Feoffment of Record. That which occafwns the Like-
?iefs between a Feoffment Fine and Recovery, is, That they All
PASS A Fee ; though the Feoffor, Conufor, or Tenant have
none. Co. Litt. 9. b. But, to give them this uniform Operation,
the Conufor in the Fine, and the Tenant to the Pracipe, muft be
feifed oi ^ Freehold ; i. e. an Eftate for Life, at leaft : Othcrvvife,
the Fine may be avoided, by the Plea of " Partes Finis nil habu-
erunt ;" and the Recovery, by the Plea of Non-tenure, i. c. " That
" the Perfon againft whom the Writ was brought, was not Tenant
" of the Freehold, by Right, or by Wrong." By this, it appears
that a Fine and a Conwion Recovery are both void, for loant oj a
Freehold: But it no where appears, notwithftanding what has
been urged, that an Eftate in the Feoffor, is neceffary, to fup-
port a Feoffment. But it does appear, and I have a great Au-
thority for it, that it is 770 P/f^, in Avoidance of a Feoffment, to fay
" That the Feoffor has Nothing in the Land, at the time of the
" Feofment ;" becaufe the Land paffes by the Livery: If the
Operation of the Feoffment is queftioned, the only Plea is " Nen-
" feoffa pas;" which puts in Iffue only the Livery. This is the
Opinion, and this is the Language of L/V//(f/c« : io£J. 4. 8, 9.
All
Hilary Term 30 Geo. 2. 93
All other Conveyances, as Exchange, Releafe, Confirmation^
Grant of Reverfwn, Bargain and Sale, Will, pafs nothing but what
the Grantor may lawfully convey, without Livery; and, on
that Account, are in the Nature of a Grant. Lift. § 606, 607,
609, 610. Hardr. 410. Edwards v. Slater. It is the Operation of
THESE Conveyances, that the Gentlemen, in the Courfe of their
Argument, have applied to a Feoffment : But with what Pjo-
priety, is fubmitted to the Court, upon what is now difclofed.
But it has been faid, " That fuch a Feoffment as this, may be
" made by any Per/on in Possession ; and if eftablifhed, will in-
" troduce a new Law in Weftminfler-Hall, contrary to all for-
" MER Rules and Doftrines."
To which Objedion, The Anfwer is, *' That it is mofl clear that
" a Feoffment may be made by any Perfon in Possession :" For
'tis the Doftrine the Law teaches ; and it has been the Languao^e
of the greatefi Profefj'ors of it. Lord Coke, in his Comment on
the 25th Chapter of W. 2. (which gives a Writ of Novel Dijfeijin,
where Tenant for Years aliens in Fee, by Feoffment,) grounds his
Diftindion between Cafes which are within the Ad: and Cafes
which are not within the Ad, on Possession only. For he fays,
" Though the Ad fpeaks of an Alienation by Feoffment, by a
" Tenant for Years ; Yet it extends to Tenant by Ekgit, Statute-
" Merchajjt, Statute-Staple, Tenant at PFill, and Tenant at Suf-
" ferance.; because All thefe have a Possession : But it is other-
" wife of a Bailiff; For he hath no Possession at all." This
fhews how greatly One of the Gentlemen is miftaken, when He
afferts " That a Conveyance of an Eftate of Freehold, by a Tenant
at Sufferance would be void* :" Since it appears by the Statute, and *^- ''''"' t<^'
by the Comment upon it, " that a Feoffment by a Tenant at Suf- °*
'■'■ferance (who has no more than a bare Poffeffion) will unque-
" ilionably pafs a Freehold," And the Cafe of Butler v. Buck-
manton, Cro. Jac. 169. proves^ no more than that the Releafe of
Tenant in Tail to a Tenant at Sufferance, is not good for want of
a Privity between them. Befides, a Releafe, as has been already ob-
ferved, paffes no greater Eftate than the Releafer can lawfully convey.
Lord Ch. Juft. Holt lays it down as clear Law, in the Cafe of
Hunt V. Burn, H. i Annce, " That if Leffee for Tears makes a
" Feoffment with Ltvery ; though the Leffor be on the Land,
" protefting againft it, yet the Land paffes ; becaufe the Leffee
" was intitled to the Poffeffion." And Lord Ch. Juft. Holt is
fupported in bis Opinion, by the Cafe of Read and Morpeth v. Er-
rington, Cro. EU%. 321. where the Queftion was, " if a Feoffment
" by Leffee for Tears, the Leffor being upon the Land, was a good
B b " Feoff-
94 Hilary Term 30 Geo. 2.
" Feoffment :" For it was pretended that his being upon the Land
guarded the Land, fo that no Feoffment could be made. But the
Court was of Opinion that the Feoffment was good ; " becaufe the
" Leffec had the fole Right to the Possession j and Livery ought
" always to be given to the PoJfpJ/io?i."
Notice has been already taken, that it is no Plea in Avoidance of a
Feoffment, to fay " that the Feoffor had Nothing in the Land at
" the Time of the Feoffment." Let Us here add the Form of Plea-
ding a Feoffment^ by Tenant for Life^ and Tenant for Years ; Good
Pleading being an infallible Teft of the Law. If Feoffment in Fee
is pleaded by Tenant in Fee, the Conclufion is " That the Feoffee
" was by virtue thereof feifed in Fee :" And the fame Conclufion is
made on the Feoffment in Fee of the Tenant for Life and Tenant for
Years, " that by Pretext thereof the Feoffee was feifed in Fee."
The Entry oi Albanfs Cafe in i Rep. io8. is a Proof of this.
It appears by Jenniiig's Cafe in the ioth7?('/'. 43. " That the
" Feoffee of Leffee for Tears was a good Tenant to the Prcecipe."
In the Cafe of Sfiiith v. Parkburjl, or Dormer and Fortefctic, it was
admitted that there ivotdd have been a good Tenant to the Pracipe,
ij Mr. Juft. Dormer liad made a Feoffment. And the Queftion in
^\x William Pelham'?, Cafe, i Co. 14. b. is an Admiffion " that the
" Feoffment of Leffee for Tears \n\\\ pafs a Freehold."
^' That Poffr/Jion only would fupport a Feoffment," was the
Dodrine at Wilir/iinfter-Hall, in Elder Times. In Perki?is, (a Book
of no mean Authority,) Seftion 200. it is laid down as a Rule,
" that WITHOUT Pcjjejjion, a Man cannot make Livery." A Feoff-
ment by the Leffee for Years, though the Leffor be upon the Land,
paffes the Land : And the Reafon for this is rendred in the Book ;
" becaufe the Leffor had nothing to do with the Possession."
It was the Law, when Lands were devifable only by Cuftom,
that a Man might devife " That his Lands fhoiild be fold by his
" Executors." In which Cafe, the Lands de'cended, upon the
Death of the Teftator, to Ijis Heir at Law : And the Executors took
no Intcreft by the Will. Babington, a learned Judge, in putting
this Cafe, and taking Notice of the Feoffment of the Executors,
makes this Remark: " And fo,""f3iy?, He, " A Man may have a
" lawful Freehold, from a Perfon v/ho had Nothing in the Land ; as
" a Man may have Fire from a Flint, which has no Fire in it."
And He luither illuftrates his Conclufion, with the Inftlnce, " that
" a Woman fliall recover her Dower (which is an Eflate for Life)
" againft a Guardian in Chivalry, who has no Freehold." 9 H,
6. 24.
In
Hilary Term 30 Geo. 2. 95
In 10 H. 8. 10. It is mentioned as a Thing notorious, " That
■" thofe who have no Freehold may convey a Freehold." The Con-
veyance which will pafs a Freehold from a Perfon who has none,
muji necefarily be a Feoffment : Since there is no other Conveyance
in the Law, which will produce the like Effed.
Before the Statute of Ufes, a Ce/luy qui Ufe conveyed the Ufe
by Bargain and Sale; and afterwards levied a Fine to a Stranger.
And the Qiieftion was, Whether the Fine was not void ; as neither
of the Parties had any thing in Ufe or in Poffeffion : For by the
Bargain and Sale, the Ufe was in the Bargainee ; And Nothing was
in the Bargainor, or in the Stranger.' It was airgued that if this
Fine was not good, great Inconvenience would follow : For that
many Recoveries had been fuftered againft the Bargainor, after he
had conveyed the Ufe. To this Fitzherbert replied, " It is the
" Folly of Purchafors, that they do not take a Feoffment from
" the Cejly qui Ufe, before the Fine is levied: For if they do, the
" Fine ifill be good. I, for my part, fays He, will never purchafe
" any Land without taking a Feoffment ; So that I may be in
" PoJJ'tfflon, when the Fine is levied : For then the Fine will un-
" doubtedly be good." 27 H. 8. 20. The Possession here fpo-
ken of, muft be a Freehold at leaft ; becaufe Nothing lefs than a
Freehold will fiipport a Fine : For if neither Conuzor or Conuzee
have an Eftate of Freehold in Poffeffion Remainder or Reverjion, at
the Time of levying the Fine, the Fine is void. The Feoffment
here fpoken of, is the Feoffment of a Ceftny qui Ufe, after He had
parted from the Ufe, and whilft the Freehold and Inheritance of the
Eftate was in the Feoffees : So that it was the Feoffment of a Perfon
who had only a bare and naked Poffeffion {unaccompanied ivith
right,) to a Stranger, The Feoffment could not have been made
good by the Statute of i 7?. 3. <:. i : becaufe, after the Bargain and
Sale, the Ufe was in the Bargainee ; and the Feoffor was no longer
Ceflu^ qui Ufe. This was the Opinion, and this was the Pradtice
of one of the greatefl Lawyers of the Age in which He lived :
For it is fiid that Fitzherbert and Baldwyn were the greateft
Lawyers of that Age. The Obfervations upon the Opinion of
Fitzherbert, are. That if a Feoffment from the Cefiuy qui Ufe
to a Stranger, after He had conveyed the Ufe, would have
made the Fine undoubtedly good; the like Feoffment would have
made a good Tenant to the PKisciPE : And for this plain
Reafon ; " becaufe the Feoffment passed a Freehold." How
would this great Judge have been furprized, to have heard the Ope-
ration of a Conveyance which He relied ol as the Bafis of his Titles
to his EHiates, doubted and debated ! This Cafe is an additional Au-
thority, " that the Feoffm.ent of a Tenant at Sufferance will pafs a
■*' Fee." For after the Ceftuy quiUfe had conveyed the Ufe by Bar-
gain
96 Hilary Term 30 Geo. 2.
gain and Sale, He was no longer a Tenant at Willy to his Feoffees.
It is likewife a Proof " That the Feoffment of a Deforceor^ who
" is a ivroJigfullVith-holder, pajjes a Fee." For after the Bargain
Snd Sale, the Ceftuy qui U/t' had no Right to the PoJJeJfion ; but was a
wrongful With-holdcr. Upon this, It is fubmitted. Whether the
Cofjfrniation of this Dodlrine, by the Judgment of the Court, will
introduce a nk.w Law into IVefiminfler-Hall, contrary to all
FORMER Rules and Dodrines ; Or whether it will not rather re-
vive a DoBrine almofl worn out of Memory. It is fo long fince
a Feoffment was in Common Ufe, that it is no wonder the Gentle-
men fliould think the Dodrine newj and that the Properties
of a Feofment fliould be fo little known.
But it has been faid " That the Feoffment of Tenant in Tail in
" Remainder expeBant upon an Eflate for Life, will not make a
" Discontinuance J though the Feoffment was made with the
" Confent of the Tenant for Life:" And for this, the Cafe oi Swift
-y. Henth, Cariheiv 109, 1 10. was cited. This' muft be admitted :
Becaufe a Feoffment does not make a Difco?itinua7tce, tmlefs the Te-
nant in Tail is feifed of the Effate Tail, in PoJfeJJion. But does this
Cafe prove " That a Feoffment by a Remainder-Man with the
" Confent of the Tenant for Life, is void ?" Nothing Icfs. The.
Quelfion, in the Cafe cited, " Whether the Feoffment made a Dif-
" continuance" admitted the Feoffment to be good : For the
Doubt was upon the Operation of it.
To put an End to the Queflion, There is a Cafe, in which it
was determined " That the Feoffment of him in Reverfion or Re-
" maindcr, in the Absence 0/' the T'enant for Life, is a good
" Feoffment." It is in Dyer 340. The Cafe was That he in
Remainder in Fee enfeoffed a Stranger, in the Abfence of the
Tenant for Life ; who neither attorned^ nor affented to the Feoff-
ment, but occupied the Effate, during his Life : And it was holden
to be a GOOD Feoffment for the Fee-fimple. Where is the Dif-
ference between this Cafe, and the prefent ? In the Cafe before the
Court, was not the Feoffment made by the Remainder-Man, in
the Abfence of Dame Ann, the Tenant for Life ? Did (he ever at-
torn, or affent ? And did not She occupy the Eflate, during her
Life ? The only Difference that can be pretended between the two
Cafes, is, that in One, the Remainder-Man was Tenant in Fee ; in
the other, Tenant in Tail. But will that make any Difference ?
'Tis impoffibie it fhould : Becaufe the Feoffment in both Cafes,
took Effed: by the Livery.
It has been further faid, " That Sir R. A. the Son could not
" convey a Freehold by a rightful Conveyance ; as by Fine, Re-
" leafe, or Bargain and Sale : And if not by a rightful, he could
" not do it by a wrongful One."
Here
Hilary Term 30 Geo. 2. ^'j
Here is a Diftin(flion made, which was never met with. Accord-
ino- to their Notion of Inftruments of Conveyance ; a Fine, Releafc,
and Bargain and Sale, are rightful Conveyances : A FeofFment, a
•wrongful One. Whereas it is moft manitefi:, that all Conveyances
are, in themfelves ecvually rightful^ and are to be made ufe of,
according to the Nature of the Cafe to which they are applicable :
And their being rightful, or wrongful, does not depend upon their
Names or their Properties. That a Freehold will not pafs, by a
Ftne^ Releafe, or Bargain a?id Sale, from a Perfon who has only
a BARE and naked Pojfffion, (for that is the Subjedl We are now
upon.) does not proceed from thofe Conveyances being lawful One?,;
but from the Nature of thofe Conveyances ; whofe Property it is,
to convey Nothing but what the Maker of them may la-ivfilly con-
vey ; becaife they operate as a Grant. Therefore, to infer y/w^/
thence, " That a Freehold will not pafs by a Feoffment," a
Conveyance of a different Operation, and lohofe Property is to pafs a
Freehold and Fee, by Force of the Livery, is an inconclufive Ar-
gument.
Another Obfervation has been made, " That if the Law con-
" fiders that fojne Perfons have this Power, (to make a Feoffment,)
" and others have not ; the Law will never fuffer that to be done
" by Fraud, which cannot be done fairly and regularly."
Anfwer. Every one who can get into Possession, has and
ever had a Power to make a Feoffment : And the Law makes no
Diftinftion of Perfons. And whenever a Tenant in 'Tail in Re-
mainder has obtained the Possession, (^whether by Right, or by
Wrojig,) and has done an Aft, whiljl in Pofeffion, to make a Tenant
to the Precipe, in order to fuffer a Common Recovery; No In-
ftance can be produced, where fuch Adl has been adjudged fraudu-
lent, unfair, or irregular.
It is very common, in Praftice, for Tenant for Life to furrender
his Eftate to the Remainder-Man in Tail, conditionally ; in order to
give the Tenant in Tail in Remainder an Opportunity to bar the
Eftate-Tail and the Remainders over : And though fuch Surrender
is a mere Contrivance between the Tenant for Life and the Remain-
der-Man in Tail, yet no Common Recovery was ever avoided on
that Account.
If Tenant in Tail in Remainder diffeifes the Tenant for Life, and
during the Continuance of the Diffelfin fuffers a Common Recovery; .
By their own Admiffion, the Common Recovery is not avoidable'
by reafon of the DiJJeifin. So, where Truftees to preferve contin-
gent Remainders during the Life of a Tenant for Years, have con-
veyed the Freehold, to make a Tenant to the Pracipe, in order to
C c give
pS Hilary Term 30 Geo. 2.
give the Remainder-Man In Tail an Opportunity of fuffering a
Recovery; there is no Inftance oi fuch a Recovery being _/?/ afrde
at Law, upon a fiippofcd PraBice between the Tenant for Years,
the Truftees, and the Remainder-Man in Tail. And if a Remain-
der-Man in Tail, who comes to the PoJpJJion by a ivrongful ylSf, or
by Stratagnn dnd Coiitrivance, may make a Tenant to the Pro'cipe^
in order to fuffer a Recovery ; Surely, a Remainder-Man in Tail
who comes to the Poflcflion by a laujul Adt, may do the fame.
Where "Tenant in 'Tail is Party to the Recovery as Tenant or as
Vouchee, Such Recovery is not in the Eye of the Law either frau-
dulent or collufive : Becaufe the Law has made the Eftate Tail,
and all the Remainders, and the Reverfion expedtant on it, sub-
ject to the Pleasure of the Tenant in Tail, and given him a
Right to bar them all. If & Reverfioner expedtant upon an
Eftate Tail could avoid a Recovery fufFered by the Tenant in Tail,
AS, fraudulent, collufve, unjair, ov irregular ; iho. Low ivould have
devifed fome Means for avoiding it: And the Reafon why there are
NO fuch Means, is, becaufe a Reverfion expediant on an Eflate Tail
js of no Confideration in Law. A Reverfion expedtant on an Eftate
Tail is no Ajfets. The Reverfioner cannot falsify a Common
Recovery fufFered by Tenant in Tail : Neither is Rcfccit given by
the Statute of JV. 2. c. 3. to a Reverfioner on an Eftate Tail, The
Reafon of all this is, becaufe the Eftate Tail is an Inheritance which
may continue for ever. There is no Provifion by the Statutes of
32 //. 8. c. 3 I. and 14 Eliz. c. 8. to preferve a Remainder or Re-
verfion expedlant on an Eftate Tail ; as there is, when they are ex-
pedlant on an Eftate Jor Life, and the Tenant for Life is only
vouched.
But Fermor's Cafe, 3 Co. 78. has been objedled : As if there was
no Difference between a Fine or Recovery /?y Tenant for Tears,
Tenant for Life, or a Copyholder, by Covin, to tiie Intent to bar the
Reverfioner or the Lord, of h\s Inheritance ; and a Recovery fuf-
fered by Tenant in Tail, to the Intent to bar the Eftate Tail and the
Reverfion.
It has been Matter of Surprize, to hear the Gentlemen men-
tion the Statute of 14G. 2. c. 20. Becaufe that Statute is made
in Aid of Recoveries ; and net to invalidate them ; and more cfpe-
cially, as there is a Provifo in the Adf, " That it ftiall not be con-
" ftrued to prejudice or affedt any Queftion in Law, which may
" arife upon Commoii Recoveries not remedied or intended to be
*' remedied by it : But all fuch Common Recoveries are to remain
*' and be of fuch Force and Effedl as they would have been, if the
*^ Adl had not been made." Befides, there is a Provifo in the Adt,
*' that no Common Recovery fhall be called in queftion after 20
« Tears."
The
iiilary Term 30 Geo. 2. 99
The principal Argument which the Gentlemen have oppofed to
the Dodrine which We have been endeavouring to fupport, may be
reduced to the Head of Inconvenience : And they have argued
upon it, as if the Decifion of the Qiieftion depended on private
Opinion^ and not on the Law. But the Qoeftion is not^ " What
" Inconvenience will attend the Determination, either Way:"
But " What is the Law." The Inconvenience, (if there be
One,) arifes from the Nature avui Operation of a Feoff-
ment ; and cannot be avoided, but by taking away that Convey-
ance, or depriving it of an Operation which it has been allowed to
have, by All the Sages of the Law. But to do this, is not in the
Power of a Court of Juftice : Since no Maxim of the Common
Law can be abrogated or aboliflied, but by a legislative Au-
thority.
It was once thought to be a great Inconvenience, " that a De-
" fcent, immediately after a Diffeifin, fiould take away the Entry
" of the Perfon diffeifed." At another Time, It was thought to
be no fmall One, " that the Son Ihould lofe his Patrifnony, becaufe
" he happened to be born out of Time," And till lately, an Heir
might have been deprived of his Family-Eflate, by the Warranty of
an Anceftor who was never in PofrJJion of it.
The Inconveniences occafioned by the Maxims I have juft now
hinted at, were as great as that which is pretended to arife from the
Feoffment of a Tenant in Tail in Remainder expedant upon an
Eftate for Life : And yet they continued through Ages of the Law,
till the Legislature took them away. The Inconveniences
which attended the Law in thofe Inftances were as univerfal as any
that can be fuggefted to follow from the Doflrine We have been
endeavouring to fupport : And yet Courts of Jujlice never thought
themfelves warranted to depart from the Law.
Could the Courts of Common Law have determined " that a
" Defcent, after a recent Diffeifin, did not taka away an Entry;"
without determining at the fame time, " That a Defcent does not
" take away an Entry?" Could they have determined that a Poft-
" humous Child Jhould take, though the Eftate which was the
" Support of the Limitation to It, determined before It's Birth ;"
without refolving at the fame time " that a contingent Remainder
" fliould take Effed, though it did not vkst d'wm/^ the Continu-
" ance or upon the Determination of the Eftate created for its Sup-
" port?" Or could they have determined " that an Heir fhould
^' take an Eftate, mtwithjlanding the Warranty ot his collateral
*• Anceftor;" without determining " That Collateral Warranties
" did not bind ?" And can the Court determine, in the prefent
Cafe,
100 Hilary Term 30 Geo. 2.
Cafe, " That the Recovery is void ;" without adjudging " That
" a Feoffment has not the Operation, which it has had ever fi7ice
" it became a Common Affurance ?"
When the Law is doubtful, it is allowable to draw an Argument
from Inconvenience: But where the Law is clear and precife (as it
is " That the Feoffment of a Perfon in Poffeflion, let him come
" to that Poffeffion /'ow he will, pajjes a Fee ;") An Argument jrom
Tnco?2venicm:e IS not admijjlhlc ; becaufe it tends to undermine and
overthrow the Law.
Much has been faid of Disseisin ; and many critical Obferva-
tions have been made upon that Subjed, in Order to fhew that Sir
R. A. the Son could not be a Dijj'eifor. All that needs be f;\id to
them, is, That Sir R. A. the Son entered by Right ok by Wrong;
(For there is ;;o Medium:) And " that He entred and took the
" Prohts," is admitted. Now if He entred of his o'^.im WrofJZ>
He was a DiJJeifor ; For He oufled the Tenant for Life : And if
He was a Diffeifor, it is agreed there was a good Tenant to the Pra-
cipe. If Fie entered by Right, then (for the Reafons already offered)
Fie had Power to make a Tenant to the Pracipe by his Feoffment.
So that in cither Cafe, James Earle was ^7 good Tenant to the
Pracipe, at the Ti7}ie when Judgment was given in the Common
Recovery. And fo He was warranted. He faid, to conclude, That
the Recovery is good, and barred the Eflate Tail limited to Sir
R. A. the Son ; And confequently, the Remainder in Fee, which
was limited to Sir R. A. the Father, and by him devifed to the Lef-
for of the Plaintiff.
4th Point. The Fourth Point or Head. — Suppofing the Recovery to be good.
Whether the Re- Entry of Dame Ann, under the Recovery and
Judgment in the fecond Ejtdlment, did avoid it.
The Gentleman who made this Queflion, faid " It feenied to be
" of confiderable Weight." Whether it be fo or not, We fhall fee
prefently. What Fie undertook to maintain, was " That the Entry
" of Dame Ann after She bad recovered in the fecond Ejedment
*' REVESTED her Eftate for Life and the Remainder in Fee, and
" put the Eftate in the same Plight it was in before the Common
" Recovery was fuffered." And to make this out, He compared
the Entry of Dame Ann to the Regrefs of the Difeifee, which
avoids all intermediate Adls by Relation j and made that Inftance
the Foundation of his Argument.
'o
Mr. Knoivler here obferved, how inconfifl:ent this Argument of
the Gentleman was with his former. The Diredion and Force of
his Argument under the lafl Head was to fliew " That Sir R. A. the
X *' Son
Hilary Term 30 Geo. 2. loi
" Son entered by Title, and could not pojjibly be a Diffeifor: ' The
Drift of this Argument is to prove him to have been a Diffeilbr,
This {hews how difficult it is to be confifl:ent, when a Perfon
would reconcile Matters not fupportable.
The Quef{:ion is not to be determined hy the Rule or In (lance
which the Gentleman has applied to it ; but upon this DiJiinBion,
" Where the entire Eftate is defeated," and " Where only Part
" of the Eftate is defeated, by One who has a prior Title." The
Cafe which the Gentleman puts, falls under the Jirft Member of
the Diflindion : The prefent Cafe falls under the fecond Member
of it.
The fubfifting Eflate, at the Time when Dame Atin entered
under the Judgment in the fecond Ejedlment, was an Eftate in Fee
in Robert Atkyns, the Nephew and Heir of Sir R. A. the Son. All
the Intereft that She could derive to herfelf by Force of the Judg-
ment in the fecond Ejeftment, was an Eftate for Life: For She
could recover no otherwife than according to her Title. And there-
fore Dame Ann'i, Entry under that Judgment could have no other Ef-
feSl than to diminiJJ:> and kjfen the Intereft of Robert Atkyns, by ta-
king out of it an Eftate Jor her Life. This will appear by fome
Inftances which ftiall be mentioned. Tenant for Life furrenders his
Eftate to the next Remainder-Man in Tail, conditionally ; to enable
the Remainder-Man to fuffer a Common Recovery: A Recovery
is fuffered ; And, the Condition being broken, the Tenant for Life
re-enters ; The Re-Entrv of the Tenant for Life' will not avoid the
Recovery, and revive the Eftates that were barred by it. This ap-
pears by every Day's Experience. One of the Gentlemen feemed
to admit the Law to be fo ; and accounted for it, by faying, " It
" is becaufe the Tenant to the Pracipe was made by Force of a
" rightful Eftate." But that is not the Reafon. The true Reafon
is (what. has been already mentioned) " That only Part of the
Eftate is defeated by the Entry of the Tenant for Life ; and wcf
the ENTIRE Eftate. A Tenant fqr Tears, or by Elegit, can avoid
or falfify a Recovery, during their particular Eftates only. A Wife
can avoid a Recovery fuficred by her Huft)and alone, as to her Title
oi Dower only, and no further. Remainder-Man in Tail, expec-
tant on an Eftate for Life, difteifed the Tenant for Life, and levied
a Fine with Proclamations ; The Tenant for Life entered on the
Conufee : And it was determined " that notwithftanding the Re-
*' grefs of the Tenant for Life, the Reverfion remained in the Co-
nufee, not defeated:' And this was the Cafe of Ohs ex dimijf. Lord
Sturton; which is cited in Popham 65, 66. LeiTor difteifes his
Leflee for Life, and makes a Leafe for Life to another ; The firft
Leflee re-enters : He leaves the Reverfion in the fecond Leftee for
Dd Life;
^ijuJtM
1 02 Hilary Term 30 Geo. 2.
Life ; who fliall have the Rent referved on the firfh Leafe. Earl of
Gloiicejler's, Cafe, cited in Sir Moyle Finclfs Cafe. More Proofs
might be brought, to confirm this Part of the Argument : But in (o
plain a Cafe, thefe may fuffice. And with them We may cor^-
clude, That the K'E-Entry of Dame Ami, under the Recovery and
Judgment in the fecond Ejedment, did not aijoid the Common
Recovery fuffered by Sir Robert Atkym the Son.
- And let it be obferved that the Arguments made Ufe of, have
7iGt been drawn from General Reafons and Refledions ; but have
been fuggefted fro-m Authorities, and from the Experience
AND Practice of Learned Men.
Upon the Whole, He prayed Judgment for the Defendants.
In Reply — It was urged on Part of the Plaintiff —
ja Point. ift. As to the great and little Deeds — That the little Deed did
not revoke the greater One, or dcjlroy the Pcivcrs thereby given.
Which was fupported chiefly by Arguments drawn from the Deeds
themfelves.
zd Point. A.S to the * Leafe to the Dacrcs being fraudulent, (F. ante 85.)
* Here is a .The Cafe in Saviie 126. is not like the prefent : For here were ex~
a's'u)[iie'A°" P''^'S^ ^^'S^^ Motives for making the Leafe; whereas there were none,
guineiu con- iu that Cafc, for making the Feoffment.
cerning tiie
Vahdiiy and Determination of the Leafe to the Dacres, as in the adverfe Argument. See the Notes on pa.
As io Livery — It was not necefTary: And therefore void, i Ventr.
291.
3d Point. As to the Recovery — The Authorities are not ad idem :
Nor as to the Feoffment. For this is a fictitious PoffiJJion,
and in Nulnkis : Not an aSfiial Poffeflion. No Freehold is reco-
vered in Ejedment. So that Sir R. A. the Son was not Tenant in
Tail in Possession, for ivant of the Freehold. And without being
Tenant of the Freehold, the Recovery could not be valid. Mr.
Knoxder admits " That the Pofleffion o^ tht Bailiff would not do."
{V. ante 93.) And furely, this Cafe is flronger than that of Bailiff.
As to Cro. Jac. 169. the Cafe of Butler v.Duckmanton. {V. ante
80. Gf 93.) The Pofleflion of the Tenant at Sufferance was con-
fidered as no PoflefTion at all, in that Cafe. Therefore We may admit
all Mr. Knowler's Cafes: Becaufe they do not come up to the pre-
fent Cafe of Sir R. A. the Son's Poffeffion. Confequently, The
2 . Remainder
Hilary Term 30 Geo. 2. 103
Remainder is not affedled by any thing done under this nugatory
Poffeffion.
Dame Ann was Tenant of the Freehold : And without difTeifing
Her, there could be no Tenant to the Pr^rcipc, who would be Te-
nant of the Freehold. Sir R. A. the Son did not enter as a Dif-
feifor ; but as having a Title. And he had a Title under the Judg-
pient, to enter. And the Eftate which pafled by the Feoffment,
was according to his Right. 2 Ro. Ahr. 5. Co. Lit. 52. b. And
the Warranty extended only to the Fiftitious Title in Ejeilment.
The Poffeffion only was transferred to Him ; not the Freehold : And
this was a mere naked PofTeflion ; an accidental PofTefTion. Cart hew
1 10. proves that the Remainders were not difcontinued for want of
a Tenant to the Freehold. Dame Ann was never out of PofTeflion
of the Freehold.
So that the Eftate which Sir Robert gained by his Entry upon
Dame Ann could not be an Eflate Tail in Pofeffion ; bccuufe there
was a prior rightful Eftate for Life in another Perfon. Therefore
it muft be an Eflate Tail in Remainder.
It is afked, " When He Jirjl began to hold over unlawfully ?"
The anfwer is — From his Jirjl Entry.
His Entry was not tvrougfid: Therefore He cannot be confi-
dered as a Di[feifor. But He held over, nnlaufully. 'Tis like a
Tenant by Sufferance ; or a Man who enters upon the King, (who
cannot be put out of PolTefTion ;) or a Man after the Death of his
Wife, Gfr. And it is not eafy to apprehend the Diflindlion between
entering " under the Ejeflment ;" and entering " in purfuance of the
" Eieftment." Confequently, \\\'&\n'3A il mere naked PoJfrJJion: And
the Freehold remained undillurbed in Dame Ann.
As to the Fraud and Collufion of Suffering a Recovery — There
is furely fuch an Infiifficiency of Eftate in a Tenant in Tail in Re-
mainder, that He cannot fuffer a Common Recovery. And furely
the Court will not permit a Perfon who cannot be a Tenant to the
Fracipe Himfelf, to make a Tenant to the Fr.tcipe. And they
llrongly urged the vaft Inconvenience that muft attend this Dodrine
now advanced, " That a Tenant in Tail in Remainder only, who
" can obtain a mere naked Poffeffion, may legally fuffer a Recovery
" and bar the fubfequent Remainders."
Fourth Point. — As to the '^Y.-Entry of Lady Ann — The Verdid 4tl»Poi«'-
did nothing : It is the Entry that revefts. It revejled her Eftate.,
which was an Eflate for Life : Whereas Sir R. A. the Son's Entry
under his Verdidl only operated to give him a naked Fofefjion-, He
hai'ing
I04 Hilary Term 30 Geo. 2.
having no Right to an Eftate Tail in Possession. And He could
not be Tenant in Tail in Po£eJjion^ to One Purpofe ; and in Ke~
mainder^ to Another. Then Her Re-Entry left him Tenant in Tail
in Remainder, as it found Him.
In the Cafe in 2 Ro.Ahr. 421. Title Remitter, Letter i. pi. i.
The Wife entered under an Adt of Parliament, which remitted Her.
5th Point. ^th Point, (as to the Remedy.) The Plaintiff is * not barred of
thisA^rgument '^'^ Entry, by the Statute of Limitations 21 J. i. c.\b. For the
is omitted ; Recoveree was not intitled to fuffer a Recovery j Not being Tenant
fortheRea- ]„ Tail in PoffeJIion.
ions given in ^ ^
the fubfequen:
^•'ote. As to Dame Ann's Recovery in the Ejedment brought by Miles —
The Demife was laid fo far back as to over-reach the whole Term
which Sir R. A. the Son had recovered : It was laid fo far back as
to 5 Days after the Death of Sir R. A. the Father. And Her Eftate
had never been difcontiiiued ; nor her Right of Entry taken away.
So that Sir Robert the Son was never Tenant in Tail in PofTeffion,
The LefTor of the Plaintiff could not therefore enter till the Jointure
of Dame Ann was at an End, and her Life-Eflate determined.
Neither could He enter, fo long as the Leafe to the Dacres was in
being : Which did not expire till the Death of 'Thomas Dacres^
the .Surviving Lelfee, on 23d Jiily 'i'JS'2..
Note — The lafl of the four Arguments of this Cafe was intend-
ed chiefly for the Information of Lord MaJisJield, who had not
heard any of the former.
Before it came on, his Lordfhip (having read the Cafe, and iscn
Notes of all the former Arguments,) fent for the Counlel and
Agents on both Sides ; and told them that a Point occurred to Him,
which did not feem to have been particularly attended to in draw-
ing up the fpecial Verdidl:, and which He obferved had been very
little gone into in any of the former Arguments ; That it feemed to
Him material; And therefore He wifhed to have it fpoken to: And
He chofe to apprize them of it before-hand, to avoid further Ex-
pence and Delay to the Parties ; becaufe if He fhould defer men-
tioning it, till after He had heard them in Court, and if they fhould
omit going fully into that Point in their Argument, and His Lord-
fhip fhould continue to think it material, it mufl: occafion a new
Arsument.
•t>"
The Point was, " Whether, fufpofing the Recovery to be bad, yet
the Plaintiff 's Ejectment was not barred by the Statute of
Limitiitio?is."
% "That
Hilary Term 30 Geo. 2. 105
I'hat depended, He f;iid, upon many Confiderations, which He
defired them to think of: As, firft, Whether the Z-i?^ was made
piirfiiant to the Power, or, (in other Words,) Whether the Leafe
was v'Jd, as 7iot being made purluant to the Power ; (zdly) Whe-
ther it was not determined, upon the Extindion of the Eftatc Tail
in 171 1 ; (3dly) V/hethcr, as this Special Verditfl was found, an
Objeftion from the Statute of Limitations was now open to be made.
And He mentioned fome Cafes to them, which he defired them to
look into.
Accordingly, upon this lafl Argument, the fud Queftion was
very fully difcuffed, on both Sides : But, to avoid Prolixity, i have
omitted to report thefe Arguments of the Counfel ; becaufe every
thing material upon * this Point will appear from the following * They fell
unanimous Refolution of the Court, given by Lord Mansfield. ""der the zd
Point. See
Lord Mansfield now delivered the Refolution of the Court j (Ha- iTthe Margin; Y^td/rtciJ^
ving firft flated the Cafe and Special Verdid:.) znApa. 87. ^
iSf t02.
Sir Robert Atkyns the Son being dead without Iffue Male, the
Reverfion in Fee, devifed to the Leffor of the Plaintiff, is come
into PofTefTion : And confequently, he muft be intitled to Judgment
in this Ejedment ; unlefs the Defendant can fet up a Bar to his
Right, or to his Remedy by an Ejedlment.
They fet up a ^ 'o Both.
In Bar of his Right, they infift upon the Cojnmon Keco'very fuf-
fered in Hilary Term 9 Ann. A.D. ijio. In Bar of his Remedy,
they iniift upon the Statute of Limitations.
The Common Recovery, if duly fuffered, certainly deflroyed the
Right of the LefTor of the Plaintiff. The Statute of Limitations^
if his Title of Entry accrued above 20 Years before the 15th of
December IJS2., has certainly taken away the Remedy by Eject-
ment.
The Merits therefore muft depend upon two General Queftions.
1 ft. Whether the faid Common Recovery was duly fuffered.
2d, Whether this Ljecljuent is barred by the Statute of Limita-
tions.
As to the firft, The Objection is. That there was not a good F'rft General
Tenant to the Praecipe : For Lady Atkyns^ the Widow of Sir Robert Q!;«"'°"-
E e the
ic6 iliiary Term 30 Geo. 2.
the Father, had an Eftate for Life in the Premifils ; and did not
ioin, by Surrender or otherwife, in any Conveyance of the Freehold
to 'James Ecirle, the Tenant againft whom the Fi-recipe was brouglit.
(There is no Occafion to entangle this Purt of the Cafe with the
Demife to the 3 D acres.)
The Defendants contend that there ivas a good Tenant to the
Pro'cipe, upon two Grounds; (ifl:) Eecaufc Lady Atkyns had no
Eftate for Life ; and fo Sir Robert the Son, was Tenant in Tail in
Pojfejfwn ; (2dly) Suppofe She liad an Eftate for Life, yet Earle
was a good Tenant to the Precipe, by Dijjlijm : Which they en-
deavour to prove two Ways, I'is. J ft, That Sir Robert Alkyns, by
his Entry, was Himfelf a Di[J}ifor, and by his Feoffment the 17th
of "y^Jiiary lyio. conveyed the Freehold he had acquired by Dif-
jeifm, to Jomes Earle ; and 2dly, Suppofe Sir Robert the Son was
not a Diffeifor, yet his faid Feoffment was a Difjeifn, and made
James Earle a good Tenant of the Freehold by Dijf'eifw.
As to the firft Ground, " That Lady Atk'yns had no Efiate for
" Life,"' — Tlie whole Argument depends upon this Fropofition,
" That the Lefter Deed was executed offer the Greater Deed ; and
" confequently, the Power to Sir Robert Atkvis the Father, to make
" a Jointure, was extingiiijhed by the Fine levied in Trinity Term
" 1669." But the Jury have not found the Fadl, " uohich was
''"' firft executed." Both Deeds bear the fame Date. They are
both confiftent. They are both manifeftly but one Agreement, ex-
ecuted by different Inftruments, to anfwer different Purpofcs, and
to fuit (probably) the Convenience of one Party, who was interefted
xjnly in a fmall Part of the Tranfadtion.
The Fine levied in Trinity Term 1669 purfued both Deeds,
and comprizes all the PremifTes in the Greater Deed, by which the
Powers were created.
It never could be the Intent, to revoke thefe Powers, at the
Inftant they were created j by the leffer Deed, which makes no
Mention of them ; or by a Fine levied, agreeable to the greater
Deed, in which they are contained.
Sir Robert Atkyns, who furvived the Tranfadion above 30 Years,
has ftiewn by many Adts, that he underftood the Powers to be
well created and fubfifting.
If it was neceffary. We ought to prefume the IcfTer Deed firft
executed, to fupport the clear Intent of Parties, in a Family Settle-
ment made for valuable Confideration : For it is impofiible to fup-
4 po^e.
Hilary Term 30 Geo. 2. 107
pofe, tliey could really mean to revoke or extinguirti thefe Powers,
and take this way of doing it. But, in this Cafe, there is no Room
for Prefumption : The internal Evidence of the thing itfelf, fpeaks
them to be one Tranfaftion ; and the fame, to all Intents and Pur-
poies, as if expreffcd in one Inftrument.
As the Jointrefs clearly had an Efratc for. Life, the 7icxt Ground
is " That James Earle was a good Tenant to the Pr<^cipe, by Dif~
" feifinr
The better to judge of this Queftion, It may be proper to try to
find out What the old Law meant by a Diffeijiti which conftituted
the Tenant of the Freehold, in refped of every Demandant fuing
out a Prcecipe ; although the Owner's Entry was not taken away :
(For where the Right of PoJJrffion was acquired, and the Owner put
to his real Adtion ; there without doubt the Poffeffor had got the
Freehold, though by Wrong.)
All the Law concerning Diffeifins, which is any way applicable
to the prefent Inquiry, exifted, and was in Ufe and Pradice, before
the Affize of Novel Difleifin. The j^ffize was introduced, (proba-
bly from the Ufage of Normandy^ for the Grand Couftumier treats
of Afilzes,"! in or before the Reign of Henry the 2d. Glaiiville, who
wrote in that Reign, calls the Great Aflize a Benefit, Ckmentiam Prin-
cipis, de Confdio Procenim, Populis indultam :" And the * Myrrour * C. 2. ^ 25.
fo. gi. fays *' G/^«w7/t? introduced it." Edit! ^1642.
Seifm is a technical Term, to denote the Completion of that
Inveftiture, by which the Tenant was admitted into the Tenure;
and without which, no Freehold could be conftituted or pafs. Sci-
endum efi Feiidum, fne Inveftifura, nulla nicdo confitui pofe. Feud.
Lib. i.l'it. 25, Lib. 2. Tit. I. 2 Craig. Lib. 2. Tit. 2.
Disseisin therefore muft mean fome Way or other turning the
Tenant out of his Tenure, and iifurping his Place and Feudal Re-
lation. At the Time I fpeak of. No Tenant could alien ivithout
Licence of the Lord. When the Lord confented, the only Form of
Conveyance, was by Feoffment publicly made, coram paribus Curice,
with the Lord's Concurrence. Homage, or Fealty, was folemnly
fworn ; And Suit of Court and Services were frequently done.
The Freeholder reprefented the whole Fee, did the Duty to the
Lord, and defended the whole Fee againft Strangers.
The Freehold never could be in Abeyance ; becaufe the Lord muft
never be at a Lofs to know upon whom to call, as his Tenant;
nor a Stranger, at a Lofs to know againft whom to bring his Prct-
cipe.
io8 Hilary 1 erm ^o Geo. 2.
cipe. From the NeceiTity of there being always a vi/lble Tenant
of the Freehold, and tl:e Notoriety "^cho afted, and did Suit and
Service as fuel:, many Privileges were allov/ed to innocent Perfons
deriving Title from the Freeholder de faBo.
If the Difeifor died; after one Year's Nonclaim, the Dcfcent to
his Heir gave him the Right of Pojfejjion, and took away the true
Owner's Entry. The Stat, of 32 i!/, 8. c 33. requires 5 Years Non-
claim. The Feoffee of a Diffeifor acquired Title of PcfTefTion, at
the Time I fpeak of, by one Year's Non-claim. The Defcent to
his Heir remains privileged as it was at Common Law : For the
32 H. 8. c. 33. extends not to any FeofFee of the DilTeifor, imme-
diate or mediate. Co. Lit. 256. ti. The Feoffee of a Diffcifor was
favoured ; becaufe he came innocently into the Tenure, by a folcma
and public Inveftiture, with tiie Lord's Concurrence.
* i8£. I. But the Statute * " ^lia Emptores Terrarwn,'" (which tool;
away Subinfeudations, and gave free Liberty of Alienation to the
r. Litrodttc Tenants of Subjeds, and to thofe who held of the King, as of an
^La^'cfTe Honor or Manor;) and other Statutes which extended the Power of
«ures,f.jl.\'iZ Alienation to the King's Tenants in Capite ; The frequent Releafcs
to 157- of Feudal Services; The Statutes of Ufes, and of Wills; and, at
f r. 1 2 c. 2. laft, the total -|- Abolition of all military Tenures; have left us
f. 23. and^ ijtfie ^,^,^. j}^e Names of Fecff'mctif, Seifin, Te;:ure, and Freeholder ;
>3 -z. f. ,. ^yjfj^Q^j ^^y precife Knowledge of the thing originally Jignijied by
thefe Sounds : The Idea modern Tim.es annex to Freehold, or Free-
holder, is taken merely from the Duration of the Eftate.
Copyholds, and the cvfto7nary Freeholds in the North, retain faint
Traces in Imitation of the old Syftem of Feudal Tenures. It is
obvious how a Man may vifibly be the Copyholder, or cuftomary
Freeholder de faSlo, in Prejudice of the rightful Tenant. It is ob-
vious too, that Ufurping fuch Copyhold or cuftomary Tenure, is a
different JFad, from a jiaked Poffeftion, or Occupation of the Land.
But, whoever will look into the PracT:ice of other Countries,
where Tenures fubfill with all the Solemnities of Feoffments and
Seifins, upon every Change of a Tenant by Defcent or Alienation, |
and upon every Ufurpation of the Real P>.ight; will eafily compre-
hend, that at the time I fpeak of, It might be as notorious icho was
the Feudal Tenant de facto, as who is now de faclo Incumbent of a
Living, or Mayor of a Corporation.
Disseisin was a complicated Fad;, and differed from Difpojfef-
fng. The Freeholder by Di£eifm, differed from a PoJJeJfor by Wrong.
\\ F. Lii. 4. BraBon \\ c. 2. De ^fifa Nova Diffeyfince, fo. 160. puts many Cafes
€. \, 2. ^£ Poffefiion wrongfully taken, which he calls Intru/ion ; becaufe
there
I
Hilary Term 30 Geo. 2. 109
there is no Diffeifin : " Poffeffio quae nuda eft omnino, & fine
" aliquo Vejlimefito ; qua; dicitur Intrufio." Veflimento is Seiiin,
InveftitLire ; (from whence, \ht Saxon Term Veft;) a Metaphor, the
Feudifts took from Clothing : By which, they meant to intimate,
" that the naked PoJfeJJwi was clothed with the Solemnities of the Feudal
" Te/iure." A particular Tenant, according to Feudal Notions,
was in as of the Seifin of the Fee, of which his Eftate was a Part.
If he aliened the Fee, (which he could only do by folemn Feoff-
ment, with the Concurrence of the Lord of whom the Fee was
held,) He forfeited his particular Eftate, for having betrayed his
Seifm with which he was intrufted : But on account of the Privity
and Confidence between him and the Reverlioner ; and the notoriom
Solemmty of the Adl of Inveftiture, His Feoffment disseised the
Reverfioner,
BraSlon who wrote in the Reign oi Hen. 3. (before Tenants could
alien without Licence,) mentions the Diff'eijin in this Cafe, as a
Th'ccjfary Confequence, and as a thing which could not pojjibly be othcr-
loife ; f. 3. De Jffifa Novce Diffeyfma, 161, b. " Item facit quis Dif-
" feyiinam, ciim ^is in Seyfina fuerit ut de libero Tenementb &
" ad Vitam, vel ad Terminum Annorum, vel nomine cuftodiae, vel
" aliquo alio modo ; KhivM. fhff'averit, /« praejudicium veri
" Domini y & fecerit alteri liber um T^enementum -, cuj^i duo
" fiiMUL ET SEMEL, de eodem Tenemcnto & in folidum, ejfe iton pof-
" funt in Sev/ina." He confiders it us impoifible for the true Te--
" nant not to be put out, when the other acT:ualIy came into his
Place.
So late as the 3 2d of Eliz. in the Cafe of Mathcfon v. Trot^
I f^eon. 209. The Diftindion upon which the Judgment turns is
** That Henry Denny gained a 'wrongful FofJ'efJion in Fee ; but did
. *' not gain any Seisin ; fo 7io Dijjeifor : Therefore the Defcent to
" his Heir is not privileged."
No-Body can dijfeife the King ; neither can any One be diffeifed
to the Ufe of the King. The King may be wrongfully difpojjejfed :
But the Intruder's injurious Poffcflipn is fne aliquo Veflimento^ anc4
called Intrufion. The King cannot be made a DilTeifor ; not be-
caufe it is wrong; (for He may, in Fad, with-hold the Poffeflion
of Land from a Subjedl contrary to Right :) But the Reafon feems,
according to the Feudal Syftem, to be this ; A Subjed never could
ftand in the King's Seifm or Tenure ; and the King never could bs
in the Seifm, Tenure, or Feudal Relation of a Subjedl. By that
Policy, all real Property was held, mediately or immediately, of the
King : In the King himfelf. All real Property was allodial.
F f The
no Hilary Term 30 Geo. 2.
The precife Definition of what conftituted a DifTeifin which
made the Difleifor the Tenant to the Demandant's Pracipe, though
the right Owner's Entry was not taken away, was once well known :
But it is not now to be found. The more We read, unlefs We are
very careful to diftinguifh, the more We fliali be confounded. For,
{jfter the Affize of Novel Dijfeifin was introduced, the Legiflature,
by many Ads of Parliament, and the Courts of Law, by liberal
Conftrudions in Furtherance of Juftice, extended this Remedy, for
the fake of the Owner, to every Trefpafs or Injury done to his real
Property ; if, by bringing his AfTize, He thought fit to admit him-
felf dilTeifed.
It lay againft Advifers, Aiders, or Abettors, who were not Te-
nants. Co. Lit, 180. b. It lay againft the Tenant who was no
Diffeifor ; as the Heir of a Difleifor, or his Feoffee. Stat. Glocefter.
It lay for the Owner, againft the Difleifor of the Difleifor. The
Tenant's not being ready to pay a Rent Seek when demanded, was,
for the Benefit of the Owner's Remedy, a Difleifin. Lit. § 233.
It lay for outrageous Diftrefs. -2 InjL 412. It lay againft Guardian,
or particular Tenant who made a FeofiiTient, as well as againft
their Feoffees. 2 /;//?. 413. The Stat, of Wcjlm. 2. c. 25. extends
it to a Man's Depafturing the Ground of another ; or taking Fifli in
his Fifliery. If One receives my Rent without my Confent, I may
eletS to make him a Difleifor. Style 407. If a Guardian afllgns
Dower to a Woman not Dowable j the Owner may eledl to make
her a Difleiforefs. 24 Ed. 3. 43. (cited in Cro. Car. 203.) In a
Word ; For the fake of the Remedy, as between the true Owner
and the Wrong-doer, to punifti the Wrong ; And, as between the
true Owner and naked Pofllefl'or, to try the Tide ; The Afllze was
extended to almoft every Cafe of Obftrudtion to an Owner's full
Enjoyment of Lands Tenements or Hereditaments.
The Reports of Aflize can only relate to Cafes, where the Owner
admits himfelf difl*eifed.
The Law-Books treat of Difleifin, with a View to the yljjize j
which was the common Method of trying Titles, till Ejedment
came in Ufe.
Littleton, who wrote long after the Remedy by Aflize was en-
larged by Statutes and by an equitable Latitude of Conftrudlion,
fpeaks of Difl'eifins principally as between the Owner and Trefpaflier
or Pofleflbr, with an Eye to the Remedy by Jtjfize,
Thefe are the common Places from whence many Defcriptions
have been cited of a Disseisin. But fuch Authorities can give
little
Hilary Term 30 Geo. 2. 1 1 1
little Light to the /r^w/ Queftion, which depends upon the Na-
ture oifucb a Difleifin as made the Difleifor Tenant to every De-
mandant, and Freeholder de faSio, in spite of the true Owner,,
Yet the Definitions in the Books, (though very imperfed,) favour
often of that vi^hich originally was an adual Diffeifin, in fpite of
the Owner.
Littleton, in § 279. defines Difleifin, with an &c : " Where a
" Man enters into Lands or Tenements (where his Entry is not
" congeable,) and oufteth him which hath the Freehold, &c." — ■
The Comment fays, " Every Entry is no Difleifin, unlefs there be
" an Oujier of the Freehold" And Co. Lit. 153. b. fays, " Dijei-
** fin is putting a Man out of Seifin, and ever implies a Wrong:
*• But Difpofejjion or EjeSlmenty is putting out of Popffion, and
" may be by Right or Wrong. Dipifn eji un perfonal Trefpafs de
" tortious Oufter del Seifin."
Though the Term " Disseisin," ufed, happens to be the
fame; the Thi?ig fignified by that Word, as applied to the two
Cafes of aSiual Diffeifin, or Difleifin by EleSlion, is very different.
This Diftindion of Difl'eifin at EleSfion, is made in the Cafe of
Blunden v. Baugh, Cro. Car. 303. of which Cafe, We have feen a
Manufcript Report, fuller than the printed One. The three Judges,
with whom agreed the four Judges of the Common Pleas, argued
and held " That the Lefl^ee for Years of the Tenant at Will, was
" a DiflTeifor at the Ele£fion of the Original Lefl*or, for the fake of
" his Remedy; but never could be looked upon as the Freeholder,
" or a Difl'eifor in fpite of the Owner, or with regard to third Per-
" fons." The Manufcript Report fays, if a Pfacipe was brought
againfl: him, He might fay " I am not Tenant to the Freehold,"
A Variety of like Cafes are put in Cro. Car ; (to which I refer — :)
In the Manufcript Report, there are more.
When the eafy fpecific Remedy was by Affize^ where the Entry
was not taken away, the injured Owner might, for his Benefit,
eled to confider the Wrong as a Difeifm. So, fince an Eje5iment
is become the eafy fpecific Remedy, He may eledl to call the Wrong
a Difpofffjion.
Where an EjeBment is brought, there can be no Diffeifin ; be-
caufe the Plaintiff may lay his Demife when his Title accrued, and
recover the Profits from the Time of the Demife. The Entry con-
fefllid is previous to making the Leafe : But there is no real or fup-
pofed Re-Entry, after the Ejeftment complained of. If it was con-
fidered as a Difleifin, No mefiie Profits could be recovered without
an a^ual Re-Entry. • *
2
If
1 1 2 Hilary Term 30 Geo. 2.
If the LefTee for Life, or Years, makes a Feoffment, the Leffor
may ftill diftrain for the Rent ; or charge the Perfon to whom it
is paid, as a Receiver ; or bring an Ejeftment ; and cliooje whether he
will be confidered as dijfeifed. Met calf on the Demtfe of Kynajion
V. Farry and others ; A Cafe referved at Salop Afiizes 25th March
1742, for the Opinion of the Court of Exchequer; (who gave
Judgment in it, on the 24th oi November 1743,) was this. Tenant
in Tail, of Lands leafed by his Father, to a Second Son, for Lives,
(under a Power,) upon his Father's Death received the Rent from
the Occupier, as Owner and as if no fuch Leafe had been made,
during his whole Life. He fuffered a Common Recovery. It was
holden " That this was only a Diffeifin of the Freehold at EleBioJi;
" and that therefore He could not make a good Tenant to the
" Pracipe :" And the Recovery was adjudged bad.
Except the Special Cafe of Fines with Proclamations, (which
ftands entirely upon diftindt Grounds,) and the Conftrudlion of the
Stat, of 4 H. 7. c. 24. for the fake of the Bar ; I cannot think of
a Cafe, where the true Owner, whofe Entry is not taken away,
miy not eled, (by purfuing a poflefTory Remedy,) to be deemed as
not having been dijjeifcd.
The Confequenccs of aBual DifTcifins, confidered as fuch, con-
tinue Law to this Day. The Difleifee cannot difpofe, or devife :
• The Delcent takes away his Entry. There are two Cafes cited in
the Cafe of Blimdcn v. Baugh, material to this Point. Poifley v.
Bhickman, B. R. Trin. 1% Jac. Rot. 1230. Palmer 201. which
*v. Co. Jac. is more fully ftated in the Manufcript Report, than in * Croke. The
659 s.C. Q^^^ ^j,, Effedt and Operation) was this. Tenant at Will made a
Leafe for Years : The Original Leflbr devifed. Though the Leafe
by Tenant at Will, at the EleSlion of the Original LelTor was a
DiJJeifin, Yet they adjudged his Devife good ; becaufe he had not
elehedio admit himfelf diffeifed ; and, by making a Will, intimated
the Contrary.
Another Cafe, (not in the Report in Cro. Jac. but cited in the
Manufcript,) was in the J4th of Eliz. Sir Amhrofe Cone, of his
own head, entered into Lands of Sir William Hollis ; and paid Sir
William, afterwards, a certain Rent, claiming to hold as Tenant
at Will ; and died. His Heir entered : Upon whom. Sir Williatn
entered. It was adjudged " That at the EleElion of Sir William
" Sir Ambrofe was a DiiTeifor: But as Sir William had not deter-
" mined his Eledlion before the Death of Sir Ambrofe, and entered
" upon his Heir, It \yas no Diffeifin; and confequently, the Dc-
" fcent no Bar to his Entry." ■
In
Hilary Term 30 Geo. 2. 113
In the Cafe of Poujly v. Blackmart, Palmer 205, It is faid, " If
" a Difleifee devife, and afterwards enter; the Devife is good:"
Which Dodderidge denied, and faid there mufl: be a new Publica-
tion. Which feems right, if there ever was a Diffeifin : For,
v/here an aSiual Entry is neceflary, it will not make good a Con-
veyance made before ; as was holden in B. R. & Dom. proc. in the
Cafe of * Berriiigton v. Parkhurft. The aSlual Entry could «<?/ ' ^"^"738-
fupport the Leafe made before. Yet in -f- Salk. 237. It is agreed, t 1 Saik.Tiy,
" the Devife is good, becaufe he was feifed ab initio^ fo as he might ^^'JT ^
" bring Trefpafs :" z. e. He never was dijftifcd at all, by his Elec-
tion ; and he might make that Ele5iion, without an Entry ; He
might bring his Ejedment, he might bring Trefpafs, -without a Re-
Entry. If it was not for this Dodrine of Election, what a Condi-
tion would Men be in !
In the Cafe of Poiijley v. Blackman, there was no Entry : And
after much Argument, it was at laft refolved unanimoully by the
whole Court, from the Inconveniences which woyld be introduced
if a Leffee by a fecret Contract with a Stranger could defeat the
Will o-f his LefTor, " That the Devife was good." And in the
Manufcript Report where it is cited. One Point faid to have been
refolved, is " That the Owner, by making a Devife, {hewed his
" Election, not to be difeifed."
I will now confider Whether James Earle can be deemed a good
Tenant of the Freehold by Difjeifm.
Disseisin is a FaB. It is not found: All the Jury Uy, is
*' That foon after the Judgment in Ejedment, Sir Robert entered
" and was in Pofeffion." This mufl be taken to be an Entry in
confequence of the judgment — It was fo confidered upon fettling the
Special Verdid : Otherwife the Defendants have no Cafe ; For it is
not found, That Lady Atkyns was ever oufted, or quitted the Pof-
fefTion, or that Sir Robert ever yi^as feifed.
Taking Poffeflion, under a Judgment in EjeSlment, never coul-d
be a Diffeifm of the Freehold.
Suppofe it a real Proceeding — The Termor of a DilTeifee might,
at the old Law, recover againft the Diffeifor : He might recover
againft the Feoffee of his Lellor. But he never could thereby be-
come a Diffeifor of the Freehold : He never could be other than a
Termor, enjoying, in the Nature of a Bailiff, by Virtue of a real
Covenant. In refped of the Freehold, his Poffeflion enured always
by Right, and never by Wrong. If the Leffor had infeoffed, it
enured to the Alienee ; If the Leffor was diffeifed and might enter,
G g It
114 Hilary Term 30 Geo. 2.
It enured to the Diff'eifee ; If his Entry was taken away, it enured
to the Heir or Feoffee of the Diffeifor, who in that Cafe had the
Right of Poffeffion.
Suppofe the Proceeding (as it is) 9. Ji^itiom Remedy. Then in
Truth and Subftance, a Judgment in Ejedlment is a Recovery of
the PoffrJJioit, (not of the Scifin or Freehold,) without Prejudice to
the Right, as it may afterwards appear, even between the Parties.
He who enters under it, in Truth and Subftance can only be pof-
J'effed according to Right, front Lex pojhilat.
If He has a Freehold, He is in as Freeholder. If He has a
Chattel-Intereft, He is in as a Termor ; and in refpedt of the Free*
hold, his Poffeffion enures according to Right. If He has no Title,
He is in as a Trefpaffer ; and, without any Re-Entry by the true
Owner, is liable to account for the Profits.
It is found. That the Ejedment was brought by Sir Robert At-
kyns, to recover the Poffeffion : But it is not faund, that He claimed
the Freehold.
The Title muft now be taken as in this Special VerdiB. There-
fore it appears he had ;;o Right to the PoffcJJioii. His Feoffee could
be in no other Condition than himfelf : He had a Poffcffjon, with-
out Prejudice to the Right ; and could convey tio other. He was
not in as a particular Tenant ; — There was no Privity of any
Seifin ; — He had only a naked Poffeffion.
But the Cafe is ftill ftronger. The true Owner cannot even elecft
to make a Perfon in Poffeffion under a y.nigment in EjeBment^ a
Disseisor. He could not bring an Affize of Novel DilJeiJin :
The Entry is fiot injufte & fine 'Jiidicio ; but under Authority of a
Court of Juftice, and lairful ; therefore not liable to PunKhment by
Fine, (as every Diffeifin was.)
The true Owner may enter upon a Diffeifor : But after a Judg-
ment in Ejedment, an adlual Entry would not be perinitted. If
there had been any Eletftion in this Cife ; the true Owner eleded
" not to be di[jeifed," and recovered by Ejcdtment : Which, if there
had been a Diffeifin, would have purged it.
But there is ftill behind, (though it happens not to be neceflary,)
a larger Groimd, upon which to determine thisQueftion ; and more
fatisfadtory, becaufe more intelligible; from the Nature of a Common
Recovery ncii', and a Feoffment to make a Tenant to the Precipe,
with that View only.
X The
Hilary Term 30 Geo. 2. n^
The Senfe of wife Men, and the general Bent of the People in
this Country, have ever been agninft making Land perpetually un-
alienable. The Utility of the End was thought to juftify any
Means to attain it.
Nothing could be more agreeable to the Law of Tenures, than a
Male Fee unalienable. But this Bent " to fet Property free" al-
lowed the Donee, after a Son was born, to deftroy the Limitation,
and break the Condition of his Inveftiture.
No fooner had the Statute de Donis repeated what the Law of
Tenures fiid before, " that the Tenor of the Grant fliould be ob-
" ferved ;" than the fame Bent permitted Tenant in Tail of the
Freehold and Inheritance, to make an Alienation, voidable only,
under the Name of a Dijcontinuance. But tBis was a fmall Relief,
At laft, the People having groaned for 200 Years under the In-
conveniences of fo much Property being unalienable; and the Great
Men, to raife the Pride of their Families, and (in thofe turbulent
Times) to preferve their Eftates from Forfeitures, preventing any
Alteration by the Legijlature ; — The fame Bent threw out a * Fie- * Pigott, of
//'o«, in Taltarum's Cafe ; by which. Tenant in Tail of the Freehold ^''"'"'"' ^"'-
and Inheritance, or with Confent of the Freeholder, might alien 8, 9, '10.
abfolutely.
Public Utility adopted and gave a Sandion to the Dodrine ; for
the real political Reafon, " to break Entails :" But the oftenfible
Reafon, " from the fictitious Recotnpence," hampered fucceeding
Times, how to diflinguifh Cafes which were within the falfe Rea-
fon given, but not within the real Policy of the Invention. 'Till, at
lafl, the Legi/Iature applauded Common Recoveries, and lent their
Aid by the Afts of 1 1 H. 7. c. 20. 33 i7. 8. <:, 3 i. 34 Gf 35 H.
8. c. 20, id^Eliz. c. 8. and lately 14.G. 2. c. 20: (Which is a
retrofpedive and declaratory Law, and feems to have reftored the
Original Tenant to the Praecipe.) Before the Statute of %/^ Empto-
res terrarum, Subinjeudations whereupon Rents and Services were
referved, did not prevent the Praecipe's lying againft the Freeholder
of the Seignory. When common Leafes to Farmers, for One or
more Life or Lives, refcrving Rent, came in Ufe ; They, for tliat
Purpofe, refembled Subinfeudations, and ought not to prevent the
Praecipe being brought againft the Owner of the Freehold, under
which fuch Leafes were granted.
As the Legijlature has, for Ages, avowed the Propofition ; We
may now fay " that Commoa Recoveries are a mere Form oj Con-
" veyance."
ii6 Hilary Term 30 Geo. 2.
cc
veyance."' All neceflary Circumftances of Form and Ceremony,
are taken from it's fiditious Original.
The Policy of this Species of Alienation meant to take a middle
Way as to Entails, between Perpetuities and abfolute Property.
Alienations were allowed ; yet in fuch a Shape as neceflarily re-
quired Deliberation and Delay : And they were only allowed to be
made by Tenant in Tail in Poffeffion; or by Tenant in Tail in Re-
mainder, ivith Confent of the Owner of the firfl Eftate for Life.
The Eldeft Son was retrained in the Life-time of his Father, or
Mother, or any other Anceftor or Relation, feiled for Life, under a
Family Settlement.
The Aft of 14 G, 2. proceeds, upon the Parties to a Recovery
having Power to fttffer it. Sir Robert Atkym the Son had no Right
to fuffer a Common Recovery, without the Concurrence of the
Jointrefs. Any Contrivance to do it without her Joining, is Artifice
and Evafion,
If Tenant in Tail in Poffeflion is diffeifed ; though the Pmcipe
be brought againft the Diffcifor, yet, if he is vouched, the Recovery
ihal! bar ; Bicaufe be had Power to bar.
In Lificohi College Cafe, 3 Co. 59. The Judges fupport the Col-
lateral Warranty of Sibil; becauje She and Edward had Power
to bar.
In Jenning's Cafe, 10 Co. 44. The Recovery is fupported, be-
cauje the P;uties had Power.
By Parity of Reafon, this Recovery ought 7iot to be fupported,
hccaufc the Parties had no Power : If it was ; the Law mufl be
overturned.
Eiery Remainder-Man in Tail might eafily get a naked Pof-
feffion, and make zfccret Feoffment.
The Plan of Marriage and other Family Settlements, is " to
" limit a Remainder to the firll;, and every other Sons in Tail."
The Negative which the Father now has upon the eldeft Son's
fufFering a Common Recovery, is the very Mea?is and Con/ideration
of getting the Eftate re-fettled, upon the Marriage of the Eldeft
Son, By this Method, the Moment he attains to the Age of 21
Years, He may fet his Father at Defiance, fuffer a Common Re-
covery, and bar all the reft of the Family. This Confeqiience alone^
in a Cafe unprecedented^ is a fufiicient Objedlion.
2 When
Hilary Term 30 Geo. 2. 117
"When a Termor, after the 4th of H. 7th, made a Feoffment,
and levied a Fine with Proclamations, and infifted upon 5 Years
Non Claim, the Judges, with ftrong Senfe, faid, though a Feoffment
by Tenant for Life, or Years, or at Will, is a Diffeifin ; It fhall
not operate as a Diffeifin, to enable the Termor himfelfio bar the In-
heritance, by a Fine with Proclamations according to the 4 H. 7.
<:. 20. For, fay they, ~*' It v/as never the Intent of the Makers of
" the Ad:, that thofe who could not levy a Fine, fliould by making
" an Eftate by Wrong and Fraud, be enabled to bar thofe who had
" Right. For if they themfelves, without ftich fraudulent Rjlate^
*' could not levy a Fine to bar them who had the Freehold and
" Inheritance; Certainly the Makers of the 4th of/?. 7. c. 20. did
" not intend that by making of an Eflate by Fraud and Practice^
" they fliould have Power to bar them : And Cuch /raudu/ent Ei\atc
" is as «9 Eflate, in the Judgment of the Law." So fay I, in the
prefent Cafe. It was never the Intent, that thofe who could not fuf'er
a Rt'coverv, fliould, by making an Eflate by Wrong and Fraud, be
enabled to bar thofe in Remainder or Reverfion who had Ri^ht,
For if they themfelves, without fucb fraudulent EJlate, could not
fuffer a Recovery to bar thofe in Remainder and Reverfion ; Cer-
tainly, the Framers of this qualified Species of Alienation, did not
intend, that by making an Eftate by Fraud and PraSlice, they fliould.
-have Power to bar them : And Rich J'rauduknt Eflate is as no Eflatc,
•in the Judgment of the Law.
The Judges then put many Cafes, where a Recovery in Dower,
or other real Adion ; a Remitter to a Feme Covert, ox an Infant^
a Warranty ; a Sale in Market Overt; the King's Letters Patent;
a Prefentation ; an Adminiflration ; — In fliort, all Ads Temporal
and Ecclefiafl:ical, fliall be avoided by Covin ? And from thence
argue that a Fine which the Parties had no Power to levy dire£Jh\
fliall not be fupported indireSily by Covin. So argue I, in the pre-
fent Cafe : A Common Recovery which the Parties had no Power
to futfsr direSlly, fliall not be made good by Wrong and Fraud.
In the Spirit of the Makers of the 14 G. 2, I fay the Parties to
this Recovety had not Power to fuffer it : Therefore it h fubjlantially
bad.
This is not the Cafe of a Feoffment to a third Perfon, for hi^ own
Benefit : It is, in Effed, to the Ufe of Sir Robert, the Wrong-Doer,
himfelf The Law confiders a Feoffee to the Intent to be Tenant to
the Precipe, as a tnere Inftrument for one Purpofe of Form only. Flis
Wife ihall not be endowed ; His Statutes or Jtidgmenrs fliall not
affed the Land; If he had a Term for Years, it fliall not merge.
Let me appeal then to the oldefl Authorities, in thofe Times when
H h the
1 18 Hilary Term 30 Geo. 2.
the Solemnity and Notoriety of Feoffments, and the Feudal Ve-
neration in which they were held, gave them all that Wonderful
Elliocy We read of: Could a Man, by his own injurious Feoffment,
h.ive acquired an Advantage to himfelf? Littleton Oiall anfwer :
He tells us what was eftabliOied long before he wrote. Lit. § 395.
" If a Difleifor infeoff his Father in Fee, and the Father die leifed
" of fuch Eftate, by which the Lands defcend to the DifTcifor as
" Son and Heir, &c ; In this Cafe, the Difleifee may well enter
" upon the Dilfeifor, notwithftanding the Defcent : For that as to
*' the Diffeifin, the Diffeifor fliall be adjudged in hut as a Dijf'fifor,
" notwithftanding the Defcent > ^lia Particeps Cri7?iijiis.'"
After the Statute De Doms, Tenant in Tail in Remainder, with
the Concwrrnce of the Freeholder, might make a voiJaljle Aliena-
tion, by Difcontimianci- : But he could not acquire to himfelf that
Privilege, by an injurious Entry and Feoffment. " He in Remain-
*' der inTail diffeifes Tenant for Life, and makes a Feoffment, and
*' dies without Iffue, and the Tenant for Life dies ; He in Rever-
" fion may enter : It is no Difcontinuance." Co. Lit. 347. a. b.
It is no Diffeifin of the Reverfion. " If Remainder-Man for Life
" diffeife the immediate Tenant for Life ; after the Death of the
" immediate Tenant, he is in as Tenant for Life." Neither fhould
a Reverfioner, by an iniurious Entry upon the Tenant for Life, be,
in refpedl of Strangers, allowed to tranfmit to his Heir the Privilege
of Defcent, If the Reverfioner diffeifes Tenant for Life, and dies
feifed J the Defcent fliall not take away the Entry of a Stranger.
Bob. 323.
From the Whole, We may conclude — //", before the Introduc-
tion of Common Recoveries as a Conveyiince, this Queftion had
been agitated in an Adnjcrfary Real Adion, upon a Plea " that
" Eark was not Tenant of the Freehold;" It would have been ad-
judged, from the Law and artificial Learning of Tenures, " that
'" He could not be fo confidered." If the Queftion had been,
" Whether Tenant in Tail in Remainder ftiould, by fuch injurious
Entry and Feoffment, acquire a Benefit to himfelf, to the Prejudice
\f his Reverfioner ; It would have been adjudged, from eternal Prin-
ciples ofjuftice, *' that an Ad founded in Wrong fhould not, by
" Virtue of the Crime itfelf, become legal, for the Author's Ad'-
'vantage.
As it is now agitated, when Common Recoveries are eftabliflied,
as a Species of Alienation ; — The only Queftion is, " Whether the
" Rule of Law which rryz</r« the Concurrence of the Owner of the
" firft Eft.ue for Life, (hall be overturned." 'Tis bett-i to fuLvert
the Rule dircdtly, than fiiffer it to be done by a fecret injurious En-
try'and Feoffment; which cannot be prevented, and. which the
Owner may never hear of.
There
Hilary Term 30 Geo. 2. 119
• There is no Injury or Wrong for which the Law does not pro-
viHe a Remedy. But if this Stratagem lliould prevail, Redrefs muft
follow too late; unlefs the Entry of the Tenant for Life fliail avoid
the Recovery. If it would, there is an End of the prefent Que-
ftion : For the Jointrefs entered, and was intitled to the Profits from
Sir Robert Atkyns as a TrefpaiTer ab tnitio.
In e^jery Light, and upon every Ground of Law, this Recovery
is bad.
As there is no Bar to the Right of the Leffor of the Plaintiff —
The fecond General Queftion is " Whether the Leflbr of the Second Gene-
" Plaintiff is, by the Statute oj Limitations , barred from recovering "lQ-"«"'°"-
" in THIS EjeSiment.
This Point was certainly not infifted upon at the Trial : And
therefore the Special Verdicft is not adapted to it. The ahftrufe
Learning, upon which the Validity of the Common Recovery de-
pended, might engrofs the whole Attention at the Trial : And the
Special Verdid: having no Fads, (which eafily might have been
found,) particularly applicable to an Objedion from the Statute of
Limitations, might occafion the Queftion not having been made at
the Bar, till the laft Argument. The Point however is certainly
open, upon this Special Verdid.
An Ejedment is a pojfejfory Remedy, and only competent where
the Leffor of the Plaintiff w^y enter : Therefore it is always necef-
fary for the Plaintiff to fhew, that his Leffor had a Right to enter ;
by proving a Poffeffion within 20 Years, or accounting for the want
of it, under fome of the Exceptions allowed by the Statute. Twenty
Tears adverfe Poffeffion is a pofitive Title to the Defendant : It is not
a Bar to the ABion or Remedy of the Plaintiff, only ; but takes away
his Right of Poffeffion.
Every Plaintiff in Ejedment muft fliew a Right of Poffeffion, as
well as of Property : And therefore the Defendant needs not plead
the Statute, as in the Cafe of Adions.
The Queftion then is. Whether it appears upon this Special Ver-
did, " that the Leffor of the Plaintiff might enter, when he
" brought this Ejedment."
On the 9th of November 1711, Sir Robert At kym died without
Iffue Male.
q On
1 20 Hilary Term 30 Geo. 2.
'On the 9th of OBober 17x2, Lady Atkym, the Jolntrefs, died.
TJjen accrued the Title of Entry of the Leflbr of the Plaintiff, His
only Excufe for not enterifig is, " That He was prevented by the
" faid Lease of the 31ft of M^jy 1698, to the three Dacres." — That
upon the Death of Thomas Dacres the Surviving Leffee, on the 23d
of July 1752, a new Title of Entry accrued: Upon which. He en-
tered on the 15th oi December 1752 ; and brought this Ejedlment.
Three Anfwers are given : Any one of which, if well founded,
is fufficient.
ift. That the faid Leafe was abfolutely "uo/V, and of no Effedl.
2d. If good, It determined by the Eftate Tail being fpent ; by the
exprefs Tenor of the Demife.
3d. If fubfifling, yet, upon the Extindion of the Eftate Tail, It
was a Tru/l to attend the Inheritance in the Leffor of the Plaintiff,
and made part of his Title Deeds : Therefore could not ftop the
Statute's running, to protecl an adverfe Poffeffion, nor give Him any
new Right of Entry.
t
Firft. That the Leafe was "coid.
in Anfwcrto Sir Robert Athyns the Father, being only Tenant (ox Life, could,
the Excuie liy Virtue of his OxvncrJ}:ip, make no Eftate to continue after his
ina"°' ^"'^'^' Death. This Leafe, therefore, after his Death, can only be fup-
ported by his Power ; if it was made purfuant to it.
** Whether it was made purfuant to his Power," is the Queftion.
The Limitation and modifying of Eftates, by Virtue of Powers,
came from Equity into the Common Law, with the Statute of
Ufes. The Intent of Parties who gave the Power, ought to govern
every Conftrudlion, He to whom it is given, has a Right to enjoy
the full Exercife of it : They over whofe Eftate it is given, have
a Right to fiy " It ftiall not be exceeded." The Conditions ftiall
not be evaded ; It ftiall be jiriBly purfucJ, in F^rm and Subftance.:
And all A(fts done under a Special Authority, 7iot agreeable thereto,
nor warranted thereby, muft be void.
Of all kinds of Powers, the moft frequent is that " to make
" Leafes." For the Encouragement of Farmers, to occupy, ftock,
and improve the Land, It is neceffary they fhould have fome per-
manent Intereft. Unltfs the Owner of the Eftate for Life was
enabled to make a permanent Leafe, He could not enjoy to the beft
2 ■ Advantage,
Hilary Term 30 Geo. 2. 121
Advantage, during his oivn Time : And they who come after^ muft
fiiffer, by the Land being un-tenantcd, out of Repair, and in a bad
Condition. The Plan of this Power is for tlie 7nntiial Advantage
of PoflefTor and Succeffor. The Execution thereof is checked
with many Conditions, to guard the Succeffor ; that the Annual
Revenue fliall not be diminilhied ; nor Thofe in Succeffion or Re-
mainder, at all prejudiced in Point of Pvemedy, or other Circum-
ftance of full and ample Enjoyment.
There are tijso Methods of Leafing, in common Ufc In this King-
dom : At the beft Rent; And upon Fines ; which, as the Lives or
Leafes drop, are confidered among the annual Profits. This Power
is always adapted to both. It is inferted in almoft every ftridt Set-
tlement of every kind. It is inferted in the Greater Deed of the
.12th of 'June 1669; and given indifcriminately to Sir Robert the
Father, Sir Robert the Son, and Lovis his Wife.
The Nature and View of a Power, fo ufually given, is well un-
derfiiood : And Courts of Jufl:ice have always looked with a jealous
Eye, to fee that the Conditions in Favour of the next Taker be pur-
fued; not literally only, but jubjlantially. It is not fufficient that
the antient Rent be referved : It mufi; be referved with all the Be-
neficial Circiimftances. If payable before, at four, It cannot be refer-
ved at two Payments. Lord Moimtjoy's Cafe, 5 Co. ^.b. The whole
Rent mufi: be payable annually during the whole Term. In that
Cafe, It was holden that lefs could not be relerved, even to the
Leffor himfelf, during his own Life.
One of the Reafons in Ehner'$ Cafe, 5 Co. 2. fliews the Rent muft
be payable annually during the Term.
In the Cafe of Lady Charlotte Orby & at' v. Lady Molmn, 2 Ve^iion
531, 542, Lord Co'Zi'/'fr, Holt, and Trfycr, All three held clearly,
that a Leafe " referving the bcfl Rent," though good againfi: an
Owner of the Inheritance, was void under a Pcjuer : And Coiopcr
and Tr^TO^i held, That referving " the Ancient Rent," where Lands
had been ufually demifed ; though good and certain enough by
Reference, againfi: an Owner of the Inherifcince, was void mider a
Power ; Becaufe it put the Remainder-Man under Difficulties in
avowiug.
*
" The Intent was," fay they, " that the Tenant for Life in
" Poffefiion might leafe : So it was, on the other hand, that the
" Revenue ftiould not be diminifiied ; hot the ancient Rent, at leafi-,
" referved ; and in fuch beneficial Maimer, as might with Certainty,
" and without any Difficulty be recovered."
I i " The
122 Hilary Term 30 Geo. 2.
" The Queftlon here is not," fay they, " Whether the Leafe is
" void for Incertainty, as between the Leflbr and LefTee j but whe-
" ther All Requifites are obferved, and fuch beneficial Claufes and
" Refervations as ought to have been, for the Bencjit of a third
" Perfon, the Remainder-Man."
In the Cafe of the Rarl of Cardigan v. Montague^ 6th fune
1755, A Decretal Order on the Mafter's Report; The Duke of
Montague^ Tenant for Life, without Impeachment of Wafle, had
Power to leafe, referving ancient Rent where ufually demifed, and
beft Rent where not ufually demifed : He made 24 Leafes. The
Mailer's Report, as to many of the Leafes, which He reported bad,
was fubmitted to : As where ancient Covenants " to grind at Mills,
" or to pay Land Tax," were not in the new Leafe ; — Where
fome Part, not within the Power, is included in the Leafe ; —
Where many Manors were included in the Leafe, referving a Sum
certain, as the beft Rent ; which laid the Remainder-Man under
Difficulties, to find out whether it was the beft Rent or not. As to
Five of them, which the Mafler reported to be good, Exceptions
were taken. Their Validity turned upon this Cafe. The Words
in the Power were " Referving ancient, ufual, and accuftomcd
" Rents, Herriots, Boons, and Services." In the former Leafes,
the Tenants covenanted " to keep in Repair:" That Covenant was
omitted in this. The Lord Chancellor was of Opinion, that that
Covenant was a Boon, and beneficial to the Remainder-Man ; and
held thefe Leafes void, for Want of it. He took fome Days to con-
fider ; and declared He was clear upon the Argument, but took
time, becaufe there was no Cafe in Point. The more He thought
of it, the more he was convinced. The Principle He refted upon
was, that the Eftate muft come to the Remainder-Man, in as bene-
ficial li. Manner, as ancient Owners lield it.
I have gone fo far at large into the General Dodrine, not from
any Difficulty ; but becaufe the Point is of fo much Confequence
to the LelTor of the Plaintiff. For this Writing of the 3 i ft of May
1698, has not Colour enough to make a Queflion.
I ft. It is no Leafe at all. The very Definition of a Leafe, is a
Contradt between Landlord and Tenant, by which Both are bound
in mutual Stipulations.
A Sale and Leafe are defin'd to be the fame Species of Contraft.
A Sale cannot be, unlefs fome-body agrees to pay the Price : Nor
can there be a Leafe, unlefs fome-body agrees to hire, and to pay
the Rent. This Writing purports to be fuch a Contradl. It is an
Indenture : which implies reciprocal Inftruments, tallying One with
2 the
Hilary Term 30 Geo. a. 123
the Other. It profejfes being made by Sir Robert Atkyns on the One
Part, and the three Dacres on the Other Part. But it is not : The
Dacres are not bound-: They never executed this, or any Counterpart.
It does not appear they kneiji) or confented to the Mailing of it.
Livery of Seifin was immaterial. A Leafe by Virtue of a Powery
takes Effedt out of the Settlement that gives the Power. But fobn
Dacres, who gave the Letter of Attorny to take Livery, died in
J 705. fio/^^r/ died in 1706. ^\x Robert Atkyns, the Father, lived
till 1709. Suppofe, at his Death, 360 /. a Year a beneficial Rent:
Thole in Remairfder could not demand it. Thomas Dacres had not
executed the Leafe ; He had not accepted it ; He 7iever had e?itered
under it : No Diftrefs could be taken from him ; Mo ABion could
be brought againll him.
One Man cannot oblige another to be his Tenant, at a high Rent,
inithout his Confent. This is fo plain, that on the Part of the
Plaintiff, they have argued that Thomas Dacres was bound by Ac-
ceptance ; 3 Ways —
I ft. Becaufe Livery of Seifm was taken in the Name of John
Robert and Thomas.
Anfwer. Thomas ga'^oe no Authority fo to do: It does not appear
that he knew of it. But the mere Taking Livery of Seiiin, if he
never entered or occupied, would not be lufficient to charge him with
the Rent referved.
2d. In the Ejedment brought m Hilary Term 171 1, a Demife
was laid from Thomas Dacres, as well as the Jointrefs : And the
Plaintiff had Judgment to recover " Separales Terminos."
Anfwer. The two Titles are inconf/lent : So there could not be
really a Recovery upon both. Bat the Judgment purfued the De-
claration ; and was mere Form... It docs not appear that Thomas
Dacres knew his Name was made Ufe of: And He r.ever entered,
or took PoJfcJJion.
3d. That Acceptance fiiall be prefianed^ And it is compared to
Grants: And Thompfon v. Leach is cited. \V. 3 Lev. 284.]
Anfwer. The Ground oi Thompfon v. Leach, and of All the Cafes
there put, is, " That a Gift imports a Ben fit : And Cofifent to receive
" a Bounty may fairly be prefmncd, till the contrary appear." But
tlie Offer of Lands to a fubftantial Man at a Rack Rent, does 7wt
import fuch a Benefit, as No-body in his Senfes could refufe. And
here, there is no Room to prefume : For the Contrary appears. Tho-
mas
124 Hilary Term 30 Geo. 2.
mas Dacres dijfented, during his whole Life ; and 7ie'ver took Frjj'ef-
fion. The Contrary appears too, from the Writmg itfelf. It never
was the Intent, that the Dacres fliould take Poffeflion or pay Rent.
It was to be a Conveyance only of the Ideal Freehold : Wliich
might Non-fuit the Remainder-Man, in Cafe he brought an Ejcd-
ment againft third Perfons; or prevent his fuffering a Recovery;
but never could be any Security to him for his Rerd,
It is immaterial, whether an Owner of the Inheritance could
convey an Ideal Freehold, to delay the Tenant in Tail, ciaiming
under his Grant, from fuftering a Recovery.
The Queftion here is, Whether it be that ufual Kuibandry Leafe,
referving a Rack Rent, which is intended by every Power of Leafing.
It is very clear that None of the Lejjees were bound by this Wri-
ting; more efpecially, xh'xt 'Thomas Dacres v/d-S not. But I go fur-
ther: S'l'c Robert Atkxns, the nominal Lefibr, was not bound bv it.
The Deed never was out of his own Pojfejfion. The declared Intent
proves it a 'Triiji for Sir Robert hiviftlf. His Will, under which
the Leflbr of the Plaintiff claims, avers it to be a Trujl, and devifes
it as Juch.
It is no Objedlon to a Leafe under a Power, " Tliat it is in
" TriiJl for him who executes the Rower :" Provided the legal
'Tenant be bound, during the Term, in all requifite Covenants and
Conditions. But here, at the Death of Sir Robert the Father, Thofe
in Remainder had ?;o Tenant to rcfort to : And the nominal Tenant
never did in Fadt enter, nor could either in Law or Equity, ever
have been compelled to ejitcr, or pay One Farthing Rejit. So that
this Writing, calling itfelf an Indenture, and purporting to be a
Contradl, is Wafle Paper only, by which No-body ever was bound.
But fuppofe it had been executed by the 3 Dacres ; It could
not be fupportcd as a Leak within the Aleanifig of the Poiver ; upon
a Variety of plain Ol-ijedions, in refpcdt of the Premijfes, tlic Rent,
and the Remedy.
I ft. As to the Prcfuijfes demifed— It comprizes too much ; and
lays the Remainder-Man under Difficulties to know whether the
beft Rent is referved. It extends to Things out of which no Rent
can be referved ; as Tithes, Rents of AfTize, Rents of Cuftomary
.Tenants, Commons, Feedings, and Lands in the feveral Tenures of
particular Perfons.
The Condition of the Power is. That there ftiould be no Term
exceeding 3 Lives in Being at the fame Time : Yet the Demife ex-
tends to all and every the Rents referved upon any Leafes or Grants.
2dly.
Hilary 1 erm 30 Geo. 2. 125
zdly. As to the Rent referred — The Power requires " The beji
" Rent that can be reafonably got, to be referved payable during
" the Term."
There is ?!o Covenant for Payment. Under a mere Refervation,
it could not be payable till Entry : And therefore, in Fadt, might
never be payable, during the Term. It is not found " to be th«
" bejl Rent."
3dly. As to the Remedy — There being no Covenant to pay the
Rent, the Leafe might be ailigned to a Succeffion of Beggars.
There being no Claufe of Re-Ejitry, the Ground might lie unoccu-
pied without any, or not fufficient Diftrefs upon it : So that the
Remainder-Man could neither have his Rent nor his Land. There
is no Comiterpart ; an unufual Omlflion, and very prejudicial.
Therefore the Leafe could not have been flipported, if it had been
executed by the 3 Dacres : Which is not the Cafe.
Every fraudulent, unfair, prejudicial Execution of fuch a Power,
jn refpedt of thofe in Remainder ^ is void at Law.
If the Leafe be a void Execution cf the Power, againft All
clai7mng under the Settlement, It cannot he made good againft the
Reverfion in Fee, whereof Sir Robert Atkym the Father was feifed,
either by Virtue of the Livery, or by way of Eftoppel, fuppofing
the 3 Dacres to have executed : Becaufe an Intef-c/l would have
paffed, during the Life of Sir Robert Atkym the Father ; and there
is no Elloppel where any Interejl pajj'es ; and, to make it operate by
Virtue cf the Livery, out of the Reverfion in Fee, would be contrary
to the ivhole Intent of the Deed plainly exprefled. Which brings
Me to a fecond Anfwer given.
£>'
2d Anfwer. Suppofe this Pocket undelivered Grant of the Ideal 2d Anfwer to
incorporeal Freehold, a good Execution of the Power ; They have 'he Excufe for
argued that it determined ivith the Eftate Tail; That the only^°^ entering.
Caufe of the Grant being to preferve the Reverfion during the Eftate
Tail muft qualify the Grant, and ainoiint to a Limitation ; That
there is no technical Form of Words necefiliry to exprefs a Corltin-
gency, upon which an Eftate for Lives may fooner determine.
The Deed might have fald exprefly, " If the Heirs Male of Sir
" Robert Atkym the Son continue fo long ;" or, " that the Leafe
" fhould determine, if, during the Lives, the Eftate Tail fliould be
'^' fpent." That the Intent of the Deed, plainly exprejjed, is tanta-
mount.
K k 3d Anfwer.
126 Hilary Term 30 Geo. 2.
3d Anfwer to ^d Anfwer, Suppofe it to fubfifl: ; — It is as a Tru/I, and devifcd
no'^entertng!' as Vuch, to atfenti the hiheritatice of the Leflbr of the PlaintifF;
which came into Poffeflion the 9th oiOdlober 171 2 : His Title and
Right of Entry then accrued.
This Leafe was One of his Muniments ; a mere Weapon in his
Hands : And it would be going a great Way, to fay " fuch a For
" Ihould take from an adverfe PoflefTion the Benefit of the Statute
m
But as we are All clear, " That at the Trial, a Surrender of fuch
" a Leafe might, and ought to be prefu7ned, to let in the Statute
" of Limitations ;" The Special Verdift, here, tiot having found
fuch Surrender, We cannot come at the Juftice of the Cafe in that
Shape.
It is unnecefTary to go into this Point, or the former : And it
would be very improper, unnecefTarily to do it.
If the Dacres had no Eflate by Virtue of this Demife, upon the
9th of OSfober 171 2, Then this Ejedtment was not brought ivithin
20 Tears after the Leflbr's Title accrued : And no Fads are found,
to excufe him within any of the Exceptions.
Therefore We are All of Opinion that there fliould be
Judgment for the Defendants.
A Writ of Error was brought in the Houfe of Lords; and
came on upon Thurfday 26th January 1758. The Counfel agreed,
and were allowed, to argue the lafl Poi7it, for the Judgment of the
Houfe, firfi: : Becaufe, if their Lordlbips fhould be of the fame
Opinion with the Court of King's Bench, " That this EjeBment
was barred by the Statute of Limit.tions," It would be quite un-
necefliiry to go into the firjl Queftion.
All the Judges were ordered to attend. To whom, after the
Argument at the Bar was over, the Houfe propofed the following
Qiieflion, viz.
" Whether Sufficient appears by the Special Verdidl in this
" Caufe, to prevent the Leflbr of the Plaintiff, by Force of the
" Statute of Limitations, of the 2lfl of King y^/wfj the Firft, from
" Recovering in this Ejedment.
Whereupon, the Lord Chief Juftice Willes, having conferred
with the Reft of the Judges, delivered their Unanirnous Anfwer,
" That Sufficient does appear by the Special Verdidt in this Caufe,
X " to
Hilary Term 30 Geo. 2. 127
*' to prevent the Lcfibr of the Plaintiff, by Force of the Statute of
'' Limitations of the 21 ft of King James the Firft, -from Recoyer-
*' ing in this Ejedtment.
Then the Judgment of the Court of King's Bench was Af-
firmed, with 5 /. Cofts.
Green vej-f. Mayor of Durham. ind,:ffiay
^ ' 26th 'January]
Mr. JuJI. Wihr.ot abfent [i?t Chancery.)
THIS Cafe was fet down in the Crown-Paper, as a Special
Verdift, and was fo called ; and was argued by OneCounlcl
on each Side, in the fame Manner as if it had been a Special Ver-
di(5l : But it was only a Verdidl upon Six feveral Traverfes to the
Return of a Mandamui (on 9 A?in. c. 20.) diredted to the Mayor
of Durham, commanding Him to fwear and admit Rcbert Green
into the Place and Office of a Freeman of the Covipany or Frater-
nity of Free-Mafons, &c. of the City of Durham.
The Right fet up by Robert Green was his having been duly
ElcBed AND Admitted a Freeman of the Company : But the Ob-
jedlion to his being sworn by the Mayor, was, " that He had not
" conformed io certain By-Laws particularly fpecified in the Return
" and found by the Verdidl."
The Return was — That Durhajn is and from Time immemorial
hath been an Ancient City, ^c. and alfo that a Power is given by
a Charter of Tobias then Bilhop of Durham, in 44 Rliz. confirmed
by King James Firft, to the Mayor Aldermen and Common
Council for the Time being, or the major Part of them, (of
whom the Mayor and Six of the Aldermen to be Seven,) to make
By-Laws, in the Stead, for, and in the Name of the Whole Corpo-
rate Body of the City of Durham and Framwelgate.
Then the Return fets forth that certain By-Laws were duly
made by the Mayor Aldermen atid Commonalty, in due Manner
met and affembled at the Guildhall, ^c. on 8th November ijz'i.
And it particularly fets forth and fpecifies three feveral By-Laws, as
havino; been then there made by them ; to wit —
'O
That for the effedlual preventing all Perfons being made free, ift By-Law.
that have not a Right or Title to their Freedom in the faid City,
and for the better regulating of the fame. The Mayor, One or more
Alderman or Aldermen of the faid City, and the Wardens and
Stewards of the feveral and refpedive Companies for the Time
•being.
128 Hilary Term 30 Geo. 2.
I. Ai -
being, shall from henceforth meet at the Guildhall or Toll-
booth in the faid City, four Times in every Year, viz. on the iiril
Monday after Martin-tnas, the firfl: Monday after Candlc-tnas^ the firft
Monday after May-da\\ and the firfl Monday after Lam-mas. And
Every Perfcn that is hereafter to be admitted a Freeman of the faid
City ^W Borough oi Framiaelgate, Iball be then and there
CALLED, at Three of the faid feveral Meetings, before fitch his
Admittance to be a Freeman ; And to be approved of by the faid
Mayor and One or more Alderman or Aldermen, and the Wardens
and Stewards of the feveral and refpedlve Company or Fraternity
(for the Time being) whereof He or They is or sre to be made
and admitted a Freeman or Freemen refpedively, or the Majority
of the faid Mayor Alderman or Aldermen and -Wardens of fuch re-
fpedive Company then and there prel'ent.
2d By-Law. Tliat any Warden Steivard or other Freeman that fall make
any Perfon a Freeman of the faid City or of any Company therein,
contrary to the faid laft Ordinance or By-Law above-mentioned,
fliall refpecftively forfeit and pay the Sum of 30/. to the Mayor
Aldermen and Commonalty of the faid City of Durham, to be by
them recovered by Adion, or Diftrefs of the Offender's Goods, or
othervvife, and to be paid into the Chert: or Hutch, for the Ufe of
the faid Mayor Aldermen and Commonalty, to defray any public
Expence that may happen to the faid Corporation or Fraternity.
3d By-Law. That in Cafe the Mayor of the faid City for the Time being
fliall fwear any Perfon that has not adually ferved Seven Years as an
Apprentice with a Freeman of one of the faid Companies or Fra-
ternities belonging to or ufed in the faid City, or fhall not he jujily
intitled to the fame by ancient Ufige or Curtom within the faid
City, He fhall forfeit and pay the Sum of 30/; Which faid Sum
fhall be recovered &.r. ut fupra, and to be paid ut fupra.
All which faid feveral Ordinances and By-Laws the Return al-
ledges to have, ever fince the Making thereof, been conftantly obr
ferved and kept &c. and to be flill in their full Force and Virtue, &?f.
Th-iX "Robert Gree7i was not elcBed and admitted a Freeman of
the faid Company o( Free Mafons, Rough Mafons, Wallers, Pa-
viours, Plaiflerers, Slaters and Bricklayers.
That Green was never duly called to be a Freeman of the faid City
oi Durham and Framwelgate, nor ever approved of by the Mayor
and one or more Alderman or Aldermen of the City of Durham
and Framwelgate aforefaid, and the Warden and Stewards of the
faid Company or Fraternity of Free Mafons ^c. before his fup-
.pofed Eledion and AdmifTion to be a Freeman of the faid Company
4 or '
J
Hilary Term 30 Geo. 2. 129
or Fraternity, according to the iirft Ordinance or By-Law above
mentioned, as he ought to have been.
And for thefe Reafojjs the faid Mayor has not Avorn and ad-
mitted him, nor adminiftred the Oaths to him ufually taken for the
due Execution of the faid Office.
Upon this Return, Green takes 6 feveral Traverfes : On which,
liTues were tried.
I ft Iflue. That the Mayor Aldemien and Commonalty did Nor
duly meet &c. on 8th November 1728. in Order to make By-Laws
&c. Modo & Forma &c,
2d Iffue — That they did not in due Manner make the Jirjl By-
Law mentioned in the Return.
3d Iftue — That they did not in due Manner make the fecond
By-Law mentioned in the Return.
4th liTue — The like Denial of their making the third By-Law
mentioned in the Return.
5th Iflue — That He 'was elected and admitted a Freeman of the
faid Company or Fraternity of Free Mafons Gff . as in the Writ is
alledged.
6th Ifl"ue — That he was duly called to be a Freeman of the faid
City of Durham and Framwelgate aforefaid, and was approved of
by the Wardens and Stewards of the faid Company to be a Free-
man of the faid City of Durham and Framwelgate.
The Jury find, As to the ift Ifliie — That upon the 8th of No-
vember 1728, the then Mayor and Aldermen and Commonalty J/^
in due Manner meet and a£h?tble, at &c. in order &c. in fuch Man-
ner and Form as the faid Mayor by his Return hath alledged.
As to the 2d Iflue — That the faid Mayor Aldermen and Com-
monalty did then and there, in due Manner, make the ift By-
Law in the Return mentioned, in fuch Manner and Form as is
therein by the faid Mayor alledged.
As to the 3d Iflije — That they did in due Manner make the 2d
By-Law, in Manner and Form ^c.
As to the 4th Ifl*ue — The like Finding, with regard to the 3d
By-Law.
L 1 As
130 Hilary Term 30 Geo. 2.
As to the 5th Iffue — That Green was eledled and admitted a Free-
man of the Company^ as in and by the Writ is alledged : But that
BEFORE SUCH hii Admittance, He was not called at any Meeting
held according to the faid By-Law in the faid 2d Ifllic mentioned,
nor approved of by the then Mayor and one or more Alderman or
Aldermen and Warden and Stewards of the laid Company or Fra-
ternity, nor by a Majority of them, according to the fliid By-Law.
As to the 6th IlTae — That the faid Robert Green was not duly
called to be a Freeman of the faid City of Durham and Franvwel-
gate, and approved oj by the Wardens and Stewards of the faid
Company or Fraternity of Free Mafons, Rough Mafons ^c. to be
a Freeman of the faid City of Durham and Framwclgate.
This Cafe was argued on the 24th of November 1756, by Mr.
Ambler for the Plaintiff, and Mr. Clayton for the Defendant, when
the Court ordered it to ftand for Judgment the then next Term.
And Lord Mansjield now delivered the Refolution of the Court.
The Genera! C:)uen:ion depends upon Robert Green's Right to the
Franchife which He claims.
The Objedion to his Right arifes from his not being quaiifi-.d
according to the By-Luiv.
If the By-Law Is good, and binding, and He appears to be an
Objedl: of it ; He is certainly not qualified, and the Mayor has re-
turned a futiicient Reafon for not admitting and fwearing him.
All the Objedions which have been made, therefore, tend to fet
afide the By-Law : Or, if the By-Law be good, to fliew that Ro-
bert Green' a Cafe is not within it.
It has been argued that the By-Law is void, upon two Grounds j
ift. From PFant of Authority to make it;
2d]y. From the SubjeSi-Matfer.
As to the Firft — The Objeftion is. That the By-Laws are re-
turned to be made by the Mayor, Aldermen, ajid Commonalty ;
whereas the Power is given to the Mayor, Aldermen, and 24
Common Council or the major Part of them; of whom, the
Mayor and Six Aldermen (hould be Seven.
2 Anfwer.
Hilary Term 30 Geo. 2. 131
Anfwer. The Power to the felecl Number is, " to make By-Laws
" in the Stead, for, and in the Name of the whole corporate Body."
Thefe By-Laws fnight be made by the feledt Number, aSlifig in
THE Name of the whole corporate Body j and muft be fo intended :
For the Jury find, *' that they did in due Manner meet, and in due
" Manner make the By-Laws."
As to the Second — That the By-Law is unreafonahk and njoid :
For it is Hkened to the Cafe of the Taylors of Ipfwich, 1 1 Co. 53.
A By-Law " that None fliould work at his Trade, until he had
" prefented himfelf to the Company of Taylors, and proved that
" he had ferved 7 Years as an Apprentice, and admitted by them
" to be a fufficient Workman."
Anfwer. In that Cafe, the By-Law was againjl Law: It was
againft the 5th of Eliz ^ and a farther Reftraint than that A.&. had
made.
But this By-Law is not againft any Law — It is not a Reftraint
upon Trade ; but feems a reafonable Regulation, to prevent Perfons
being unduly made Free, who are not intitled by Birthright, Ser-
vice, or Purchafe. It provides a Method for previoufly examining
into the Right of thofe who claim to be made free.
I
Obj. *' That there is no Method to compel a Meeting of the Mayor
" Alderman or Aldermen and the Wardens and Stewards of Com-
■" panics."
Anfwer. This Objedion extends equally to all corporate Affem-
tlies, by Cuftom, Charter or By-Law. But there is a known Me-
thod, by Mandamus^
Ob). If a Perfon has a Right to be admitted a Freeman, yet un-
lefs He be approved of by the Mayor &c. He is not to be admitted :
And there is 770 Method to compel them to approve.
Anfwer. If the Mayor ZSc. difapprove, without Caufe, a M^;/-
da)iius will lie, fuggefting the Qualification and Right of the Perfon
claiming to be a Freeman, and commanding the Mayor to approve
and admit.
But Suppofing the By-Law good, it has been argued, that this
Cafe is Jiot within it.
1 ft Obj. The Mafidamus is, to ?^Am\t Green to the Freedom of
the Cofnpa77y : The By-Law relates only to the Freedom of the City.
Anfwer.
132 Hilary Term 30 Geo. 2.
Anfwer. It appears from the fecond By-Law, to be the fame
thing.
2.d Ob). The Bv-Law prohibits indeed the Elecftion of Perfoiis
not allied, and approved &c. and fubje<fts Difobedience to a Penal-
ty ; but does not make the Election voiiJ, and cannot transfer the
Right of Election ve/ied in the Eledtors, to the Mayor &c.
Anfwer. Thefe Objedions are founded upon a MJfunderflavding
of the By-Law, and a MifconceptioJt of the Nature of the Cafe.
The Writ recites " -that Gree?i had been duly eleded and admitted
" a Freeman;" and therefore commands the Mayor to fwcar him —
The Mayor returns the By-Law (3c. and " that (yefore Grct'ns fup-
" pofed Eledtion and Admittance (by the Company) to be a Frec-
" man, He was not called and approved by the Mayor &c :" And
tlie Fad found by the Jury is, " That He was Eledcd and Ad-
" mitted by the Company ; but not called and approved by the
Mayor &c." So that it appears upon this Record, that the Intent of
the By-Law was, that no Perfon fhould be Eleded and admitted a
Freeman of the Company, unlefs He was called at the Affembly and
approved (3c. which was a pnvious Ad to be done before the
Company could eled him ; the way to prevoit the Abufe " that
the Company unduly admitted Perfons to their Freedom :" And the
fecond By-Law inflids a Penalty on the Company^ who fhould make
any One free, laitkout the previous Calling and Approbation ; And
tlie third By-Law inflids a Penalty on the Mayor, who fliould
I'wear any fuch Perfon.
Thje Stating the FaSl anfwers both the Objedions. For the By-
Law makes the Appearance and Approbation a necejfary Salifi-
cation, to the being made free by the Company, and a Reftraint upon
them to eled any one to his Freedom, before his conforming to the
By-Law: And the Right of Eledion is }wt transjerred to the Mayor,
but reniaim where it was.
Obj. It is "Not returned " that there is^as any Aflembly, at which
" Green might appear, to be tailed."
Anfwer. It fhall be intended, — And if in Fad there was no Af-
fembly, Green might have pleaded it as an Excufe.
■Obj. He might have been eleded and admitted, before the
making this By-Law.
Anfwer. The Jury have found, " that He was eleded and ad-
*' mitted; But that He was not called and approved pursuant to
3 tbs
Hilary Term 30 Geo. 2. 133
*' the By-Law" So that the By-Law nvas in beings at the Time
of his Eledlrbn Gff.
It is to be obferved, that it is not Jlated, what is the Method of
the Company's Elefting Freemen, nor any thing in the Charter
concerning it. For aught that appears, the firfi: By-Law may be
agreeable to the ancient Ufage, and revived by this By-Law and
enforced with Penalties. But fuppofing it to be introduSlory of a
previous Qualification, it feems to be reafonable and well calculated
to prevent improper Perfons, not intitled, being made free. It is
much more reafonable than the Cuftom of London, " that no Broad
** Cloth rt:iould be fold, but what was brought to Blackwell-hall to
*' be -examined; 5 Co. 62. Yet this Cuftom was held good; be-
■caufe it was to prevent Fraud.
We are of Opinion that None of the Objeftions are well found-
ed ; and therefore that the Return ought to be Allowed.
Confequently, as this was the Cafe of traverfing a Return to a
Mandamus, purfuant to the Statute of 9 Ann. c. 20. the Rule
was taken,
That Judgment be entered for the Defendant,
Goodtitle, ex dimifT. Chefter, verf. Alker & Elmes. F>iJay 28*
Tr. 26, 27 G. 2. Rot. 590.
THIS Cafe was firft argued on Tiiefday the 4th of February
1755, when there were only 3 Judges; Mr. Juft. Wright
having (two Days before) refigned, and Mr. Wihnot (who was ap-
pointed to fucceed Him) not being then called a Serjeant : And it
was again argued, and determined, on this Day, (when Mr. Juft,
Wilmot was alfo abfent, in the Court of Chancery.)
It was a Special Verdidl in Ejedment for an Acre cfhAtiD lying
in the Parifli of St. Philip and Jacob in the County of Gloucefter.
It finds, as to One Piece of Land, containing 14 Inches in Length,
and 33 Feet in Breadth, (Parcel of the PremifTes ;) And as to 0?2e
Other Piece of Land, containing 3 Feet 6 Inches in Length, and 7
Feet in Breadth, (other Parcel of the PremifTes ;) And as to Oiie
Other Pkce of Land, containing 2 Feet in Depth and 14 Feet in
Length, (other Parcel of the PremifTes contained in the Declara-
tion ;) That Thomas Chcftcr Efq; was in 1648 feifed in his Demefne
as of Fee, of and in the Manor of Barton Regis in the County of
Glouce/ier, with the Appurtenances. That the laid T. C. Efq; being'
Ibvfeifed, certain Articles of Agreement were, on 24th y«?i^ 1648,
M m made
134 Hilary Term 30 Geo. 2.
made between the faid Thomas Chejler and One John Gotky other-
wile Doidc, reciting a Prefentment by the Honiage, at a Court
Leet of the fliid Manor, holden loth of April 1648, " That the
" Hud John Gotley alias Doivlc, in the new Building of a Houfe at
" Lafford's Gate, had encroached upon the Wafle of the fiid Thomas
" Chefter then and yet Lord of the faid Manor, 14 Inches in Length
" and 33 Feet in Breadth, without his Houfe; together with a
" Porch, without the Wall adjoining to the faid Houfe, of 3 Feet
" and an half; for the which Encroachment, the faid John Gotley
" alias Dowle was by the faid Jury amerced ; as by the Prefentment
" aforefaid, in the Rolls of the faid Court, appeared;" The faid
Thomas Chejler and 'John Gotley thereby agreed, not only concerning
the faid Amerciament, (whereof the h'lAThomas Chejler thereby ac-
quitted and difcharged the faid John Gotley,) But alfo the faid Tho-
7nas Chejler, for the Confideration thereafter mentioned, agreed to
permit and fuffer the faid John Gotley his Executors and Admini-
ilrators, to continue the peaceable Enjoyment of the faid Ground
and Wafte encroached, without his Difturbance ; And alfo to have
Liberty to fet and place a Poil in the Street Gfc. and 3 other Pofts
Gfd-. without any Difturbance or Trouble by him the faid Thomas
Chejler &c ; for the Term of 1 00 Years from the Day of the Date
of the fiid Articles. In Confideration whereof the faid J. G. alias
D. for Him his Heirs Executors &c. covenanted and agreed to pay
to the faid T. C. his Heirs or Affigns, the Sum of 6 j. 8 d. per Ati-
7%iim yearly ^c. during the faid Term : In Confideration whereof,
the faid T. C. granted and agreed to let the faid Encroachment or
Encroachments to ftand, for and during the fud Term, without
any Difturbance &c ; So as the faid yearly Rent or Sum of 6 j. 8 d.
be duly paid &c. And it was further lound. That the tnoo Jirjl
Pieces of Land particularly mentioned and defcribed in the Verdidl,
are the two feveral Pieces of Land mentioned in the faid Articles to
be encroached on by the faid John Gotley otherwife Dowle-, and
Parcel of the Wafle, and Part of the Tenement in the Declaration
mentioned ; and were fo encroached and taken in by the faid J. G.
otherwife D. in the building or ereSling the Meflliage or Houfe
mentioned in the faid Articles, fome fmall Time before the Date
of the faid Articles ; and then were lying in and part of the faid
Manor, and were part of a public Street and King's High-
way, called IVe/l-Street, in the Parifti of St. Philip and Jacob in
the faid Counfv of Gloucefter, and leading from the City of London
to the City ot Brijlol.
The Jury likewife find That the faid yearly Sum of 6 i. 8 d. was
duly and conjlantly paid, in Purfuance of the faid Articles, by the
Defendants and thofe wiiofe Eftate thev have, to the faid Thomas
Chejler and the fucceftive Lords of the faid Manor, (his Defcendants,)
during all the faid Te:m of 100 Years; and from the End thereof,
till Lady-Day lys^'
Then
Hilary Term 30 Geo. 2. 135
Then they find That the Defendants Alker and Rimes ^ fometime
in the Year of our Lord 1748, eredted certain Palifadoes before the
Front of the faid Houfe, and thereby took in and inclofed the third
Piece of Land, above particularly mentioned and defcribed, then
lying in and being part of the faid Manor, and being then other
part of the faid public Street and Highivay ; and have kept the fame
fo inclofed, ever fince, to this Time ; And that that part of the
faid Street where the faid Encroachments were fo made, at the fe-
veral Times of the faid Encroachments, contained in Breadth (in-
cluding the faid Encroachments) 60 Feet and no inore.
The Jury find T^homas Chefter Efq; the LefTor of the Plaintiff, to
be Heir at Law to that Thomas Chefter Efq; deceafed, who executed
the Articles ; and, as fuch, to be feifed of the faid Manor with the
Appurtenances, as the Law requires ; And that, being fo feifed He
made the Demife to the Plaintiff: By Virtue of which Demife, He
entered &c. and was ejedled &c. But whether upon the whole
Matter aforefaid in Form aforefaid by the faid Jurors found, the
faid G. A. and L. E. are guilty of the faid Trefpafs and RjeSlment,
AS TO the faid three Pieces or Parcels of hand. Parcel &c. by them
fuppofed to be done, or not, the faid Jurors are wholly ignorant
^c. And fo the Verdidt concludes in the ordinary Form.
The Counfel for the Plaintiff made two Qiieflions ; viz, Argument for
the Plaintiff.
I ft Queftion — Whether an Ejedlment will lie for thefe Premlfles
AS DESCRIBED in the Declaration.
2d Queftion — Whether the Defendants are at Liberty to contro-
vert the Title of the Plaintiff j or are estopped from fo doing.
Firft — It may be objecfted, " That no Ejedment will lie of
" Land which \s part oj the King's Highway.'' But it is plainly and
beyond Controveifv part of the Lord's Soil; though it is indeed faid
to be part of the Highway. This Highway is found to be 60 Feet
wide. Therefore if enough be left for a publick Way, the Ref
belongs to the Lord: At leaft. He is not guilty of a 'Nufance, if he
ftiould ered any thing upon the Overplus Part of it.
Now 60 Feet is much more than enough for any Highway :
And the Encroachment is only from the Front of the Houfe ; Not
in the Middle of the Highway.
The Overplus of the Soil is not vefted in the Crown ; but in
the Owner of the Soil. 2 E. 4. 9. Bro. & Fitzh. Abr. Tit. Chimin.
In Tr, 13, 14 Geo. 2. C. B. and at Serjeants Inn, Selman v.
3 Courtney
136 Hilary Term 30 Geo. 2.
Courtney (concerning giving in Evidence, a Right to a Higl'wny,)
It was unanimoufly holden " That, in Trefpafs, the Defendant
" may juftify that it was a Highway, but cannot give it in Evi-
*' dence ; and That the Right to the Soil was not in the down."
i
If the Highway was taken out of the Lord's Wafte, the Right
and Property of it is clearly in the Lord; And the Lord may dipain
in it: So is 17 £. 3. 43 PL 31. If it was not taken out of the
Wafte, it belongs to the Owners of the Soil on each Side. The
Cafe of Selman v. Courtney (fupra) was fo determined by all the
Judges.
The Owner of the Soil may cut down the Trees, and may have
an x'\dion for digging the Soil. So is i Ro. Abr. 392. PL 2. and
J Ro. Abr. 392. PA 3. Title Chimin private. Letter B,
In the Cafe of Sir '^fohn Lade v. Sheppard, H. 8 G. 2. B. R.
The Land was the Property of the Plaintiff, who made it a Street ;
and the Defendant's Bridge refted upon it ; and lie had (by Leave
of tl"fe CommifTioners of Sewers) arched over the Ditch, and dug
the Ground, and fixed Ports upon it. It was holden " That this
*' making a Street was only a Dedication of it to the Public, for the
" particular Purpofe of pajjing and repajfimg ; but that the Soil be-
*' longed to the Owner," V. 2 Strange 1004. S. C.
The General Queftion is " Whether a Part of a Highway be
" recoverable in an EjeSlnunt."
The Defcription of a Highway is laid down in Co. Litt. 56. a.
The Property of the Soil of the Highway (as has been already
proved) is in the Lord of the Soil. An Adtion of Trefpafs muft be
founded on PojJtJJion : And an Ejedment is an Aftion of Trefpafs.
In Cro. Eliz. 339. "Jordan v. CUaboume — per Popham and Gaivdy,
It was holden to be hut a perfonal AdicMi, and a Trefpafs in it's
Nature. Therefore the Plaintiff might be pojfffed of it j and con-
fequently m.y recover Pof'JJh/n of it, in an Ejedment: For if he
has .1 Right to the Poff-ffion, he mujl have a Remedy for it.
It is not every Encroachment, that is a Nufance to the Public :
Some Encroi'climents may ftand. Fitzh. Abr. jj. a. N°447. 8 E. 3.
is one Inftuuce of it. Bu there, the King muft be intended to be the
Owner of the Soil : Othcrwife, the Rent would have belonged to
the Owner of the Soil ; not to the King.
The Sheriff tnay deliver full Seifin of the Thing here demanded.
In Proof of which, they mentioned a Note of a Cafe before Lord
Ch. Buron Pengelley, in Wiltjhire ; where an Ejedment was brought
2 for
Hilary Term 30 Geo. 2. 137
for a Cottage in the Highway % And it was objeded " That it would
*' not lie, ^d'CiJZi;/^ the Sheriff could not deliver PofTeffion :" But Ld.
Ch. B. Fcngelly cuer-nded the Objeftion ; and fliid that Mr. Juftice
John Poivell had been of that Opinion which Himfelf then went
upon, and had done the like.
They infifted very flrongly, that the Sheriff can give Seifin of
the Thing ; subject to the Rights of others, upon this Proper-
ty, for particular Eafeineiits. Co. Litt. 4. a. Cro. E/iz. 421. JVelden
V. Bridgewater. Co. Litt. 48. b. For the Rights of others are not
to the Possession ; but to mere Easements, which are collateral
to the Thing itfelf. Cro. Jac. 263. Sir William V/rey v. Vejper.
And there is no Reafon for making any Difference between public
and private Eafements. This Argument might as well be ufed in
Regard to fuch an Eafement, as a Right to fet up Stalls in a Fair
or Market. But the Cafe of the Mayor of Northampton v. JVard
in 2 Strange 1238, is a full Proof " that Trefpafs is the proper
" Remedy for ereding Stalls in a Market. "" Now if a Perfon
ftiould build a Honfe, inftead of fetting up a Stall; Would not an
Ejedment lie, by the Owner of the Soil ?
Secondly, (under the firfl: Queftion,) It will alfo be objeded
here, " That the Thing demanded is not fufficiently defcribed ;" Th
Ejedment being only " for an Acre of Land."
e
The Plaintiff's Counfel faid they did not difpute the Cafe of
Knight V. Syms^ Carth. 204. 4 Mod. 97, S. C. \y. alfo i Salk.
254. S.C. and i Shower 338. S. C] " That an Ejedment of
" fo many Acres of Arable and Paflure, without (hewing the
" ^antum oi each Sort, is not good:" But they obferved that in
the prefent Cafe, two Anfwers may be given to this Objcdion ;
•viz. iff. That this is ?io Part of the Doubt of the Jury : Therefore
the Court will not lay any Strefs upon it. 2dly. That the Special
VerdiSl has afcertaifted the Nature and the Quantity and the Situa-
tion of this Land ; For it is found to be part of the Wafte, and is de-
fcribed even to Inches : So that the Sheriff can have no Doubt, w^hat
to deliver Poffeffion of.
Second General Queffion — The Plaintiff's Counfel faid that This
is an unconfcientioiis Defence ; as the Defendants have already en-
joyed this a hundred Years under thefe Articles and have conftanth
paid the Rent: And therefore they are estopped from contro-
verting the Leffor's Title. They cited i Salk. 276. Trcvivan v.
Lawrence & al\ and 2 Ld. Rayin. 1036, 1048. S. C. in fupport of
this Pofition ; and likewife to prove that not only the Parties, but
alfo the Court and Jury,' are bound by this Eftoppel : In further
Confirmation whereof, they alfo cited Co. Litt. 352. and 231. and
Litt. § 374.
N n And
dants
138 . Hilary Term 30 Geo. 2.
And therefore they prayed Judgment for the Plaintiff.
Argument for The Counfcl for the Defendants began with obferving upon par-
!)'nr?^^'^''' ticular Parts of the Verdidl, which th&y thought to be material.
As that it is exprefly foi'nd " That part of this Land is part of the
" Street, which is part of the King's Highway:" And the third
Parcel is exprefly found to be " Other Part of the faid Street or
" Highway." And the Jury likewife find, " That the Way is in
*' Breadth (including the Encroachments) 60 Feet, and no more:"
Which is FAR from Finding a Surplus, That it is ?iot found
" That the Defendants claim under Gotley." That the Ejedlment
" is for " one Acre of Land with the Appurtenances : But the
Verdidl defcribes Three Parcels by Inches and Feet. The Plaintiff
is found to be Lord of the Manor oi Barton Regis ; in which Manor
this Wafte lies : And the two Pieces firfl mentioned are found to be
encroaclicd upon and taken in, by ereding a Hoiife ; And that upon
the third, certain Palifadoes were ereded. And the Doubt of the
Jury is " Whether the Defendants were guilty of a Trefpafs upon
*' thefe Parcels of Land."
Then they proceeded to their Objedlons.
iftObjedion — The Plaintiff's Dt'w^Wis', and the Finding of the
Jury, are not agreeable to each other ; fo as to intitle the Plaintiff
to recover, upon this Verdid. For the Demand is of an Acre of
Land, merely : Whereas it is found " That a House is built upon
*' the former two Parcels." And this was a Fad within the Plain-
tiff's Privity : And therefore the Ejedment ought to have been
brought y^r the House ; not for the Land. So is F. N. B. pa.
ig2 : Though with a Slu. indeed there. But, however, 39 H. 6. 8.
and Bro. Demaunde, pi. 14. S. C. and alfo pi 5. £f pi- H- fuffi-
ciently prove " that the Demand ought to be, of an House ; not
" oi Arable Land;" (as the Term " Land" imports.) So alfo do
Plowden 168, 170. Hdlv. Grainige. jenkins 6th Century, pi. 83.
fo. 268. Cro. Eliz. 234. Hayes v. Allen. Co. Entr. 642. S. C.
2 Roll. Abr. 704. Title Trial, pL 22. and Dyer 47. b. Banijler v.
Benjamin (in margine.)
And if it was not to be thus fpecifically demanded, as it is at the
Time; there could be no Certainty how to deliver PoJJeJfion. And
fuch Specification would be liable to no Objedion : For in P.
12G. I. B.R. Sullivan v. Segrave, 1 Strange 695. An Ejedment
" de parte Domus" was holden to be Good.
But here, tie V crd'id: fnds What the Plaintiff's Words of De-
mand are twt apt and fit to intitle Him to recover.
2 The
Hilary Term 30 Geo. 2. 139
The Sheriff may break open a Houfe, to deliver Poffeflion of
Part of it. ^Co. 91. Semaine's Cafe, 2d Refolution. Style 238:
More than enough, is Error: And Lefs is bad. In 2 Ld. Raym.
1470. Bindover v. Sindercomb, A Defcription of " P^r/ of a Houfe"
was holden to be good ; becaufe it fufficed to defcribe it to the
Sheriff.
Where the Land may be afcertained, by being at the Plaintiff's
Peril ftiewn to the Sheriff; yet even there, it muft be Land of the
fafne ^ality, as was demanded ; (ejufdem generis.) Savile 28. Cafe
67. The ^teen v. Ayleiaorth. Cro. Eliz. 265. Scriven v. Prince.
Cro. Eliz. 465. Portman v. Morgan. A Demand of Land muft (in
our Law) be certain. Liittrel's Cafe, 4 Co. 87. b.
There was a Cafe of one Degony Green v. William Joljns, in
1715, where a Houfe was acftually fawn afunder : (They faid they
had the Declaration from the Heir of the Defendant.) It was an
Ejedment of an Acre of Land, (but further defcribed indeed,) Of
which the Dean of Exeter was the Claimant : And, though there
was no Judgment or Execution ; Yet, by Confent, the Houfe was
faivn afunder^ in Order to deliver Poffeffion.
Though flriB Nicety has of late Years been gotten over, yet
fufficient Accuracy and Precifion is fill neceffary : And part of a
House can never be faid to be within the Defcription of Land.
Co. Litt. 4. a. is no Authority againft this ; Nor 4 Co. 87. b. And
in Cro. Jac. 654. Royfon v. Ecclefton — Ejedtment " de una Domo
" & de uno Pomario" was holden good, upon the Principle of
their conveying a Jufficie?jt Certainty, fo as that the Sheriff might de-
liver Poffeffion. Palm. 337. S. C. 11 Co. ^^. Savel's Cafe, i Salk.
254. Knight V. Syms. 1 Show. 338. S. C.
And it would be very dangerous, if Certainty of Defcription
fhould not be ftriSlly kept to.
Second Objedion. This appears to have been Parcel of the Wafe -,
and ought to have been fo defcribed : And alfo it is part of the
King's Highway. Therefore No PoffeJJion, or no y«// Poffeffion,
at leafl, can be delivered of it.
P. 15 G. 2. B.R. In the Cafe of Popple v. Dobfon, " TVafe-
" Ground'' was thought a good Defcription: Sed Adjourn'. [Cur'
advif] Cro. Car. 511. Mulcarry and v. Eyres and Others, on
Error in Ejedment, from Ireland, " Bogge" was holden a good
Defcription.
And
140 Hilary Term 30 Geo. 2.
And it being the King's public Highway, the Plaintiff can never
have Popjfwn delivered of it. The Owner cannot levy a Fine of
it : Nor can he dijlrain in it ; as may be feen in 2 Infi. 131.
In Cafes of Encroachments or Pitrpreftures on it, thefe Encroach-
ments are iipoti the King : And fo is 2 Lift. 272. exprelly ; " Dici-
■" tur Purpreftura, c[\iz.x\do iiYic[u\di fiiper Dominum Regcm injuftc oc-
" cupatur, ut &c. vel in Viis publicis obJlruSlis." And the Remedy
is by Prefentment or IndiSiment. 9 Co. 1 13. § Cc/^- 1^- 27 //. 8.
27. a. But an ABion lies, only where a Man receives a fpecial
Injury.
How can the Plaintiff have plenam Seifwam of this ? In 1735.
8 Geo. 2. There was a Cafe oi Well-advifed, ex dimi([. Sir Bourchier
TVray & al' v. Fofs & i?l' in Ejecftment, at the Summer Affixes at
Exeter, The Declaration defcribed a Piece of Land, containing
40 Feet in Length and 4 Feet in Width, part of the Manor of J.
But the Plaintiff was nonfuited. For The Land was part of the
IVafte : And upon Evidence, it appeared to be part of the High-
way, on which the Defendant had built. Lord Hardwicke held
" That No Possession could be delivered of the Soil of the
" Highway ; and therefore no Ejedtment would lie of it: And if
" it was a Nufance, the Defendant might be indided."
In the prefent Cafe, All thefe three Pieces of Land are part of
the King's Highivnv, and are encroached upon : And the two for-
mer h^iV efubfiJUng Nufances upon them.
If a Highway lies within a Manor, It mufl: be agreed (efpecially
as found here) that the Lord has the Propriety of the Soil ; to bo
ufcd confiftcntly with the Privileges of the Subjcd: : But the Queftion
is. What Remedy the Lord has, in Cafe of a Nufance upon fich
PartofKis, Property as lies in the King's Highway. We fay He has
no fpecific Remedy, by Ejeftment. The Cafe of Sir ^ohn Lade v.
Shepherd, 2 Strange 1004. does not prove that an EjeSlnient will
he: That was 7iot an Ejedment ; but an Adion of Trefpafs. And
perhaps an Adion oi Trefpafs might have been here maintained : But
not an EjeBment. And if the Lord of the Soil fliould recover and
contiiiue it. He would thereby become a Wrong-Doer : Whereas,
according to 2 In/l. 294. It is the Wifdom of the Law, fo to re-
folve, " ut fit Finis Litimn."
As to Fitzh. Abridgment yy. a. It is the Cafe of the King : And
by his Prerogative, He may continue it, if it be no Injury to the
Subjed. But a Highway muft always continue a Highway. Cro.
Jac. 446. Fowler v. Sanders, fully proves " That it cannot be nar-
" rowed :" Neither can it be inclofed.
Second
Hilary Term 30 Geo. 2. 141
Second General Queftion. As to the Eftoppcl — It does not ap-
pear that the Defendants claim under Gotley, therefore that Point is
out of the Cafe.
It was urged by the Ccunfel for the Plaintiff, by way of Reply — j^ ,
That as to the EHoppcl, the Court muft neceffarily intend, upon
this Finding, that the Defendants themfehcs paid the Rent, and
eredted the Palifades in 1748 : And the Rent which was paid j9w»
the End of the Term till 1750, muft be prefumed to be paid by
THEM; they being then in Poffeffion. A Special Verdid is not to
be taken ftridlly ; lik-e a fpecial Pleading.
As to the * I ft Objedion made by the Counfel for the Defen- [* Obferve,
(Jants — Non conftat that this Land is built upon : 'Tis only found ^^^j^'^f^ '"'p"
" That in the new building of a Houfe at Lafford's Gate aforefaid, thrfiriroTe-
" Gotley had encroached upon the Lord's Wafte, fo many Feet ftion were
" &c. But it does not follow that Gotley adtually built upon the "J"',"^'*'^^-
Land, which He fo encroached upon ; For there are very many co'urie of this
other Ways of encroaching upon Another's Land, bejides building Argument :
upon it: For Inftance, a Penthoufe overhanging and dropping upon for^hioefen-
it, may be an Encroachment. No exprefs Faft of buildiyig upon dams having
this Land is found. Indeed it is faid in the Finding, that the third ^'f"" >A^
Piece of Land is taken in and enclofed with Paliladoes, by the faid je^ion ^which
7. Gotle-^. But the Paliladoes anfwer this Expreftion : He inclofed the piaintifFs
V ' • t {, Counfel had
It With them. , j^i^^„ „p ^^.^
way of Fro-
Thev agreed to the Dodrine of the Neceffity of fufficie?!t Cer- '^P'"''] j" 'he
tainty in the Demand: But laid and inhlted that it is Ji/lpcte?it, it;'. ^^^^^137,
the Sheriff may know ho%v to deliver Fopjjion. and 138]
The Term " Land" is faid by Lord Coke, legally to include
Cajlles, Houfes, and other Buildings. Co'.Litt. 4. a. And by a Grant
of " all a Man's Lands," All his Hoi/fes, Mills and Vv^oods v/ou!d
pafs : As appears in Luttrel'n Caffe, 4 Co. 87. h. And by the Civil
Law, " Appellatione Fundi, omne JEdificiuni & omnis Ager conti-
" netur." ibidem. Therefore, as they would pafs in a Conveyance,
there is no Reafon why they fliould not be included in an E,je5f-
ment, upon a fuppofed Leafe ; Which Leafe, if it was a rein Leafe,
would undoubtedly carry them.
None of the Things defcribed in the Declaration differ from the
Defcrlptions of them in the Verdid.
Indeed it is only 14 Inches in Length, that it is pretended any
part of the Houfe now covers. But the Words are That " whereas
" it was prefented that the faid 7. G. had encroached upon the
O'o " Wafte
i4i Hilary Term 30 Geo. 2.
" Wafte of tlie Manor of the faid T. C. &c. 14 Inches in Length
" and 33 Feet in Breadth, without his Houfe ; together with a Porch
" of 3 and 1 Feet in Length and 7 Feet in Breadth, without the
" IVall adjoining to the Houfe." Now it is not necefl^^ry that the
Ccto't ihould confider thefe two Pieces of Land, as a Houfe ; efpe-
cially the latter, upon which the Porch is ereded.
It is not found to have been a MefTuage at the Time of the Demife
laid. On the contrary, the Pieces of Land incroached upon are
found to be Parcel of the Wafte, and part of the Tenemejjt in the
Declaration mentioned : Which Tenement is not a Houfe, but an
ylcre of Land. However, this Obiedion cannot overthrow the
whole Verdidl : For the third Parcel is clearly La)icl, and not Houje.
If a Man builds upon my Land, It would be very hard if I
might not, notwithftanding this, demand my own Land. .
If the Ejedlment was brought de parte Domiis, (which they did
not admit that it could be,) how would the Sheriff know which
Part to deliver PofTcftion of ? The Plaintiff muft, in both Cafes,
Jhew him, at his Peril.
Though " Pomarium" be good, yet it would equally be good, if
called ''^Land:'
L^'r'!'!''°'* ^^ ^"^ ^"^^ * ^^^-^^^ Ohjedion made by the Counfel for the Defen-
* . ^.^j^jg^ rpj^g Plaintiff's Counfel replied that the Right is admitted to
remain in the Oicncr oj the Soil, to be ufed confiftently with the
Privilege of the Suhjecl : Which Admiffion is fufficlent for our
Purpole. He may dig Sand or Stones; provided He do not com-
mit a Nufance in the manner of doing it. Therefore 'tis plain that
He has a private Riglit remaining in Him.
An ad quod damnuju alters no Property : The Owner retains the
old Road, difchargcd of the Eafement, which is transferred to ano-
ther Part of his Land,
The Court have nothing to do with the Nufance, in this Cafe :
It does not appear to the Court, to be any Nufance to the High-
way ; or that Mr. Chejler will continue it, if he fliould recover the
Land.
Cro. Jac. 446. was for a fpecial Injury received from the Defen-
dant's laying Logs in the Highway : But though the King can't
narrow his Prerogative, to the Injury of the Subjeft, yet it does not
follow from that Cafe, that the Property of the Highway is not in
Owner of the Soil.
2 Lord
Hilary Term 30 Geo. 2. 14.
Lord Mansfield aflced Whether they had any Note or Report of
that Circuit-Cafe which was faid to have been determined by Lord
Hardwicke ; and bv whom it was taken. But there was no Note
or Report of it ; And it feemed to have been mentioned at the
Afhzes, from fome imperfed; RecoUedion. He therefore proceed-
ed to give his Opinion immediately ; putting this Cafe of Sir Botir-
chier JVrav out of the Way entirely ; as being fo loofely remembred
and imperfeftly reported, as to deferve no Regard, or be at all clear
and intelligible as to what it really was. He faid it was impoflibie
to fuppofe that Lord Hardwicke had any Note or Memory of fucli
a Point arifing at the Aflizes : Otherwife, he v/ould wait till he
could know the true State of it from his LordHiip, from the De-
ference he paid to (o great an Authority. But from the Manner
in which it is quoted, there is no Ground to fay what the State of
that Cafe or Determination really was.
As to the Queftion " Whether an EjeBment will lie, by the
** Owner of the Soil, for Land which is JubjeSf to Fajfage over it as
" the King's Highway."
I Ro. Ahr. 392. Letter B. pi. i, 2. is exprefs — " That the King
" has Nothing but the Pajfage for Himfelf and his People : But the
" Freehold and all Profits belong to the Oivner of the Soil." So do
all the Trees upon it, and Mines under it (which may be extremely
valuable.) The Owner may carry Water in Pipes under it. The
Owner may get his Soil difcharged of this Servitude or Eafement of
a Way over it, by a Writ of Ad quod damnum.
It is like the Property in a Market or Fair.
There is no Reafon why he (liould not have a Right to All Re-
medies for the Freehold ; fubjed ftill indeed to the Servitude or Eafe-
ment ? An Ajfize would lie, for if he Hiould be diiTeifed of it: an
Adion of Trefpafs would lie, for an Injury done to it ?
I find by the Cafe o£ Selman v. Courtney, Tr. 13, 14G. 2. that a
Point which had been before the Court of Exchequer in the Cafe of
the Duchefs oi Marlborough v. Gray, M. 2G.2. is now fettled ; viz.
" that it's being a Highway cannot be given in Evidence by tlie
" Defendant, upon the General Illue :" Which proves that the
Ownerfliip of the Soil is fiot in the King. I fee no Ground Why the
Owner of the Soil may not bring EjeBment, as well as Frefpajs?
It would be very inconvenient, to fiy that in this Cafe He fhould
have NO fpecific legal Remedy ; and that his only Relief (hould be
repeated Adions of Damages, for Trees and Mines, Salt-Springs, and
other Profits under Ground. 'Tis true indeed that he muft recover
the Land, subject to the Way : But furely He ought to have a
fpecific
144 Hilary Term 30 Geo. 2.
fpecijic Remedy, to recover the Land itself j notwithflanding
it's being fubjed to an Eafement upon it.
Second Queftion — As to the Defer iption —
I don't know whether it is not even better defcribed by the Name
of the Laud, than of a Houfc, or part of a Houfe.
I think it would have made the Objedion much fir onger, if the
Plaintiff had only claimed the Nusance, inftead of the Land on
which the Nufance is erc(fl:ed.
Here He does not claim the Nifufice : He claims the Lafid.
And the Tenants in PolTeffion of it defend themfclves by laying
" That they have ercBed a Nufance upon it." Nov; i' would
be a flrange thing, if that fliould be a good Defence againil the
Owner's recovering his Land.
a
But however, this is not a Houfe (which perhaps ought, if it were
fo, to be particularly named;) but merely a JVall or part of a
Wall or Building : And there is not fuch Precifenefs required in
EjeBments, as there is in real Adions.
The Courts will go to the utmofl Extent, in fipport of EjeB-
mcnts ; that People may have fpecific Remedies for their Rights.
Dyer 47. a. pi. 6. is very ftrong. There, the Recovery was, of
" 1 00 Acres of Land, 20 Acres of Meadow, and 40 Acres of
" Pafture, in Z)." without mentioning any Houfe or Garden : And
the better Opinion feems to be " That the Plaintiff fliould thereby
" recover the Buildings built thereupon."
That was an Adrion of a higher kind than an Ejedment : It was
a real Adion, a Writ of Intrufion, in which that Recovery was
had.
But here, the Building ereded is only part of a Houfe or
Wall : And it is ereded, by Incroachment, upon the Plaintiff's Land.
The Cafe of the Defendant is mofl unfavourable : For he infifts
upon holding the Thing demanded without any Pretence of Title ;
and infifls that the Plaintiff fhall have no fpecific Remedy for his
Land.
Therefore I am of Opinion that the Plaintiff ought to recover
upon this fpecial Verdid.
Mr. Juft. De7iifon concurred. .
3 The
Hilary Term 30 Geo. 2. 145
The Difficulty at the Aflizes arofe (as the Judge who tried the
Caufe has * declared) merely upon an Apprehenfion that there had* Note; Mr.
been a Determination at the Affizes formerly, by Lord Hardwicke, J"'*''^^ ^"J^"''
" That an Ejedment would not lie for a Property in Soil, over ca°fe'"Ld ^
" winch there was a Highway ; becaufe the Sheriff could not de- declared this.
" liver Poffeffion of the Highway." ^^''"g '^e
'-' ■' Courle or tne
Argument.
But the Reality of this Authority has not been at all proved, to He faid He
any kind of Satisfadion. ^°f'^ ^^'^.
J had no doubt
aboutit, at the
Trefpafi would undoubtedly lie : Why then fliould not an Ejetfl- ^"'^ • ''"'
."5 •' upon it's be-
"lent .? j^^g ^„^dg,j
" that Lord
It is faid " That the Sheriff cannot deliver full Poffeffion." ^iMch,
•' (for whom e-
very One has
But why not .? Indeed, It mufl: be fiihje5i to the Eafement : But a"^ ought to
there is no ether Difficulty in the Matter. ^""".^ *,\f"f'
-' ration,) had
made fuch a
Therefore I take it for granted, that there was fomething more petermina-
in that cited Cafe of Sir Boiirchier Wraf^^ than We are now ap- he would not
prized of. take upon
Himfelf, to
A 1 /- 1 /^ o • o^'^'' fuls the
As to the lecond Queltion — Opinion of fo
great a Man.
It might have been perhaps difficult to have defcribed this part
of a Houfe.
In that Cafe in Dyer 47. a. I take it that the Formedon in Re-
verter was well brought for tlie Land, fccundhn formam doni : The
Plaintiff had nothing to do with what the Defendant had done with
if, or built upon it. And I think the four Judges who held on
that iide of the Qneflion, were in the Right.
And upon this fpccial Verdicfl:, the Sheriff would have no Diffi-
culty to deliver Poffeffion ; for any thing that I can fee, to raife any.
I think that C.ife in Dyer is good Law. Tliat was in a real Ac-
tion : And much more will the fame Reafon hold upon EjeBment^
(which would even lie for Tithes.) [V. Cro. Car. 301.]
And I tliink this Ejedlment was better and more properly brought
for Land, tlian it would have been for " part cf a Hcufe."
Mr. Jufl. Fojler agreed that the Cafe in Dyer was good Law.
P n And
146 Hilary Term 30 Geo. 2.
And He repeated that He had no Doubt of the prefent Cafe,
when it was before Him at the Aflizes, but from the /Z)^«-appre-
hended i^uthority of the cited Cafe, faid to be determined by Lord
Hardivicke. [F. ante 145.]
The Owner of the Soil has a Right to all above and under
Ground, except only the Right of Paflage, for the King and his
People.
And the Cafe in i Ro. Abr. 392. Letter B. proves this. \y. ibid,
pi I, 2, 3,4, 5Gf 6.]
Therefore He entirely concurred with his Lordfhip and his
r.a«/^ 133. Brother £)^;;i/o«, (for N.B. Mr, Juftice Wihnot was * not prefent
in Court at either of the two Arguments of this Cafe) that there
fliould be
Judgment for the Plaintiff.
Tookcr verfiY)\^z of Beaufort.
A New Trial had been moved for, on a fuppofed MifdireSlion
by the Judge who tried the Caufe, in admitttJig a Commiflion
under the Seal of the Court of Exchequer, P. 33 Eliz. Rotulo. 290.
to be given in Evidnice ; although it was objeded at the Trial,
" That this Commiflion was " Res ifiter alios a£la ; of which
" the Beaufort Family could have no Notice, nor Opportunity to de-
" fend it ; And therefore it could not affe£i\hom: Confequently,
" it ought NOT to have been at all admitted as Evidence ; for the
" fame Reafon that a VerdiSl in a Caufe between other Parties can-
" not be given in Evidence in a Caufe between Strangers to the
" former Caufe."
A'^. B. This Commiflion P. 33 EHz. Rotulo. 290, in Scacc') was
direded to 5 Commiflioners therein named, ad inqt/irendum,
tarn per Sacr'um proborum G" Icgalium hon.imnn Com' nr'i
Scuth'ton, quom per Depcftiones qucrumcunque tcftium, ac cmni-
hus aliis viis mcdiis & modis quibufciinque, " Si Prior aiit Prio-
" ratus Sci' Swithini PFinton, in jure Domus five Prior at us,
" fuit feiftus in quibifdam terris vocaf Woodcrofts &c. u t
" Parceir de Ma?ierio de Hititcn-Da'wbney ;" Nee non, " Si
" Henri cus, Pater no/ier, [in ejus vita,) Dominus Edivardus fex~
" tus, Regjna Maria, aut Nos ipft, a tempore Difjolutionis
" Prior atiis Sci' S'withi?ii &c. &c." with an Order for the
Sheriff to fummon a Jury, Gff.
To
Hilary Term 30 Geo. 2. 147
To this, is returned An Inquifition taken the 9th of Jpril
33 Eliz : Whereby it is found " That the Prior of St. Swithin, in
" right of his Priory, was feifed of the faid Lands called Wood-
" crofts G?c. AS Fart and Parcel of the Manor of Hhiton-Da'wbney ;
" and that, from the Diflblution of the ii;id Priory, King H. 8.
" King E. 6. and Queen Mary were feifed, and Qu^een Elizabeth
" Herfelf, in the fame Right, to the 27th oi May then laft part."
There are alfo returned The Interrogatories adminiftred on her
Majefty's Behalf, and the Depofitions taken thereon.
The Subftance of the Judge's Report was, That He admitted this
Commijion and the Return to it, and the Depofitio?is, to be read in
Evidence ; Holding them to be admijjlble Evidence, though net
conclufive. That there was likewife much P^^roZ-Evidence of the
PofTeffion of both Parties ; and that there had been a mixed Pof-
feffion : But that He, in his Diredion to the Jury, did lay great
Strefi on this Commi/jion, &c. And that without it's Afjillance^
He fliould have thought the Verdiil for the Plaintiff to have been a
very hard One.
The Report concluded, " That He Himfelf (the Lord Ch.
" Baron), thought this Piece of Evidence to be admijjible, but not
" conclufive ; That it had great Weight with the Jury ; And that
" if the Court flrall be of Opinion that it was not admiffib'e, He
" thinks there ought in that Cafe to be a new Trial.
D
This Matter having been largely debated nt the Bar, and after-
wards fully conlidered by the Bench ; And the Court having been
of Opinion " That the Evidence was admissible, though not
" ccticlufnie ; and therefore that it was well and properly received ;"
And confequently, " That the Rule for (hewing Caufe why there
" fliould not be a new Trial, fliould be difcharged ;" The faid
Rule had been accordingly difcharged.
But in the Interim, vvhilfi: this Queftion was depending before
this Court, (who took Time to advife upon it,) The Duke of Beau-
fort, the Defendant died.
"Whereupon, (on Saturday, 13th November 1756) Mr. Gould,
on Behalf of the Plaintiff, moved for Leave to e?iter up his judg-
ment, as of the next Tertn after the Verdici ; Which was the Term
in which He might have entered it up, if the Motion had not ob-
ftrudled it. i Leon. 187. JJlef^ Cafe. — It is difcretionary in the
Court to grant this or not. i S>id. 462. Crifpe andjackfon v. Mayor
cf BeriDicke, in Point, i Ve?itr. 58, 90. S. C. in Point. And in
Hi!ar\'
148 Hilary Term 30 Geo. 2.
Hilary Term laft, the Cafe of Wyndham v. ChdiDynd S. P. (though
a premature Application.)
Lord Mansfield — It feems reafonable : Take a Rule to fliew Caufe.
And
On Friday, 28th Jafiuary \JS7y ^" ^^- Gould's f^otion, This
lafl: Rule (for entering up the Judgment, as of the Term
r. pofl. pa. next after the Verdi(5t,) was made * abfolute, without De-
** ^- fence.
Saturday z^\k Rcx 'V€?'f. Maurlcc Tarvis.
January "^ -'
•757-
'HIS was a Conviftion, (which flood in the Crown-Paper)
upon 5 Ann. c. 14.
^-p
It was made by "John Bylhefea and "John Turner Efq; two Juf-
tices of the Peace for the County of Wilts ; and was to the Effedt
following —
Be it remembred, That on cSc. yohn Webb of the Parifh of Hil-
perton in the County of Wilts aforefud, Yeoman, in his own proper
Perfon, cometh before Us &c. Juftices &c. And now he giveth
us the faid Juftices to underftand and be informed That One Maurice
Jarvis oi Trowbridge in the County of ^/^///5 Labourer, within three
Months now laft paft, that is to fay, on the /[th Day of September
now laft paft, in the 28th Year ^c. with Force and Arms, in a
certain Field commonly called (3c. lying and being within the
Parifli and Manor of Hilperton aforefaid in the County of Wilts
aforefaid, did unlawfully keep and ufe, and had in his Cuftody
and Poireffion One Setting-Dog and Setting-Net for the Deftrudion
of the Game ; and did then and there ride with and hunt tlie faid
Setting-Dog, with an Intent to kill and deftroy Game ; He the
lldd Maurice Jarvis at the Time and Place when he fo kept and
ufcd the faid Setting- Dog and Net and had the fame in his Cuftody
and PoffelTion, ivas not qualified BY any Laws <ir Statutes
OF THIS Realm, to kill Game or to keep or ufe any Nets Dogs or
other Engines for the Deftrudion of the Game ; contrary to the
Form of the Statutes in that Cafe made and provided. And there-
upon afterwards, that is to fay on the faid 1 2th Day &c. at Cs'c.
aforefaid, Thomas Webb, Servant and Game-keeper to Edizard EyltS
Efq; for the Manor of Hilperton aforefaid in the County of iriifs
aforefaid, a credible Wltnels in this behalf, in his own proper Per-
fon, cometh before Us &c. and taketh his Corporal Oath on the
Holy Gofpel of God, to fpeak the Truth of and concerning the
Premifcs abovementioned and fpecified in the faid Information be-
4 fore
Hilary 1 erm 30 Geo. 2. 149
fore Us the faid (j'c. the Juftices aforefaid, having fufficient Power
and Authority to adminifter the faid Oath to the faid Thomas Webb in
■this bchaif : And the faid Thomas Webb being fo fworn as aforefjid,
afterwards, that is to fay, on the faid \2th Day QSc. upon his faid
Oath fo taken before Us the faid Juftices as aforefaid, fiith depofeth
and fweareth, of and concerning the PremifTes aforefaid in the faid
Information abovenientioned and fpecified, " That Cr. [fully
" proving the Facfl ;] He the faid M. Jarvis, at the Ti?iie and
" Place wheti he fo kept and ufed the faid Setting- Dog and Net and
" had the fame in his Cuftody and PoftefTion, ivas not quali-
" FiED by ANY Laws or Statutes of this Reahn, to kill Game, or to
" keep or life any Nets Dogs Guns or other Engines for the Deftruc-
" tion of Game, contrary to the Form of the Statutes in that Cafe
" made and provided."
Whereupon the fiid 71/. y . having firft been duly fummoned in
this behalf to anfwer the PremilTes, and having liad due Notice
thereof, afterwards, that is to fay, at the Houfe of &c. appearing and
being prefcnt in his proper Perfon before Us the faid &c. And the faid
Thomas Webb the Witnefs aforefaid alfo appearing and being prefent
before Us the faid Juftices ; And the Information aforefaid and the
Matter therein contained, and alfo the faid Evidence thereupon
given, having been heard and underftood by the faid M. J. in the
Prefence of the faid Thomas Webb the Witnefs aforefaid and of Us
the faid Juftices, He the faid Maurice Jarvis is afked by Us the
fiid Juftices, " If he the faid M. J . hath, knoweth, or can fay
" any thing for himfelf in his own Defence, touching and concern-
" ing the Premiffes aforefiid ; and why he the faid M. y. fliould
" not be convifled of the Premifles aforefaid, charged on him in
" and by the faid Information."
And the faid Maurice yarvis, now liere before us the faid Juf-
tices, DENIES that he did keep and use the faid Setting-Dog and
Net, and had the fime in his Cuftody and PoflefTion, in Manner
and Form as is above charged on him : But JJjeiijs ^o fufficient Caufe
before Us the faid Juftices, ichy he fould not be conviSled of the Of-
fence abovefaid charged on him in the faid Information. And upon
hearing and examining the whole Matter aforefaid, and every thing
alledged by the faid Maurice yarvis touching and concerning the
Premiffes aforefaid. It manifeflly and plainly appears unto Us the
faid Juftices, That the faid M. f. was not then any luife qualified
impoiuercd Uccnfcd or authorized, by or according to the Laws of
THIS Realm, to kill Game ; And that the fiid M. y. is guilty of
the Premiffes abovefaid charged on him in and by the faid Infor-
mation.
Q^q There-
1 50 Hilary Term 3 : Geo. 2.
Therefore it' is now here corifidered and adjudged by Us the
fald Juftices, that the faid M. J. upon the Teftimony of the faid
T'/jo. IVi-hb the Witnefs aforefaid, on his Oath before Us the faid
Juftices {o taken as aforefaid, be and is convidled of the Premifles
aforefaid, according to the Form of the Statutes in fuch Cafe made
and provided ; And that the faid M. y. do forfeit the Sum of 5 /.
for the Offence aforefaid, as the Statute direds, &c.
Mr. Gcu/J, for the Defendant, took Exceptions to this Conviction.
I ft. The Juftices have mi shewn that they had Jurisdiction
ever this Defendant. For they have not fufficiently fliewn his De-
fects of Salification ; which ought to have been specifically
particiilarizcdy with an Allegation " that he had not any One of
" them :" I mean the Qualifications mentioned in 22 Gf 23 C. 2.
c. 25. To prove this to be neceflary, he cited Rex v. Ellers. [^^
what, or where, or when.] H. 12 G. i. 2 Ld. Raynio?id 1415.
Rex V, John Hill moft diredlly in Point. Bluet ^i tarn v. Needs^
P. 9 G. 2. in C. B. (entered Tr. 7, 8 G. 2.) Comym 52?, 523. Pof.
9 G. 2. (which he alfo cited, to flievv' the Diftindlion between a
Declaration and a Convidlion ;) A Getieral Averment is fufficient in
a Declaration .- But Convi£Iions muft fet forth WiiAT was the want
of Salification,
M. 19 G. 2. B. R. Rex v. Pickles, [the 2d Exception in that
Cafe ;] Where it was indeed holden that it was not neceflary to in-
fcrt the inferred or argumentative Qualification ■ (colled-ed from
^ Ann. c. 14. but not mentioned in 22 G? 23 C. 2.) " of his not
" being Lord of a Manor:" But it was there agreed, that thofe re-
quired by the Adl f 22, 23 C. 2. c. 25. ought to be negatively fpe-
cified.
I Strange 497. Rex v. Sparling, H. 8 G. i. B. R. which was a
Conviction for fwearing : And his Occupation was therein faid to be
a Leather-drelTer ; but it was not fliewn that he was not a Servant,
Labourer, Common Soldier, nor Seaman. The Court held that
giving Him th'^ Addition of Leather -drefTer was not enough ; and
inftanccd tlic Nece/Jity of fpecifying the Particulars of the Defen-
dant's want of (!J_(ialification, in Convictions ai the Game-A5l ; in
order to give the Jtiftices a Jurifdiftion which they, otherwife, have
not : And they alfo held that Convidtion naught, Becaufe the parti-
cuK.r Oaths and Curfes were not fet forth. And that Convidion
was accordingly quaflied.
2d Exception. The Witnefs was examined privately and ex
parte, prior to the Appearance of the Defendant, and in the Abfence
2 (f
Hilary Term 30 Geo. 2. 151
of the Defendant : So that the Defendant had no Opportunity of
Crofi-examining Him.
■^d Exception. The T^i7ne ivhen the Defendant was unquahfied is
not at all afcertaincd, in the Adjudication of his being guilty. For
it is only averred " That he was then unqualified : But feveral
Days and Times, diJlinB from each other, have been antecedently
mentioned. \V. 148, 149, 150.]
Mr. Norton contra^ for the Convidion, begun with the 2d
Exception — It was neceffary for the Juflice to take a previous Ex-
amination, as a Ground and Foundation for his ifluing the Sum-
mons : And when the Defendant attended, after having been fum-
moned, the Evidence was then read to him ; and the Witnefs alfo
attended ; and the Defendant was afked " what he had to fay for
" himfelfj" and did not defire to crofs-examine the Witnefs.
To the ill Exception — He anfwered — firfi:, by citing Rex v.
Chandler^ in i Ld. Raym. 581. Where Holt, in delivering the Opi-
nion of the Court upon a Convidlion for Deer-Stealing, fays " that
" it h f efficient for the Juftices, to purfae the Words of the Sta-
" tutes ; and they are not, in thefe fummary Con virions, confi-
" ned to nice and firiSi legal Forms ; it is enough, if they purfue
" the Intent of the Statutes."
If the Defendant is really qualified, be may fliew it : But how
can the Prosecutor prove the Negative? Some of 'the Qua-
lifications are fuch as cannot well be proved in the Negative : But
it is eafy for him to prove the Affirmative.
Tr. 9 G. 2. Rexv. Ford — Convicftion for keeping an Alehoufe,
without Licence. Objedted, That there was another former Law
upon which He might have been convidted : And in 3 C. i. c. 3.
there is a Provifo to exempt fuch as have been fo. But Cur\ held
that if the Defendant had been, before punilhed upon 5, 6 E. 6.
f. 25. he might have fliewn this. V. 1 Strange 555. S. C.
Rex v. 'Theed, i Strange 608. Convidtion for obllrudling an Ex-
cife-Officer, who came to weigh Candles. Objedion, That the
Exc'fe-Officer's Entry might have been by Night, (by 8 Ann. c. 9.)
And then there ought to have been a Conftable prefent. Ocr.'
That might have been fhewn on the Part of the Defendant, if in
Fad fo ; And then he would not have been convided : But they
would not prefume it.
Now here, the Defendant did not infifl: upon being any way
qualified : but only denied the Commifiion of the Fad.
This
i'52 Hilary 1 crm 30 Geo. 2.
This Conviaion foUo-.vs the va-y JFords of the Adt of Queen
yi?ine; which does not enumerate the Quahfications, as that ot C. 2.
* 5 Am. c. does : And this Convidlion is on the * At\ of Qiieen Antic ; and not
>'4- on 22, 23 C. 2. f. 25.
10 Aib^/. {Lucas) pa. 27. ^<'f«/ v. Matthews., Tn 10 ^««. i?.
R. [ift Exception.]
r/«?rV ^/^r. Tit. Ga?ne, Letter A. /o. 3. S. C,
5;/r«, Tit. G^w^, fo. 304. S. C. Which was a Convidion on
■ 5 A?2n. c. 14. Where one of the Qualifications {viz. not being a
Game-keeper, &c. being a new Qiuhfication allowed by that Ad)
was omitted. And Cur: held that if was 7iot neccflary to enumerate
ANY : But as some of them were enumerated, it was fatal to omit
another of them. [A^. B. This Cafe was adjourned?^
Rex V. Marriot, 4 G. i. i Stratige 66. was the very Point.
It was holden indeed that the Witness cannot take upon Hiw/elf
to adjudge the Qualification : But no Notice at all was taken, in the
Determination of that Cafe, of the Justices not having adjudg-
ed it.
Clearly, this Defed can, at the utmoft, be only Form : For in
Subftance, 'tis the fame thing. And it follows the Ad of 5 Anne
•in Terms.
As to the Cafe cited by Mr. Gould, of Rex v. Ellas — It does
not appear what the State of the Cafe was.
And the Cafe in Coniyjis 522, 523. rather makes for Us. It is
as reafonable that the Defendant fliould make it out that he was
■qualified, and fliew how , on a ConviSIion, as in an A^Jcn.
In the Cafe of Rex v. Pickles, — The Convidion was affirmed :
And yet a Qualification within the Ads was omitted.
And this Law can never, or hardly ever, be executed, if the
•Court fliould think themfelves bound down by the Cafe of Rex v.
Hill [in 2 Ld. Raym. 1415.]
3dly. As to the third Exception —
But Lord Mansfield ftopt Him from proceeding, and alfo Mr.
Gould from replying ; For he faid it was ncedlefs to enter into many
Reafons for quafliing this Convidion, when One alone is Jidly fuffi-
cient.
It
Hilary Term 30 Geo. a. 15
rt
Tt IS now fettled by the uniform Courfe of Authorities, that the (jftExccp-
Qualifications must Se All negatively fet out: Otherwife, the Juf-"°"''
tices have no JurifdiSlion over the Perfons killing Game, or keeping
Dogs or Engines for the deftruftion of it.
The Obiter Saying in lo Mod. (if it was a Book of better Autho-
rity than it is,) would fignify Nothing, when the Determinations
are the other way.
There is a great Difference between the Purview of an Aift of
Parliament, and a Provifo in an Ad: of Parliament,
In the Cafe of Rex v. Harriot, Mich. 4.G. i. B. R. [i Strange
66.] Where the JVitnefs fwears only generally ; it was holden in-
fufficient : And the Juftices who convid: upon the Evidence of the
Witnefs, can have no other or further Ground to go upon than
what the Witnefs fwears.
In the Cafe of Rex v. Hill, 2 Ld. Raym. 1415. in this Court,
H. 12 G. 1. It is the very Point eftablifhed and fettled, " That the
*' General Averment is not fufiicient ; and that it mufl be averred
" that the Defendant had not the particular Qualifications men-
" tioned in the Statute, as to Degree, Eflate &c."
In the Cafe oi Bluet ^i tarn v. Needs, Comyns 525. The general
Averment " of the Defendant's not being qualified," was holden to
be fufficient upon an ASfion ; though infufficient upon a CofivtSliort,
The Diftinclion is obvious between an Aclion and a Co?ivi5Iio?7,
And there it was agreed (and it is given as the Reafon why it is not
good upon a Convidtion,) " that it muft be made out, before the
" Juflice, That the Party had ko fuch Qualification as the Law re-
" quires," before the Juftlce can convidl Him : And the Juftice
muil return " that he had no manner of Qualification."
Here, the Witnefs pivears only gefterally, " That the Defendant
" was }7ot qualified cj'f." The Jufiices adjudge it generally^
only. The Streatn can go no higher than the Sprifig-Hcad. So
the Conclufion which the Juf^ices draw from the Teftimony of the
Witnefs muft be as general as that Teftimony.
In the Cafe o{ Rex v. Pickles, It was lard 6ovfv\ as a Rule, " that
" the Want of the particular Qualifications required by 22 G" 23 C
2. c. 25. cught to be ntgatively fet out in Conviftions :" And the .
only Queftion there was. Whether it was neceflary to add — " Nor
" Lord of a Manor." Exceptio probat Regulam : Nor was the
general Rule, at all, doubted or difputed, in that Cafe.
R r In
154 Hilary Term 30 Geo. 2.
In Indictments upon 8, gJV. 3. c. 26. for having a Coining- Prefs,
Every thing which Aews that the Defendant had no Authority,
muft be negatively fet out. And fo it was done, in the Indiiftment
of Bell, which was lately argued before all the Judges.
I take the Point to be settled^j' the conftant Tenor of all the
Authorities ; And I think upon very good Reafon, (if there was
need to enter into the Reafon at large, after it has been fully fettled
already.)
Therefore I am of Opinion that the Convicftion ought to be
quaflied.
Mr. Jufl. Dent/on concurred with Lord Mmisfield.
(ill Excep- He faid it was a clear Cafe ; And that it was fully fettled and
**°""' eftabliflied, " That in thefe CojiviSlions, the Want of the particular
" Qualifications mentioned in the A6t of 22 Gf 23 C. 2. ought to
" be negatively fet out:" If not, the Juftices have 7;ci Jurifdidtion
to convi(ft the Defendant as an Offender. And the Evidence and
Adjudication ought, Ifoth of them, to be, " That he has not thefe
" Qualifications, which are fpecified in that A<ft, nor any of them."
Indeed you are not obliged to go further than the Words of this
Aft of Parliament of 22 & 23 C. 2. and that was the Cafe of Rex
V. Pickles. But however, in that Cafe, the prefent Point was efta-
blifhed and taken to be indifputable.
It is faid, that *' It is fufficient to lay the Offence in the Words
" of the A51 of Parliament:'
But that is not always fufficient: It may be neceffary to go
further.
P. 28 G. 2. B. R. Rex v. Chapman, about robbing an Orchard,
was a Cafe where the mere purfuing the Words of the Statute was
not fufficient.
But this Point now before Us is a fettled Cafe : And therefore
there is no Need to enter into Argutnents about it.
The Convidtion ought to be quafhed.
(ift. Excep- Mr. Juft. Fg/^cr concurred.
tion.)
On
Hilary Term 30 Geo. 2. 155
On Negative Ads of Parliament, the Point is fully fettled and
eftablifhed, " that the particular Qualifications mentioned in the
" Purview of them, mufl: be negatively fpecified in Convidions
" made upon them."
By the Court unanimoufly,
Conviction quashed.
Royal-Exchange Aflurance Company verj. Vaughan.
THIS Cafe was iuft mentioned to the Court, on i8th Ncvem-'^"f^y •''^
ber 1755; and again, on 3d February 1756: But was nrft 1757.
argued on 7th May 17565 and now, laftly, on this Day.
It was iin Adllon of Trefpafs, brought by the Company : And the
Queftion (upon a fpecial Verdift) was, " Whether this Company are
" at all, or how far, they are liable to be assessed to the LAND-Tiz;v."
The Special Verdidl was very long. In it were found, at large,
the Statute of 6 G. x. c. 18. which gave Rife and Eftabliiliment to
this Company ; and the feveral Charters from the Crown which in-
creafed Its Fund, and enlarged its Powers beyond what they were
originally Intended (or at leaft explicitly eftabliOied) by that Adt of
Parliament ; The Original Foundation of it being only for Infurance
oi Ships, with a fmaller Fund; But the fubfequent Charters ex-
tended their Powers, to Infurances of Houfes and Goods from Fire,
and upon Lives ; and alfo Increafed their Fund.
In the abovcmentioned A(fl of Parliament, the Original Fund
was exprejly exempted from being taxed.
Several Fads were alfo found : Particularly, the Manner In which
this Company have carried on their Bufinefs, under all thefe Powers
jointly, and not under each feparately.
The prefent AffefTment Is for their whole Stock, and in their
Corporate Capacity.
They 7iever had been taxed at all, till now. And they were
now tax^d. In their Corporate Capacity, under the Land-Tax Ad
of 27 G. 2. c. 4 : (of which, fee pages 48, 64 & y ^.)
By the Ad of 6G, 1. f. 18. their Capital was 1,500000/. And
they were thereby exempted from All Parliamentary Taxes, This
was only a Power to infure Ships and Goods at Sea,
4 A
156 Hilary Term 30 Geo. 2.
A few Years after, the very fame Perfons obtained a Charter to
extend their Power to infure Houfes and Goods at Land, and upon
Lives -y and alfo to extend their Capital 500000 /. farther than the
former Sum.
Upon the firft: Argument —
The Court feemed, All of them, to fee this Matter pretty much
in the fame Light : And they all made two Queftions ; into which,
they divided the whole of this Cafe ; viz.
I ft. Whether the Or;^/VW Capital that was raifed under the A&.
of Parliament of 6 G. i. c. 18. (§. 2.) and was ;;ow become part of
the Fund of the present Ch art ER-Corporaf ion, was exempted
from Parliamentary Taxes, i>y Virtue of the exempting Claufe con~
tained in 6 G. i. c. 18, (§ 10.) which A61 of Parliament related
only to the Origi?2al Comp3.ny for Infurance of Sbips ; but did not
extend to the prejhit Corporation cftablifhed by Charter ; which
Charter has extended their Powers and enlarged their Capital.
2dly. Whether this Original Capital was the perfonal Eftate of
the Company ; and liable to be taxed ai the Company's perfonal
Eftate, in their Corporate Capacity : Or whether the Tax ought to
have been laid upon each individual Member of the Company, for
his rtjpeSfive Share, in his oum proper JVard.
As to the I ft Queftion — The Court were unanimous and clear.
That the Exemption under the A(il of Parliament of 6 G. I. was
confined to the Original Fund and Company cftabiiflied by that Adt;
and could not be extended to the prefent Corporation, which was
founded upon a fubfequent Charter of the Crown, which neither
did nor could give any fuch Exemption.
And they thought that this Oi'iginal Capital having been part of
the /S'/(7/'«/t'- Company's Fund, and only confirmed by tlie Charter-
Corportation, made no Difference in the Cafe.
As to the 2d Queftion, They thought it a Point of Importance
and extenfive Confcquence ; and therefore defired a further Argu-
ment: Though they leemed inclined to think that it was properly
taxed, as part of the Compariy's Perfonal Eftate, in their Corpo-
rate Capacity, by Virtue of the Claufes in fo. 48 & 64 of 27 G.
2. c. 4. It therefore flood over, for an
Ulterius Concilium.
Upon v/hich further Argument, Lord Mansfield was (o extremely
•clear, that He faid he had been endeavouring (to the utmoft of his
Power) to raife a Doubt j but could not,
2 In
Hilary Term 30 Geo. a. 157
■ In 4, ^ W.& M. the Diftrids and DIvifions were allotted. So
that the Queftion here is only between the Divisions : Not be-
tween the City, and the Company.
And this fpecial Verdidl was only meant, (as it is plain by the
Finding,) to try the firfl Point, Nothing is found about Shares of
Proprietors : Nor was this fecond Point then thought of.
It's plain they are to be rated as a Corporate Body, hy fo.
yb. And to rate the Individuals, would be almoft impojjible. The
Argument would prove too much ; viz. that No Corporation could
be taxed.
The Hudfon''s Bay Company are faid to be rated for their Stock :
And there is a particular Dire<ftion given, where the Bank of Efig-
land are to be rated.
Mr. Juft. Dcnifon concurred.
The Original Capital raifed under 6G. i. c. \Z. was intended for
another Purpofr. The Queftion was certainly made upon the Jirji
Point: And this fecond Point was not, I dare fay, at that Time,
thought of. And here is nothing ftated, to bring this fecond Point
within the Claufe \n fo. y^ & 76 of the Adl of 27 G. 2. c. 4.
Therefore We cannot take thrs to be any more than the Common
Cafe. They are taxed as a Corporate Body, within the Claufe in fo.
48 : And 1 do not fee how they could have been taxed otherwife.
Therefore Judgment ought to be for the Defendant.
Mr. Jufl. Fofter was of the fame Opinion.
The I ft Point, He obferved, was determined before the prefent
Argument, and rightly. The Company had impofed both upon
the Crown, and upon the Adventurers, by blending their different
Stocks together.
As to this fecond Point, It can't bear a Queftion " Whether they
*' (hould be taxed in their Corporate Capacity, or as hidivi duals."''
It was intended, and it is the natural and proper Way, to tax the
Corporation, in their Corporate Capacity. And this is what the
Aft manifeftlv meant : The Tax is to be paid out of the Stock ; and
this will occafion.a proportionable DeducEtion out of ths Dividends.
By the Court unanimoufly, (Except that Lord Commiffioner
Wiimot was, at the Time of tlie fecond Argument, abfent in
Chancery,)
Judgment for the Defendant.
S f Mafter
15^ Hilary Term 30 Geo. 2.
'Thurfday 3d MaftcF aiid Senior Fellows of St. John's College, Cam-
■'' bridge, verf. Todington, Clerk.
Fehruar;
'7S7
A Prohibition had been prayed by the College, to be direded to
the Bifhop of Ely, to prohibit Him from proceeding upon a
Monition ilfued by Him againft them, upon Mr. TodingtcJi^ Appli-
cation and Appeal to Him, as Visitor of the College: And tlie
College had thereupon obtained a Rule to fliew Caufe why a Prohi-
bition (hould not go. Which Rule to fhew Caufe was made upon
a Suggeftion " That the Bifliop was not Vifitor of the Colleg,e-,
" AS TO Elccliom into Feliowfliips and other Offices ;" and alfo,
'" that admitting him to be fo, yet the /rr/t'/z/ Matter (which related
'•' to a SouTHWRLL-FellowOiip) was not laithin his yurifJiSiicn:"
For the Suggeftion fet forth a Deed of Covenants (all on the part of
the College,) relating to a Foundation of 2 Fellowlliips and 2
Scholarfliips by Dr. Keton; in which Deed and Covenants, a Power
is referved to Dr. Kcton, to make Statutes (to which his Fellows
and Scholars were to be fworn,) fo as they lliould be conformabis
to the Statutes of the Foundrefs of the College. And there is alfo
.a Penalty and Forfeiture given to Dr. Ketcn and his Truftee, and
alfo to the Church of Southwell ; and a Claufe of Distress, for the
faid Forfeiture or Penalty, upon two of the College Manors, in
Cafe the College ftiould break the Covenants. The Suggeftion adds
" That Dr. Keton, in Fadt, never gave any Statutes, or made any
" Declaration, in relation to thcfe Fellowihips."
The Gravamen complained of, is a Citation from the Bifhop of
Ely to the Mafter and Senior Fellows, upon the Complaint of the
faid 'Tho. Todington, Clerk, on his being refufed an Eledtion into
One of thefe two Southwell-¥&\\o\v([-{\^s ; ftiewing, " That he was
" within the Defcription of the Endowment; whereas they had
" chol'en one ll'i'liani Craven, who (as Mr. Todington alledged)
" was NOT fo ; and that the 'BlOiop had alfo cited the faid IVilliam
" Craven, as well as the faid Mafter and Senior Fellows, to appear
" before Him at £/v-Houfe &c.
In Order to have a clear and full Conception of this Cafe, it may
be neceftary to fpecify this Suggeftion at large ; and alfo to premife
fome other Particulars which are requilite to be known : Which are,
J ft. The Deed between the Executors of Maj-garet Countefs of
Richmond (the Foundrefs) and Bidiop FiJJjer, confirmed by the
Prior and Convent of Ely ; zdW. Some Extrads from Bifliop
Fifber's Statutes; and 3dlv. Some Extracts from thofe Statutes which
Queen Elizabeth afterwards gave to this College, and under which
tlie College have ever lincc adted.
Hilary
Hilary 1 erm 30 Geo. 2. 159
The SUGGESTION, (at large—)
Hilary Term in the 29th Year of the Reign of King Geoj-ge
the Second.
England to wit. DE it remembered that on the Eleventh Day of
13 February in this fame Term, came into Court
here '^•ohn Newcome Dodor in Divinity Mafter of the College of
Saint y^j/v? the Evangelift in the Univerfity oi Cambridge, and the
Senior Fellows of thefaid College; and give the Court here to un-
derfland and be informed that whereas all Pleas of and concerning
any Lands and Tenements, and of and concerning any Eftate or In-
terefl: of Freehold, and alfo of and concerning the Conftrudion and
Operation of Deeds and Writings under Seal, and of Debts arifing
thereby, and the Cognizance of the fame Pleas, to the Lord
the King and his Royal Crown efpecially appertain and belong,
and at the Common Law in the Courts of Record of our Lord the
King and not in the Ecclcfiartical Court nor by any Ecclefiaflical
Judge ought to be tried difcuffed and determined and always
hitherto have been fo accuflomed to be tried difcuifed and deter-
mined; and whereas the Bifliop of Ely for the Time being is not
Vifitor of the faid College, ai to EleSlions into Fello'U'JJ.ips or other
Offices in the faid College, nor hath any Vifitatorial Power or Jiirif-
didion whatfoever over the Mafter and Fellows of the faid College
or any of them in that rcfped; and whereas by an Indenture Tri-
partite made the Twenty-feventh Day of OBober in the Twenty-
fecond Year of the Reign of our Sovereign Lord King Henry the
Eighth, Between Sir Anthony Fitzherbert Knight then one of the
King's Juftices of his Common Pleas and "John Keton Dodor of
Divinity and Canon of the Cathedral Church oi Salijhury upon the
one Parr, The Chapiter oi Southwell within the County of A^(?/'//«^-
ham upon the fecond Part, and the then Maftcr Fellows and Scho-
lars of the College of Saint 'John the 'Evangelill: in the Univerfity
o^ Cambridge upon the third Part, it was covenanted condelcended
and agreed between the faid Parties for them their Heirs and their
Succeflbrs for ever in the Form following that is to wit, Firft, The
fame Mafter Fellows and Scholars of the College of Saint John
aforefaid had granted for them and their Succtffors for ever unto
the aforefaid DcSlcr Keton, that he for himfelf, at the Nomination
and Appointment as thereafter exprelled, fhould have /ws Kv/o'K'i anti
two Difciplcs founded and fuflaincd at the Cofts only ofthefiiid
Mafler Fellows and Scholars within tlie CfJlege of Saint John afore-
fnd, xhcvQ to contir.ue Jor ever of his Foundation, over and above
other Fellows Scholars or Difciplcs then founded or thereafter to bo
founded
i6o Hilary Term 30 Geo. 2.
founded by the Foundrefs of the faid College or any other Perfon
or Pcrfoiis that then had given or thereafter fhould {jive Lands or
Goods to fuch Purpofe and Intent; And the faid Mafter Fellows
and Scholars of the fiid Coll-ge thereby covenanted and granted
unto the faid Sir Anthony Fitzherbert Dodlor Keton and to thejhid
Chapiter, and to their Heirs and SuccefTors, that the fiiid Fellow^s=
and Scholars or Difciples of the Foundation of the faid Do;ior
Kcton fliould have and enjoy all Manner of Profits, as well Meat
Drink and Wage as all other Commodities Eafments and Liberties,
like and in as large Marnier as other Fellows and Scholars of the
fame Colles;e by the Foundrefs' Foundation of the fame College
then had or in Time then coming fliould have in any Manner of
wife, at the proper Cofts and Charges of the fame Mafter Fellows
and Scholars of the College of Saint John the Evangelifl: aforefaid
and of their Succeflbrs for ever; And the fame Mafter Fellows and
Scholars by the faid Indenture covenanted and agreed unto the faid
Sir Anthon\ Fitzherbert Doiftor Keton and Chapiter of SouthiveJl \\x)<\
to their Heirs and Succeffors, that the fame two Fellows of the
Foundation of the faid Doctor Keton fhould have receive and per-
ceive of the faid Maftcr Fellows and Scholars and their Succeffors
every Year tv^enty-fix Shillings and eight Pence Sterling over and
above the Wage limited to other Fellows of the Foundrefs' Foun-
dation, that is to fay, to either of them eight Shillings and four
Pence Sterling, at the Feafts of Eafter and Saint Michael yearly, by
even Portions: Furthermore, the f.id M..ftcr Fellows and Scholars
of Saint 'John aforefaid thereby covenanted and granted for them
and their Succeffors unto the faid Sir Anthony Fitzherbert and Doc-
tor Keton or the longer liver of them, that they from thenceforth
fliould have the Nomination and Ele: ion of the faid Fclloics and
Scholars or Difciples diiring their Lives natural, and after the de-
ceafe of the faid Sir Anthony Fitzherbert and Dodor Keton then the
faid Fellows and Scholars or Difciples (liould be at the Nomination
and Ele iion of the laid M.ftcr Fellows and Scholars of the Cr)l!ege
of Saint "John aforefaid and of their Succeffors for ever, ajter and
according to fuch Ordinance and Writing as the faid Doctor
Ke ION jhcidd thereif make and declare by his laft Will or otherivife;
PROVIDED ALWAV th..t the faid Fellows and Scholars or Difci-
ples (liould be e!tdl and chofen of fhofe Perfons that be or had been
Sluerifters rf th- Chapiter of Southwell ix^oxc{Mt\, if any fuch able Per-
fon in M..nn"rs and Learning could be found in Southwell hthrc(\x\A;
And in Djtault of fuch P. rfons there, then of fuch Perfons as had
been Choriftcrs of the fdd Chapiter of Southwell, which Perfons
ffiould be then hdi.ibirant or abiding in the JaidU7iiverfity of Cam-
bridge-, and IF NONE r.ucH fhould be found able in the Unlverfity
aforefaid, thr?j the fame Fellows and Scholars or Difciples to be
cledcil ..nd .chofen oifuch Perfons that fliould be mofl: lingular in
Manners and Learning, cj wihat Cou72try foever they fliould be, that
2,. fliould
'
Hilary Term 30 Geo. 2. 161
fliould be then abiding in the fame Univerfity. Furthermore the
fame Mafter Fellows and Scholars covenanted and granted by the
faid Indenture unto the abovenamed Sir Anthony Fitzherbert and
Dodor Keton and to the faid Chapiter their Heirs and SuccefTors,
that when the faid two Fellows and two Scholars or Diftiples of
the Foundation of the faid Dodor Keton or any of them fliould
chance to die or otherivife depart from the faid College and leaved
or leafed his or their Title or Profits of the fame, that then imme-
diately after that leafing leaving departing or ceafing, at the then
next time of Election of Fellows or Difciples of the faid College li-
mited by the Statutes of the College of Saint John aforefiid, other
FelloT.u or Fellows Difciple or Difciples, as the Cafe (hould require,
fhould be ele£led na??ied and chofen by the faid Mafter Fellows and
Scholars, according to thofe then prefent Covenants and Agreements^
according to fiich Ordinances or Will as the fame DoSior Keton
SHOULD thereof make and declare. And alfo it was covenanted and
acrreed by the faid Indenture, that the faid Mafter Fellows and
Scholars of Saint John aforefaid, and alfo the Fellows and Scholars
of the Foundation of the faid Doftor Keton, at the Time of their
Admifiion, fhould be fworn to obferve and keep the Statutes and Or-
dinances that then were made or thereafter fliould be ordained and
made by the faid Dodor Keton for the Foundation of the faid Fel-
lows and Scholars; fo that the faid Statutes fliould be conformable
with the Statutes of the Foundrefs of the faid College. For the
which all and fingular the Premifies well and truly to be obferved
and kept by the fiid Mafter Fellows and Scholars and their Sue-
cefix)rs in Manner and Form as is aforefaid, that is to fay, as well
for the EleSlions and AdmiJJions of the faid Fellows and Scholars and
for their Finding, as for Wages yearly to be paid to the fame, with
all other Liberties Commodities and Profits likewife pertaining unto
them, as fcr all other Covenants and Agreements with all and fin-
gular the Premifies according to the Ordinance above rehearfed,
the faid DoSlor Keton had contented given and paid to the faid Ma-
fter Fellows and Scholars, in Money Plate and other Jewels, the
Value of four hundred Pounds Sterling. Further it was covenanted . ■
and agreed by the laid Indenture, between the faid Parties, for
them and their Succeffors, that (/'the faid Mafter Fellows and Scho-
lars and their Succefibrs did fail in taking admitting or receiving of
the faid Fellows and Scholars in any Time of Eleftion next after •
the Avoid.:nce, and not chofen nor admitted into the faid College
according to the Ordinances and Agreements above rehearfed, or
had not nor enjoyed not their full Commodities and Profits as is
aforefaid, then the aforefaid Mafter Fellows and Scholars and
their Swcctffois /Ixuld forfeit as well to the faid Sir Anthony Fitz-
herbert and Dodor Keton as to the Chapiter of Southwell, and to
their Heirs and Succeflbrs, in the Name of a Penalty or Pain
for every Default made or no due EleSlion of the faid Fellows and
T t Scholars
1 62 Hilary Term 30 Geo. 2.
Scholars or any of them, Twenty Shillings ^or cmrry Month
that it fnould happen the faid Fellows and Scholars not to be cho-
ien nor admitted into the faid College as is aforefaid, or reflrained
of any Profits Commodities or Eafements as is aforefaid; and that
then it (liould be lawful as well to the fiiid Sir Antho7iy Fitzberbert
and Doftor K.eton on their Party, as to the Chapiter of Southwell, and
to their Heirs and Succeflbrs for their Party, into the Manors of Mar-
fiete and MyUington in the County of Tork^ and into the Manor of
Little Markham in the County of AW/z;?^/'^;;/, to Enter, and Di-
strain for the fame Twenty Shillings and the Arrears of the fame
for every Time or Times of Forfeiture, and the Dijlrefs to ivithhold
until the faid Twenty Shillings with the Arrearages of the fame
l^iould be to them well and truly Satisfied Contented and Paid,
Alfo the faid Mafler Fellows and Scholars by the faid Inden-
ture Covenanted and Granted unto the faid Sir Anthony Fitzher-
hert and Dodlor Keton, that they the faid Mafler Fellows and
Scholars and their SuccefTors, at every Time and Times during
the Life Natural of the faid Sir Anthony Fitzberbert and Dodlor
Keton, fliould give Notice and Knowledge to the faid Sir Anthony
Fitzberbert and Doclor Keton or to the longer Liver of them,
within fix Days, when and as often as it fhould fortune any of the
faid FeIIov/fl)ips or Difciplefhips to be void or vacant; fo that the faid
Sir Anthony Fitzberbert and Dodor Keton or the longer Liver of
them might nominate and appoint other Fellow or Fellows Difciplc
or Difciples apt and able to have receive and take the faid Fel-
lowfliips or DifciplcHiips fo then being void. And Whereas the
faid Do5ior Keton did not at any 'Time, by his lajl Will or other-
life, MAKE or DECLARE any Statute or Crdinance, other than
what was contained in the faid above recited Indenture, cf or con-
cerning the faid FelloivJJjips called Southwell Fellowfliips, or of or
concerning either of them; Neverthelefs the Right Reverend Mat-
thias by Divine Permifiion Lord Bifliop of Ely, well knowing the
■PremifTes, but contriving and intending to aggrieve and opprel's the
faid Majler and Senior Fellows of the College aforefaid, againft
the due Courfe of the Law of this Realm, and to Difinherit our
Lord the King and his Crown, and to draw the Cognizance of a
Plea which belongs to his Majcfty's Temporal Courts and ought there
to be tried difcuf^ed and determined, to another Trial before the faid
Lord Bijliop, hath lately drawn into a Plea the faid M.fter and Se-
nior Fellows of the College aforefaid, before the faid Lord B:fhop,
by a certain Inhibition Citation and Monition bearing Date the
Twenty-ninth Day of "january in the Year of our Lurd One
thoufand Seven hundred and fifty-fix, Reciting that " Whereas
" on the Part and Behalf of the Reverend Thomas Toditigton
" Clerk, of the fame College, Batchelor of Arts, it had been
" (with grievous Complaint) alledged and fhewn to the faid Lord
** Bifliop, that the Reverend John Newcome Doctor in Divinity,
2 " Mafler
Hilary Term 30 Geo. 2. 16
J
Mafter of the faid College, and the Senior Fellows of the fame,
TJnjuftly and Unduly Proceeding in the EkSiion of Fellows of
tlie faid College, did on or about the Seventeenth Day of March
laft Choofe and Elect the Reverend William Craven, Bachelor of
Arts, into a Fellcwjhip in the faid College commonly called a
Southwell Fellowjlnp, founded by the Reverend John Keton Dodor
in Divinity, Vacant by the Refignation of the Reverend Theophi-
las Lindfey Bachelor of Arts late one of the Southwell Fellows of
the laid College as aforefaid, and did refuse to ele£l and admit,
at leaft did not admit and eleSi the faid Thomas Todington into
the faid vacant Southwell FellowHiip, notwithftanding the faid
Thomas Todington who was an Inhabitant abiding within the faid
College and had been Chorijler of the Church of Southwell in the
County of Nottingham feveral Years, offered himfelf a Candi-
date and PRAYED to be eledled and admitted into the faid Fellow-
Jhip, and no other Chorijler of the faid Church of Southwell
offered himfelf a Candidate for the faid vacant Fellowfliip ; And
that he the f*id Thomas Todington, apprehending himfelf to be
greatly injured and aggrieved by the pretended Eleclio7i aforefaid
and other pretended Proceedings of the faid Mafler and Senior
Fellows, as well by Virtue of their pretended Office as at the un-
juft Inftigation Solicitation Procurement and Petition of the faid
'William Craven, and juftly fearing that he might be further in-
jured and aggrieved thereby, had from the fame and every of
them, and especially from the faid pretended Choice and Elec-
tion cf the Perfon of the faid JVilliam Craven into the afcrenmi-
mentioned vacant Fello%tf:ip in the faid College, {o made or pre-
tended to be made by the faid Mafter and Senior Fellows, not-
withftanding the faid Thomas Todington offered himfelf a Candi-
date and prayed to be Eleded and Admitted into the faid vacant
Fellowfliip, and no other Chorifter of Southwell offered himfelf a
Candidate for the fame, and from their rcffing to eleSl and ad-
mit, at lead: not EleBing and Admitting the faid Thomas Toding-
ton into the faid vacant Fellcwjlip, and from all and every thing
that did or might follow therelrom, and from all and fmgular
other Grievances Nuliiues Iniquities and Errors in Proceedinp-,
and Jrom Ail other Ads F..dls and Things illegally done, thi-c
might be colleded from the pretended Proceedings of the faid
Mafter and Senior Fellows in the faid pretended Eledlion, To
the faid Lord BiJl:op, the Visitor of the said College,
rightly and duly appealed, and of and concerning the Nullity
and Iniquity of all and fingular the Prcmiffes aforefaid had equally
and alike principally alledged and complained ;" And alfo reci-
ting That " whereas the faid Lord B.fliop, righMy and duly pro-
ceeding, had at the Petition of the Prodtor of the faid Thomas
Todington (Juftice fo requiring,) Decreed the Inhibition Citation
and Monition thereunder written. The iitid Lord Bifhop did there-
" fore
<'
(C
164 Hilary Term 30 Geo. 2.
" fore thereby authorize inipower and ftridly injoin and command
" all and fingular Clerks and Literate Perfons whomfoever and
" wherefoever, jointly and feverally, that they (hould inhibit or
" caufe to be inhibited, ^txioudWy, if they conveniently could fo do,
" otherwife, by publickly affixing the faid Monition for fome Time
*' on the outward Door of the Chapel belonging to the fiid College
" and by leaving there affixed a true Copy thereof, the fud Mqjter
" and Senior Felloiis, and clfo the faid William Craven, in Special,
and all others in General, who by Law were required to be In-
hibited in that Behalf; All and every of whom, the faid Lord
Biffiop alfo by the Tenor of the faid Monition did inhibit and in-
join, that they nor any or either of them fliculd innovate or at-
tempt or caufe or procure to be done innovated or attempted
any thing to the Prejudice of the faid Thomas Todington or his faid
Caufe of Appeal or the Authority or Jurifdidion aforefaid of the
faid Lord Bilhop, pending the faid Caufe of Appeal and Com-
plaint and fo long as the fame ffiould remain undecided before
the faid Lord Bifhop, fo that the faid Thomas Todington the Ap-
pellant might have free Liberty and Power (as in Juftice he ought)
to profecute that his faid Caufe of Appeal and Complaint, under
Pain of the Law and their Contempt; And alfo that they ffiould
in like Manner cite the faid Majier and Sefiior Fellows and alfo
the {aid William Craven, or caufe them to be peremptorily cited to
APPEAR before the faid Lord Bifloop at his Manfion Houfe com-
monly called Ely Houfe fituate in the Pariffi of Saint yfw^rfw Uol-
bourn in the Couniy oi Middlefex, on Monday the ninth Day o{ Fe-
bruary then next enfuing, between the Hours of Three and Six in
the Afternoon of the fame Day, then and there to answer to
the faid Tho7nasToddington\x\ his faid Bufinefs of Complaint; and
further to do and receive as to Law and Juftice ffiould appertain,
under Pain of the Law and their Contempt; And Moreover that
they fhould Monifh or caufe to be moniffied Peremptorily, in
like Manner, the faid Mafler and Senior Felioivs and Officers of
the faid College in Special, and all Others in general, that they
fome or one of them fliould tranfmit or caufe to be tranfmitted
to the faid Lord Bifliop, at the Time and Place aforefaid, All
and fingular the Statutes Ads Original Exhibits Books Indentures
Miniments Inflruments and Proceedings in or any wife concern-
ing the faid pretended Eleflion or the faid Caufe of Appeal and
Complaint, and more efpecially the Statutes Books and Inden-
tures in the thereunderwritten Schedule mentioned, under Pain
of the Law and their Contempt; And what they fhould do in
the PremifTes, they fhould duly certify to the faid Lord Bifhop,
together with the faid Monition : And the faid Lord Bifhop hath
annexed the following Schedule to the faid Monition, (To wit)
The Original Statutes of the College given by Queen Elizabeth
or an authentic Copy thereof, The Indenture bearing Date the
4 " tw«nty-
Hilary Term 30 Geo. 2. 165
*' twenty feventh Day of OSlober in the twenty fecond Year of the
*' Reign of King Henry the Eighth relating to Doftor Kc1(ijf% or
" the ^w/Z^-ffiW/ Fellowfhips founded in the faid College, The Book
" or Books wherein the Eledtion of Fellows and the Proceedings
" thereon are entered, The Book of Battles or Buttery Bonk for
" the Months oi February and March laft ;" as by a Copy of the
faid Monition, and Schedule thereto annexed, here in this Court
read, more fully appears. And although the faid Mailer and Senior
Fellows of the faid College ba've pleaded and alledged all and fingular
the Matters aforefaid by them above fuggefted and alledged, before
the faid Lord BiOiop, in their Difcharge of and from the Fremifes
aforefaid ; and have offered to prove the fame by undeniable Tefti-
mony and Proof; Yet the faid Lord Bifliop hath wholly refused
to receive or cidiiiit the faid Plea j4llegation and Frooj\ and them by
Definitive Sentence of the fiid Lord Bifiiop, in the faid Premifes,
with all his might doth endeavour and daily labour to condemn ; in
great Contempt of our Lord the now King and his Laws, and to
the great Damage and Injury of the faid Majler and Senior Fe/lcws
of the faid Colleo;e : All which faid Premifes the faid Mafter and
Senior Fellows of the faid College are ready to verify and prove as
this Court here fhall dired:. Wherefore the faid Mafter and Senior
Fellows of the faid College, imploring the Aid and Munificence of
this Court, here, pray Relief and His Majefly's M'''rit (s/^ Prohibi-
tion to be direded to the faid Lord Bifhop in this Behalf, to pro-
hibit him that he do not any further hold Flea before kirn, touching
the Premifes aforefaid or any Part thereof. And it is granted to
them Off.
The Deed.
Supprefjio Domus SanSli fohannis iti Cantab.
"^HIS Indenture made the twelfth Day o^ December in the
fecond Year of the Reign of our Sovereign Lord King Flenry
the Eighth, Between the Reverend Father in God Richard BiOiop
of Winchejler John Bifhop of Roche [ier Sir Charles S''}nerfet Knt.
Lord Herbert Sir Thomas Lovell Knight Sir Henry Marncy Knt. Sir
yohn Saint John Knight Henry Horneby Clerk and Hugh Ajheton
Cierk, Executors of the T'eftament of the excellent Princefs Margaret
late Countef of Richtnond and Derby and Grand- Dame to our faid
Sovereign Lord King Henry the Eighth, on the one Party, and the
Reverend Father in God ya]7ies Bijhop of Ely and Ordinary of the
Houfe or Friory cf Saint John in Cambridge, on the other Party,
' WitnefTeth That Whereas our Holy Father the Pope, by his Bulls
under Ledd, for the Increafe of Virtue Learning and Dodrine and
Preaching of the Word of God, and to the eftabliiliing of Chrift's
U u Faith,
66 Hilary Term 30 Geo. 2.
Faith, and for divers Confiderations exprefled in the faid Bull, Hath
fiipprejfed extinguiftied and determined the Foundation and Religion
of the faid Hoiife and Priory, by the Royal Affent of our faid
Sovereign Lord the King that now is, by his Letters Patents under
his Great Seal, and alfo by the AJfe?it and Agreement of the faid
Reverend Father James Bifiop of Ely, confirmed by the Prior and
Convent of the Cathedral Church of Ely, as in the faid Bulls Letters
Patents and other Writings thereof made, more plainly appeareth j
It is now covenanted betwixt the faid Parties and fully concluded,
and by the faid Reverend Father Bifoop oj Ely granted, that he, for
the better Execution and Affurance of the Premifes, fhall before the
fixteenth Day of January next enfuing after the Date of thefe Pre-
fents, avoid and caufe to be voided and removed out of the faid
Houfe and Priory, all fuch and as many religious Perfons as now
be incorporated and pofTeffed in the faid Houfe and Priory of Saint
John, or that can or may pretend or claim any Right Title or In-
tel efl: in or to the faid Houfe or Priory or to the PolTeffions thereof,
by reafon of their l^rofeflion or Incorporation within the fime; and
utterly make void and difpofe the faid religious Perfons from the
faid Houfe and Priory, and all fuch Right Title Claim and IntereO:
as they or any of them have pretended or claim to have within the
f.ime Houfe and Priory or to the Poffcflions or to any thing there-
unto belonging ; and alfo caufe the fame religious Perfons and every
of them, by Authentic Inftrument, in fure and fufficient Form to
be made, to refign and renounce all fuch Right Title Claim and In-
terefl: as they or any of them have or in any manner of wife may
have to the faid Houfe or Priory or to the Pofleffions or to any
thing thereunto appertaining ; And that the fame BiHiop fhall tran-
llate or caufe to be tranflated all the fame religious Perfons into other
Houfe or Houles of the fame Religion, and caufe them and every
of them clearly to renounce relinquifli and leave the fame Houfe
and Priory and all the Poileffions thereof, and clearly to depart and
to be utterly excluded from the fame for ever, and to be really and
efteftually accept and incorporate in fome other Houfe or Houfes of
the fame Religion ; and caufe the faid Houfe and Priory of Saint
John and the Foundation and Corporation thereof to be clearly dif-
folved and determined for ever, before the faid fixteenth Day of
January next enfuing. And alfo the faid BifJjop of Ely covenantetb
and granteth to the fiid Executors, by thefe Prefents, that he, be-
fore the Feaft of the Purification of our Lady next enfuing, and at
all Times after, when he fliall be reafonably required by the faid
Executors or any of them, y/W/ tnake and caife to be made all fuch
Grants and A[jurances to the said Executors their Heirs and
Afjigns, of the [aid Houfe aiid Priory of Saint John, and of all the
M.inors Lands Tenements and PofTefTions and all other that belong-
eth and at any time belonged thereunto, To have and hold to the
fame Executors their Heirs and AJJigns, as fliali be advifed by the
2 Learned
Hilary Term 30 Geo. 2. 167
Learned Counfel of the fame Executors, their Heirs and Afligns or
any of them, at their Cofts and Charges ; and caufe all the fime
Grants and Afllirances to be confirmed by the Prior and Convent of
the faid Cathedral Church of Ely, by their Deed and Deeds fealed
with their Common Seal, in fuch wife as fhall be advifed by the
faid Executors or any of them ; fo that the faid Executors or fome
of them, by Reafon and Authority of the faid Bulls and of the faid
Letters Patents and other Premifes, may make lawful perfedt and
fure Tranllation of the faid Houfe and Priory of Saint John and
the PofTeffions thereof, unto a perpetual College, of a perpetual
Mafler and Fellows, and there e7'e£i found and eJlabliJJj a perpetual
College, of a perpetual Mafter and Fellows, according to the Will
Mind and Intent of the faid Princefs, and according to the Ordinances
and Statutes of the faid Executors, thereof to be made by Virtue and
Authority of the faid Bulls and Letters Patents, there perpetually to
endure : And on this, the faid Bijhop of Ely covenanteth and granted
to the faid Executors, by thefe Prefents, that the fame Bifhop and
Jiis Succeflbrs, and alfo the faid Prior and Convent of the faid
Cathedral Church of Ely and their SuccefTors, fiiall at all times do
and caufe and fuffer to be done all things neceffary and requifite for
the faid Tranllation and for the Foundation and eftablifliing of the
faid College for ever to endure, as by the Learned Counfel of the
faid Executors or any of them fhall be advifed, at the Cofts and
Charges of the faid Executors. And the faid Executors, by thefe
Prefents, permit and grant to the faid Reverend Father Bifjop of
Ely, that the faid Majler and Fellows, within one Month next after
th.it they fliall be founded and have real and corporal Poffeffion of
the fame Houfe and Priory and of the, Manors Lands and Tene-
ments and PoUefrions of the fame, fiall grant, by their fufficient
Writing under their Common Seal, for the Exhibition and Finding
of the faid religious Perfons during their Lives, to every of them or
to other Perfons at their Nomination, an Annuity of 6 A 13 j. 411'.
by the Year, to be had and perceived to every of them during their
Lives, out of the faid Houfe, Manors Lands and Tenements, at
Two Feafts of the Year, that is to fay Eajier and Michaelmas, by
even Portions, with a fufficient Claufe of Diftrefs in the fame Houfe
and in all the faid Manors Lands and Tenements, for fake of Pay-
ment of the fame. And the faid Executors covenant and grant to
the faid Reverend Father in God Bifop of Ely, by thefe Prefents,
that after the faid Tranflation of the faid Houfe and Priory and
Foundation of the faid College, the fame Executors, in their Sta-
tutes and Ordinances thereupon to be made and ordained for the
Ordering and Continuance of the fame College, fall ordain and
etlablfo (among other things) that the JurifJi^ion Ordinary cf tic
fame College and of the faid Churches and Chapels thereunto belong-
ing JiMill appertain and belong to the fame Bijhop and his Succrfcrs for
evjrmcre, and that the Mafter and Fellows fhall pray for the good
Eftate
i68 Hilary Term 30 Geo. 2.
Eftate of the fliid BifTiop during his Life, aixl for his Soul after his
Deceafe, ai the. Secondary Founder Benefaftor and Partner in the
faid Holy and Meritorious Work, And alfo for the good Eftate
of all his SuccefTors in Time to come Bifhops oi Ely, during their
Lives, and for the Souls of his Predece/Iors Patrons and Founders of
the faid Houfe and Priory, and for the Souls of his SuccefTors as
Jt'condary Fomidei's of the faid College-, And on that, the faid Execu-
tors fliall provide and make Statutes and Ordinances of the faid Col-
lege; in fuch Manner that th^re (hall not be any Ambiguity in the
Eledions of the Mjfters and Fellows of the faid College. And
alfo the fame Executoi'S granten to the (aid Reverend Father in
God Bi(Tiop of Ely, by thefe Prefents, that the fame Reverend Fa-
ther in, God, during his Life, Ihall name and choofe three apt and
able Perfons, Scholars-, And his SuccefTors, after his Deceafe, one
apt and able Pcrfon, Scholar; to be made Fellows of and in the
faid College, and there to be accepted and adm.itted Fellows of ,
the fame College, at their Nomination and Election; and that to
be renewed and ufed, as oft as the Place of any of them fhall hap-
pen to be void: And on that, the faid Executors granten to the faid
Reverend Father in God Bifhop of Ely, that they fliall ordain and
provide in the faid Statutes, that the Mafler and Fellows of the faid
College fliall be bounden to pray for all fingular Perfons as well
alive as dead, for the which the faid religious Brethren of the faid
Houfe and Priory were bound to pray, in likewife as the faid Exe-
cutors have before this time promifed and covenanted with the fame
Reverend Father in God to be done. In Witnefs whereof, the
faid Parties to thefe Prefent Indentures interchangeably have fet their
Hands and Seals, the Day jnd Year abovewritten.
The Confirmation of the above Indenture, by the
Prior and Convent of the Cathedral Church of Ely.
AN D We the Prior and Convent of the Cathedral Church of
Ely, having and taking thefe prefent Indentures and all and
fingular PremifTes contained therein, freely agreed accept and ap-
prove; And the Indenture, and all the fame Premifes contained
and fpecified therein, unto the faid Executors their Heirs and Af-
figns, for Us and our SuccefTors, ratify approve and confirm, by
thefe Prefents, (Rents Confuetudes and all other Rights of our Mo-
naftry and Priory of Ely, to Us and our SuccefTors, in all Things,
always favcd and referved.) In Witnefs whereof. We the faid Prior
and Convent to thefe Prefents have fet our Common Seal. Given
in our Chapter Houfe, the fifth Day of fannary in the Year of
our Lord God 1510.
-i EXTRACTS
Hilary Term 30 Geo. 2, 169
EXTRACTS from Bifliop Fiper\ Statutes.
'Stcituta pro Collegia Divi JoJjis Evangelifice infra Giimiafium Canfa-
brigienfe fito.
Preamble — ■
UT conftet univerfis qui Statuta przefentia lefturi funt, quanam
Audloritate fancita fuerint, hoc Frontifpicio locandum cen-
fuimiis Inftrumentum quoddam Sigillis et Subfcriptionibus omnium
Executorum prasftantiffimse Viraginis Dominas Margaretae Richmon-
dis, Fundatricis CoUegij divi Johannis Evangeliftae in Cantabrigia:
Quo Inflrumento per eofdem Executores confedlio, plane conftat ple-
nariam Auftoritatem mihi Johanni Epifcopo Roffenfi traditam, pro
condendis Legibus et Statutis, quibus tam Magifter quam Sccij et
Scholares pariteret Difcipuli teneantur obedire. Cujusquidem Inftru-
menti Tenoris eft, qui fequitur.
" Univerfis Chrifti fidelibus prsefentes literas infpeduris, Ricar- ,
dus Winton. Epifcopus Carolus Somerfet Comes Wigornia; Tho-
mas Lovel Miles Henricus Verney Miles Johannes Seynt John
Miles Henricu's Horneby et Hugo Asfiieton Cleticl, Executores
Teftamenti et ultima; Voluntatis nuper excellent iffimse PrincipifTs
Margarets Comitiflse Richmondise et Derbias, Matriique et Avia:
duorum Regum nimirum Henrici Septimi et Odavi, falutem in
Domino, et fidem indubiam praefentibus adhibere. Quum fit
optandum poti{i3 ut non erigerentur Collegia, quam ut ereda
male gubernarentur, nos Executores antedidi, qui Sumptibus et
Impenfis pr^fata; Principiflae Collegium Sandi Johannes in Can-
tabrigia extrui curavimus, fimul et dotari, magno Afi"edu cupl-
mus id ipfum juftis Legibus fandifq-, adminiftrari Sand-onibus.
Verum quoniam omnes Nos una adeffc commode non poiraa:iuSj
ut vel novam Eledionem Soclorum in Collegio prasdicto faciamus
vel Sociis ita electis Leges et Sanctiones juftas ac lanctas exhibe-
amus, denique Juramentum ab eifdem exigamus pro Legibus
hmoi inviolabiliter obfervandis, Idcirco ?:cjlras Vices committimm
Reverendo Patri Jobaimi Roff'cn. Epifcopo, ut Hie tam noftra
quam fua Auctoritate pofiit numerum Sociorum ibidem augere,
Magiflroq; ct Sociis ovinihus Statuta falubria noftro Nomine cxhi-
hert\ atque ab eifdem Juramenta exigere pro corundem inviola-
bili Obfervaticne, Recufantes vero (fi qui fuerint) amovere, vio-
lantes corrigere, ac csetera omnia et fingula peragere quts pro la-
lubri Gubernatione ejufdem Collcgi] fibi opportuna vifa fuerint^
a^que ac li nos illic omnes pra>fentes ciTemus : Quae omnia et fingula
Univerfitati fignindamus per Precfentes. In quorum omnium et
fingulorum Fidem ac Teftimonium, Sigilla noftra prasfentibus
" ap!X)fuinv.:s,
1 70 Hilary Term 30 Geo. 2.
" appofuimus. Dat. vlgefimo Die Menfis Martij Anno Domini
" Millefimo quingentefimo quinto decimo."
Ad Cultum optimi maximi Dei, ad honorem divi JohannisEvan-
gelifta;, ac mox ad Fidel Chriftiana3 Incrementum, Nos 'Johannes
Roffcn. Epijcopiis, unus Executorum ultimae Voluntatis Nobiliflimaj
Viraginis Dominse Margaretae Richmondis Derbiiique ComitifTai
Genitricis et Avias duorum Regum Henrici feptimi pariter et octavi.
Nomine et Aidoritate cateroriim Co-Executoriim ejufdem ComitiflfB,-
nempe Ricardi Wintonienfis Epifcopi Caroli Somerfet Comitis Wi-
gornia2 Thomas Lovell Henrici Verney Johannis Seynt John Equi-
tum Henrici Horneby Hugonis Afhton Clericorum, Leges et Statuta
qua- feqinmtur edidimus, Magiftroq; et Sociis ac Scholaribus Col-
legij Divi Johannis Cantabrigias tradidimus, quatenus eildem om-
nino fe conferment, tarn hi qui jam funt Magifter Socij et Scholares,
quam eorum Succeflbres quotquot futuri fint in ]:erpetuum.
De Eledlione Mao-iftri.
o
Qd^fi tunc per Viam Splritus fancfli concordibus animis, Nemine
diffidente, in quempiam ejufmodi Virum confenferint, quails in
Statuto ante ledo defcriptus eft; aut fi major Pars omnium fuper
aliquo ejufmodi confenferit; Volumus et ftatuimus q'vis abfque Mora,
(nulla prorfus Licentia Patroni Ordinarij Vijitaforis aut alterius cu-
iufcunque jurifdidionem ordinariam przetendentis, nee Ceffionis ant
Rcfignationis hujufmodi eis vel eorum alicui exhibiafne, aut ab
eorum aliquo ejufdem Approbatione expedata aut requifita,) per
Prsfidentem Mjgifter Collegij pronuncietur, his Verbis—
De juramcnto Magiftri.
Ego N. in Magiflrum Collegij Sancti Johannis Evangelifts in
Univerfitate Cantabrigis nominatus eleilus et prcefedus Juro, ta^'.is
et infpectis per Me hiis ficro-fanctis Evangeliis, dictum Collegium
omnia Benehcia Terras Tenementa Poffeffiones Reditus fpirituales
et tcmporales Jura Libertates Privilegia et Bona qusecunq; ejufdem,
nee non omnes et fingulos Socios et Scholares et Difcipulos ipfius
Collegij, iuxta Statuta et Ordinationes didi Reverend! Patris Domini
Johannis FiHier Roffen. Epifcopi, abfque Perfonarum Scientiarum
Facultatum Generis et Patrise acceptione quacunque, pro mea virili
regam cuftodiam dirigam et gubernabo, et per alios regi cuf-
todiri dirigi et gubernari faciam; Nee ero faftiofus, magis fa-
vens uni quam alii, contra Juftitiam et Fraternitatis Amorem.;
nee eorum alicui Gravamina vel Moleftias injufte inferam; Cor-
rediones quoq; Punitiones et Reformationes debitas juftas ratio-
nabiles
Hilary Term 30 Geo. a. .171
nabiles de quibufcunq; delictis Criminibus et Exceflibus Socioram
et Scholarium et Difcipulorum didi CoUegij, quoties ubi et quando
opus fuerit, fecundum Rei Qualitatem et Quantitatem omnemqj
Vim Formam et Effectum Ordinationum et Statutorum per dictum
Reverendum Patrem editorum, abfq; Favore aut Odio AfFectione
Confanguinitatis Affinitatis aut alia quacunq;, diligenter et indifFe-
renter faciam et procurabo: Et fi hujusmodi Correctlones Punitiones
et Reformationes ut prsefertur debite et jufte exequi non potero,
propter Metum et Potentiam feu Multitudinem Delinquentium, ip-
forum Nomina et Cognomina, cum Qualitate et Quantitate Delic-
torum et ExcelTuum hujufmodi, quam cito potero, intra Menfem,
Domino Epifcopo Elien/i qui pro tempore fuerit, aut Domino Can-
cellario Univerfitatis vel ejus Vicem-gerenti, denuntiabo et revelabo,
tiper eos hujufmodi Correctiones Punitiones et Reformationes juxta
Statuta et Ordinationes Collegij in omnibus folerter et celeriter fieri
procurabo.
Item quoties Electio vel AfTumptio alicujus Socij ac Scholaris vel
Difcipuli in Collegium praedictum fuerit facienda, intendam et eni-
tar ut folum tales eligantur et alTumantur quos fecundum Condi-
tiones et Qualitates in Statutis dicti Collegij expreflas habiles et ido-
neos reputaverim, et quos in Virtutibus et Scientiis ad Honorem et
Utilitatem Collegij prsdicti plus poiTe proficere et ac profecturoc cre-
diderim, fine Perfonarum vel Patriae Acceptione, Amore Favore
Odio Invidia Timore Prece et Pretio poft pofitis quibufcunq;. Item
fi ab Officio meo amovear, aut fi fponte cefTero, Bona Collegij per
Me recepta aut apud me remanentia, Prsfidenti et Thefaurariis
■Collegij aut (Prsfidente abfente) Socio maxime feniori in Unlverfi-
tate prasfenti et dictis Thefeurariis, fi commode potero continue, fin
•minus faltem infra quindecim Dies ex tunc prox. fequen. fine Con-
tradictione feu Diminutione, per Inventarium inde inter me et illos,
•fub Teftimonio et Subfcriptione eorundem et mea, reftituam.
Item, ii per me feu Occafione mea, aliqua Materia Di(Jeti/!omi
Jr£E vel Difcordi-c in dicto Collegio (quod ■,\h{\t) fufcitata fuerit, et
per Praefidentem Decanos vel Thefaurarios et duos alios ex feptem
Collegij Senioribus finis rationabilis feu placabllis infra quinq; Dies
f ictus non fuerit, tunc Ca/icellarii Utiiverfitatis Cantabrigise qui pro
Tempore fuerit, prapofitique Collegii regalis, ac Magiftri Collegij
■Chrifti in eadem Univerfitate, fi tunc infra eandem praefentes fue-
rint, ac, dicto Cancellario pra^pofito aut Magiftro extra Univerfita-
tem Agentibus, abfentis aut abfentium Vices in Univerfitate geren-
tium, una cum totidem ex prenominatis quot in Univerfitate prae-
fentes fuerint, Ordinationi Arbitrio Decreto et AuBoritati perfona-
liter et effectualiter me fubmlttam : Et quicquid duo ex illis pro
tempore, fecundijm Formam infra limitatam pro tempore con-
fulti, arbitrati fuerint itatuerint ordinaverint vel diffinierint in ea
2 - Parte,
172 Hilary Term 30 Geo. 2.
Parte, id omne fideliter obfervabo et iifdem cum effectu parebo,
fine Contradidlione quacunque, cefTantibus Provocationibus Appel-
lationibus Querelis Exceptionibus et aliis Juris et Fadi Remediis
quibufcunq;, quibus omnibus et fingulis in Vim padi renuncio in
his Scriptis.
Item, omnia et fingula Statuta et Ordinationes difti Collegij per
didtum Reverendum Patrem Doniinum Johanncm Roften. Epifco-
puni, Executorem ultimoe Voluntatis Dominae Margaretie Comi-
tilTcS Richmondia; et Deibia,% edita, et per eundem Superftes fuerit
edenda, quantum me concernunt, fecundum literalem et gramma-
ticalem Senfum et Intelledum inviolabiliter tenebo exequar et ob-
fervabo, et quantum in me fuerit faciam ab aliis obfervari.
Itemque nulla Statuta feu Ordinationes Interpretationes Mutationes
Injundtiones Declarationes aut Expofitiones vel Gloflas aliquas, pra;-
fentibus Ordinationibus et Statutis vel qualitercunq; vero Senfui et
Intelledtui eorundem repugnantes vel repugnantia derogantes vel de-
rogantia contrarias vel contraria, per quemcunq; feu quofcunq;
alium vel alios quam per Reverendum Patrem Dominu Jonannem
Roffen. Epifcopum prasdidlum ficiendas vel facienda, quomodo libet
fcienter acceptaho^ vel ad ea co?ifentiam, aut ipfa aliqualirer admit-
tam, riec cifdem parcbo ullo tempore, vel intcndam, nee illis vel il-
lorum aliquo ullo Modo ittar in Collegio praedifto vel extra, tacite
vel expreffe; fed eis et eorum cuiiibet cojitradicam et etiam rcjljlam
exprelfe, ipfaq; fieri viis et modis omnibus quibus potero objlabo et
inipediam.
Item, Juroque, quantum in Me fuerit et qnateniis mcam per-
fonam concernat aut concernere poterit, me laudatas ac probas hujus
Collegij Confuetudines ohjcrvaturiini^ una cum aliis Ordinationibus
per Magiftrum et Socios ac Schobres editis pro Suftentatione quo-
•rundam Sociorum ac Difcipulorum, juxta Tenorem cujufdam Ju-
ramenti quo Magifter olim et Socij fe devinxerunt oraturos tarn pro
dido Domino Johanne Roffen. Epiicopo quam Henrico Ediall Archi-
diacano Roffen. Hugone Afliton Archidiacano Eboraccnfi Johanne
Ripplynghani in facra Thcologia Doftore et Roberto Dokket in ea-
• dem Baccalaureo ac MarmaducoConftable Equite aurato et Roberto
Symfon in Artibus Magiftro ca?terifq; qui privatas aliquas aut Soci-
orum aut Difcipulorum lundationes fecerint aut in poftcrum fa<fturi
lint; (imulq; et curabo, quantum in me fuerit, a csEteris omnibus
tarn Sociis quam Difcipulis idem fieri; neque extortas eorundem In-
terpretationes (per qucmcunque fidas) admittam, alitor quam Scnius
eorum apertus patitur et mca Confcientia magis conformem indicabit
Muimo Conditoris. 3
Dc
Hilary Term 30 Geo. 2. 173
De Sociorum Qualitatibus.
Nunc itldem et Leges dabimus refiduo Corporl ; quod nimirum
ex Sociis, quocunq; numero eos fore contigerit, tanquam ex potio-
ribus et folidioribus Membris, volumus integrari. Pro Fundatrice
vero, tametfi. Rex illuftriffimus, in Carta Licenti^e fuas quam Avise
fu£B, Dominae Fundatrici, conceffit, mentionem fecerit de quinqua-
ginta Sociis ac Scholaribus, Nos tamen, qui ob Subtradionem red-
dituuni Annuorum ad Valorem quadringentarum Librarum, ipfum
numerum implere non pofTumus, quantum ad prasfentem Ordina-
tionem fpeftat (fi fieri poteft) odo fuper viginti d,eputari volumus
et ordinamus.
De Sociorum Eledione, ac ipfius Circiimftantiis.
Et quo poflit exadior fieri Sociorum Deledus, convocari volumus
et ftatuimus, per Magiftrum vel (ipfo abfente) prsfidentem, cunc-
tos Socios in Univerfitate prsefentes, primo Die Lunae cujufq; Qua-
dragefimaE, fimul et comone fieri " quatenus quifq; folitam Inqui-
" fitionem faciat de Juvenibus quibufdam, tam Moribus quam
" Eruditione magis idoneis, qui in Sociorum numerum cooptentur;
" et ut repertorum Nomina, fimul cum Nomine Comitatus quo
" quifq; fiiit oriundus, in Scedula confcribatur, una cum aliis Do-
" tibus quibus ipfe Juvenis fiierit prasditus ;" Ad quam Inquifi-
tionem teneri fingulos volumus, in Vim Juramenti fiai : Cujus autem
Nomenclatura non ante feptem Dies Eledionis fiiturx, tradita ma-
giftro fuerit aut ejus Vice-gerenti quando Magifter aberit, hunc, pro
ea Vice, ineligibilcm Pronunciamus. Porro, Deledum hunc, quo-
ties eveniet, celebrari volumus et ordinamus quaq; Die Lunas qute
proxime fequitur Dominicam Pafiionis : Quo Die, Magifter et So-
cij cundi prsfentes conveniant iii Sacelium, quum Horologium in-
fonuerit odavam ; et illic, primum ledo Statuto de Cooptandoruni
Qualitatibus, Magifter primum, dcinde reliqui per Ordinem Socij,
jusjurandum quod fequitur, tadis Sacris Evangeliis, prasftabunt.
•*' Ego N. N. Deum tcftor et h33c fanda ipfias Evangelia, me ne-
" minem in Socium hujus Collegij eledurum, Jitf, quern juxta Sta-
'* tutum anteledum me Confcientia vwgis idoneum indlcabit ; neq;
" iftud faciam Pretio vel Mercede quavis, a quopiam am data aut
" expedata." Juratis itaq; fingulis, fiat e veftigio Scrutinium, per
Magiftrum et duos e Sociis maxime Senioribus, (fie tamen ut hi
non fucrint de Numero Septem Seniorum confcriptorum,) qui
pri'js etiam tadis fandis Dei Evangeliis promittant " fc veraciter
•' et abfq-, dolo Scrutinium ipfum pro futuro Sociorum Eledione
Y y ■ " tradaturos,
. —^ — ^
174 Hilary Term 30 Geo. 2.
" tradaturos, ct fecretum penltus hablturos, neq; Signo aut Nutu
" aut alio quovis pado rem indicatiiros." Auditis ergo fingu-
Jorum Votis et Suffraglis, ilium vel illos in Socium vel Socios
didli CoUegij Magifter pronunciabit, in quem vel in quos ipfe Ma-
qifter, cum majori aut aequali parte Sociorum, confenferit. Et fi
Magiflcr, cum majori aut aequali parte Sociorum, in aliquem aut
aliquos eligendum vel eligendos haudquaque convenerint, fed in ea
Dillenfione triduum ab incepto Deledu perfeveraverint, turn Volu-
mus ut hujus Kegotij diffinitio, pro hac Vice, ad feptem confcrip-
tos Seniores referatur : itaque pro his de quibus non eft confenfus
facftus, Eledio Teptem illis Senioribus deferenda fit, ad hunc Moduni
lit lequitur. Quarto igitur Die poft inchoatam Eleftionem conve-
niant iterum omnes in Sacellum, et primitus, per leptem ipfos Se-
niores Juramento proeftito " quoJ ilium vel illos, de quibus fit difil-
" dium, in Socium vel Socios cooptabunt, qui fijis Confcientiis
" magis videbitur aut videbuntur idonei ;" Pra^ftito igitur hoc Jura-
mento, fiat alterum iterate Scrutinium, in quo Magifter et duo
prsdidti Scrutatores Suft'ragia Septem illorum Seniorum fcrutabun-
tur, et is vel ij in quem vel quos major Septem Seniorum Pars con-
fenferit, pro eledto vel eledis habeantur, atq; ita a casteris accepten-
tur. Quod fi forte Confcientiis eorum feptem Seniorum non vide-
atur inter eligendos aliqua Difparitas, aut forfitan inter fe major
eorum Pars haudquaquam confenferit, tum Volumus ut is vel ij
qui a Magiftro prius nominatus aut nominatl fucrant, pro Socio vel
Sociis protinus declarabitur aut declarabuntur. Provifo ut neque in
hac Eledlione neq; alia quacunq; cujufcunq; Perfonas infra didum
Collegium facienda, fuam Vocem aut Suffragium alterius Perfonas
cujufcunq; Arbitrio et Difpofitioni quovis Modo committat, aut in-
certam Perfonam aut pro incerto Comitatu vel Diocefi fub Disjun-
(flione vel Conditione quovis Modo nominet aut eligat : contra fa-
ciens, et Suffragium deinde fuum et etiam didi Collegij Societatem,
ipfo Fado, ex tunc imperpetuum amittat. Nee liceat, fub poena
Perjurij, cuique ex illis Scrutatoribus, nomina aliorum eligentium,
alii cuipiam, quovis modo per fe vel per interpofitam Perfonam
Nutu Verbo Signo vel Scripto, ante completam et publicatam Socij
Eledionem, ofiendere.
De Morum Honeftate fervanda, et Diricntionibus fe-
dandis.
Quod fi inter Magiftrum et alium aut alios hujus Collegii Socios,
aut illius Caufa, aliqua Materia Difi"enfionis Ir^e Rixse vel Difcordias
in dido Collegio fufcitata fuerit, et per Magiftrum Decanos et ma-
jorem partem Septem Seniorum Finis rationabilis feu placabilis infra
©do Dies proxime fequentes fadus non fuerit, tunc Volumus ut
Partes
Hilary Term 30 Geo, 2. 175
Partes diffentientes, Virtute Juramenti fui, triduum poft lUos o£lo
Dies, duos Socios eligant, qui eledti, in fui Virtute Juramenti, in-
fra biduum poft eorum ad hoc Eledtionem et deputationem, Prce-
feBiim Collegij Regalis, et Magiftnnn Collcgij Chrifii, ct Magiflrum
five Ciijlodem Collegij divi Michaclis, aut didis Prasfedto Magiftro et
Cuftode vel eorum aliquo extra Univerfitate agentibus, tunc eorum
Vices Abfentium in didis Officiis infra Univerfitatcm gerentes, ac
etiam reliquos prsnominatos fiqui fuerint in Univerfitatc praefentes,
adeant ; et eifdem hujufmodi Diffenfionis Caufim five Materiam, in
Scriptis fignificent et referant: Et quicquid duo ex illi$, pro tempore
confulti, arhitrati fuerhit et dccreiiermty illi omnes pareant et in
fui Virtute Juramenti obcdiant.
Dc Modo procedendi contra Magiflrum &c.
His Ordine difpofitis, ad errata quas accedere poflunt pervenimus,
adhibituri quae poterimus Remedia, incipientes a Magiftro ut Duce
et Principe, quo bono et provido ut nihil eft utilius, ita imprudent!
inepto indigno criminofo nihil eft deteftabilius. Quo circa ftatui-
mus ut Magifter quicunq; propter Terrarum Tenem.'ntorum Reddi-
tuum Pofteffionum fpiritualium feu temporalium fua Culpa Diminu-
tionem feu Alienationem, vel propter Detradionem Oblationum
Alienationem illicitam Bonorum et Rerum ipfius Collegij infamiam
incontinentiamq; notabilem Negligentiam intolerabilem Homici-
dium voUintarium aliamve Caufam enormem ipfum Magiftrum
omnino reddentem criminaliter irregularem vel aliter inhabilem,
nee -non propter infirmitatem infeftivam et contagiofam perpetuam,
cujus occafione non poterit abfque Scandalo hujufmodi Officium
exercere, ab eo penitus amoveatr.r : Ad cujus Amotionem hoc modo
procedatur ; videlicet, ut ftatim, vel faltem infra quindecim dies
poftq;"" aliquod Prsmiftbrum commiferit vel in eorum aliquod in-
ciderit, primo per Praefidentem, afliftentibus ei aliis duobus Offi-
ciariis Clavi-geris et quatuor aliis Sociis ex Septcm Senioribus didi
Collegij, vel faltem cum Aflenfu et Afliftentia duarum tertiarum
Partium omnium Sociorum didi Collegi] (fic quod inter eos fint
quatuor Seniores ex Septem eledi,") vel, Prjefidente nolente aut neg-
ligente, per Decanum Theologias cum pra;didorum Affiftentia,
moveatur Magifter ut fuadeatur ad voluntarie recedendum ab Offi-
cio. Quod ft fponte infra triduum cedere noluerit, tunc infra odo
Dies poft hujufmodi Monitionem, Prasfidens, AfTenfu et Teftimo-
nio omnium Sociorum didi Collegij vel faltem omnium prjedidorum
modo aliquo priedido fibi in Magiftri Monitione Afliftentium, vel,
ipfo nolente aut negligente, didus Decanus Theologian, cum Af-
fenfu et Teftimonio prasdidorum, denunciabit Domino Epis-
copo Eliensi, aut, eo in remotis agente, Vicario in Spiritualibus
4 generali,
176 Hilary Term 30 Geo. 2.
general!, feu (Sede vacante) Cujlodi in Spiritualibus ejusdem, per
duos aut ties Socios ipfius Collegij Seniores, cum Uteris aliquo Si-
gillo authentico ac Signo et Subfcriptione alicujus Notarij publici
fignatls, vel faitem loco Sigilli authentici Subfcriptione didli Prsfi-
dentis vel Theologias Decani et prjediclorum AfTiftentium ac Notarij
Publici Signo communitis, Caufas Defedlus Crimina exceflus vel
enormia Magiftri continentibus. Provifo quod omnes hujufmodi
Affiftentes et Teftimonium perhibentes, prius tadis facro fandis
Dei Evangeliis, coram Pra^fidente aut Decano Theologias, ipfo pri-
mum id coram eis prccftante ac deinde a (ingulis illorum exigentc,
jurabunt " quod non per Invidiam Malitiam Odium vel Timorem
" ipfius Magiftri, Amorem vel Honorem alicujus promovendi ad
'■ illud Officium, nee per Confpirationem j^Lmulorum aut Con-
" foederationem, nee per Procurationem alicujus vel aliquorum, nee
" Prece aut Pretio aut alio quocunq; Modo illicito indufti, fed
" pro bono Zelo et Utilitate praedidi Collegij et pro utiliori et con-
" venientiori Regimine ejufdem et Honore, Teftimonium illud
" prohibuiffe." Episcopus vero Eliensis, vel, ipfo in lemotis
agente, suus Vicarius in Spiritualibus Generalis, aut (Sede Elienfi
vacante) CusTos Spiritualitatis ejusdem, de Caufis crimi-
nofisCriminibus Exceffibus et Defedibus contra didum Magiftrum
cxpofitis, suMMARiE et de flam et extra judicialiter cog-
NoscAT : et fi, per Informationes fufficientes miniftratas, hujuf-
inodi fuggefta qus ad didi Magiftri amotionem fufticere debeant,
recipiat rffe vera, ftatim, aut faitem infra triduum proxime fe-
. quuturum, ?/>///w ab Officio fiio et ab Administratione
fud amoveat fine ulteriori Dilatione ; didi quoq; Collegij Sociis
denunciet et INJUNGAT ut ad EkSlionem jwvi Magiftri liber e
procedere "caleant et debeant^ juxta Formam in Statute Ibperius ex-
prefllim ; Cessantibus Appellationis Recusationis Que-
'REL^ AUT CUJUSCUNQUE ALTERIUS y^/W ^?// Fir?^'? ReMEDIIS,
■ quibus hujujmodi Amotio valeat impediri aut differri ; qua
oiimia IRRITA cjjc, volumus Jlatinmus et decernimm.
De Modo procedendi contra Socios Scholares ct Difci-
pulos in majoribus Criminibus.
Et PracmifTa, vel eorum aliquod in prasfenti Statute contentorum,
coram Magiftro affiftentihus et Prasfidente Decanis et Thefaurariig,
vel faitem uno Decano Thefaurario ct aliis quatuor ex Septem Seni-
oribus, publice confefTus fuerit, vel per Tefies idoneos prcedidorum
J'jdicio comprobandos, aut per Fadi coram eis tvidentiam, mani-
kfte reus eorum Judicio et Sententia convidus fuerit ; eum ftatim a
dido Collegio, prsefentis Vigore Statuti, nulla alia Monitione Pras-
mifta, exciufum et privatum fore ipfo fade decernimus, abfq;
cujufcunq; Appellationis vel Querela; Remedio.
2 De
Hilary Term 30 Geo. 2. 177
De ambiguis et obfcuris interpretandis.
Diftribuiffe igitur jam univerfis Collegij Membris Officia fimul
et Officiorum Leges nobis videmur, et exade quidem : quae fi fer-
ventur ad amuiTim et inviolate, (quod utiq; vehementer optamus,)
ex eodem viros baud dubie fperamus prodituros, qui magna- turn
Utilitati tiim Honori non folum huic CoUegio, veium etiam toti
Regno futuri lint. Provifum etiam eft, quoad fieri poteft per
uniuscujufq; Juramentum, quo nihil apud Chriftianos firmius aut
antiquius haberi debet, ut Statuta h^c per Nos jam tradita et
Audtoritate Sedis Apoftolicae corroborata, exadiflime ferventur a
fingulis, quatenus unumquemque concernant. Csterum quia mihi
Johanni RofFenfi, per quern base edita funt, tarn a Summo Pontifice
Julio fecundo, quam a Fundatrice caeterifq; omnibus Co-Executo-
ribus, Audtoritas eft tributa non folum condendi Statuta qus mihi
viderentur huic Collegio conducibilia, verum etiam Magiftro fimul
et Sociis eadem exhibendi, Juramentaq; a fingulis tarn Sociis quam
Difcipulis pro illorum inviolabili Obfervatione diftriflius exigendi,
fed et csetera cunQa peragendi quaecunq; pro falubri Collegij bujus
Moderamine mihi viia fuerint opportuna, atq; id tarn efficaciter quam
fi cundi fimul hie eftemus Prasfentes; Ego igitur horum omnium
pariter et meo ipfius nomine caffatis aliis quibufvis Statutis prius
excogitatis, quateni^s praefentibus adverfantur, haec prsefentia ceu
vera et Salubria pronuncio: Quibus obfervandis, tam Magiftrum ,
quam Socios et Difcipulos adftringi volo; refervata mihi nihi-
lominus Poteftate quoad vixero, vel adjiciendi vel minuendi feu re-
formandi interpretandl declarandi mutandi derogandi tollendi dif-
penfandi novaq; rurfum alia {(i licebit) ftatuendi fimul et edendi,
non obftantibus his Statutis flictis et Juramento firmatisj Ceteris au-
tem omnibus, cujufvis Dignitatis Audtoritatis Status Gradus aut
Conditionis exiftant; a Magiftro quoq; et Scholaribus tam Sociis
quam Difcipulis omnibus hujus Gollegij, prorfus inhibens ne cum
aliquo didorum Statutorum difpenfent, aut qusevis nova Statuta five
pro Collegio feu pro quovis ejufdcm Membro, quae didorum Statu-
torum alicui repugnabunt, condant aut decernant. Quod fi forte
Cancellarius aut Vice-Cancellarius mtt Rroernidus Pater Eliensis
Episcopus aut demiuii quivis alius contrarium attemptaverit, et
noimm aliquod Statutiim aliud a pradiSlh adhibere molitus fuerit, ab
ejus Obligatione, per banc Autoritatem ab Executoribus aliis mihi
commiftam, Magiftrum et cceteros omnes tam Socios quam Difci-
pulos penitus abfolvo, eifque omnibus et fingulis interdico ne cuivis
hujufmodi Statute aut Ordinationi pareant admittantve quovis Padto,
fub Poena Perjurij atq; etiam Amotionis perpetuae a dido Collegio
ipfo Facto. CiEterum quia Nihil eft ufq; adeo luculentum quod
Z z non
178 Hilary Term 30 Geo. 2.
non a Captiofis verti poterit in Qua;ftionem, ob earn Rem voliimus
quod fi quicquam in aliquo Statutorum prffdictorum aut Obfcuritatis
aut Ambiguitatis Magiftro et Majori Parti Sociorum occurrat quoad
nos vixerimus, eorum fingulos in Chrifli Vifceribus obteftamur ut
ea dubia nobis proponant quoties oriantur, quemadmodum et hac-
tenus fecerunt; nofq; libenter (ut et ante non femel fecimus) illo-
rum dubiorum Oblcuritateni excutiemus: Quod fi poftquam Nos
ab hac Luce migraverimus, novi quidem.Scrupuli reperti fuerint aut
de novo fulcitati, volumus et Ordinamus ut rectus et laudabilis Sta-
tutorum Ul'us interea juxta Mentem noftram obfervatus, et qui
maxime congruat Inftituto Pientiflimaj Fundatricis, fit Magiftro pa-
riter et Sociis Norma quaedam et Regula quam cum Puritate Con-
fcientiarum fuarum fequantur in ejufmodi Scrupulis et Ambiguitatl-
bus omnibus. Neque tamen per hoc intendimus, ut fi prster No-
titiam noftram quilpiam abufus in Statutis ipfis, aut in quavjs eorun-
dem Parte, per Magiftrum aut Officiarios aut quemlibet caeterorum
in Curfu fuerit, qd iis pro recto et laudabili Statutorum Ufu recipiatur;
aut fi nos cum ipfo Magiftro qui nunc eft, aut cum alio quovis So-
ciorum, in ulla Statutorum Parte difpenfaverimus, Nolumus tamen
ut hoc Privilegium, uni aut alteri ex caufis nos moventibus con-
Ceflum, pro communi quada Licentia teneatur: Sed et cunctos ©ra-
mus et per Chrifti Vulnera precamur, ut Juramentorum fuorum
meminerint, atq; noftram Mentem in ipfis Statutis refpiciant, magis
quam aliquem qui prster Aflenfum noftrum clam irrepfit eorun-
dem Statutorum Abufum; Nam omnino prohibemus, ne per ali-
quam Declarationem aut Confuetudinem uUam aut diuturnum quem-
libet Abufum vel demum Actum aliquem, Verbis aut Intentioni
fr^ dictorum Statutorum in aliquo derogetur. Visitationem aufem
hujus Collegij Re'verendis in Chrifto Patribus Episcopis Eliensibus
COMMENDAMUS: Quibus ct conceftlmus cujufdam idonei Prxfen-
tationem, qui fit futurus in hoc Collegio Socius. Idoneum autem
intelligimus, qui Qualitates habeat eas quag delcribuntur in Statuto
de Qualitate Sociorum: Neq; enim alium quempiam recipi volumus
a Collegio. Eofdem etiam oramus et per Dominum Jefum obfe-
cramus, ne quenquam pr^fentent nifi talem qui pro fiais Meritis hoc
Sodalitio dignus fuerit, et cui cum Statutis per omnia conveniat.
De Vifitatore.
Nihil adeo bonis Legibus firmari muniriq; poteft, quin ab his
qui licenter vivere et Luxui Libidiniq; Frsna laxare ftudent, aliquo
Fraudis Commento facile queat eludi. Nos igitur Fiducia Benitr-
nitatis Reverendiflimorum Patrum Epifcoporum Elienfmm freti, et
cum primis amantiftimi Domini Dni Nicolai Weft qui Sedem Epif-
copalem jam fuis Meritis obtinet, nempe quod tam ipfe quam Suc-
ceftbres
Hilary Term 30 Geo. 2. 179
ceffores ejus, pro Zelo quern erga rem publicam Chriftianam ge-
runt, nullis futuris Temporibiis patientur haec Statuta contra
noftram Mentem et contra fancfliffimum PicntifTims Fundatricis
Inftitutum violari, ftatuimus ordinamus et volumus quod Epifcopo
cuivis Eli en' ft qui pro I'enpore fuerit, quo ties per Magi ft mm et
Prafidentem Decanofq; et Thefaurarios, five per Magijlriim et quatuor
efeptem Senioribus dcputatis, fve per qui?iq; ex eifdein Senioribin re-
luiiante Magijlro aut Prajider,te,feu per dims tertias Sociorum Partes^
requifitus fuerit, fed et citra quamvis Requiftiojiem, de triennio d^
IN TRiENNiuM feuiel ad Collegium accedere lice at ^ per Se, vel per ''
Commiffarium fuum Specialem quern duxeritdeputandum, pra^ter-
quam per Cancellarium Univerfitatis Cantabrigian feu Vice-Cancel-
larium aut Procuratores Univerfitatis ejufdem, et prseterquam per
alios qui ex didlo Collegio pro aliquo Crimine aut Deiido amoti fint
aut Amotionem hujufmodi fugientes recefferunt, ac prsterquam per
Magiftrum aut alrquam aliam Perfonam difti Collegij aut alios
quofcunq; in Univerfitate per unam quindenam anno proximo earn
Vifitationem prscedenti Studentes, et pra;terquam per religiofos
qualefcunq; praedidorumve aliquem aut Confanguineum alicujus
Socij didli Collegij; liceat inquam, ad ejus Visitationem libere
accedere, Mcigijlrumq; ac alios fingidos Socios Scholares ac Difcipulos
ejufdem Collegij in Sacelhwi ejufdem convocare: Cui quidem Reve-
rendo Patri aut ejus Commiffario, Vigore prasfentis Statuti, ple-
NAM CONCEDIMUS FoTESTATEM, ut fiiper omnibus et fmgidis Par-
ticulis et Articulis in noftris Statutis contetitis, ac de quibufcwiq-, Ar-
ticulis Statum Commodum aut Honorem diSJi Collegij co!icer?ientibus,
aut qua in diSIo Collegio aut aliqud illius perfona fuerint reformanda
aut corrigenda, prxterquam de Secretis et Occultis, Magiftrum So-
cios Scholares et \y\{c\'^\i\o%inte7-roget et inquirat, cogatchje eorum
unumquemq; in Virtute Juramenti, et per Cenfuras fi Opus fuerit,
ad dicend. Veritatem de PraemifTis omnibus et fingulis, prseterquam
(ut praedidum eft) de fecretis et occultis ; excefTufq; ac negligentias
crimina et deli£la quorumcunque didi Collegij, qualitercunq; com-
miflii, in ea Vifitatione comperta, fecundiun Excefus Exigentiam et
Criminis aut Deli Eli ^alitatem debit e pun i at et reformet; C^-
TERAQUE omnia et SINGULA FACIAT ET EXERCEAT, qu^e ad
eorum CorreSlionem et ReJ'ormationein fint 7ieceJ]aria aut quovifnodo
opportufja, etiam f ad Frivatio^zm aut Amotionem Magillri
aut Prcefdentis aut alterius cujufcunq; ah Adminiftratione fua vel Of-
ficio, J'eu ft ad Amotionem alicujus Socij Scholaris vel Difcipuli ab eo
Collegio, (\ tamen hoc ipfum Statuta et Ordinationes exigant, pro-
cedere contingat. Quos quidem Magiftrum Socios et Scholares
Difcipulos, ac praeterea Miniftros quofcunq; etiam Famulos, prae-
dido Domino Epifcopo et ejus Commiffario, quoad omnia et
fingula Prsemifla, volumus et praecipimus effedualiter intendere et
parere; Statuentes infuper, ut nullus in Vifitationibus pmdiEiis feu
aliis Scrutiniis faciendis in dido CoUegiOj contra Magiftrum aut
4 aliquem
i8o Hilary Term 30 Geo 2.
aliquem alium ipfius Collegij quicq"" dicat deponat feu denunciet,
niTi quod verum crediderit, feu de quo publica Vox et Fama lahora-
verit contra eundcm, in Virtute Juramenti ab eis Collegio prseftiti;
Ordinances prasterea quod Dominus Epijcopus Elienjis cum in Per-
form propria vijitare et preemifja facer e dignetur, Magifter et The-
fiurarij ciiicam ei intra Collegium Refedionem faciant; fi vero per
Commiirarium Epifcopus vifitaverit, Commillario duas Refediones
intra Collegium exhibeantur: Qmbus tarn Reverendum ipfum Pa-
trem q ' ejus Cominidarium oramus ut contenti fint. Casterijm in-
ceptani aliquam Vifuationem ultra duos Dies proxime fequentes, aut
ex Caufis urgentiflimis et rariflimis ultra quinqj Dies, prorogari aut
continuari nullo Pado volumus: Sed lapfo et exado illo triduo, et
quando ex Caufis praedidis ulterius prorogatur fexto die tranfado, eo
ipfo Vifitatio ilia pro terminata et difToluta habeatur. Et fi qua' in
ea Parte compererit corrigenda et reformanda, quse Brevitate Tem-
poris corrigere et reformare non potuit, ea Magiftro in Scriptis tra-
dat: Qui ea omnia, fecundum Formam et Exigentiam Statutorum,
quam primuni corrigere et reformare, in Virtute Juramenti et fub
Pcena Privation is ab Officio fuo ipfo fado, teneatur. Prxdidorum
quoq; Reverendorum Patrum Elienfium Epifcoporum et CommifTa-
riorum fuorum quorumcunq; Confcientias, apud altiffimum (quan-
, turn polfumus) gravius oneramus, ac in Vifceribus Domini noftri
Jefu Chrilli hortamur et obfecramus, ut in faciendo et exequenuo
Prasmilli, fecundum Apoftoli Dodrinam " non quasrant quaj fua
" font fed qua? Jefu Chrifti," folumq; Deum habentes pras Oculis
Mentis, Favore Timore Odio Prece et Pretio Coloribus Occafionibus
poft pofitis quibufcunq; Inquifitionis Corredionis et Relormationis
Officium diligenter impendant et fideliter in omnibus exequantur,
ficut coram Deo in ejus extremo Judicio in hoc Cafu voluerint red-
dere Rationem; Statuentes praeterea ut Magifter Socius Scholaris
aut alius quifpiam hujus Collegij, fuper Exceffibus vel Delidu^;, in
Vifitationibus ct Inquifuionibm per diBum Reverendum Pat rem vel ejus
Commijj'arium id prmnittitur faciendis, accufatus vel dctedus, co-
piam compertorum vel detedorum hujufmodi fibi tradi dedi dari
oftendi, ac Nomina detegentium vel denunciantium fibi exponi aut
declarari, nullo Modo petatj neq; ipfa comperta et deteda, aut No-
mina detegentium, tradantur eidem aut oftendanturj fed fuper eif-
dem compertis et detedis, flatim coram ipfo Domino Epifcopo vel
ejus Comfniffario per fona liter refpondeat, ac CorreSlionem debitamfub-
eat pro eifdem, fecundum noftrarum Ordinationum et Statutorum
Exigentiam et Tenorem, cejjmitibus quibujcunq-, Provocationibus Ap-
peilatiotiibus ^crelis et aliis Juris et Faili Remediis, per qua; ipfius
Correctio et Punitio differri valeat feu alias quovifmodo impediri.
Si tamen ad Privationem aut Inhabilitatem Magiftri aut Expulfionem
Socij aut Scholaris per Epifcopum aut ejus CommiiTarium agatur,
tunc ojlendantur ei detecta : Quse fi non poterit rationabiliter et pro-
2 babiliter
Hilary i erm 30 Geo. 2. 181
babiliter evitare, et jufta Defenfione propulfare, amoveatiir fine
Appellattone aut ulteriori Remedio; dumniodo ad ejus Expulfionem
concurrat confenfus quatuor e feptem deputatis Senioribus tunc in
Univerfitate praefentibus, Jifie quormn Confenfii irritata f^t hujufmodi
Expuliio et nulla ipfo fadlo. Et infuper, fi contra Magiftrum, ad
Amotionem ab Officio, per hujufmodi Domini Epifcopi Commiffa-
riam, etiam confentientibus ut prasfertur quatuor illis Senioribus,
procedatur, non negamus ei omnes Querelas et Defenfiones juftas et
honeflas apud ipfum Dominum Epifcopum Elienfem, dummodo ulterius
nonappellet; non obftante noftra Ordinatione praedida, aut aliis qui-
bufcunq;. Pr^eter hunc Vifitationis Modum, fios alium nul-
lum Elienfibus Epifcopis concedimus ; fed nee a Sociis tolerari per-
mittimus, aliquo Padlo: Quod etiam eis mandamus, in Vim Jura-
menti fui. Scimus enim quod eximia virago Domina Fundatrix,
dum in humanis egit, impetravit ab Elienfi Epifcopo qui tunc fuerat,
"Jus Fundaiionis, ed quidem Rat tone ut ex defolatis ^diculis tarn il-
luftre Collegium erigeret: Quod cum effccerit et confummaverit
fc^magno fuo Sumptu, par eft ut Elieitfes Epifcopi nihilo * majorem « r./s/
in hoc Collegio fin vindicent Aut or it at ejn qudm in ceteris Aca-
demic Collegiis ubi 7ion funt Futidatores. His itaq; didtis Legibus,
quas turn falubres tiam juftas exiftimamus, Magiftrum et Scholares
omnes tam Socios quam Difcipulos CoUegij divi Johannis in Canta-
brigia, regi vdlumus et gubernari: Quibus fi {^{q. diligenter attem-
perent, nihil dubitamus quin afflatus aderit divini Spiritus, qui reda
perducet obfequentes ad magnam Eruditionem cum pari conjunda
Sanftimoniu. Neque enim fas eft ambigere, quin facer iile Spiri-
tus qui in quavis Congregatione Chriftianorum refidet, prasfto fit
adjuturus cundos qui cum Fide et pura Confcientia converfari co-
nantur, juftifq; et falubribus Monitis obtemperant; prsecipue tamen
eos qui Studio facrarum Literarum infudant. Nam ob has potifli-
mam referandas ille miftus fuit; Qiuim inquit, " Venerit ille qui
" eft Spiritus Veritatis, ducet vos in omnem Veritatem." At quos
ducet? Nimirum, humiles et obfequentes. Super hujufmodi re-
quiefcit, fovens eos, et indicibilibus eos Confoiationibus reficiens:
Sed et iftis quum fit oftiarius, aperit ac referat Arcana Scripturarum.
Nihil igitur vobis hasfitandum eft, Fratres, quin fi ftudueritis has
Leges obfervare, pariter et unanimes in Charitate jugiter converfari,
Patri noftro complacitum erit fuo vos tandem afflare Spiritu: Quod
ut faciat, ipfe, tametfi Peccator fim, aflidue precabor; et vos vie if-
sim, qu£efo, pro me precemini.
3 A De
1 82 Hilary Term 30 Geo. 2.
De quatuor Sociis et duobus Difcipulis per Johannem
RofFenfem Epifcopiim fundatis.
Quinetiam decerno quod ad Exercitamenta Scholaftica, et ad ea
quae per Statuta Collegij csteri Socii perimplere tenentur, fimiliter
obftringantur ; et ad ea perimplenda, pariter et ad has meas Ordina-
tiones fideliter obfervandas, protinus ut elefti fuerint, Juramentum
praeftent corporale, et caetera faciant qua; ad hunc Effedum exigun-
tur ; et fi deliquerint, fimili modo per omnia fubjaceant Corredlioni:
Et idem etiam, quantum ad duos illos Difcipulos attinet, fiat, juxta
Modum et Formam qua casteri tradtantur Difcipuli. Poftremo volo
quod ad has meas Ordinationes citra Fraudem obfervandas, tam
Magifter quam carter! Socij, mox ut eledli fuerint, Jurejurando fint
obftridti ; ne forte per Negligentiam et Incuriam fuam, ob Inden-
tiirarum inter nos confedlarum Violationem, Collegio gravis infera-
tur Jactura.
EXTRACTS from Queen Elizabeth\ Statutes.
Preamble —
FJizabetha Dei Gratia.
Itaq; viultis fuperiorihus Sfaiutis ahrogatis, mu/tis miifatis et emen-
datis, nonnullifq-y nwis additis, hcec, Authoritate noftra, inviolabiliter
ab omnibus qui in hoc Collegio commorantur et commoraturi funt,
cuftodiri et obfervari volumus, quern ad modum uniufcujufq; Offi-
cium in Statutis lequentibus defcriptum defignatumq; fuerit ; * re-
fervat. femper nobis et SuccelToribus noftris &;c.
* Note. This Claufe of Refervation Is not complete, in the
Original ; but it is more fully exprelled in the 50th Chapter.
Chap. 2d. De Eledione MaQ-iftri.
Quod fi tunc per viam Spiritus fandli concordibus animis, nemine
diflentiente, in unum quempiam ejufmodi Virum confenfennt,
qualis in Statuto anteledo defcriptus eft ; Aut fi major Pars Pra-fen-
tium fuper uno aliquo hujufmodi confenferint, Volumus et Statui-
mus abfq; mora (nulla prorfus Licentia Ordinarij Vifitatoris aut alte-
rius cujufcunq; Jurifdidlionem ordinariam praetendentis expedlata)
Magifler Collegii pronuncietur : Quod fi quinq; illorum de uno
4 aliquo
Hilary Term 30 Geo. 2. 18
n
aliquo non confenferint, turn ^^ Collegii Visitatorem t;^;?/(?-
tur ; et ille pro Magi ftro habeatur, quern fohis Visit at or diixerit
prcejiciendurn, modo is Statuto de Qualitate et Officio Magiftri in
omnibus refpondeat.
Chap. 1 1 til, De Eledione Prselidis.
Quod fi poft tria aperta Scrutinia, ipfe Magifter cum quatuor de
uno non convenerint, tum is eledlus erit in quern ipfe Magifter cum
tribus maxime Senioribus, ex didlis odo Senioribus Sociis Domi
prsfentibus aut majori eorundem Parte, confenferint. Quod fi ne
ii quidem ante horam tertiam ejufdem Diei dc uno cooptando (ut
.didtum eft) concordare poffint, omnes tamen ofto Seniores vel fep-
tem ex his de uno eligendo unanimiter confenferint, eo Cafu volu-
mus Magiftrum illis Odlo vel Septem fie confentientibus Afienfum
fuum accommodare. Qiipd fi ne Septem quidem fie ut prsediftum
.efb unanimiter confenferint, turn is pro eledto habeatur quern ipse
Magister solus nominaverit.
Chap. 13th. De Sociorum Ekdione, ac ipfius Cir~
cumftantiis.
Porro, deledlum hunc, quoties eveniet, celebrari volumus et or-
dinamus quaq; Die Lurue qu?B proxime fequitur Dominicam quin-
tam Quadragefimas : quo die Magifter et ofto Seniores convenient in
Sacellum, cum Horologium infonuerit odavam ; et illic, primum
ledlo Statuto de Cooptandorum Qualitatibus, Magifter primum, de-
inde reliqui per Ordinem Seniores, Jusjurandum quod fequitur,
tadlis facris Evangehis, praeftabunt. " Ego N. N. Deum teftor, et
" Sanfta ipfius Evangelia, me Neminem in Socium hujus Collegij
" eleflurum, nlfi quem juxta Statutum antelectum mea Confcientia
" magis idoneum judicabit ; neq; i!lud fliciam, Pretio vel Mcrcede
" aliqua a quopiam aut data aut expedata, neq; ulla alia finiftra aut
" prava Affedione." Juratis fingulis, fiat ftatim apertum Scruti-
nium. Seniores vero, ut Simulatio promittendi et Spes decipiendi
■e medio tollitur, juxta Senioritatis Ordinem, pablice, et ut cjeteri
cxaudire poflint, Suffragia conferant ; Et de quo Magifter et qua-
tuor ex didis Senioribus confenferint, is pro Socio habeatur : Quod
fi poft alterum aut tertium Scrutinium, de uno, quatuor cum Ma-
giftro non confenferint, turn eodem Modo procedatur, quo in Elec-
tione Prsfidis et Ledorum et aliorum Officiariorum didum eft; Et
is Socius habeatur, qui eo modo eledus fuerit.
Chap.
184 Hilary Term 30 Geo. 2.
Chap. i4tli. Jusjurandum eledli Socii.
" Quod fi contingat me pofthac propter Contemptum, Rebelli-
" onem Inobedentiam, malos Mores, vel alia Merita, vel propter
" Caufas in praefentibus Statutis contentas, per Magiftrum vel alios
" in hujufmodi Negotiis habentes intereffe, corrigi aut puniri aut a
" didli Collegii Suftentatione et Societate fecundum Formam Sta-
" tutorum excludi expelli vel amoveri, ipfum Magiftrum aut aliatn
" Perfonam ullani, Occafione Expullionis aut Amotionis hujuf-
" modi nunquam perfequar feu inquietabo, per me, alium, vel
" alios; nee ab aliis moleftari, vexarifeu inquietari procurabo in foro
" Ecclefiaftico, feu Secular!, feu alio quocunq; Modo : Sed contra,
" ex certa mea Scientia pure, fponte, fimpliciter et abfolute, omni
" Adlioni, Occafione Corredionis, Punitionis, Exclufionis, feu
" Amotionis hujufmodi, adverfus Magiftrum, feu alios didti Colle-
" gii Socios et Scholares, mihi quomodolibet conjundtim five divi-
" fim competenti. Appellation! quoque et Querelje in ea Parte fa-
" ciendis, ac quarumcunq; Literarum Impetrationi, etiam Preci-
" bus Principum Procerum, Magnatum, Prselatorum et aliorum
*' quorumcunq; (quantumcunq; mihi alias Probitatis et Vitse Me-
" rita fufFragabuntur,) in Vim Padti renuntio."
Chap. 50th. De ambiguis et obfcuris interpretandis.
Diftribuimus jam univerfis Collegii Membris Officia fnnul et
Officiorum Leges : quje fi ferventur ad amuffim et inviolata, (quod
utiq; vehementer optamus,) ex eodem viros baud dubio fperamus
prodituros, qui magnae turn Utilitati turn Honor!, non folum huic
Collegio, verum etiam tot! Regno futuri funt : Provifum etiam eft,
quoad fieri poteft per uniuscujufq; Juramentum, (quo nihil apud
Chriftianos firmius aut antiquius haberi debet,) ut Statuta hsc per
Nos jam tradita exadtiflime ferventur a fingulis, quatenus unum-
quemq; concernant.
Abrogatis igitur quibufvis aliis Statutis pro hujus Collegii Guber-
natione prius excogitatis, hsc Prsfentia cum vera tum falubria pro-
nunciamus ; quibus obfervandis, tam Magiftrum quam Socios et
Difcipulos aftringi volumus ; refervatd nobis nihilominus Poteftate,
vel adjiciendi vel minuend!, feu reformandi, interpretandi, decla-
randi, mutandi, derogandi, tollendi, difpenfandi, novaq; rurfus alia,
fi Opus erit, Statuendi et edendi, non obftantibus his Statutis fadig
et Juramento firmatis ; Cceteris autem omnibus, cujufcunqj Dignita-
tis, Authoritatis, Status, Gradvis, aut Conditionis exiftant, ac Ma-
^iftro
Hilary Term 30 Geo. 2. 185
giftro quoq; ac Schokribus tarn Sociis quam Difcipulis omnibus
hujus CoWegn inhil>efHes, nc cum aliquo didlorum Statutorum dilpen-
feat, aut uUa nova Statuta five pro CoUegio five pro quocunq; ejuf-
dem Membro, qu£e didlorum Statutorum alicui repugnabunt, con-
■dant et decernant. Quod fi forte Cancellarius, aut Vice-Cancella-
rius, aut Reverendus Pater Elienfn Epifcopus, aut demum quivis
alius contrariura attentaverit, et novum aliquod Statu turn [aliud] a
^rsdidis adhibere molitus fuerit ; ab ejus Obligatione, Authoritate
noftra, Magiftrum et csteros omnes tarn Socios quam Difcipulos
penitus abfolvimus, eilq-, omnibus et fingulis interdicimus, ne uUi
hujufiiiodi Statuto aut Ordinationi pareant, admittantve quovis padto,
fub Poena Perjurii atq; etiam Amotionis perpetuas, a dido Collegia
iplb Fado.
Quod fi inter Magiftrum et Socios, aut inter Socios ipfos, aliofve
noftri Collegij, fiiper aliquo Articulo Statutorum noftrorum, Dubi-
uni aliquod, aut Ambiguitas, Controverfia feu Opinionum Varietas,
vel Difcordia oriatur, cujus Decifio feu fanus et planus intelledus,
intra odo Dies, a Tempore exorientis emergentis et commote Du-
"bitationis computandos, nequiverit inter eos haberi ; tunc Volumus
ut Partes difiidentes duos ex Collegio Socios eligant qui ita eledi
quam cito poterint, Reverendum Episcopum Eliensem pro
tempore exijlentem, (in quo finceram fiduciam ponimus, quemq;
juxta planum, communem, Titeralem et grammaticalem Senfum et
ad Dubium prjetenium aptiorem, omnes hujufmodi Ambiguitates
interpretaturum, diffoluturum, declaraturum, arbitramur,"! ubicunq;
intra Rcgnum Anglias fuerit, adeant ; vel faltem totam Controver-
•fiam, in duobus Scriptis, fua ipforum Manu aut Notarii Publici Sub-
fcriptione, vel alicujus Sigilli authentici Appofitione, munitis, eidevi
Rt'oerendo Patri fignificent.
Cujus quidem Reverend! Epifccpi Determination!, Interpretationi
et Declarationi, fuper prasdido Diibio ita ut prsfertur difputato ac ad
eum delate, faciendis, Magiftrum Pra-Midem Socios et Cecteros omnes
didi Collegii obtemporare Volumus, et cum effedu parere ; fub
ipforum debito Juramento Collegio pracftito, et Poena Amotionis
perpetuae a dido Collegio, fi contra fccerint, ipfo Fado ; Nolentes
quod per Confuetudinem ullam, aut diuturnum quemllbet Abufum,
aut demiim Adum aliquem, Verbis aut Interitioni didorum Statu-
torum in aliquo derogatur : Illud autem imprimis mandamus, ut
Juramentorum fuorum meminerint, atq; noftram Mentem in ipfiis
Statutis refpiciant, magis quam aliquem (qui pra;ter AfiTenfum no-
ftrum clam irrepfit,) eorundem Statutorum Abufum. Visitati-
,0NEM autem hujus Collegij Revereiidis in Chrijlo Patribus Episcopis =^
Eliensibus, commendamus ; quibus et cojiccjjimus cujufda??! idonci
Prcefentatione7n, qui fit futurus in hoc Collegio Socius : idoneum au-
tem intelligimus, qui Qualitates habeat eafdem qu^ defcribuntur in
3 B Statuto
1 86 Hilary Term 30 Geo. z.
Statuto de Qiialitate Sociorum ; neq\ entm ahum quemp'mm Rpcip r
Vohimm a CoUcgio ; neminem autem illi prsefviitent, nifi talein qui
pro iuis Mcritis hoc Sodalitio dignus fuerit, et cui cum Aututis per
omnia conveniat.
Chap. 5 I ft. De Viiitatore.
Nihil adeo bonis Legibus firmari muniriq; poteft, quin ab iis qui
licenter vivere et Luxui et Libidini Fra?na laxarc ftudent, aiiquo
Fr4udis Comniento facile queat illudi. Nos igitur Fiducia Benigni-
tatis Reverendi in Chrifto Patris Epifcopi Elicnfn qui nunc ert, et
Succrlforum fuofuin, freti, confifiq, quod Orthodoxa: Fidei et Rei-
publicae Chriftianas Zelo h^c noftra Statuta perpetuis futuris Tempo-
ribus inviolabiliter, ad Laudeni Dei et Honorem Collegii, obfervari
procurabunt et nitentur : et ea vel eorum aliqua, contra noftraiu
Mentem et randtiflimum pia; Fund^trici§ Inftitutum, minime violari
patientur ;
Statuimus ordinamus et volumus ut Epjscqpus Eliensis qui pro
tempore fuerit, QUoriEb per Magiflrum et quinque ex Senioribus,
five per feptem Seniores, reludlante Magiftro, reqjjisitus y^rr/V,
ad Collegium valeat et pc/Jlt accedere ; Magiftrum, Praefidem, De-
canos, Thefaurarios, Socios, Scholares et Dilcipulos Collegii, in
Ecclefiam ejufdem convocare ; Collegium tarn in Captte, quam in
Membris visitare ; ac de et fuper omnibus et fingulis, Statum
Commodum et Honorem didli Collegii, Statuta, Magiftri, Prjefidis,
Decanorum, Thefaurariorum, Sociorum, Difcipulorum vel Mini-
ftrorum Reformationem et Correcftionem, concerncntibus, diligen-
ter inquirere ; Juramentum, " de dicendo Veritatem in PrjemilTis
" omnibus et fingulis," ab iifdem exigere ; Crimina, Exceflus, De-
licfta et Negligentias quorumcunq; didti Collegij, qualitercunq; Com-
mifla in ea Vifitatione comperta, fecundijm Criminum, Excciruiini,
Delidtorum et Negligentiarum Qualitatem et Exigentinm, debite
punire corrigere vel reformare, ac Jurisdictionem suam Ordi-
NARiAM, qunm volumus et hoc Statuto nojiro ordinamus ad eundem
Epifcopum Elienfem et Succeflbres fuos in perpetuam fpedlare ?t
pertinere, in Magiftrum et Socios dicfti Collegij exercere, cmte-
RAQUE OMNIA ET ^IUGVLA fucere et excrcere quse ad eorum Cor-
reSlioncm et Reformationem junt necefjaria aut quovis modo opportuna ;
etiam fi ipfum ad Privationem feu Amotionem Magiftri Prasfidis aut
alterius cujufcunq; ab Adminiftratione vel Officio, feu ad Amotionem
alicujus Socii Scholaris vel Difcipuli ab eo Collegio, (Si tamen hoc
ipfum Statutum et Ordinationes exigant,) procedere contingat. Eum
autem volumus, Vifitatione femel incepta atq; inchoata, ut quam
cito commode poterit, - caufas omnes dijudicet et determinet, ac Fi-
3 nem
Hilary Term 2>^ Geo. 2. 187
nem Vifitationis fuse omnino intra quindecim pofl ejus ad Collegium
.Acceffionem Dies faciat.
Statu imus infuper, ut in Vifitationibus CoUegij per Reverendiim
Patrem Elienfem Epifcopum quemcunq; pro tempore exiftentem,
nuUus Sociorum aut Scholarium contra Magiftrum aut aliquem alium
iliius CoUegii quicquam dicat, deponat, detegat, vel denunciat, nil!
quod veium credat, feu de quo publica Vox et Fama contra eun-
dem laborat, fub Pcena Violationis Juramenti ab iifdcm Sociis et
Scholaribus Collegii prisftiti : Et fuper Excefiibus vel Delidis in
Vifitatione et Inquifitione hujufmodi, Detedi, denunciati vel accu-
fati, (Copiis detetflorum et compertorum, nominibufq; detegentium
iis minime traditis vel oftenfis,) fuper Excefiibus et Dclidis hujuf-
modi conftituti coram Domino Elienfi Epifcopo, fummarie et de
piano procedente refpondeant et eorum quilibet refpondeat per fe,
Corrediionem debitam pro iifdem fubeant et eorum quilibet fubeat,
fecundum nofirarum Ordinationum et Statutorum Exigentiam et
Tenorem ; cefiantibus quibufcunq; Provocationibus, Appellationi-
bus, Querelis, et aliis Juris et Fadli Remediis, per quJE ipforum et
cujuflibet eorundem Corredio et Punitio difierri valeat, feu alias quo-
modolibet impediri — Si tamen ad Privationem Magiftri, aut Expul-
lionem Socij Scholaris vel Difcipuli agatur, tunc volumus et ftatui-
mus ut oftendantur ei Detefta : Quse fi rationabiliter et probabiliter
evitare et jufta Defenfione propulfare non poteft, volumus ut amo-
veatur, fine Appellatione aut ulterior! Remedio.
Et fi qua; alia in Membris corrigenda et reformanda fuerint, quas
Brevitate Temporis corrigi et reformari non poterunt, ea omnia et
fingula Magifl:ro in Scriptis tradet : qui, fecundum Formam et Ex-
igentiam Statutorum, et in virtute fandtas Obedientis ac Juramenti
fui, fub Violationis Poena, hujufmodi corrigenda et reformanda di-
ligenter et fideliter corrigere et reformare ftudebit, et tenebitur.
Diflblutaq; Vifitatione, pro Efculentis, Poculentis, Expenfis, Oneri-
bus, et Procurationibus ratione Vifitationis hujufmodi debitis, volu-
mus et ftatuimus ut Summa pecuniaria, in bonse Memoriae Domini
Jacobi olim Elienfis Epifcopi ConcelTionibus et Ordinationibus li-
mitata et declarata, abfq; dilatione qualibet folvatur. Reverendi vero
Patris Epifcopi Elienfis cujufcunq; pro Tempore exifi:entis Confcien-
tiam apud altifiimum oneramus, et in Vifceribus Domini nofi:ri Jefu
Chrifti hortamur, ut in faciendo et exequendo Prasmifi"a, fecundum
Apofi:oli Doclrinam " non qujerat quae fua funt, fed qua; Jefu
" Chrifti", folumq; Deum habens prae Oculis Mentis, Favore,
Timore, Odio, Prece, aut Pretio Coloribus aut Occafionibus port
habitis quibufcunq; Vifitationis, Inquifitionis, Correftionis, Refor-
mationis Officlum dlligenter impendeat et fideliter, in omnibus
exequatur, ficut coram Deo, in ejus extreme Judicio, in hoc Cafu
voluerit reddere.Rationem.
His
1 88 Hilary Term 30 Geo. 2.
His igitur didtis Legibus, &c. (ficut in Concluiione Capitis de
• V. fa. Vifitatore, in Epifcopi Fiftieri Statutis.) *
Chap. 25th. De Modeflla, et Morum urbanitate.
Omnes Lites domeftlcse intra Collegium et cognofcantur et dl-
judicentur. Qui /on« aliquem in Jus vocaverit, fine Confenfu Ma-
giftri, aut (eo abfente) Prsefidis et majoris Partis Seniorum, Collegio
amoveatur. DifTentiones inter Socios Difcipulosve orts intra bi-
duum, fi fieri pofTit, a Magiftro, aut (eo abfente) Prajfide et ocfto
Senioribus, fedentur : Sin fieri non pofilt, quatuor Socij per diflen-
tientes eligendi, cum Magiftro, aut (eo abfente) Prsfide, Litem
audiant, et cum i^quitate dirimant ; et quam illi omnes, vel Ma-
gifter (aut fi ille abfit,) Prsefes, cum duobus fie ele(fl:is, Sententiam
tulerint, in ea conquiefcant diffentientes : qui fee us fecerit, Collegio
privctur. Lis vero inter Magiftrum et Socium unum aut plures orta,
a Prsefide et reliquis Senioribus, aut (fi Praefes unus litigantiunii fit)
a Socio maxime Seniore, qui unus litigantium non fit, et cognofcfl-
tur et (fi fieri pofiit) tranquilletur : Sin intra biduum hoc fieri non
pofllt, ad Prcepofitum Collegij Rtgnlis, Magijlros Collegiorum Trinita-
tis et Chrifli, per duos Socios utrinq; eligendos. Lis deferatur j et
quod duo ex illis ftatuerint, juxta Formam Statutorum aut Leges
Regni noftri, id ratum efto. Qu] non paruerit, Collegio amoveatur.
Alfo
In tlie Chapter relating to the Eledion of the Mafter,
It is ordained That if Five of the Fellows, after two Scrutinies
(to be ended upon the fame Day) (hould not agree upon One Per-
fon, Then they are to come to the Vifitor of the College ; And He
\% to be efteemed as Mafter, Whom the Visitor cidy Jhall think
FIT to Jet over them: Provided He anfwers to the Statute, in all
Points, concerning the Quality and Office of Mafter ; And the faid
Vifitor (hall fignify to the Fellows of the fame College, within 20
Days from the Day of fuch Devolution upon Him, by an Inftru-
ment fcaled with the Seal of his Paftoral Office, the fame Perfon
fo promoted to the Mafterlhip,
In the Chaper relating to the Eledion of Prefident Ledurers and
other Officers,
It is ordained that if the Mafter and Fellows fliould not agree
in the Eledion j And the Mafter ffiould be out of the Kingdom ;
Then He whom the Bijhop of El\\ Visitor of the faid College, be-
4 "^ '"g
Hilary 1 erm 30 Geo. 2. 189
ing within the Kingdom, pall nominate, is to be elefted into the
OiBce.
N. B. By the annexed Foundation, (i. e. the before mentioned
Foundation of the two £'oz//"/'W6'//-Fellow{liips,) So7ne Objefts
of Eleftion were made preferable to others : And Todifigton's .
Ilight, upon the Merits,- depended upon his being a prefer-
able Objea ; whereas Craven was only a general One. But
the Exception taken to Todington, againil eleding Him into
the Fellowfliip, though otherwife a preferable Objed vv'ithin
Dr. Ketoiis Defcriptions, was his being mutilated, and
thereby excluded, by the Foundation, from being capable to be
chofen : For that by One of the old Statutes, (prior to Dr.
Kctoti'z Deed, which refers to them,) it is Ordained ''' That
" the Perfons eligible as Scholars, fhould be Corpore nullis
" contao-lolis aut incurabilibus Morbis vitiofo, aliafve defcrmi
" aut MUTiLO." From whence it was inferred that though
this Claufe is not indeed repeated as One of the Qualifications
of a Fellow, yet it muft be fo intended : For the Statutes could
never mean to require lefs Perfedion in the Fellows than in the
Scholars ; fince the Fellows are expreily defcribcd as Potiora
: et fclidiora Membra Collegij, and are to be eleded cut oj the
Scholars; and are confidered as defigr.ed for the iMiniftry and
Holy Orders, into v.'hich no deformed or mutilated Perfons
are admiilible.
The Counfel who (hewed Caufe againfi the Prohibition, and
who argued (at firft) only from Queen Elizabeth's Statutes, (for
Bifliop Fijher's were not laid before the Court, till fome time after-
wards,) made three Points upon them ; viz.
I ft. Whether the Bidiop's General Vifitatorial Authority does
not extend to the -Eleftion of Fellows, upon the Original Founda-
tion.
2d, Whether it extends to this ^7/7/rAW Foundation.
3. Whether the Claufe which gives DiJIrefs upon the Eftates of
the College, excludes the Vifitor.
And feveral of QviQcir Elizabeth's Statutes were read, on Behalf
of the Vifitor; particularly, the qoth (de ambiguis et obfcuris
interpretandis,) And C, 51ft. (de Vifitatore) And alfo C, 2. (de
Elcdlone Magiftri.)
Contra, on Behalf of the College, were read and relied on,
C; 25rh. (de Modeftia &c.) C. 13th. (de Ekdlone Sociorum) and
C. I ilh. (de Elcdlone Pra;fidis).
^ C A^. S.
ipo Hilary Term 30 Geo. 2.
N. B. All thefe were Qneen Elh.abetlf^ Statutes : And it was.
faid by the Counfel for the Vifitor, that though Bijl^op Fifier
AS furvhing Executor of Margcret Countefs of Richmond,
gave Statutes ; Yet He, had no Power, as Executor, to do fo ;
and that therefore Slueen Elizabeth afterwards gave frefo Sta-
tutes.
Cur\ Let it ftand over till to Morrow : And Let Us have Copies
of the material Statues, in the mean time.
On Friday the 26th of Novimber 17^6. This Motion proceeded.
And on Behalf of the Vifitatorial Power, it was argued, 1 ft. That
the Bifliop had a general Right ofVifitation of the College; which
included the Election of Fellows, as well as o/Zjt-r Matters that
concerned the College ; 2dly. That this General Right extends to
the ANNEXED, as well as to the Original Foundation ; and 3dly.
That the Claufe c/" Distress, (which had been urged to be a di-
ftin^l and particular Remedy given by the annexed Foundation,) did
NOT exclude the general Right of the Bifliop to vifit.
Firft — The original Foundation of the College was upon exprefi
Condition " That the BiHiop of Ely fliould be Vifitor." And Dr.
Keton's Foundation is incorporated with the Original Foundation :
He was, in Effed, only a Purchafer of two Fellowlhips and two
Scholarships.
And the new Statutes (of Queen Elizabeth) were Jubfequent to
Dr. Keton's Foundation : And Dr. K:$ Fellows were Part of the
College, at the Time when thefe Statutes commend the Vifitatiou
of the College, i. e. of the whole College, to the Bijl.ops of Ely for
the Time being. Thefe Statutes conftantly fpeak of the Bifhops of
Ely, AS General Vifitors of the College at that Time, and already
fo J and ?iot as being conftituted fo, merely and only by thofe Sta~
lutes of Queen Elizabeth. And his Gfwfr^/ Vifitatorial Power in-
■cludes the Eledtion of Fellows, as well as other Matters.
The General Vifitor upon Z^-Foundations, is the Foufider :
Upon Spiritual Foundations, the Ordinary.
The general Power of Vifitation of the College is given to the
Bifliop of Ely, eo fiomine of ** Vifjor.'"
No particular fet Form of Words is neccfTry to the Appoint-
ment of a Vifitor. Fiiz-Gib. 305. Dr. Bentley v. Bijkop oj Ely
" Vifitator Jit Epifcopus Elienfis," was the BifliopV 'whole Right to
be general Vifitor of Trinity College,
.3 And
Hilary Term 30 Geo. 2. 'ipi
And He is complete Vifi tor : And fuch Power may ceafe and re-
vive again. The Cafe of The Ki?ig v, Bipop of CbcJJer, Warden of
Mfl.nchejier QoWtgQ, 2 Strange 797. proves this.
The late Cafe of Dr. Great v. Dr. Rutherford in Chancery, was
only a Truft, given upon another Footing.
No Objeftion can arife, as to executive Part, from the legillative
Power being refer ved to the Crown.
Deprivation and Admifiion of Fellows are incidental and eiTential
•to the General Power of a Vifitor. Sir T. Jones 175. The King v.
Warden of all Souls College, in Oxford.
Neither is it any Objedion " that particular Times and Occafions
■of going to the College, are flated and fpecified :" For upon par-
ticular Gravamens, He may exercife the Power of Admiilion and
X)eprivation, eo nomine as Fifitor.
Second Point — The Blfliop's General Vifitatorial Authority ex-
tends to the ANNEXED Foundation, as well as to the original Foun-
dation. Both are within the fame Reafon : And thefe ingrafted
Fellows are to be bound by, and even to fwear to the Statutes then
in being. And here, No new Statutes are given by the annexed
Founder : And the Power he referved was only to give additional
Ones cojiformable to the old Ones. And the Indenture refers.,
throughout, to the Original Foundation : Which is a ftrong Im-
plication. In 5 Mod. 421. indeed this Point, " Whether the Vi-
" fitor appointed by the Founder, can be extended to the new Fel-
" lows," was doubted. This is called Mr. jtvwz;/^'s Cafe, o^ Clare-
Hall : It was then adjourned, and does not appear ever to have been
determined. But on 2\i\. March 1647. in the Cafe of the Attorney
General, at the Relation of Mapktoft, v. Talbot, (the Cafe of the
Mafter and Fellows of Clare-Hall in Cambridge,) Lord Hardwicke
held " That the annexed Foundation, 'where 7io new Statutes are
^' given, mni\. follow the Original ¥om\dmoTi,"
Third Point. — This Deed giving another Remedy, viz. by Dis-
tress, does NOT preclude the Vifitor. It is not ad idem : It is given
"TO the Church of Southrcell ; not to the Party injured in Point of
Eledlion and Admiffion. But however, if it had been given to
the Party injured, it could not have taken away h\s Appeal to the
Vifitor, for Relief: For the One is in Order to obtain Ekolion and
Admiffion ; the Other, for the Prcfts. The specific Relief nmii
■come from the Vifitor : The Dilirefs would be only for the Delay.
2 Strange
igz Hilary Term 30 Geo.
2 Strange io6i. MiddletC7i et Ux. v. Croft in B. R, (the third and
laft Queftion) It was refolved " That the Statute of 7 Gf 8 IV. 3.
" did not, by iiiflidting a Penalty, take away the Jurifdiftion of tio
" Spiritual Court." The Diftrefs may be intended, to prevent Ccl-
lufion between the College and the Vifitor; And as a Method to
bring the Matter collaterally in Quellion : For notwith landing vvihat
may be faid in the Books, particularly in the Cafe o^ Philips v. Bury
{Exeter College Cafe,) it would be very difficult to maintain a direSi
Aclion for fuch Collulion.
Thefe new FellowOiips were, by the Deed, to have ylll the Rights
of other I-'ellows. Now one of thefe was a Right of Appeal. Ai;d
fliall the Nomine Pesnv and Claufe of Diftrefs given to the Church
of Southidell, take away the distinct Rights of the Candidate,
and of the Bishop? No: T'hey have a Right to the Remedy; but
7ionc to the Penally; The Penalty belongs to ^/'c Church oi Southivell.
But if the Penalty had been given to the Candidate ; Would
that have discharged the College's Obligation to perform their
Contract ? And the P>.efl:ridtion from going " Joras," does not ex-
clude the Vijitor, (for He is domejiic f) but it only excludes forcnjic
Jurifdidions, Courts o/'Law.
And the collateral Penal'y cannot hurt the specific Remedy : For
it is not adequate to the Injury ; Nay, It is not even given to the
Person injured; and it is temporary. However, the fame Perfon
may have several Remedies. And this is not the fird Inftance
of the prefent Queilion, in this very College ; For Mr. Pegg's Cafe
in 1726 was in Point; and there the College fubmitted. The Cafe
was exadtly the fame with the prefent, excepting only that it was
upon Dr. Beresford's Foundation ; which alfo was by Decif, and
with a Cuwfe of Dijircfs, as this is. His Foundation vi'as likewife of
two Fellowlhips and two Scholarlhips in this College, by Indenture
tripartite, made 1 2 February 11 H. 8. between the College, the
Dean and Chapter of hitchjield, and Himfcif ; in Confideration of
400 /. given by Him to the College : In which Indenture a Forfei-
ture is fixed ; And a Right of Entry into the College- Lands, given
to the Dean and Chapter oi Litchfield^ to diflrain for it. Mr. Pegg
was elefted. Mr. Burton appealed to the Bifliop of £/v, as Vilitcr.
Mr. Pegg protelled againfl: his Jurifdidion. Civilians and Common
Lawyers were heard, upon the Point of the Jurifdidtion. The Vifitor
pronounced for his ovv'n Jurifdidion ; and afterwards gave Sentence
for Mr. Burton, the Appellant ; and iflued his Monition to the Maf-
ter Prefident and Six Senior Fellows, to admit Mr. Burton. This
Monition was obeyed; and Mr. Burton admitted \\-\\.o the Fellovvfliip,
by the Prefident : By whom a Certificate thereof was duly returned
to the Vifitor. 2
The
Hilary Term 30 Geo. 2. 193
The Right of Vifitation arifes from the Common Law ; as Ld.
Ch. J. Holt held in the Cafe of Philips v. Bury : * (though Birtiop • r. Skimcr
Stillingfleet faid it arofe from the Cajzon Law.) There was a Cafe *^5. 484-
of this very College, which is reported in \Mod. 233. Rex & Re-
gina V. St. John's College, Cambridge ; and Comb. zyg. S. C. and
Skimer 359, 368, 393, 546. S. C. Where the Court thought they
ought to fee that the Law be executed. And another Cafe alfo,
relating to this fxme College, was Dr. Rutherford's Cafe ; which
was upon a fpecial Trufl. But the Courts of Juftice will not inter-
fere, unlefs the Vifitor abufes his Power, in exerting it where He
ought not.
Then the Counfel for the BiHiop and Mr. I'odingfon offered Af-
fidavits, as to Matters of Faft.
But Lord Mansfield faid, This Court cannot enter into the
Merits of the Election : For the Queftion before Us is
" Whether the Biftiop oi Ely appears to have a Right to judge
" in this Cafe, as Vifitor." If He has, there is No Ground to
prohibit : If He has no fuch Jurifdidion, He ought to be pro-
hibited.
The Counfel who argued for the Prohibition, begun with laying
^own fome General Po/itions — As, that Fundatorial Right takes its
Rife from the Property of the Donor ; That a Founder may give
Statutes ; That if He does not, the Right of vifiting remains in the
Founder or his Heirs ; That He may appoint a Vifitor, either
general, or partial, (with Regard to his Powers,) as He himfelf
■pleafes ; That if He gives him o;;/v partial Powers, the Vifitor can-
not exceed them ; That if the Vifitor fhould attempt it, the Court
will by Prohibition reftrain the Excefs of Jurifdidion ; That the
•Court will never refufe Liberty to declare in Prohibition, wherever
there is the leaft Doubt, (in order that the Matter may be folemnly
•determined upon Record, and fo be fubjed to a regular Courfe of
Appeal;) That a Vifitatorial Power is not to be inferred by Impli-
cation, but muft be given by exprefs and direB Words ; (as was
determined by Lord Chancellor King, afi^ifted by two great Judges
of the Common Law, in the Cafe of Eden v. Fo/ler, reported in
2 Peere IVms. 325. the Cafe of Birmingham School.
Then they entered upon their Argument, to the following Ef-
fed. ift. The Bifliop of Ely is not general Vifitor of this Col-
lege ; but oidv Vifitor in particular Infiiances : And the General
Right of Vifitation in all other Inftances, remains in the Croivn.
This, they faid, will appear from the 50th, 5111 and 25th Chap-
ters of Queen Elizabeth's Statutes.
3D C. 50th,
1-94 Hilary Term 30 Geo. 2.
C. 50th. " Refervata'N ORIS Poteftate vel adjiclendi vel minuendi,
feu reformandi interpretandi &c. *' Cateris autem omnibus &c.
inhibentes &c. And immediately after, the Bifhop of Ely is par-
ticularly there named, as One of the Perfons prohibited from
counteradting the Statutes, And it concludes with giving the
Bidiop oi Ely a Compenfation, viz. the Nomination of a Fellow ^
who muft be idoneus : And the College are appointed to judge of
the Idoneity ; For it is faid " Neqiie enim alium quempiam recipi
" volumus a Collegia." Indeed the Bidiop is immediately after-
wards admonifhed to offer no Other than a proper Perlbn : But
ftill the College are to be the Judges, even of the Bijhop's own No-
:minee.
C, 5 1 A:, (de Vifitatore) gives him Power accedere, only quoties he
fliali be requefted &c. and He is thereby reftrained to clofe his Vifi-
tation within 1 5 Days : And there are many particular Powers,
minutely given him ; Which exclude the Suppofition " That He has
^** the G^WiT^/ Power."
C. 25th. (de Modeftia) direds that omnes Lites domefticae intra
Collegium et cognofcantur et dijudicentur ; and orders Expulfion to
JHim qui foras vocaverit &c ; and refers their Domeftic Difputes
to be fettled either amongft themfelvcs, in College ; or by the refi-
dent Majlers of other Colleges particularly therein named.
They denied that in Dr. Bentlefs Cafe, the Expreffion " Sit
*' Vijitator" was the Ground of the Pvcfolution : (Which Words,
however, are 7/0/, as they obferved, in the prefent Cafe.) But in
that Cafe the Intent of the C^o\^Ml fully appeared, throughout, " to
" give the lohole Power to the Eilhoo of Ely. Whereas here, the
Crown referves Powers to itfelf, of Various Kinds ; and might have
appointed new Vifitors : But there, on the contrary, the Right was
perpetually given to the Bifhops of Ely. Here, the Bifhop's Vifita-
torial Power is limited and circunifcribed : Whereas a General Vifitor
might do all that a Founder could do. Here, He cannot vifit ex
^Officio, in lefs than 5 Years.
As to Strange 797. The Bifliop of Chejler'% Cafe, as Warden of
Manchejier College — They agreed that in certain Cafes, the Vifita-
torial Right may be fufpended, and revive again. But that Cafe,
they faid, was not at all like the prefent Cafe.
As to the Cafe of Dr. Green v. Dr. Rutherford — ^It was only a
'Conftrudion of a WiH, containing a Trujl ; which was not an Ob-
jedl of the Vifitatorial Jurifdidion. Befides, the Point of Judg-
i^ent in that Cafe, they faid, was with them.
And
Hilary Term ^o Geo. 2. 195
And they concluded that therefore No Appeal lies to the Bifliop
' of Ely in the prefent Cafe, upon the Foot of its being, in getieral,
'One of the Fellowfhips of this College.
2dly. Much lefs does it lie, in this Cafe of an annexed Fellow-
•ftiip given hy a. fubjeqiient Yonnd-aXion. TheLaw will mot iviply
•that Dr. Af/o«'s Foundation is fubjeft to any o^i^er Vifitor than Him-
^felf and his Heirs. An ingrafted Foundation does not fall under
-the former Powers, if the annexed Founder gives other Laws.
Now this is not a Co-Foundation, but a IVi"ii; Foundation.
It is not true, " That Dr. Kef on knew the Bifhop of Ely to be
'" General Vifitor." On the contrary, the Bifhop was not Jo, by
Bifhop Fipoer's Statutes : For by thofe Statutes, the Bifliop had no
Right to intefere in the * Election of Fellouus. And Dr. Keton re- V'^- """'P"-
ferved a Power to give Statutes confiftent with the Statutes of the "•'■''
■College : And this Right is either ftill fulfilling in Dr. Ketoii's
Heir ; or devohed to the Crown. Now at that T'tme of Dr. Keton' s
Foundation, the Bifhop of Ely had no Right cf Vifitation as to the
EleSlion of Fellows.
3dly. Here is a Common-Law Redrefs given : Which No Fi/i-
tor can have a Right to difcufs. And the fpecifc Remedy is not to
come from the Bijbop of Ely at leaft ; Whatever it may be, or from
whomfoever it is to come. They may go to a proper Jurifdidlion,
for it. And as to the Cafe of Burton v. Pegg, perhaps the Bifliop
of Ely was appointed Vilitor by Dr. Berisjord: Or the Party con-
cerned might not think proper to oppofe, or not be able to oppofe
the Bidiop's Proceeding. However, the Submiflion of the College
cannot take away the Right of the Founder^ nor the Plight of this
'Court .; nor give to the Bifxp a Right wiiich He has not in Him.
As to 4 Mod. 233. Rex et Regina v. The Majler and Fellows of
St. John's College, and Skinner 3,59. &c. S. C. (Dr. Gower's Cafe,)
and Cornier/). 279. S. C. The Return was not the Diftum of the
College : And fuch General Terms were out of the Cafe and im-
proper. And the Cafe of Middleion & Ux' v. Croft is not applicable.
The Rcgijler of Writs, Title Prohibitiones, pa. 38. is fmiilar to this
Cafe, as to the being a Common-Law Contradi : " Cum placita de
" annualibus redditibus&c. .&c. &c. ad nos et Coronam et Digni-
'* tatem noflram fpecialiter pertineant-&c.
The Vilitor is bound by the Deed ; And He cannot have any Pre-
tence to proceed in this Cafe, until the Covenants are broken, and
the College have incurred the Penalty ; And of this, the Courts
4 of
ig6 Hilary Term 30 Geo. 2.
of Common Law are to judge. If both Jurlfdiftions fliould proceed
together, their Determinations may diredly clafh — Therefore the
Common-Law Courts will prohibit Him from proceeding at all.
Dr. Keton was a Pitrchaser of thefe two FellowOiips : And Me
referved a Power of Dijlrefs. The Requifites to his Fellowdiips
are, being a Chorifter of Southwell, if, &c. and having Learnings
and Morals. If the College fliould fail to choofe fuch Perfons, &c.
they are fubjefted to a Forfeiture ; for which, a Dijlrefs may be
taken : This is the Sanftion annexed ; And this is an adequate Re-
medy, And upon this Deed, the Chapter of Southwell are only
'■Truftees for the Candidate ; And they would be anfwerable to Him.
And this would fubjedl the Matter to the Court of Chancery, as a
Truft ; and might alfo fubjeft it to this Court ; as to granting a
Mandamus to admit him. And therefore, though the Bifliop fliould
even be confidered as general Vilitor of the College, Yet this Court
•would prohibit Him, from proceeding in this particular Affair, or
at leaf}, give the College Leave to declare in Prohibition. This
Court will prohibit Jurildidlions who are proceeding without Right ;
although they themfelves cannot, perhaps, give an ^^1^^'^/^ Remedy.
However, here, the Founder confiders the Diflrefs as an adequate
Remedy. — They concluded with faying that they only deiired Leave
to declare in Prohibition ; not an abfolute Prohibition.
Mr, Jiift, Foftcr faid He had not ittn Bifhop Piper's Statutes;
which though now repealed, were yet in Force at the 'Time of this
Vide ai:tt. annexed Foundation ; And they are faid * to refrain the Bifhop
from exercifing any Powers relating to the EleSlion of Fellows.
Now THAT may defervc Confideration, though thefe Statutes fliould
be now expired : For they were underffood to be in Force at that
Time when Dr. Keton made his Foundation.
On the Day following {viz. Saturday 27th November 1756.)
Ld. Mansfield {-^xd that upon looking into the Papers left with Him,
He found it necefftry, towards coming to a complete Undcrflanding
either of the Statutes or of the Deed, " That the prior Conflitution
*' of the College, antecedent to Both, fhould be laid before the
" Court;" As both the Deed and alfo Queen Elizabeth's Statutes
exprefy refer to this frier Conftitution of the College, and confe-
quently muff be (in fome meafure) unintelligible and inexplicable,
unlefs it be alfo known, " What that prior Conflitution was." He
propofed therefore that the Parties fliould, in the befl manner they
could, lay this Conflitution before the Court ; and that the Cafe
fhould be fpoken to again in the next Term ; not by all the Coun-
fel arguing it over again, but by only One Counfel on each Side,
who fliould apply themfelves to fuch Conchfom as might arifc from
fuch prior Conftitution of the College, and be applicable to Queen
Elizabeth's Statutes or to the Deed of Covenants.
2 The
Hilary Term 30 Geo. 2. 197
The Cafe was accordingly Adjourned till next Term, to be then
fpoken to by One Couniel on each Side, on the prior Confti-
tution of the College, antecedent to Dr. Kefo?i's annexed Foun-
dation and Deed, and confequently to Queen Eiizakib's Sta-
tutes likewife.
On this Day (i. e. TImrfday, 3d February 1757,) this Cafe was
again fpoken to, by One Counfel on each Side.
Mr. Torke, Solicitor General, on the Part of the Bifhop and Mr.
Todington, made 3 Qiieftions, •viz.
I ft. Whether the Bifliop is not as cxtenfwe a Vijitor, under the
Old Conftitution, as under the Neiv.
adly. Whether the College are not bound by the Acceptance of the
neiv Statutes.
3dly. Whether Dr. Keto?i's Fclloivjl.^ips are not boimd by the Ac-
ceptance of the new Statutes, as well as the Reji of the College.
Firft — He infifted that the Bifliop is as extenfive and complete
a Vilitor under the Old Statutes, as under the New. This he en-
deavoured to make out, from the Old Statutes of the College. [And
upon thefe, the Qoeftion muft depend.]
Secondly — The College are bound by the Acceptance of the New
Statutes.
Ld. Mansfield — The College will not (moft undoubtedly,) agitate
that Queftion :. For if they do, they muft give up All their
Livings, ci?r. and all other Advantages tliat they claim under
them.
Mr. Norton, on the part of the College, readily agreed to this ;
faying that they fijould not (certainly) make a Queftion of this ; ha-
ving aBed 200 Tears under thefe new Statutes.
Mr. Solicitor General then proceeded to his 3d Queftion —
Thirdly — He infifted that Dr. Keton's Fellowfnps are bou7id by the
New Statutes, as well as the Reft of the College : For as He has not
given new Statutes, thefe Fellowfliips are to be conducted and bound
by the ordinary Statutes of the College ; And the rather, for that
thefe Fellows enjoy All Privileges, and come into the Seniority, in
the fame Manner as the Rejl oi the Fellows do.
3 E Mr.
ipS Hilary Term 30 Geo. 2.
Mr. Norton, contra, — for the College.
This Cafe ftood over, in Order to fee what was the State of the
College, at theTime when Dr. Ketones Deed of Covenant was made :
ylt which Time, BiJIxp FiJJ.^er's Statutes J'ubjijied.
The Bifliops oi Ely were Owners, originally, of the Site of the
College ; And, as Bijhops of Ely, were ordinary Vifitors of this
Place : From One or both of which Circumftances, they might
pollibly fet up a Right of Vifitation. Now Bifliop Fz/^-vr's Statutes
profeffedly mean to obviate any fuch Pretenfion ; and to prevent the
Bilhops of Ely from' claiming a Right of Vifitation, /?; General Vi-
fitors of the College. Which Pofition Mr. Norton endeavoured to
prove from Bifliop FiJJ.rr's Statutes. And He fiid that if the Sta-
tutes were to be conftrued otherwife, it would occafion a ClaHiing cf
Juriididions and the utmoft Confufton in the College. As to any
Power of Vifitation that the Bifliops of Ely may have at Common
Law, He faid He did not mean to difpute that, with tliem : But as
to the Claim of a General Vifitatorial Power over the College,
He prayed Leave to declare in Prohibition ; that it might be folemn-
Iv determined upon Record, and that each Side might have an
Opportunity of appealing elfewhere, if difTatisfied with the Deter-
mination of the Court.
He flrongly contended. That it was />r^;;7^/«r^, to determine wci;:.',
" Whether the Bifhop of Ely had Jurifdidion ;" That there ought
to be a Rule for the Plaintiffs to declare ; That fuch was the Courfe
of the Court, and it had not been ufual to examine the Matter upon
J]:eivi?7g Caiife : After a Declaration in Prohibition, the whole
would appear upon Record, be folemnly judged, and the Judgment
might be reviewed upon a Writ of Error.
Lord Mansfield — If the Party who applies for a Prohibition has
a Right to declare, though the Court fliould fee no Ground for the
the Motion ; A Rule " to fhew Caufe why the Prohibition fhould
" not be granted," is to no Purpofe ; and Hearing Counfel upon
the Sufficiency of that Caufe is Time mifpent.
When the Matter feems doubtful to the Court, upon a Queftion
of Fad or Law, the Plaintiff has Leave to declare that the Parties
may have the Fadt properly tried by a Jury, or the Law folemnly
coniidered, as in a Caufe.
When the Court is clearly of Opinion that there is fufficient
Ground for the Prohibition, the Defendant has a Right to put the
Plaintiff to declare ; that his Jurifdidion may not be taken from
him, in a fummary Way, where no Writ of Error will lie. But
3 if
Hilary Term 30 Geo. 2. 199
If the Court be clearly of Opinion That there is no Ground for a
Prohibition, It ought to be denied, 'without putting the Defendant
to Expence, and delaying, in tiie mean Time, the Exercife of what
appears to them a la'wful Jurifdidion.
This Denial is not conclufivc to the Plaintiff. If there is no Ju-
rifdidion, the Sentence will be a Nullity ; and upon any Attempt to
execute or inforce it, the whole may be tried in an Adion. The
Plaintiff may alfo apply to any other Court in IVeJiminJler-Hall, for
a Prohibition ; and take their Opinion,
If, in Cafes of this. Kind, the Court fhould too eafily yield to
hang up the Matter, by letting the Plaintiff declare in Prohibition ;
Redrefs would come too late, and coft too much,
I was very defirous, as there is no Fad difputed, to go fully into
the Argument «(jw ; and if I faw no Ground to doubt of the Billiop's
Jurifdidion as Vifitor, to ftop unneceffary Delay, Vexation, and Ex-
pence.
The SubjeB-Matter of the Complaint to the Vifitor is a Com-
petition for prefent Maintenance and Education ; upon an Eleemo-
fynary Foundation : The Caufe of the Contention is a controverted
EleBion ; which is too apt to engage and animate the Eledors.
In Compaflion to the Candidates, and for the Peace of this lear-
ned Body ; the Difpute ottght not to be fuffered to continue longer
than is abfolutely unavoidable.
If the Plaintiff might, as of Right, demand to declare in Prohi-
bition, the Confequences would be fatal, in both Univerfities, The
College, as here, (i, e, the Majority which determines the Body,)
wou'd fupport the Eledion they had made, and may eafily keep the
Vifitor off for Years j their public Stock would be applied to defray
the Charge : In the mean Time, Eledions of new Fellows might
come on ; their Validity might depend upon the Rights in Difpute ;
the Eledion of Mafters might come on ; Great Abufes, in fuch a
State of Confufion, would naturally creep in ; Difcipline could not
be kept up; Inteftine Heats and Divifions would counterad the
whole Intention of the Founder. The Reafon of a Viitor would be
deftroyed. He is appointed and made abfolute upon this Principle ;
" That, in thefe Societies, Error of Judgment, the Chance of Par-
" tiality, or Injuftice, is a lefs Evil than the Duration of Conten-
" tion :" But if, by difputing His Jurifdidion without Ground,
His Exercife of it may be protraded as long as a Caufe can be kept
up for Delay, by Parties who do not regard the Cofts, The Mem-
bers of every College in both Univerfities who complain of an In-
jury
200 Hilary Term 30 Geo. 2.
> —
iury done, mufl: be fubjedVed to /5(3/Z> Inconveniences ; ifl:. To the
Law's Delay, in the qioft deliberate Method of Judicial Proceeding ;
And, at Lift, To the Award of an abfolute Judge, in the mofl
fummary Method of Trial.
If We are clear that the Bifhop hm Jurifdiction, We fliould do
Injuftice in the prefent Cafe, and fet a bad Precedent for keeping up
Groundlefs Strife, if We did not difcharge the Rule. And therefore
I think, the Merits fliould be fully gone into now.
As to the Merits —
The I ft Qneftion is " Whether the Bifliop of Ely is Vifitor of
" St. Jobi'i College, as to the Election of Fellows and other
" Officers:" (For so is the Suggeftion ; where the Averment is
" That He is not Vifitor in that Refpe£l ;" And the Mafter and
Senior Fellows make the Complaint.)
The 2d Queftion is, " Whether, fuppofmg Him to have this
" Power, as to the Fellows of the Old Foundation, He has alio
" the like Power, as to Fellows of this new annexed Foundation
" of Dr. Ketones:'
The Vifitatorial Power, if properly exercifed, without Expence
or Delay, is vftj'id and convenient to Colleges. However, (be that
as it may,) We muft take it, as it is now eftablijhed by Law : And
* r. 4 Mod. it is now fettled and eftabliOied, (fince the Cafe of * Philips and
"-^6. Bury in Dom'. Proc\) " That the Jurifdidtion of the Vifitor is
5/^^?! C " M''i"!'i^^'y iind without Appeal from it."
35. ^>-
Thcfe Foundations of Colleges are to be confidered in two Views j
viz. as they are Corporations, and as they are Elcemofynary .
As Elcemofynary, They are the Creatures of the Founder : He
may delegate his Power, either generally, or fpecially ; He may pre-
fcribe particular Modes and Manners, as to th.e Exercife of Part
of it. li he makes a General Vifitor, (as by the general Words
" Fifitator //,") the Pcrfon fo conftituted has all incidental Power:
But he may be refrained as to particular luftances. The Foun-
der may appoint a fpecial Viiitor for a particular Purpofe, and no
farther. The Founder may make a general Viiitor ; And yet ap-
point an inferior particular Power, to be executed without going to
the Vifitor in the lirft Inftance. •
No technical precife Form of Words is neceflary for the Appoint-
ment of either General or Special Vifitor. In a Cafe before Lord
Hardwicke, on 21ft March 1747. Attorney General v. Talbot, in
2 Chancery,
Hilary Term 30 Geo. 2. 201
Chancery, " The Chancellor of the Univerfity was held to be
" general Vifitor of Clare-Hall without exprefs Words of Appoint-
ment ; But it was hnplied, from various Branches of tke Vifitatorial
Power being exprefly given to Him ; from his having the Interpre-
tation of the Statutes ; and from an exprefs Exclufion of the Foun-
der's Heir." Therefore it muft be colleded from the 'whole Fur-
view of the Statutes confidered together, " What Power the
" Founder meant to give to the Vifitor.'"
Under thefe general Rules, I will now confider the prcfent Cafe,
as it ftands upon the Statutes of this College.
The Foundation of this College is to be taken (as to thii Que-
ftion) from the Statutes of Queen Elizabeth: Which are the tiow
governing Conflitution of this College. Thefe Statutes referve to
the Crown the Legijlative Power : So that the Cafe of altering
the Statutes is certainly excepted ; if fuch Power be i?icluded in the
Office of Vifitor. But where a Body of Statutes has been given by
the Founder, I {hould doubt extremely, " V/hether a Vifitor can
" alter thofe Statutes, or give ?iew Laws :" (Whatever may have
been the Notion in former Times.)
All other Vifitatorial Power is given to the Bifhop of Ely, by
the Statutes ; and principally by the 2d Chap. De Eledlione Ma-
giftri, the 50th. De ambiguis interpretandis, And the 51ft De Vi-
fitatore; (For the Rcjl of the Statutes are lefs clear and explicit
than thefe are, as to the Proof of this Point.)
And His Lordfliip then went minutely through thefe three Statutes,
and (hewed that they gave the BiHiop of Ely the general Fower of
Vifitation : Which He fpecijied in m'any Inftances, and particularly
in the Words, " Vifitationem hujus CoUegij Epifcopis Elieniibus
*' cojnmendainus. ' '
In the Cafe oi Green v. Rutherfo7-th, in Chancery, 23d May 1750.
Upon fo much of thefe Statutes as was then ftiewn, Ld. Hardwicke
gave his Opinion, " That the Bifliop of £/y was ^fw^r^/ Vifitor of
" this College; but that He could not make fiew Statutes; and if
" He {hould attempt it, the Jurifdidion would devolve to the
" King's Courts, as in the King v. Bijljop of Cbefter, the Cafe of
" Manchejier College, Fafch. the ill of his prefent Majefty." * * V. zStrange
797-
More Statutes are now fhewn ; but nothing arifes from them to
vary this Conftrudion.
Nothing appears upon the old Foundation or the other Statutes,
to impeach this Conftrudion.
3 F The
.02 Hilary Term 30 Geo. 2.
The Vifitatorial Power is almoft as flrongly given Him by the
old Statutes, as by the new : The Difference is, that in ti>e new
Statutes the Ambiguous Claufe in Reftraint of the Bifhop's Power,
'^y.antf 1 88. towards the End of the old Statute de Vifitatore, is * omitted.
compared
What is there faid does not reftrain the Power of the Bifliop of
Ely, lb ftrongly as may at firil Sight appear.
The Meaning of the Provifion feems to he, that he fliall claim
no Right AS a Co-Founder, though he was Owner of the Site; but
only adl as in other Colleges, where He is not Founder. And in
Colleges where He is not Founder, He may aft under Powers of ^
Vifit.ition delegated to Him. However; be the Meaning as it may,
this Claufe is totally omitted in Queen Elizabeth'?, Statutes.
This is net the Cafe oi Expulfwn ; where the Mafter and four
*V.ante\2i. fenior Fellows are to * confent. The Power oi judging and giving
Relief upon Complaints and jippeals, is incident to the Office of Ge-
neral Vifitor: -And if this Cafe related to one of the o/(^Fellowfliips,
the Statutes have laid the Vifitor under no Reftraint, as to the Mode
and Manner of exercifing it.
'O
As General V'\fiiov therefore of this College (which I think clearly
the Bifliop is,) He would certainly have Jurifdidion, if this Ap-
peal related to One of the old Felloivjliips. Which brings me to the
Second Point — " Whether the Vifitor of an old Foundation, has
*' the like Power and Jurii'didion over a new annexed Founda-
*' tion, as he has over the Old One."
It is a Queftion of Extent and Confequence.
In this College, there are 32 Original Fellowfliipsj and 27, upon
annexed Foundations.
I find that the General Method of ingrafting FellowHiips, is by
Indenture, and icith a Claufe of Diftrefs. I apprehend that this
Method took its rife from the old Tenures by Divine Service, (which
differ fumewhat from Tenures in Frank Almoigne;) where the Do-
nor had a Power of Diftrefs, of Common Right, when the Ser-
vice was certain. (But this is only a Conjedure.)
I have procured Information, concerning moft of the Colleges in
Oxford and Cambridge; And I find that mojl of the old Colleges, '
in both Unlverfities, confifl and are made up, (lefs or more,) of
INGRAFTED Fellowfhipsi and ingrafted by Indentures, too:
4 And
Hilary Term 30 Geo. 2. 203
And all thefe are confidered as Part of the old Body, Unlefs. there
be any particular Exception, by the Terms of the new Foundation.
There was a Cafe (6th July 1740.) of Univerfity College in Ox-
ford (founded by King Alfred \) where //''■«. of D'.irhani afterwards
founded two Fellowfhips, " de proximis Dunelmiac Partibus." A
Complaint was made to My Lord Chancellor, ^i General Fj/?/or
of the College in Right of the King: And it was determined aga'uifl
the College. Yet Wm. of Durham had in that Cafe, gi-oen no Sta-
tutes Himfelf: But thefe ingrafted Fellowfhips were confidered as
fubje«5l to the general Vifitor of the o/i Foundation. In ^Z'<3/ Capa-
city, Lord Hardwicke took Cognizance : And . the College never
made any Objedion.
In the Cafe of the Attorney General v. Talbot, which I menti-
oned before, The Countefs of Clare was Foundrefs of Clare-Hall.
One Freeman annexed 2 Fellowniips hy Indenture, (I don't obferve
there is any Claufe of Diftrefs in it.) The Conteft was for one of
thefe Fellowdiips. Lord Hardivkke held " That the Queftion be-
"' longed to the general Vifttor of the College; that ^fw Fellow-
" ftips ingrafted muft be fubjea to the Jurifdidlion and Difcipline
*' exercifed over the origimil Foundation."
In the Cafe of Dr. Green v. Rutherforth & al (which I menti-
oned before,) both Lord Hardii^rcke and Sir J. Strange exprefsly
laid it down, " That new ingrafted ¥d\ovj{\-n^ps, if no Statutes were
" given by the Founders of them, muft follow the or/g"zW/ Foun-
" dation, and be fubjed to the fame Difcipline and Judicature."
I am fatisfied that, upon mature Reflexion, the College would
tremble at the Confquence of leaving every Eledion into any of thefe
ingrafted Fellowfliips, or any other Difputes concerning them, open
to" Courts of Law, and the Expence and Delay attending Suits in
them.
I think clearly, that Dr. Keton did so confder and intend " that
" his new and annexed Foundation should be fubjeB to the old
" Statutes and Conftitution of the College, in Cafe he Himfelf
" fhould happen to die without making any Ordinance by Will
" or otherwife." Thefe Fellows of his Foundation are to be eleded
ai the other Fellows; and at the Time limited by the Statutes. They
are to enjoy the fame Liberties, &c. as the other Fellows. The
Oath they were to take during the Life of Dr. Keton, " to obey
" fuch Statutes and Ordinances as ftiould be made by Him,"
is qualified with this Reftridion, " So that the faid Statutes
" iLould be conformable with the Statutes of the Foww^rf/i of the *^-'""' '6.,
" faid
204 Hilary Term 30 Geo.
^' faid College": Which necefTarily implies that they were, in the
firll Place, to obey the Statutes of the Foundrels of the College,
He explained this, by many other Paflages in the faid Indenture.
Befides, Eo Nomine, the ingrafted Felloio becomes fiibje^ a f?d
liable to the Jurifdidion of the Vifitor over the Felloivs of the Col-
lege. Thefe ingrafted Fellows are exadly the fame as all the Reji
of the Fellows, except as to the Money arlfing to ihtm from the
Neio Foundation; and are intitled to all the like Privileges as the
Old-Foundation Fellows are intitled to.
The Objedion to the Bidiop's Right of vifiting in the prefent
Cafe, arifes from the Power of Dijlrefs here given for the Forfei-
ture, in Cafe the College do not obferve certain Terms which are
prefcrlbed to them.
But feveral other ingrafted Fellowfliips are juft in the fame Situa-
tion: And therefore it would go a great Way, (in Point of Ccnf-
qiicnce,) if, upon this Ground, We were to determine them not to
be Fart of the old Foundation.
Thefe are Provifions diverso Intuitu. And indeed the F)i-
firefs would be a very inadequate Remedy, to the Per/on injured:
Nor is it even given to the Perfon injured, but to other Perfons. So
that it is manifeft,- that this Claufe of Dirtrefs, given to the Church
of Southwell, ought not to take away the specific Remedy from the
Person injured.
It feems to me very clear, that the Bifhop is as much Judge of
this Complaint, as if it related to One of the Old Fellowfliips: And
if it related to One of the Old Fellowfliips I think the Jurifdidion
oftheBifliop, as Vifitor, mofl evident. Therefore I am of Opinion,
that the Caufe fliewn againfl this Rule is fufhcient; and it ought
to be dijcharged.
Mr. Juft. Denifon concurred, in the whole, with Lord Mansfield.
He thought clearly, that the Blfliop of Ely was General Vifitor,
except in the Inftances particularly excepted.
No particular technical Words are necefl"ary to create a Vifitor.
And fo was the Opinion of the Court, in Dr. Snape's Cafe H. 2.
G. 2. B. R. as well as in the Cafe of Philipps v. Bury. And the
main Bufinefs of a Vifitor, is to interpret the Statutes.
2 Now
Hilary Term 30 Geo. 2. 205
Now this DeeJ, though with a C/aufe of Dijlrefs, caniiot take
away the Authority of the Vilitor: It is for another Purpofe. And
Dr. Keton never meant to exclude his Scholars and Fellows from the
Benefit of an Appeal^ which the other Fellows of the College enjoyed.
And his Fellows are fworn to obferve All the Statutes of the College.
The Diftrefs is very little more than the Form of the Conveyance.;
And it is given to the Church of Southwell too: But furely it is jiot
an ADEQUATE SatifaBiou to the rejected Fellow, who has a
Right to be eleded into the Fellowfliip.
The Vifitor has a Right to the Interpretation of the Statutes^
And the ingrafted Fellow has a Right to appeal to Him; And the
Claufe of Diftrefs does ?wt take it away from Him. And there is
no manner of Reafon why the ingrafted Fellow lliould not have the
fame Privileges, as the other Fellows have.
I am fo clear about this Matter, that I think there is no Reafon
for fuftering the Party applying for the Prohibition to declare in
Prohibition : But the Rule ought to be difcharged.
Mr. Juft. Fofier alfo concurred.
He took particular Notice of the 50th Chapter of Queen Eliza-
betlfs Statutes, about interpreting what might be ambiguous or
obfcure. Which Statute, he agreed, does referve to the Queen a
Power to add or diininilh, reform, interpret, declare, change, alter
■or diipenk, &c: But the DocTRitiALis Expo/itio is exprefsly given
to the Bi/hop of Ely, in the very fame Statute; and the College arc
thereby injoined, in virtue of their Oath, and under Penalty of
perpetual Amotion, to * obey his Determination, Interpretation, *y „„tei^'.
and Declaration.
He declared that He had no Doubt that the General Power of
Vifitation is given to the Billiop: And He faid. He faw no Incon-
fiftency in the Statutes. As to the Claufe o^ Difirefs — That would
give no Sort oi adequate SatisfaSlion to this rejected Fellcw; who
comes for ^ fpecific Remedy for the Injury done to him. Therefore
He declared his Concurrence with Lord Mansfield and Mr. Juft.
Denifon. *w v m
And Per Cur. * unanimoufly yuftice/zv/mo^
The Rule was discharged. uasnotpre-
lent at any
one Part of
this Motion ;
being engaged
in the Court
of Chancery
3 G Earl '^"'■"S '•'^
whole of it.
2o6 Hilary Term 30 Geo. 2.
SS',*''* -^^^^ of ^^^^^ '^^^'f' Abney, Spinftcr.
«757-
A Cafe out of Chancery for the Opinion of this Court.
The Queftion was, Whether an Executor of a Copyholdkr
for a Term of Years, was obliged to be ad7mttcd; (and, coiife-
quently, liable to /)^_y « F/;/^ upon fuch Admittance.)
The Manor in which the Lands lay, was Sioke Nenxington, in
Middlefcx; the Defendant, Mrs. ^^?f_>', is Lady of this Manor; the
PremifTes demifed, were 60 Acres of Meadow, let at 125/. per
An num.
The State of the Cafe was pretty long and particular: but the
Queftion was fliort; 'viz. " Whether an Executor of a Te^mnt
" for Years, coming into the Copyhold, as a Chattel Real, under
" his Teftator's Will, is obliged to be admitted." (For the Coun-
fel for the Plaintiff, acknowledged that the being liable to a Ftnc
would confquentially follow a Neceffity of Admittance:) That is to
fay, they admitted that 7/ he was compellable to come in and be ad-
mitted, he would alfo be compellable to pay a Fine.)
The full State of the Cafe was in Subflance this —
That "Henry Guy being feifed in Fee of 60 Acres of Meadow in
the Manor of Stoke Newington, let at 125/. per Annum, the faid
Henry Guy furrendered the fame to the Ufe of his Will: And having
fo furrendered (in a proper Manner) to the Ufe of his Will, He
died feifed in Fee; Having firft duly made his Will and thereby
devifed to John Taylour and Arthur Lake their Executors and Admi-
niftrators for 99 Years, if three Perfons (in his fiiid Will named) or
any of them fliould fo long live; upon feveral Trufts, viz. firft, to
the Ufe of the prefent Earl of Bath, for Life; then to his Iflue Male,
{viz. firft and other Sons, &c.) in ftridl Settlement; then in the like
Manner, to the ufe of the Earl's Brother, General Pultency; then
to the late Mr, Daniel Pulteney, in like Manner; then to the Ufe
of the Earl of Bath in Fee. And after the Death of the faid Tefta-
tor, the faid Tayhiir ^nALake, the Truftees, claimed to be admitted
according to the Tenor of the PFill; [F. po(t. ] and were
thereupon admitted according to the Cuftom of the faid Manor;
did Fealty; :\nd paid a Fine ofzSol. to the then Lord of the Manor,
on fuch Admittance.
One
Hilary Term 30 Geo. 2. 207
One of the three Lives is fincedead; the other two, living; And
both of the faid two LelTees, John Tayhiir and Arthur Lake are
dead; but John Tayloiir furvived Lake. Taylour, the furviving,
(but now deceafed) LefTee, appointed Dr. ^0/^72 T'aykur and Ano-
ther Perfon his Executors; and Dr. Taylour is now the furviving
Executor of John Taylour^ the Original and Surviving Co-LeiTce.
Mrs. Abney is now Lady of the Manor.
It did not appear to the Lord or Lady of the Manor, that the
Leffees, Taylour and Lake, were dead, till 1752: When this Fad;
was found by the Homage.
Then the Executor of the Survivor, (which was Dr. John Tay-
lour, the furviving Executor of the faid John Taylour the original
Co-Lellee) was fummoned to come in, and be admitted ; the Jury
having foui-.d that the original Leffees were both dead. And Pro-
clamations iffued &c. \_N. B. The Proclamation was for the Heir
of Taylour or other Perfon claiming (3c. to come in 6?c.]
It is flated that the General Cuflom of the Manor is, to grant
the Copyholds for Life, or in Fee; and that No other hijlance
of a Grant for Years, befides the prefent Inftance (now before
the Court,) has been known in the faid Manor of Stoke-Newifigton.
The Cafe further ftates, that Fines have been ufually paid upon
Adtmjjion ; And that the ufual Rate of fuch Fines has been i -'
Years improved Rent of the Premiffes to which the Tenant is ad-
mitted.
And by the Ufage of this Manor, the Fine ufually taken for
two Lives, is as much and half as much, as the Fine for one Life :
And the Fine ufually taken for three Lives, is as much and half as
much, as the Fine for two Lives.
The two Queftions made upon this Cafe, and fent to this Court
for their Opinion upon them, were ift. Whether the furviving
Executor of John Taylour (the Surviving Truftee of the Term for
99 Years) ought to come in, to be admitted Tenant of the
Copyhold Premiffes in Queliion : 2dly. In Cafe he ought, then
Whether the Lady of the Manor will be intltled to any Fine upon
fuch Admittance.
This Cafe was twice fpoken to, in this Court : firft, on Tuefaay
\9>th May 1756, by Mr. Pratt for the Plaintiff, and Mr. Sewcll
for the Defendant; and a fecond Time, on Friday /^th Feb. i757>
'3 'by
2o8 Hilary Term 30 Geo. 2.
by Mr. Norto}! for the Plaintiff, and Mr. Gould for the Defen-
dant.
And the two Queftions being reduced into one, as is abovemen-
tioned, (it being agreed " that if the Executor was compellable to
" be admitted, he would confequently be liable to pay a Fine ;")
It was argued on the part of the Plaintiff, the Earl of Bath, That
the Fine becomes diie to the Lord (or Lady) of the Manor, upon
every Change of the Estatk ; not upon the Change of the Tenant,
where there is no Change of the Efcate.
"For where there are feveral Remainders, to feveral Perfons, the
Admifion cf the first Taker is the Admiffion of every Perfon in
Remainder. 4 Co. 22. b. Copyhold Cafes ; and 4 Co, 23. a. Cafe the
6th, Cro. Eliz, 504. Gyppyn v. Bunney. Kitchin 122. .
And here, Tayhur and Lake were admitted according to the Toicr
of their Teftator's Will : Which muft have been to the whole Eftate
comprized in the Will. And therefore the Fine mufl have been
proportionable to the Value of the 'u.hok Term of 99 Years : And 'tis
a8;ainft Confcience that the Executor of the deccafed LelTee fhould
pay another Fine for i\\c fame Eflate, Neither is He compellable to
come in and be admitted at'reili ; it being the fame Eflute.
And that 710 freih Admittance is necefTary, nor -Ciny farther Fine
payable, appears from the Cafe of Dell v, Higden in Mocre 358.
and the Cafe of T//)/V/g- v. Banning, Mocre 4.6 y In both which Cafes
it was hciden and refolved " that the Admittance of a Tenant for
" Life, of a Copyhold, is an Admittance of Him in Remainder;
" and that no new Fine is due from him in Remainder ;" And
in Cro. Eliz. 504. Gyppin v. Biinmy (which is S. C. with Moore
465.) Popham and Fenncr held accordingly; and that, becaufe
They have but One Eflate in Law : And they held that only 0?2e
Fine is due ; which the firft Taker fhall pay.
In 3 Lra. 308, The Cafe of Barnes v. Corke—Tr. i W. & M.dn
C. B. It came diredly in queflion ; And Ld. Coke's Divlum in \Rep.
23 a. was taken into Conllderation, and expkdncd to be retrained
to Special Cuftoms only : But the general Principle of Law was
fettled to be, " That no Fine is due to the Lord, from the Remain-
" der-Man, idthoiit 2. fpecial Cuftom iox \x.."
And the Reafon is, (as Fopham fliid, in the Cafe of Gyppyn v.
Bunney^), " becaufe Both have but one Eflate in Law, And the
" Lord has already admitted to the whole :" Which Reafoning is
quite applicable to the prefent Cafe.
2 If
Hilary Term 30 Geo. 2. 209
If a Copyholder in Fee grants his Copyhold upon Condition, and
enters for the Condition broicen ; There fliall be no fre(h Admit-
tance, nor Fine : becaufe he is in Jiaiu quo prius. Coke's Compleat
Copyholder § 56. So, if there be two Joint-tenants, And one die ;
the Survivor needs no Admittance, nor {hall pay a Fine, ibidem.
So the Widow of a Copyholder, for her Cuftomary Free-bench:
Becaufe 'tis Part of the Old Eftate, and is caft upon Her and veiled
by Law.
So it is alfo in Dower, and Tenancy by Curtefy ; though there
a new Tenant intervenes.
Noy 29. Rennington v. Cok^ is full in Point. Alfo Hutton 1 8.
Jurden v. Stone^ S. C. Hob. 181. Howard agn'mH Bartkt S. P.
2 Danv. 184. Title CopybeJd, Letter M. pi. 1. in Point. Cro. Jac.
573. P'/aidoe V. Frances Bertlet Wid. S. C. with Hob. 181. [but not
this fame Point.] 2 Ro. Rep. 178. Walter v. Bartkt, S. C. It is
confidered only as an Excrefcence out of the Original Eftate, by Ld.
Hobart^ pa. 181. And an Executor of a Copyholder for Years is
within the fame Reafon ; For 'tis only the Old Ejlate continued.
But the Cafe of Descents may be objeded : For there the Es-
tate is the fame ; Only the Tenant altered.
Now it may be difficult to enter into the true Reafon of this.
But it may be confidered as a Change of E^ate ; and as a new
Grant : The Lord gave a new Admittancej a new Grant.
But perhaps that Cafe of Defcents may be an Exception from the
General Rule.
There are feveral Cafes in Point, for the Plaintiff: And no Au-
thority againft Him, except JVeJlon's Opinion in Dedicott's Cafe.
Dedicoft's Cafe itfelf, in 3 Leo?2^ g. is moft exprefs in Point: And
Dyer 251. is S. C, [But Dyer does not mention this Point at all.]
The Wife's Intereft was there a Chattel-Intereft ; And She was to
have it for 16 Years: And her fecond Hufband, v.'ho- furvived her,
had it as her AfTignee, without paying any Fine, or being admitted.
And in 3 Leon. 9. Brown and Dyer put the very prefent Cafe in
Terms, of an Executor of a Copyholder for Years ; and agree that
He (hall have the Term ivithout Admittance. And the Cafe of
Otlery Monaftery, in i Lco«. 4. and 4 jLc&«. iiS. S. C. (twice
printed, 'verbatim alike, almoft,) mentions a Determination of the
prefent Queftion, in Point : Agreeable to which, is another Report
of it, called Heydon's Cafe, in Moore 128. S. C. Egerto?i, in his
Argument, of that Cafe of Otlery vouches a Cafe as determined
3 H in
21 o Hilaiy Term 30 Geo. 2.
in 8 £7/2;. in C. B : Which Cafe is exprefly in Point with Us : But
the Cafe itfelf, of 8 Eliz. in C. B. which he fo cites, is not to be
found. 2 D(Viv. 190. Letter Y, mentions S. C, Shcppard'<. Court-
Keeper's Guide, 5th Edit. pa. 136. And Calthrop's Readings on Copy-
holds, 2d Edit. pa. 67. is exprefs in Point : And fo again, in pa,
72. Tenant in Dower and Freebench. Teimres 272, 273. S. P. ac-
cordingly : (the Book of Tenures that has no Name to it.) And
Comberbach 445. exprefs " that the Executors of a Termor for
" Years of a Copyhold fhall pay no Fine for Admittance."
They faid that the Cafe of I^ell v. Higden in Moore 358, was
but a loofe Note: And Cro. Eliz. 372. which is a Report of the
very fame Cafe, does not mention any fuch Queftion in it.
And as to what was cited out of the Cafe of Gyppyn v. Biinney,
Cro. Eliz. 504. and Moore 465. They faid it was no more than a
Didura of Popham's.
Then, if the Executor is ?iot obliged to be admitted. No Fine is
due : For no Fine is due, but upon Admittance.
But the Inconvenience may be objedled, " That a Lord may be
" ftripped of his Inheritance, by Copyholder's furrend'ring for long
" Terms (as even for a Term of 1000 Years :") And fo the Lord
might lofe his Fines.
But ift. This Inconvenience does 7tot really exift at prefent.
And 2dly. The Lord might, in fuch Cafe refufe to admit ; And
could not be forced to it, either in Law, or Equity.
2 Bulft. 336. Foorde v. Uofkins proves " that the Copyholder can-
*' not bring an Adlion at Law." [It is a moft exprefs Determina-
tion in Point.]
And in Equity, they would not affift: the Copyholder in fuch an
Attempt. Comberb. 445.
The prefent Cafe is a Leafe to 'T'wo Perfons, for 99 Years, deter-
minable upon 3 Lives : In which, the Fine might eafily, in FaSl^
be fettled by a proportional Computation, if it could be done by Law.
The Copyholder derives his Eftate, 7iot from the Lord, but from
the Cujlom of the Manor : For a Lord who is only Tenant for Life,
may admit in Fee.
And that the Lord would not be bound, either in Law or Equity,
to admit, upon a Surrender by a Copyholder in Fee, for looo
4 Years j
Hilary Term 3 o Geo. 2. 211
Years ; Comberb. 445. * exprefly proves: And clfo i^xovt% " That
" in fuch a Cafe, an Executor fhall pay NO Fine for Admittance :"
Which it muft be fuppofed was taken down by the Reporter, as
Lord Holi's Opinion. [* This is no part of the Cafe of Sandwell v.
Sand-well -y but, manifefily, a quite diftincfl Cafe; probably, sX Niji
prius.]
The Lord's Intereft in his Fine is facred : An AQ: of Parliament
fhall not be conflrued fo as to deprive Him of it. [F. Mu?2ivood's
Diverjity, \n Moore 128.]
It would be very hard on our Side, if i i Years Rack-Rent was
to be paid upon every Change of an Executor.
Therefore they prayed a Certificate in the Plaintiff's Favour.
On the Part of Mrs. Abney, Lady of the Manor, It was agreed
that, in this particular Cafe, the Fine and the Admittance muft de-
pend on each other ; i. e. that either Both might be required, or
neither could.
But it was faid that the Reafon of Admittance, in general, de-
pends upon the Relation that fubfifts between Lord and Tenant :
And that the Admijjion of the Tenant, in thefe Cafes, was only
perfonal to the Tenant Himfelf only ; And the EJlate depended
upon the Will and Pleafure of the Lord. He might, originally,
admit whom he pleafed, on the Deceafe of a Tenant. Indeed, at
length, a Sort of Claim in the Heir at Law, to fucceed to his An-
ceftor, became eftablifhed by Ciiflom. However, a great deal still
remains in the Lord's Power and Difcretion : And the Tenure is
ftill (ftrialy) at the Lord's JVill
It was always neceflary that the new Tenant fliould perfonally ap-
pear : And it fo remains ftill, to this Day ; He muft pay his Fine,
and do Fealty in Per/on. Co. Copyholder, § 19. and 4 Rep. 22. b.
&c. to the like Effedl.
And they forfeit if they grant Leafes without Licence. 4 Co.
Copyhold Cafes. 9 Rep. 76. a. Combe's Cafe.
And they muft be Perfons capable of being admitted : For it is
impoftible to admit One who is incapable of Admiflion.
Now No Man is Heir or Executor to the Tenant, during the
Tenant's Life. Therefore the Thing itfelf is impoftible, " that the
" Admiflion of the firft Tenant ftiould be an Admiflion of them
** alfo, as Heir or Executor to fuch firft Tenant."
" The
212 Hilary Term 30 Geo. 2.
The " Change of Estate, and 7wf of Tenant, cannot be the
" true Ground of the Fine to the Lord." For tliar Notion would
let in many Inconveniences : And it would be moft unreafonable
that One /^ngle Fine to the Lord fhould anfwer to all Changes of
the Tenant.
The Remainder-Man may be Tenant for One Purpofe j Not for
another. Co. 4 Rep. 23. a. b,
Admit<-ince precedes the Fine ; and is the Caiife of it. It is ne-
cefliry, in order to intitle the Lord to a Fine. And this appears to
be the Senl'e of the Legiflature, by 9 G. 1. c. 29. " An Ad: to en-
" able Lords of Manors more eafily to recover their Fines ©r."
And upon Admittance, a Fine is due. And i Mod. 102 0 120.
Blo.cldmrn v. Graves proves that the Lord lliall ///// have his Fine ;
although the Admiffion of the particular Tenant be the Admiflion of
the Remainder-Man. It does not follow, that becaufe the Eflate is
•veiled, therefore there fhall be no Admittance or Fine : For upon
Defccnts, (where there is no doubt but that a Fine is payable,) Yet
the Eftate is undoubtedly ve.^ted in the Heir. And Coke's Complete
Copyholder § 56. * page 63, is exprefs in Point " that he iiiRemain-
*' der fliall be admitted, and pay a Fine; aUhmgh his Eltate was
" veiled by tlie Admittance of the Tenant for Lite."
In the Cafe of Barnes v. Corke, 3 Lev, 308. The priiicipal Que-
ftion, they faid, was upon tht Forfeiture ; and that the otlier Points
were only * incidental. [But the ifl Point was (in Terms) " Whe-
" ther a Fine was due."j
In the Cafe juft now mentioned, ftiled Batmore & Ux' v. Graves,
* r. 3 KMe ;n \ Ventr. 260. Or * rather Blackburn v. Graves, as it is calletl in
263, 329. J jf^j^j^ j^2 Q> 120. S. C. It was determined " That the Admiffion
" of Tenant for Years was an Admittance of him in Remainder,
** and occafioned a Pojpffio Fratris :" And it is there refolved that
the Admiffion of the Tenant for Years, though it is an Admittance
of Him in the Remainder, yet fhall not prejudice the Lord, as to
the Fine from the Refnainder-M.m. And i ^entr. 260. is exprefs
and plain, " That the Remainder-Man mujl pay a Fine, "when his
*' Eftate comes in Effe."
Indeed, where the Whole Fine has been already paid to the
Lord upon iht frjl Admiflion, there is no Reafon why it ffiould be
paid over again : And the Remainder-Man is in fiidl admitted, in
Jhch Cafe. But where the Fine is not paid for the Whole, upon
the original Admiflion ; there, the Remainder-Man muft pay a
Fine, and mufl be admitted. \y. i Vent. 260. and I Mod. 120.
2 where
Hilary Term 30 Geo. 2. 213
where this Matter feems to be put upon a right and reafonable
Foot.]
If the Remainder-Man dies during the Life of the Tenant for
Life, his Heir (hall be admitted and muft pay a Fine. Therefore
the Payment is for Lives in being; And the Fine is payable upon
the Change of the Tenant : And the Admittance does not extend be-
yond the Persons of the Tenants admitted. They are Jlill only
Tenants at Will. Co. Copyholder^ § 14. § 32. § 41. exprefly.
4 Rep. 22. b, S. P. in Point, accordingly. And the Eftate is only
vefted in the Tenant perfonally.
In the prefent Cafe, The Perfons originally admitted, prayed to
be admitted " according to the Tenor of the Teftator's Will ;" and
it was granted to them, according to the Cuftom of the Manor :
There is nothing faid of their Executors. And they were admitted
as Triijiees, and not for their own Benefit : And their Admiffion
was only perfonal.
The Admittance of an Heir is very different. Compkat Copyhol-
der, § 41' 4 R^p- 22. b.
The jKc/r has- a very conliderable Intereft, /^^r^ Admiffion : Yet
'he muft be admitted.
As to Tenants pour autre 'vie, they fliall be admitted, and pay
Fines. Co. Copyholder, § 56.
All who allow of a gejieral Occmpznt, fay he muft be admitted r
And there is no Doubt but that a Special Occupant 7?iujl be admitted
and pay a Fine.
Wherever a Right is transferred, upon Death, there muft be an
Admittance.
A Termor may die inteftate, and have 710 Adminiftration ; Or
may make a Will, and the Executor renounce : And (hall the Lord
have no Tenant ? Surely, in thefe Cafes, the Lord (hall not be ivith-
out ANY Tenant at all.
An ^JJignee of a Term fhall pay a Fine ; So, a Devifee of a
Term ; Indeed every new Tenant fhall pay : A Mortgagee ; An
yljjignee of a Bankrupt ; the Heir of the AJjignee j In fhort, Where-
ever there is a Change 0/ Tenant.
If it depended upon the Change of EJIate only, an Eftate in Fee
would NEVER pay.
3 I Dedicott's
214 Hilary Term 30 Geo. 2.
Dedicott's Cafe is ftrong for the Defendant.
Dyer 251 explains 3 Leon. 9. The Hufband, it appears hy Dyer,
was not the perfonal Reprefentative of his Wife : For fhe had an
Adminiftrator, appointed by the Ordinary. In 3 Leon. 9. there
was as he reports it, an Obiter DiStimi of two Judges, indeed ; but
contradifted by another. In Dyer, it appears that the Hufband held
in, in Right of his Wife : And the Difpute was between the Wife's
Adminiflirator and the Hufband. The Hufband was pofTelTed jointly
with the Wife, on his Marriage ; And He only continued in Poffef-
fion. Executors may be confidered as Ajjignees, (the rather as Co-
pyhold-Eflates are not AfTets :) But the Hufband could not, in this
Cafe of Dedicott, be confidered as Affignee. In 5 Ref. 18. a.
Lord Coke cites 29 £, 3. 48. and 30 E. 3. 14. Simpkin Simeon's Cafe ;
By which it appears " that the Baron is not AJJigJiee to his Wife ;"
In Dediotfs Cafe, there was no Tranfmiffion of Eftate. It is hke
the Cafe of Joitit-tenants ; where the Survivor fhall not pay. Co.
Copyholder, § 56.
Calthrop's Reading 67. is plainly the fame Cafe with 3 Leon. 9.
and Z))Tr 25 i. Hauchet v. Rofe ; As appears by the Margin of Dyer.
And by the End of the Cafe itlelf too. It is only a Scrap, out of
Leonard.
As to the Cafe of Otlery Monaflery, reported in Moore 128. and
in I Leon. 4. and 4 Leon. 1 17. (S. C. in Terms) and the Cafe of
8 Eliz. there cited by Mr. Solicitor General Egerton, there was no
Queftion between Tenant and Lord : And Egerton plainly means
Dedicott's Cafe, and the Di(5tum there mentioned. For Dedicott'%
Cafe was in C. B. and was in 7 Eliz. according to 1 Leon. 9. and
H. 8 Eliz. according to Dyer.
As to Noy 29. Rennington againfl Cole — The Cuflom of the
Manor was for the Wife to hold durante Viduitate : And the Wife's
Eflate durante Viduitate was " but a Branch of the Hufoand's EJiatc,'
{as is rightly there /aid by Hobart.)
As to Hob. 181. The Cafe of Howard v. Bartlet, — The fame
Cuflom is flated : And the Hufband's Eflate was holden not to be
merged ; And the lafl mentioned Cafe, of Rennington v. Cole was
there taken Notice of and cited by Lord Hobart.
As io^Comberb. 445. it is a mere fliort, loofe, Niji-prius Note :
Neither the Book itfelf, nor this Note in it, are of any Authority.
And non cofijlat ivhofe Opinion it is, that the Note mentions. If it
were good Law, it would render All Family-Settlements ineiTec-
2 tual :
Hilary Term 30 Geo. 2. 215
tual : For he aflerts " that the Surrender may be for a thoufand
" Years, and that the Executor fhall pay no Fine." At this Rate,
the Granting Copyholds for Terms of Years would be, in Effeft.,
itifranchifing them.
We are not now upon 2.ny fpecial Cuftom of a Manor ; but upon
the General Cujlom of Manors : Therefore the Cafes upon parti-
cular Cufloms are not applicable to the Prefent. The Collateral
Qualities of Dower, Freebank, &c. are not incident to Copyholds ;
but depend upon Special Cuftoms, In this Manor, the Fines are
uncertain : But i 4 Years Vabe of the Nett Yeai-'s Rent has been
generally taken, for One Life j 2 I Years, for two Lives ; And for
3 Lives,' half as much more.
And Regard ought to be bad to the Fine paid on the lail Ad
mittance.
This Eftate was of the Value of 125/. per Ajin. when the two
Tenants Taylour and Lake^ the firft Lives, were admitted ; And the
Fine paid [viz. 280 /.) anfwers to the two Lives admitted, according
to the abovementioned Rule : And the Length of the Term is of
no Confequence. Iheje two Perfons therefore were the Tenants :
After their Death, the Lord has no Tenant : It makes no Difference,
Whether the Admittance be for Lives ; or for a Term of Years
determinable on Lives.
Upon the Ufage ftated on this Cafe, a proportionable Sum is to
be paid for a Fine, according to the Number of Lives. And this
is a juft Rule, and the beft Rule : And it is better to keep to this
Rule, than to form a fiew Rule, upon a Suit in Equity " to compel
" the Lord to admit."
The Point turns merely and entirely upon the Change of Tenaitt.
If it were otherwife, Lords of Manors, nay even jointured Ladies of
Manors, might make voluntary Grants, and incumber their Po-
fterity, ad libitum. The Lady of this Manor is LefTee under a Pre-
bendary : And Confequently, fuch LefTee (though fhe were only fo
for one Year) might admit for 500 Years, without any frefli Fine,
upon their Principles ; and fo defraud the original Owner of the
Manor in Fee. It would take it out of the reflraining Statutes of
Queen Elizabeth.
The firfl AdmifHon was in 1709; \yiz.. the AdmifTion of the
two Lives who were admitted according to tlie Tenor of the Tefla-
tor's Will.]
Replv,
21 6 Hilary Term 30 Geo. 2.
Reply , on the Part of the Plaintiff.
The Difpute between Us is, " Upon what Principle, Fines are due
" to the Lord."
They fay, " On the Change of Tenant :'' We fay, " On the
" Change of jE//^/f, only."
They argue the Admittance to htperfonali And urge it, from the
doing Fealty y at the time of Admiflion.
We agree this was fo originally : But We fay the Admittance is
not always perfonal ?20%v. The Cafes of Dower, and of Tenant by
Gurtefy proves this : For neither ofthefe Tenants appear perfonally,
or do Fealty. And the Cafe of Barnes againft Corke, in 3 Lev.
308. alone proves the fame thing.
And Ld. Coke, in \mCopybolder, agrees " that the Heir would not
" need to be admitted, if it were not on Account of rh- l^ord's Fine."
And all the Remainder-Men are admitted under, the original Ad-
mittance, //// a Defcent: But We agree that Whenever a Descent
happens, the LordyZW/ have a Fine.
The gradual Diminution of Fines, on admitting for feveral Lives,
feems to (hew th;it only one Fine is due; And that that Fine is
payable on xhajirjl Admiflion.
The Cafe of an Occupant pour autre vie, is a new Ffiate : For
the old Eftate is gone ; though the Grantor is ejhpped to take againft
his cwn Grant, (which extended beyond the Life of the Grantee
himfelf.)
As to the Ajjignce of a "Term — He can only come in by Surrender
and Admittance : Which is a ncii) Ejlate ; And he can have No-
thing TILL Admittance.
So, in Cafe of a Mortgage, The Mortgagee comes in .unHer a
Surrender : Which maki?s a new Ejlate.
So, in Cafe of an Affignce of a Banknpt. And the Aft of Par-
liament of King Jac. 1. requires the Aflignecs coming in thus: It
. takes exprefs Care of the Lord's Intereft : [^.13 Eliz. c. 7. 1 J.
1. c. 15. 21 J. 1. c. ig. and alfo Co. Copyholder, § 56. pa. 62. at
the very Bottom.]
The Cafe of a Devifee, is likewife undoubtedly a new Eftate.
And
Hilary Term 30 Geo. 2. 217
And in the Cafe of Executor's renouncing, or of no Adminiftra-
tion being taken out, ftill the Lord will not lofe his Fine.
In Cafe of a Woman's Free Bench^ there is a Change of Tenant.
So, in a Tenant by Curtefy'% Cafe.
As to the Cafe in Dyer 251. the Hulband is a new Tenant 'tis
true : But the EJlate is the fame.
Juft fo here, in the Cafe of an Executor, the Estate remains
the fame.
Probably the Cafe mentioned by Mr. Calthrop is the fame Cafe
with that in Dyer. But ftill Mr. Calthrop' s Opinion ftands uncon-
tradided : And it is confirmed by Lord Ch. J. Holf% Didum, and
by the •Tt'W^r^i, and by D^^z-u^ri. [F. ante 210.]
As to the ^antujn of the Fine — They fay the original Fine was
taken only as an Equivalent for two Lives ; and that therefore ano-
ther ought now to be paid, as an Equivalent for a third.
But the Fine ufually taken in this Manor, where a third Life is [N. B. The
added to two former ones, is only the Fine upon two Lives, and^^^^ ^°^. *,
, •' ^ Lives, IS the
nh.\.^ as much more. Sefquiofthat
taken for
Whereas they now demand a whole Fine: And they might juft One; and the
J!.': well demand it, if only a few Years of the Term remained un- gefqui of that
expired. taken for
Two ; by the
As to the Inconveniences, The Lord cannot be compelled to ad- y^^^, ^y^
mit, either by Law, or in Equity, without the Tenant's paying a ante 207.3
reafonable Fine to the Lord.
And a temporary Lord ca7i nemer infranchife the Tenants Eftates,
by Collufion : For that would be a void Grants and would be con-
fidered as a voluntary Admiffion, which would not prejudice the
Capital Lord.
This is owing to the Modern Faftiion of introducing long Terms,
unknown to our Anceftors and to our old Law : Which None but
the Parliament can change.
*t>^
Perhaps it would be no bad Policy, if All Copyholds were in-
franchifed. However, though a Lord 7nay grant a Copyhold for a
Term of Years, Yet He is not compellable to do fo : It is volun-
tary, the Lord is not obliged to admit for Terms of Tears.
3 K Here,
218 Hilary Term 30 Geo. 2.
Here, They are admitted " according to the Terror of the
" Will:" Fot fo they pray it;. And their Prayer is granted. [V.
■ ante 206.]
The Law Is clear, " That no Admijjion of the Remainder-Man
•" is neceffary."
And there are no Inconveniences attending, fuch a Determination^
but what the Lord himfelf may obviate.
The Court took Time to advife ; and after advifing, to certify.
And, about a Fortnight after the End of this Term, they gave
tlieir Certificate : Which is here fubjoined.
N.B. What is faid by Hales and Wylde, in i Mod. 120. and
I Ventr. 260 : Seems to be the Juflice of the Cafe.
The Opinion of the Court of King's Bench on the Cafe ilated,
upon the following Queftions, viz.
ift. Whether the furviving Executor of 'johnTaylour, (the fur-
■viving Truftee of the Term of 99 Years,) ought to come in, to be
admitted Tenant of the Copyhold Premiffes in Quefllon ?
2d. In Cafe he ought, Whether the Lady of the Manor will be
X .intitled to any Fine upon fuch Admittance ?
Having heard Counfel on both Sides, and confidered of this
Cafe, We are of Opinion " That the furviving Executor of
" John Tayhtir, (the furviving Truftee of the Term of 99
" Years,) ought to come in to he admitted Temnt. of the
" Copyhold Premifll'S in Queflion ; And that the Lady of
" the Manor will be intitled to a Fine upon fuch Admit-
" .tance."
Mansfield.
^i^xh .February 1757, T. Denison.
M. Foster.
J. E. Wilmot.
I
Sir
ilary Term 30 Geo. z. 219
Sir John Trelawny Bart. verf. BiQiop of Winchefter. Saturday ^th
•' J ^ X February
HiL 26 G. 2. Roll 868.
(Lord Qommijfioner Wilmot dbfent in Chancery, ^^
IT was an Acftion of Debt for 600 /. for 5 Years Salary of feveral
Offices, viz. Great or Chief Steward to the Bijhoprick^ and all
;it''s Caftks Lordfhips Manors &c. and CondiiSlor of the Men and
^lenants of the Bijhop thereof, with a Salary of 100/. per Annum j
And of Mafter Keeper or Preferver of the wild Beajis in all the
^Fore/ls, Parks, Chafes and Warrens belonging to the Bifliop, and
Chief Governor of all Birds Fifh and Beafts of Warren &c. (com-
monly called Chief Parker ;) with a Salary of 20/. per Annum: »
Which Offices and Salaries were granted to the Plaintiff by Sir
Jonathan Trelawney Bart, late Birtiop of Winto% by Letters Patent,
with Claufe of Diftrefs if unpaid.
The Biffiop pleads the * Statute of i Eliz. c. 19, And alfo * Seethelaft
■^that the Offices aforefaid are not mcient Offices of the Biflioprick, statu?ef '*'*'
■nor were ufually granted for Life ; and that the faid Fees are not which He
the ancient Fees ; and that the faid Offices are ufelefs and ?nerely no- P'^^'^' '^^l'^"'
minal, and no Duty or Service to be done for or in refped: of them ; iToand H".
And that the Grants are Grants of Hereditaments Parcel of the Pof-
feffions of the Biflioprick &c.
The Plainti^ replies That they are ancient Offices ; and the Fees,
the ancient Fees ; and that they have been ifually granted for Life :
abfq; hoc that they are ufelefs and merely nominal.
The Bifhop rejoins That the Offices are ufelefs and merely naninal,
and without any Duty or Service to be done for or in refpedt of
them 4 in Manner and Form as ^c. And lilue is joined thereon.
The Special Verdid finds That the Offices of Chief Steuwd,,
and of CcnduSor of the Men and Tenants of the Biffioprick, ark
ANCIENT Offices of the Bifliops ; and have been anciently and
USUALLY granted for Life, with an Annuity ; and that the An-
nuity of 100/. IS //i^ ANCIENT Fee.
That the fame were granted to the Plaintiff, by Jonifthan late
Bifliop of Winclxfter, on the 4th July 10 Qu^ Anne: Which
<jrant was approved by the Dean and Chapter, and coifirmed by
them.
t. uat
220 Hilary Term 30 Geo. 2.
That the Plaintiff thereby became feifed, and is ftill feifed
theieofj and received the Annuity during the Life of Jonathan
late Bi(hop of Winton (the Grantor,) and of his Succefibr Charles
{Trimnell,) and of his Succeffor Richard (Willis J and alfo during
the FIRST ELEVEN Tears of the prefent Bifliop's Time (Dr. Benja-
min Hcadley:) And that five Years Annuity, ending at Michaelmas
1751, remains unpaid.
4.0,
ris N". Then they find (verbatim) the* private Statute of i Eliz. c. 19,
[See A/o^rf's Reports 107: and poft 221.] By the lafl Caufe of
which Ad, " All Gifts, Grants, &c. made by any Arch-Bifl:iop or
" BKhop, of any Honours, Caflles, Manors, Lands, Tenements,
" OR OTHER Her edit amentSy being Part of the PofTeflions of his
" Arch-Bifhoprick. or Bifhoprick, or united appertaining or belofig-
" inglo any the fame Arch-Bifhopricks or Bifliopricks; to any
" Perfon or Perfons, Bodies Politic or Incorporate, (Other than to
" the Queen's Highnefs her Heirs and SucceiTors;) "whereby any
" E/iate or Ejlates Jlmll or may pafs from the faid Arch-Bifiops or
" BiJJmps or any of them, (other than for the Term of 21 Years
" or 7 HREE Lives, from fuch Time as any fuch Leafe, Grant or
" AfTurance fhall begin, and whereupon the old accuftomed yearly
" Rent or more fliall be rcf rved and payable yearly during the faid
" Term of 21 Years or thrc Lives;) fhall be utterly void and
" of none EfTL-ft, to all Intents Conflrudions and Purpofes;
" any Law Cull:om or Ufage to the contrary in any wife notwith-
" (landing."
That thefe Offices, at the time of the' making of this A6t, and
now, are merely nominal, and no Duty Attendance or Service
to be done for or in refped of them or either of them; in Manner
and Form as the Bifliop has alledged.
But Whether, &c.
As to the other Office (of Mafler-Keeper of all the Beads in the
Parks, or Chief Parker J They find That that is not an ancient
Ofiice; and that the Bifhop for the time being hath not anciently
and ufiially gratited it, nor the Annuity for the Life of the Grantee^
And that that Office alfo was, at the time of making the Adl, and
ilill is an Office merely nominal ; Aijd that «o Duty, Service,
Work, Labour, Attendance or Bufinefs ever was or is, C5f.
The Queftion upon this Special Verdidl, was, " Whether Sir
" JohnTrelaivney, the Grantee was intitled to hold the two firfl
" mentioned Offices, and to recover thefe Arrears againfl the pre-
" fent Bifhop." As to the laft-mentioncd Office (of Chief Parker)
2 the
Hilary Term 30 Geo. 2. 221
the Fads found by the fpecial Verdidi made an End of any Que-
ilion concerning it: And the Point was given up.
This Cafe was firft argued, upon Tueflay 27th of 'January 1756,
by Mr. Brereton for the Plaintiff, and Mr. Pratt for the Defendant.
:Note^ — Sir John Trelaiimey, the Plaintiff, * died during the Time [* 8, 9 W. j.
of the firft Argument: But, as the Demand was for Arrearages, \' ' '• ^,^' "'
•this Event did not prevent the Court from proceeding to hear piaimift/or
.the Arguments. Defendants
dying aftef
^ , _ . interlocutory
On Tuefday, ift February 17 ^7 - It was again very fully argued Judgment,
'.by Mr. Norton for the. Plaintiff, and Mr. Solicitor General (Yorke) ^"'^ ''«f'"'«
.for the Defendant. "* '^
Lord Mansfield iiA he was ready to give his Opinion Noiu: But
as Mr. Juftice JVilmot had heard the firft Argument, He chofe to
report to him what had paffed upon this, and to know his Senti-
ments, before Judgment fhould be given: And therefore ordered it
;to ftand over till Saturday next.
And, this Day, His LordHiip gave the Refolution of the whole
Court; after having firft ftated the Cafe, to the Effedt as above, Gff.
Lord Mansfield — At Common Law, a Biftiop, laith the Confirmation
of his Dean and Chapter, might exercife every A5i of abjolute Ow-
nerfijipy over the Revenues of his See; and bi?id his Siiccefijor^ as
much as Tenant in Fee can bind his Heir.
By the Statute of J Eliz. c. 19. " All Gifts, Grants, Feof-
*' ments. Fines and other Conveyance, or Eftates, from the firft
" Day of that Parliament, had, made, done or fuffered, or to be
" had, made, done or fuffered, by any Arch-Bi(hop or Bifhop, of
" any Honors, Caftles, Manors, Lands, Tenements, or other He-
. " reditaments, being parcel of the PoffcJJlon of his Arch-Billiopriclc
" or Biflioprick, or united, appertaining or belongijig, to any of the
" fame; to any Perfon (other than to the Queen, her Heirs or
" Succeffors;) ixhereby any EJlate Jloculd or might pajs irom the Arch-
" Bifhop or BiOiop other than for the Term of z\ Tears, or three
" Lives, from fuch Time as any Leal'e, Grant or Affurance fliall
" begin; and whereupon the old accujlomed yearly Rent or t?2ore, (hall
" be referved payable yearly during the faid Term of 2 1 Years or
" three Lives; fliall be utterly void; any Law, Cuftom, &c.
" notwithftanding."
Patents or Grants of Offices, with Fees, Salaries, or Profits an-
^nexed to them, are net mentioned \Vi. the Adt: There are no general
3 L Words
222 Hilary Term 50 Geo. 2.
Words adapted to the Cafe of 0/jicf.r, And yet, there was not a
fingle BKhoprick, at that Time, 'without (omc OSice granted.
Had the Legiflature meant to reflrain the Re-granting them, as
they fhould drop in, It mull: have been done by a Special Profi-
ficn^ with an Exception of fome, at leafl: of Judicial Offices. As the
general Refiraint is not extended to the Cafej there was no Occafion
to make Exceptions.
Continuing ancient Offices, with the ancient Fee, in the ufual
Manner, was not a Dilapidation oF the Revenue of the BiOioprick.
Every Bifliop left this Power to be exercifed by his Succeffor, as
his PredecefTors left it to be exercifed by hitn. Such Grants bring
no new Charge upon the Biflioprick: Which only remains liable to
the fame Fees or Salaries, to which it was liable before.
The A£l has no RetrofpeSi, as to any Charges or Incumbrances
whatfoever, brought upon the Revenues of the BiDioprick, before
the firft Day of that SefTion (23 "January 1558.)
So little were Offices thought within it, that the Bifliop oiEly, on
the 20th oi April 1 558, made a new Grant of the Office of keeping his
Houfe and Garden, (Which was never granted before,) with a Fee or
Salary of 3/. a Year. This came in Judgment in H. 10 Eliz. Ro.
* A/w^ Pa. y^g^ As cited in Ley 78. * It was holden good; becaufe the Of-
thiscrrr' ^^^ ^^^ thought to be a neceffary Ofice, and the Fee reafonable.
(though he Which is the proper Meafure whereby to judge, " whether it was
"ffw^^/-'*'"j " ^" ;W/r^(5 Alienation, under Colour of a new Grant:" Though
the Mrnfi'on J^ was extraordinary, to hold this Office neceflary, or the Fee rea-
Downham,) fonablc; or indeed, to imagine that any Office could be neccfary,
^oft e^ame ^[^j^,]^ ncver cxificd before. However, that Determination has been
Eliz. 'rotHo efleemed good, and acquiefced in.
758. But in
it'is cited as^ * '^ht next Cafe was in Trinity 30 and Hilary 31 Eliz. (cited in
of//. 10 Jac. 10 Co. 61. b. and Liy 72 & j^.) The BiHiop ofChe/icr granted five
'^"'srlv,!'^ Marks for Life, pro Concilia, &c. to Bolton: And Bolton averred that
137. reports his PredecefTors had granted reafonable Fees, but did not aver this
it as of M. Fee ever to have been granted before. The Opinion of the Court
+ "Ir 7c"' '^3S againft the Plaintiff; So he never had Judgment; And the -f-
Reafon of the Opinion was, " that this was a voluntary Thing, and
fwt an Cffice."
At laft, in the 43d of Eliz. the tr-ue Dijlindfion feems to have
been taken, (in Ley JS'^) Where the Arch-biffiop of Canterbury
granted the Office of Surveyorfhip, with the ancient Fee, and more:
It was holden void, on account of the new Addition. That was an
Injury to the SucceiTor,
In
Hilary Term 30 Geo. 2. 223
In the iirft Year of the Reign of King 'James the Firft, The
Legiflature had this Ad-, and the fubjed Matter of it under Con-
fideration. The r Jac. i. c. 3. extends to the Klng^ that Reftraint
which the firfl of Eliz. laid upon Grants made by a Bifhop to a
SuhjeB. But though Queflions had arifen upon Grants of Offices ;
though in Fad, during the whole long Reign of Qneen Elizabeth,
the Bifhops had re-granted their ancient Offices as they fell in ; —
Tet, the Legiflatiire did not interpofe ; and therefore meant that this
Power Jlmild continue. They were fatisfied with the Diftindion of
the Arch-Biffiop of Cantcrkiry'^ Cafe, in the 43d of Eliz. " That
" no new Charge could be brought upon the See."
From the loth o? Eliz. (the Time of the BiOiop of Ely's Cafe,)
to this Dav, No Grant of a 7jew Office, with a new Fee, ever was
held to be' good. Such a Grant is within the Meaning of the ill: of
Eliz. by Conftrudion, becaufe it is a colourable Alienation -y and
under that Pretext, the whole Statute might be evaded.
From the ift of Eliz. to this Day, there is no Cafe, where the
Re-Grant of an Office in Being before the firft of Eliz. in the itfual
Manner, with the ancient Fee ; was adjudged to be within the Re-
ftraint of that Statute.
If thefe Grants are not within the Statute, but ftand as they did
at Common Law ; the Utility or NeceJJily of them can never be ma-
terial. A BiHiop at Common Law, with the Confirmation of his
Dean and Chapter, might bind his SucceiTors by Grants from which
they could have no Benefit.
There is no Cafe fince the loth o^ Eliz. that has judicially turned
upon the Utility or NccrJJity of the Office : The only Queftion has
been " Whether the Grant was agreeable to the Ufage before the
" Ml oi Eliz."
The Biffiop of Salijbury's Caie (10 Co. 38. b.) T. i r Jac. 1614,
came before the Court upon a Demurrer. It is not alledged in the
Pleadings of either Side, " that the Office was, or was not, necef-
•" fary." The Plea in Bar to the Avowry was fingly, " that the
" Office never was granted before, beyond one Life :" And the
Grant was holden good. In the 5th Refolution, * It was refolved *io Co. 62. a.
" That the Grant of an ancient Office to One, with the a}2cie}jt
" Fee, by a Biffiop, fhall not bind his SuccefTor ; unlefs it be confir-
" med by the Dean and Chapter : For Such Grants are not, as ap-
" pears before, reftrained by the Statute of the firft of Eliz; and
" therefore remain at the Common Law, and by Confequence ought
^ to be confirmed by the Dean and Chapter." If fo the Utility or
Nccefjity
224 Hilary Term 30 Geo. a.
Necejjity of the Office was not at all material : For, by the Common
Law, the Utility or NecefTity of an Office was no Requifite towards
.Rendring the BiOiop's Grant of it (confirmed by his Dean and Chap-
ter) good and valid.
••»G^f, Bifiop The Bifhop of Chichejler's Cafe, * in Cro. Car. 47. and-I,r_y 71.
tf Chichepr, (2 Car. I. Anno Dom. 1626.) came before the Court upon a De-
V. FretdlanJ. ^^^^^^^^ too— Thctc is HO Allegation in the Pleadings on either Side,
as to the Office being necejfary, or not : The Queflion turned folely
vpon the AciJidofi of a. new Fee.
[• rou>,g V. The Cafe of the * Regilter of RocheJIer, in Cro. Car. SS?- Hi/.
Foiuttr, Cro. j^ Q j_ An?io Domim 1639. came before the Court upon a Spc-
MaJ^^li cial Verdia. There is not a Word as to the Office or Reverfionary
2 Ro. Abr. Grant being necejfary : but it is found to have been ufually granted
153. fi-i, 8. ipj Reverfion ; And therefore the Court adjudged fuch a Grant in
See^'aifo Sir Rcvetfion to be good againft the Succeflbr.
William Jones
311. Totige V. Sto'well, TV. 8 Cay. (in an Aflion upon the Cafe, for difturbing the PlaintifF in the fame
Office,) S. P. ac<ord\]
Thus ftood the Conftrudlion of this Statute, upon the Reafon
.and Words of the Law, Pradlice, and Judicial Determinations. But
it happened that, tejides the real Ground of the Judgment, in the
Biffiop of Salijhurfs Cafe, they echoed the Reafoning of the Biffiop
of Ely's, without di/iinguijljing the effential Difference between the
l*r. 10 O. two Cafes j and * laboured to prove, *' that the Office was necef-
Under the great Authority of the Reporter, the fame Reafoning is
repeated in the fubfequent Cafes : and where the Grant is good,
becaufe it was taarranted by the Ufage before the ift of Ehz. they
needs mufl ex ahiindanti labour to (hew, " that the Office is neccffary,"
by Arguments fo inconclufive, and fo contradictory, that One is
forry to read, or repeat them. " It is neceffary to grant for one
" Life ; but not necelllu-y to grant for two, or in Reverfion :" And
then, " It is neceffary to grant in Reverfion j that when the firft
" Life drops, there may be another immediately to fill the Office."
Whereas in real Truth, Few of thefe Patent Offices (except the Ju-
dicial) are ufeful, or necejfary in any Senfe j Fewer are necelTary, or
even expedient, to continue beyond the Biffiop's own time : None ne-
.cefTary, (by any Colour of Argument,) to be granted in Reverfion,
or for 7nore than One Life. But if they exifled before the ifl of Eliz.
they are not within the Statute, they are governed by the Common
.Law : And therefore. Grants of them bind the Succeffors, how ufe-
,kfs fotfver they may happen to be.
± The
Hilary Term 30 Geo. 2. 225
The next Cafe that was mentioned, was the Cafe of Ridley v,
Pownall, 2 Lev. 136. 27 C. 2. * There the Special Ferd2<^ Jourid I* '^^'^ '^''^
the Office to be a ficcejfary OfHce ; (which is tht Jirji Injiance where ^"^ the'cafe^'
it appeared Judicially to the Court, " that the Office was neceffary ;") in B. R. for'
and that it had been feparalibus temporibus. fince the Foundation of l','^"'''?'''^ "-^^
^.- ., w T- Plaintiff m his
the Biffioprick, granted for 3 Lives. _ office of Re-
girter to the
My Lord Hale who diftinguiffied what He read, and thought J^')j^°P ^f^^^
and reafoned from Himfelf fays " Bcfh-e the jirjl of Eli z. there was Biihop'rick
•*' no Difference between the Grant of Offices, of ancient and new founded temp.
I • hf ^ \ See
" Biiliopricks ; Both made their Grants, as Owners j and if they 'j^J^^ „2.
•' USUALLY granted for Three Lives, before the Statute, they may 506, 54.0,
" grant fo after. But the Verdidl is defedive, becaufe it does not S^°- ^- ^-^
" find that it was usually fo done I?ifore the i// of Eliz." And
on Account of the Incertainty, there was a Fenire de 7iovo : Othcr-
ivife, Judgment would have been given for the Defendant. So that
You fee. Finding the Office to be necefj'ary, was totally immaterial.
In the Cafe of Jones v. Beau, in B. R. 3 /■F. & M. 169 1, report-
ed in 4 Mod. 16, The liTue diredted out of Chancery was, " Whe-
" ther the Office of Chancellor of Landajf, had been vfualJy grant-
" ed to Tivo, before the ift of Eliz.'" And the Jury finding " that^.
" it had-," the Court held the Grant of the Office to Two to be'
Good. And no Man alive will fiy, " that it was nccefjary that the
" Office of a Biffiop's Chancellor Ihould be granted to Tu-o."
The Office in queftion in this Caufe, is found " ne-vcr to have
'" been more ufeful or neceffary than it is nc\v :" And yet ylH tht;
Biffiops o{ IFincht'jler, from the ift oi Eliz. have thought the Grants
of it valid ; and Every fucceeding Bilhop has fubmitted to the Grant
made by his Predeceflbr ; And -j- the greateft Men of the Kingdom,, ^ 5;^ yj,,,.^
or the neareft Relations to the Billiops, have fucceffively held the Grant was—
Office. The prefcnt Biffiop thought this Grant good, f3r Elcv.n''^2'',!lft '"
Tea's; but has conceived a Doubt, from the Mif-application and ,"5'"';, *as ;?,>/,.
Repetition of inconclufive and contradicflory Arguments about the ""i Ejrl of
Office bcinir necejTary, which arc to be found in the Reports of the ^^"'''l"''' '^^•""
Cafes I have mentioned, before the 27th or C. 2d. (Uorge l>±e
of Bucking-
ham, Cl/arlis Earl of Nottinghav!, Thomas Duke of tsotfolk, Philip Earl of Pembroke sr.tl Montgomery,
"James Dake o{ Ormond, or He>iry Earl oi Clarendon had holden.''
Whereas we are All unanimoufly of Opinion, That an Office
and Fee, which existed before the first of Eliz. is 7jot
within the Statute ; but may be granted fncc, precifely in the fame
Manner, in which it was granted before : And that the Utility, or
Nectffity of fuch an Office, is no more material /wa' the ill of
Eliz. than it was before. And this Opinion We think agreeable to
the IFords and Intent of the Acl, and every Precedent iince the Statute.
3 M ' And
Z26 Hilary Term 30 Geo. 2.
* i^.aniczig. And in this Opinion, rny Brother * Wilmot concurs with Us. And
"■'■ therefore there mure be
Judgment for the Plaintiff.
Which Judgment was ordered, at Mr. Norfon's Pvcqueft, to be
entered as of the 'Term in which the Pojlea was returnable : Eecaufe
\y. ante zzi. Sir John Trelaivney was -f- dead, between that Time and the present
Time of pronouncing the Judgment,
Saturday jth Gofs Veff. Nclfoil.
Fehyuary
17
Pv. Gould pro ^er\ fliewed Caufe why the Judgment ob-
tained by the Plaintiff againft the Defendant in an Adion
upon a promillory Note ihould not be arrefted : The Note having
been objedted to, as contingent, uncertain, and not negotiable within
the Ad of 3, 4 Ann. Mr. Gould's Anfwer was that the Sum pay-
able by this Note, is Debiiutn in present i ; though Solvendmn in
futuro.
The Queflion depended entirely upon the Validity of this Note :
% v. po/i. — Which was a promiifory Note given to an Infimt, '\. payable
pLI7' a'like " WHEN He (the Jnhnt) JJmII come of Age ;" and specifying
Point,' (i./~. the Time iv/:k-n that ivas to be, viz. I2th Jutie 1750, The De-
payabie on fendant's Counfel had moved to arrefl the Judgment, for that this
G^.H) "'■"^^ "0^ (^s ^^^y alledged) a good Note, within 3, 4 ylftn. c. 9.
§ I. for giving like Remedy, upon promiflbry Notes, as upon Bills
of Exchange.
In anfwer to which, Mr. Gould now cited 2 Strange 12 17. the
Cafe of Cooke v. Colehan : Where a Note, " To pay in 6 Weeks
" after the Defendant's Father's Death," was holden a gocd'^ox.t.
Mr. Caldecct contra pro Def : Here are, in this Declaration, 2
Counts on Notes of Hand indeed : But the Notes fet forth in tlie
Declaration, are not Notes for the Benefit of Trade ; Nor is tiie
Money made certainly payable. The Note was given to the
Plaintiff, 13 Years before the Time when he was to come of Age:
And it was ?iot at all certain that he ivoidd live to attain that Age.
He cited 2 Strange 11 5 1 . The Cafe of Beardfley v. Baldicyn :
Where a Note " to pay within fo many Days after the Defendant
** fliould marry,'' was held ?:ot to be a negotiable Note within the
Statute.
Tlie
Hilary Term 30 Geo. 2. 227
Tlie Cafe of Cooke v. Cohhan (cited by Mr. Gould) 2 Strange
T251. was payable Six Weeks after a Death : V/hich was a certain
Event.
In order to have the EfFeft of a promiflbry Note within this Sta-
tute, it ought to be a Cajh-Note, and payable at All Events.
No Note is negotiable, which is not for the Payment of Money
ahfolutek. i Strange 629. Morris v. Lee. That was a Note pro-
mifing." to be accountable to the Plaintiff or Order for 100 /. Value
" received." — And held good. But a " ^uvre tamen"' is added by
Sir John Strange. All Notes payable on Contingencies are bad,
within this Ad : And this is a Contingency^ " Whether he may ar-
rive at the Age of 21 j or jiot:"
Lord Mansfield — It would' have been clearly good, if it had been
made payable on the 12th of '^une 1750. (that is to iliy, on a Day
certain ;) without mentioning the Plaintiff's being then to come of
Age : And furely it is not the lefs certain, for adding rtiat Circum-
ftance.
Legacies are of a different Nature : And they are determined by
different Rules. They are Direftions to the Executor to pay : And
in Legacies there is a known Diflinftion between the Time being
annexed to the Subftance of the Gift, or to the Fayment. If com-
plete Words of Gift diredl the Executor to pay; the o/'Z'fr Words
only^x the Time of fuch Payment: And then the Legacy vefts,
and is tranfmifTible, though the Legatee fhould die before the Day
of Payment: As a Legacy given, " to be paid at 21." But if the
Time is annexed to the Subftance of the Gift, as a Legacy " if"
or " when" he (hall attain 21 ; it will not vefl before that Contin-
gency happens.
But here the Words of Engagement make the Debt ; And 'tis no
Diredlion to another Perfon. The former part of the Note is a Pro-
mife to pay the Money : And the Refl is only fixing the particular
Time when it is to be paid. It is enough, if it be certainly
and at all Events payable at that Time, Whether he lives till then,
or dies in the Interim. Therefore it is a good Note, within this
Remedial Statute.
Indeed a Contingent Note, where it is uncertain " Whether the
" Money fliall ever become payable at all, or not," is another
Cafe : Such a Note is not within the Statute.
Mr. Jufl. Denifon concurred.
For
228 Hilary Term 30 Geo. 2.
For here is no Cotidition or Uncertainty : But it is to be paid
certainly, and at all Events ; only the Time of Payment is fojlponed.
And the Cafe of Cooke v. Cokhan was the Opinion of the whole
Court.
And He alfo cited Borajlon'% Cafe, 3 Co. Rep. 19. [Which proves
" that where the Words refer to what mnji neccJJ'arily happen, 'tis
" no Contingency, but a Remainder executed." V. Equity Cafes
Abridged, fo. 190. pi. 16. S. C]
Mr. Juft. Fofier concurred.
A Legacy may be given upon any Terms.
But upon a promifTory Note, the 'Time of Payment is only for
the Benefit of the Debtor. Here, the Time of Payment is cer-
tainly 7?Ar^^; And the particular Day fpecified for Payment of
the Money, being mentioned to be the Day on 'which the Infant is
to come of Age, makes no Difference, from what it would have
been, if that Circumftance had been omitted.
And They Ail agreed That this was Debitum in prcefcnti, though
S)olvcndum in futuro.
Per Cur' unanimoufly Rule discharged :
And the Pojlca ordered to be delivered to the Plaintiff.
Tuffiay 8th
bruary
1757
FliZy Goodtitlc ex dimiff. Hayward verf. Whitby.
{Mr. fiifl. Fofier abfent.)
' B HIS was a Cafe from Lancajler AfTizcs, upon an Ejedment.
R. P. being feifed &c. devifed All his MefTuages, Lands, Tene-
ments, and Hereditaments whatfoever and whercfoever fituate, to the
Reverend Mr. Thomas Hay-ward and John Bates and the Survivor of
them, and the Heirs of luch Survivor ; " In Trufl, that they and the
" Survivor of them, his Heirs and AfTigns fliould lay out employ
" and beflow the Rents and Profits of the devifed PremifTes, for the
" Maintenance, Education, Briftging up and putting forth into the
" World, oi Thomas and fohn Hayward, Sons of the Teflator's Sif-
" ttx Elizabeth Hayward, during //)«> Minorities : And when
" and AS they fJjould refpc£lively attain their Ages 0/21, Then to
z " the
Hilary Term 30 Geo. 2. 229
'* the Ufe and Behoof of the faid Sons of" his Sifter Hayward, the faid
*' Thomas Hayward and John Hayward, and their Heirs, equally''
And the Teftator made the faid two Truftees, the Reverend 'Thomas
Hayward and fohn Bates, his Executors.
It is ftated that Thomas Whitby ^ the Defendant, is the Teftator's
Heir at Law. —
That Thomas and fohn Hayward are the Teftator's Sifter's Sons.
Thomas Hayward the Elder of the Teftator's faid two Nephews
died under the Age of 21, and without Iffue,
Upon his Death, his Brother John being then under Age, Tlx-
nms Whitby the Teftator's Heir at Law, was let into the Moiety
of the DECEASED Ncphew, Thomas Hayward, by the Truftees.
John, the furviving Brother brings the Ejedlment, being now
come of Age ; and claiming the Moiety of his deceafed Brother, as
well as his own proper Moiety.
Qi^ftion — " Whether this Moiety of Thomas the deceafed Bro-
" ther, belongs to John Hayward, either as Heir to his Brother, or
" as furviving Joint-tenant ; Or whether it belongs to Thomas Whit-
" by, as Heir at Law of the Teftator, as an urJevifed EJlate."
Mr. Perrott for the Plaintiff", {yiz. for fcbn Hayward, the fur-
viving Nephew of the Teftator.)
This Point is fettled by many Refolutions.
I ft. This is only a C/j^Z/rZ-lntereft in the Truft.^es, {though given
to them and tl.eir Hrirs :) Becaufe it is to laft only during the
Minorities of his Nephews.
The Qneftion is, " Whether the Remainder vested in Thomas
." and John Hayward;'" Or " Whether it remained in Contix-
*' GENCY, ^/// their refpedive Cww/z/g" ^"^^'■^."
All that the Teftator bad in View, in this Truft, was to provide
for the Care of his Nephews during their Minorities : And He
only meant that the Time of their Coming of Age, jlxuld determine
the Time when they fhould be capable of ASiing for themfehes ;
Not to make it Contingent till they (liould come to 21. For
at that rate, if they had married, and died under 21, their
Children could not have taken: Which the Teftator, moft un-
douljtedly, could never mean.
3 N Borajlon'%
230 Hilary Term 30 Geo 2.
Bora/ion's Cafe, 3 Co. 21. was held a -u^^i/ Remainder.
The Cafe oi Taylor v. B/W^^/, 2 M?^. 289. is in Point.
The Cafe of Edwards v. Hammond, 3 L^o;. 13 '. (Where the
Eftatc's being contingent or not, depended on it's being a Condition
precedent or fubfequent,) was only held a Condition fubfequent and
a prejhit Devife to the Eldeft Son.
Equity Cafes abridged, H. 1713. fo. 195. pi 4. The Cafe of
Mansfield v. Dugard, is almofl the fame with the prefent Cafe.
So here, the Eftate vefied immediately in the two Nephews, upon
the Death of the Teftator ; And therefore, upon the Death of Tho-
mas his Brother John is intitled to this Moiety j either as Heir at
Law to Him, or as Survivor.
Mr. Norton pro Bcf'. Thomas Whitby, the Teflator's Heir at Law.
The Will is, in Subftance, no more than this —
The Teftator gives to A. and 6, and the Survivor of them and
the Heirs of fiich Survivor, AM his Meffuages, Lands. Tenements,
^c. In Trpst that they (hall difpofe of the Rents and Profits of the
devifed PremiiTes for the Muintenancc, Education, Bringing up, and
putting forth into the V/orld, of his two Nephews (his Siller's
Sons) Thomas and John Hayward, during their Minorities: And
M^HEN and A<? they fhould refpeftively attain to 21 ; then to the
Ufe an.i Behoof of them the fa id Thomas and John Hayward his two
Nepiiews, and their Heirs, equally. -
The Cafes on this Head appear indeed inconfifient and repugnant :
But the true Method of fohing them is, to attend to the Intention
rf the Teftator.
Now here The Teftator intended his Nephews a Fee, if they
f^iould live to make ufe of it, if not, then only a Prcvifion during
their Minority.
And it is a Rule, " that the Heir at Law fhall not he difmherited
" by l7wfr/(^<77z Words of a Devife."
Here, Nothing vested in either of the two Nephews, during
their' Minorities.
If
Hilary Term 30 Geo. 2. 231
If the 'Tejiator had intended a Benefit of Survivorfliip, to his two
Nephews, He knew how to do it j as appears by another Part of his
Will.
The two Nephews were not Each of them hititled to a Moiety of
the Profits durifig their Mitiority : For they were only to be maintain
f led at the Discretion of the Executors.
The Queftion is, " Whether this be, or be not, a Condition pre-
*' CEDENT ; Of an Eftate depending upon a future Event that makes
*' it uncertain whether it fhailever take EfFedl."
Sheppard' s Touchftone of Common Ajfurances, 117. defines a Con-
dition precedent, to be " Where the Condition muft be fulfilled,
" ere the Eftate can take EfFed."
A Gift to A. " IF he comes from Rome," does not veft //// He
comes from Ro?fie,
Juft fo, a Devife to ^. if he comes of Age ; cannot veft till he
comes of Age.
And he was not to have the Fee, //// then.
In Gifts ofperfonal Eftate or Legacies, it is the fame. For if the
Time is annexed to the Legacy itfelf, and not to the Payment of it,
then, if the Legatee dies before the Time of Payment, it is a lapfed
Legacy : But if annexed to the Payment, then 'tis not. i Lev,
167. * •V.anteztS.
S. P. accord.
2 Salk. 415. PL 2. The Cafe of Smell contra Dee 6 Ann. in
Chancery. 2 Vent. 349.
As to the Executors taking only a Cnp^-vvEL-lntereft ; The being
defeafible does not make it the lefs a Fee.
In the Cafe of Gardner v. Sheldon [Vattghan 259.] it is fo laid
down by Ld. Vaughan.
This is a Fee to the Truftees and their Heirs ; though liable in-
deed to a Contingency. 'Tis the Word " Heirs," that makes it a
Fee. Littleton § j .
If fo, then it cannot be a vefted Remainder j but muft be an
Executory Devife, a mere contingent Interejl, 10 Co. 85, Leo-
nard Lovis's Cafe.
2 As
232 Hilary Term 30 Geo. 2.
As to Mr. Perrott's Cafes —
Borafion'% Cafe, 3 Co. 23. is not at all applicable to the prefent
Cafe: And it was there neceffary, towards forwarding the Intention
of the Te/iator, that it JI:ould be a vefted Interefl:. And that was an
exprefs Devife of a Chattel : So that the Fee vefted immediately. But
here are no fuch Circumflances, in this Cafe.
As to the Cafe of Taylor v. Biddal, 2 Mod. 289. There alfo was
an exprefs Devife of a Chattel, to Elizabeth Wharton : And the Fee
defcending to Her, ivould have merged the Term, contrary to the
Intention and Words of the Teftator.
As to the Cafe of Edwards v. Hammond, 3 Lev. 132. It is no
more applicable to the prefent Cafe, than the other two are. That
was a Con^\iiov\ fubfeqiient .
But here are no Words to n:iew the Intention of the Teftator to havs
been, " that if cither of his Nephews (hould die, his Heir at Law
" Ihould not inherit."
And here it is ftated that the Teftator's Heir at Law was let into
and held this Moiety by Confcnt of all the Parties, till this jchn
came of Age. [V. Ante 22 ().'\
As to the Cafe of Mansfield v. Dugard, It is difl:ingui(hable from
the prefent Cafe.
Mr. Tcrrott was going to reply — But Lord Mansfield ftopt him,
and faid it was unnecellary.
The Cafe is no more than this. P.. P. being feifed in Fee, mnkes
his Will to the following Efifeft — " I give and devife All my Mef-
fuages Lands Tenements and Hereditaments &c. unto the Reverend
Thomas Hayward and John Bates and the Survivor of them, and to
the Htirs of fuch Survivor, In Trust to and for the Benefit of my
Nephews Thomas and John Havward; That is to fay, upon Truft
and Confidence That the faid Thomas Hayward and "■;chn Bates and
the Survivor of them, his Heirs and AfTigns, fliall lay out and em-
ploy the Rents and Profits of the faid Premifirs for the Maintenance,
Education, Bringing up and Putting out in the "World, of the faid
Thomas and Jchn Hayward, tlie Teftator's two Nephews, during
their Minorities: And whfn and as they fliall attain their re-
fpeftive Ages of 21. My Will and Defire is that the fame Premif-
fes (hall be and remain to them the faid Thomas Hayward and John
Hayivard, and their Heirs equally." And He makes the fame T.
H. and J. B. his Executors.
Hilary Term 3c Geo. 2. 233
It is dated that the Defendant Whitby is the Teftator's Heir at
Law : But the Cafe does not ftate hew and in what Courfe of Con-
fanguinity, Thomas Whitby is Heir at Law. 'Tis probable that He
is not of the Male Line ; becaufe his Name is Whitby.
The Teftator died. T. H. and 7- B. the two Truftees, entered
into Pofleflion. Then Thomas Haywarci, one of the two Nephews
and Devilces died, under Age, and without Iflue. Then, the Truf-
tees let the now Defendant, the Teftator's Heir at Law, into Pof-
feflion of his Moiety. But it is not material What they did among
themfehes ; that will not affedl the Right of the Plaintiff.
The Queftion is, " Whether the Eftate ve/led immediately in
" the two Nephews, upon the Death of the Teftator ; Or remain^
*' ed in Contingency, till their refpedive Coming of Age:" And
confequently, " Whether this Moiety belongs to John Hayward,
" upon the Death of his Brother Thomas, either as his Heir at Law,
" or as Survivor ; or whether it defcends to the Heir at Law of the
" Teftator, as being undevifed."
In the Conftruftion of Wills, adjudged Cafes may very properly
be argued from ; if they eftablilh General Rules of Conftrudion, to
find out the hitention of the Tejiator : Which Intention ought to pre-
vail, if agreeable to the Rules of Law.
Here it is agreed that a Fee is devifed to the Nephews : but it is
made a Queftion, " Whether it be a Fee depending upon a prece~
" dent Contingency ; or, an immediate Fee,"
He faid He would lay down a Rule or two of Conftrudlion, pre-
vioufly to giving his particular Opinion on this Cafe.
ift. Wherever the whole Property is devifed, with a particular
Intereft given out oj it, it operates by way of Exception out of the
abfolute Property.
This Rule is laid down in Matthew Manning's Cafe, 8 Co. 95. b.
2d. Where an abfolute Property Is given ; And a particular In-
tereft given, in the mean time, as " until the Devifee fliall come
" of Age &c : And when he (hall come of Age &c. then to Him
" &c." The Rule is that that ftiall not operate as a Condition pre-
cedent ; but as a Defcription of the Time when the Remainder-Man
is to take in PoffeJJion.
And to this Purpofe is Boraflon'% Cafe, 3 Co. 21. <?. b. Where this
'Dodtrine is fully laid down and explained.
3 O And
234 Hilary Term 30 Geo. 2.
And this is fufficient to anfwer the Intention of the Teftator: For
the Devifee does not want it in the mean Time,
The Cafe o'i Mamfield v . Dugard, — in the Abridgment of Equity
Cafes ig^. pi. 4. is alfo very ftrong to prove the general Rule.
Here, upon the Reafon of the Thing, the Infant is the ObjeB
of the Tfftator's Bounty : And the Teftator does not mean to de-
prive him ot it, in any Event. Now fuppofe that this Objedt of
the Teftator's Bounty marries^ and dies bejore his Age of 21 leaving
Children; coidd the Tejiator intend in fuch an Event, to dfinherit
Him. Certainly, He could not. And as to the Teftator's Heir at
Law, His Heir at Law is only to take what the Teftator has not
deviled away from Him.
But in the prefcnt Cafe, the Teftator takes no Notice of this Tho-
mas IVhitby, who is indeed ftated to be (but it doth not ;ippear
how) his Heir at Law. And He does not except any Thing out
of the Intereft he has given to his Nephews: He only makes a
Truft, to be executed iox THEivt. Beneft; And devifes nothing for
the Benefit of the Truftees^ who were alfo his Executors. And this
is o?ily a Chatt EL-Intereft, which can not lajl 21 l^ars.
On the Rule in Matthew Manning^?, Cafe, here is (at the utmoft)
only an Exception^ by this Devife to the Truftees, out of the abfo-
lute Property given to his Nephews.
'Tis fo plain upon the true Intent ;iiid Meaning of this Will, that
it is a Shame to cite Cafts upon it. But yet I remember an appo-
fite Cafe in H. ij G. in Ca?ic. Tomkins v. Tomkins where the De-
vife w. s " to his Brother, in Truft for his eldeft Son B. till he
*' ftiould at;ain 21 Vearsj and if he fliould die before 21 j then a
" Devife over."
Cur. held the Age of 21 to be no Limitation of B's Interest;
but only a Limitation of the Tru/l, during his Minority; And that
B. took the whole by Implication.
So here, the Property is abfolutely given: And the Limitation is
only of the Trujl.
Therefore upon the whole, He held the prefent Cafe to be
An inunediatc Gift to the two Nephews; with a Truft to be ex-
ecuted for their Benefit, during their Minority.
Fer Cur. Let the Pojlea be
delivered to the Plaintiff.
2 Mafter,
Hilary Term 30 Geo. 2. 235
Mafter, &c. of the Vintners Company verf. PaiTey.
THIS was an Adion of Debt brought upon a By-Law of this
Company.
The Declaration (after a proper Introduftion) fet forth the By-
Law, which was made on 24 April 1656, intitled "An Ordinance
" of Eiedtion of Men into the Livery of the Corporation or Mi-
" fiery of Vintners oF the City ol London" \ Whereby it was or-
dained and eftabUfhed, That the Mafter and Wardens of the Corpo-
ration or Miftery of Vintners of the City of London, for the Time
being, fliould have a decent Livery, comely for themfelves, and
meet to attend upon the Lord Mayor and his Brethren the Alder-
men of the laid City, from Time to Time and at all Times, as Need
fliould require; and upon the faid Mafter and Wardens, atallfuch
Time or Times thereafter, and in fuch Gowns and Liveries, as they
fhould be lawfully warned and fummoned to come and be in, upon
any neceffary Occafions concerning the Credit and Worfhip of the
faid Company; And alio that once in every Year, or oftner if Oc-
cafion fhould ferve, the faid Mafter Wardens and Affiftjnts, or the
Major Part of them which lliould be then prefent at a Court of Af-
fiftants for the Time being, to be holden for the faid Miftery,
jhould and might elect and choofe into the Livery or Cloathino
of the faid Corporation or Miftery, such and so many of the
Teomandry of the faid Miftery, a^ j%ould feem moft meet and conve-
nient unto them; And that every such Person of the faid Teo-
mandry jo chojen into the faid Livery as aforefaid, fmild at or be-
fore his Admifficn into the faid Livr^ry, pay to the faid Mafter
V/ardens and Freemen and Commonalty of the Miftery of Vintners
of the City oi' London, to their Ufe the Sum of 3 i /. 13^. ^.d. of
lawfal Money oi England. And then and there, at the fame Af-
fembly, the faid Mafter, &c. did make another By-Law, That Frjery
Perfon and Petfons of the faid Corporation, ivhich at any Time there-
after fould be by the faid Mafter V/ardens, ^c. for the Time
being, at any Court, ^c. elected or chosen into the Livery of
the faid Miftery; and poidd not, upon Notice given to Him or them
in that Behalf, by the Clerk or Beadle, accept e/' the fame; or,
upon Acceptance thereof, fhould, before his Admiflion into the faid
Livery, refuse to pay to the faid Mafter, &c. the Sum of t, 1 /.
135. /\.d. that then every particular fo refufng to accept, &c. or to
pay as aforefaid, fioidd forfeit, &c. to the faid Mafter, &c. the
Sum 0/25/. to be recovered by Adion of Debt, Bill, Plaint, or In-
formation, to be brought in any Court of Record within the Com-
monwealth of England, by the faid Mafter, &c.
Then
236 Hilary Term 30 Geo. 2.
Then the Declaration avers both the faid By-Laws to be reafon-
able, &c; And alfo, that at the Time of the making them, and
ever fince, All the Freemen of the faid Miftery, before their Ad-
milTion to the Livery, were known by the Name of the Yeoman-
dry ; And that the Defendant was a fit and able and proper Perfon
to be elevled into the Livery and Cloathing of the faid Company.
Then it fets forth his Election upon the Livery; And that He re-
fufed, &c.
To this Declaration —
The firft Plea was " Nil debet." And there was alfo, by Leave a
2d Plea, That there are 12 greater Livery-Companies, in London,
and other inferior Companies; And that an Order was made at a
Court holden before the Lord Mayor and Aldermen &c. on &c. at (^c.
At which Court it was enafted &c. " And that no Perfon fliould take
" upon himfelf the Livery of any Company being one of the J aid 12
" Companies, &c. Unlefs he ihould have an Eftate of 1000/. &c."
And the Plea avers,
That this was One of the 12 Companies; And that he had not an
Eftate of looo/.Gfc. And therefore he fays, that he was not duely eleSied
upon the faid Livery of this Company of Vintners.
The Plaintiff demurs to this 2d Plea: And the Defendant joins
in Demurrer.
Mr. IVtIliams pro ^er. made three Objedions to the Plea.
. ifl Objeftion — That it is not fet out by what Authority the Court
which made this Order, was holden. Clift. 186, 196.
2d Objedion. The Court is uncertain: For many Courts are
holden before the Mayor and Aldermen; And Non conjiat which ot
them this is.
3dly Non conftat what Authority the Court of the Lord Mayor
and Aldermen had to make this Order.
Mr. Serjeant Martin pro Def faid —
It was not known, at the Time of the Plea, nor can now be
known, what Authority the Court of Lord Mayor and Aldermen
had to make this Order: Therefore He gave up the Plea.
A But
Hilary Term 30 Geo. 2. 237
But he objeded to the Declaration, in two Refpedts.
■ifl. The By-Laws are bad.
2d. The Defendant was not duly fummoned to attend at the Court
tff JJJiflants^ to take upon him the Livery.
Firft — The By-Laws are arbitrary, illegal, opprejjive, and 7iot
.•warranted by Ciiftom or Charter.
They are, " That the Company may eleft fuch of the Yeoman-
" dry of their Members as £tiOvXdi feem mojl ineet and convenient to
" them, upon the Livery of their Company;" And " that every
•" Perfon fo elefted, who fhould refufe ^c. fhall forfeit ^c; And
" Every Perfon fo eleBed, fhall accept the fame, and (hall upon
" or before Admifiion, pay 31/. i^s. /[d. for an Admiflion Fee,
" on Forfeiture of 25/." (which Penalty of 25/. is made payable
abfolutely and in all Events.)
Now the Livery-Men ought to be Perfons of Jubilance, capable of
being at the Expehce of ferving.or paying the Fine,
And the Averment " That he was a fit and able and proper Per-
" fon," goes only to the juft Exrcz/i'/owof the By-Law; But will not
make the By-Law itfelf good, which is in itfelf void.
3 Lf"u.2 93. Mayor £?<:. of Oxford w. JFildgoofe: [in Point, as to this.]
The Right to have a Livery, muft be founded, either on Char-
ter or Culliom.
Pafch. 30 G. 2. Innholders Company 1;. Gledhilt, B. R. — was fo
determined; And that the Court can't prefUme it: And the want
• of fliewing this, was holden to be fuch a Fault in the Declaration,
as might be taken Advantage of upon General Demurrer.
In Lilly's Entries there is a Prec-edent of fuch a Pleading
upon fuch a By-Law.
On 27 July 1697, The Mayor and Aldermen made an Order
(fet forth in the Pleadings,) which fhews the Opinion of that Court
upon this Plead oi Siifficiency of the Perfons eledt^d.
In Raym. 446. Tavern'er's Cafe 3 3 C 2. (which he cited for the Sake
of the Return,) This very Company made it Part of their Return
-to the Mandamus, " That every Livery-Man of this very Company
3 P " was
238 Hilary Term 30 Geo. 2.
*' was uled and ought to be de bono Statu et Subjlantia," &c. [But
N.B. the Fine 0^31/. 13J. 4^. was there allowed to be good.]
Comberb. 221. The Cafe of the Stationers Companyi;, Sahjhiiry:
(which was cited, as to the ift Objedlion of it, and applied to the
J ft Objeiftion here.) Alfo the 2d Exception there, anfwers (as
the Serjeant obferved) to the 2d Objedion here. [But that Cafe
was not determined.]
2d. Objedion to the Declaration — Non conjlat that He was fum~
moned to attend at the Court of Ailiftants, to take upon him the
Livery.
The Declaration fliews that the Mafter and One Warden may
1 appoint a Court whenever they pleafe: So that the Time of hold-
ing this Court, is uncertain. And they only fhew that He was fum-
moned to attend at the next Court, generally, without fpecifying
WHEN it icas to be holdcn.
Mr. Williams in Reply.
ift. Thefe By-Laws are now of abo\'e 100 Years {landing: And
they have been holden good, notwithftanding all Objedions. Vide
i?<?y/«. 446. Taverner'^ Cafe: [Where the Return of them was al-
lowed.] And they ought to receive a favourable Conftrudion.
If they choofe a Perfon unfit, it may be taken Advantage of in
Pleading, or upon Evidence.
City o^ London, v. Vanachr. Carthew, 480. 483. A Power "to
" eled fuch Perfons as Cc\ou\A feetn to them to be fit and able" —
gives them a Difcretioh. 5 Co. 100. a. Koo/ce's Cafe.
This is a difcretionary Power; and is confined to fuch as are fit
and able; though it mufl be legally executed.
It is objeded alfo that the Penalty of 25/. is made payable ab-
folutely: Whereas it ought to be, unlefs he has a reafonable Excufe.
But this is implied.
And if he has a reafonable Excufe he may plead Nil debet.
Carthew 483. City of London, v. Vanacker: [in Point.] i Lutw.
402. By-Law of the City of Catiterbury : Where Non debet was
pleaded, v. fo. 405.
In
Hilary Term 30 Geo. 2. 239
In Anfwer to the 2d Objedion —
As to the Time of holding the Court, the Objedion is only to
the Form of the Declaration. But
It is averred " That Notice was duly given Him of his Elec-
" tion;" And " That Notice was duly given Him, to attend at
" the next Court of Afliftants."
Befides, He as a Member of the Company, was obliged to
TAKE Notice of the Time of holding their Courts.
As to 3 Lev. 293. The By-Law there does not even confine it
to the Inhabitants of the City : But this is confined to the Members
of the Company. [Still, This is no Anfwer to the material Objec-
tion.]
As to Comberb. 22 1. It was not determined. [No more it was.]
Lord Manfield—^
The Flea is admitted to be bad.
The Objedions are to the By-Law: Which has been of loo
Years flanding; and, feveral Times, judicially before the Court;
and yet this Objedion has never been hit upon.
However, One Anfwer ftrikes me: Which is " That Nil De-
" BET may be pleaded, if the Party was rf^/Zy unfit." Carthew £^%'>^.
Vanacker's Cafe, and i Ltitw. 402, 405. Major, Gfr. de Cambridge
V. Herring — are Proofs of this. — By the former, it appears that
it may be given in Evidence, upon Nil debet pleaded: And in the
latter, it was adually pleaded; and Iflue taken upon it. And this
equally holds, as to any reafonable Excufe. And We tvi II not intend
him to have been an improper Perfon.
Being a Livery-Man of the Company, He ought to know when
the next Court is : And therefore this Objedion has not much Weight.
Mr. Juft. Denifon.
The By-Law gives Power " to eled fuch and fo many out of the
" Yeomandry, upon the Livery, as fhall fcem to them mofl meet
" and convenient." The main Defign feems to relate to the Num^
her. As to the Ability — By-Laws ought to have a reafonable Con-
ftrudion: We ought not to conftrue them fo ftridly, as to take
them to be void, if every particular Reafon of making them, does
not appear.
Now
*
240 Hilary Term 30 Geo. 2.
Now here, it is objeded " that the Perfon elefted may be a
'** Beggar."
But We can nenser intend that they would choofe Perfons not
meet and convenient.
And if this ^^ done, " Nil debet" will bring thatQueftion before
the Court.
And You cannot, upon this Record, take in the Order of the
Court of Lord Mayor and Aldermen ; becaufe that Plea is
given up.
And the Notice fliall be intetided to be regular.
This is an Ancient By-Law ; And nothing unreafonable appears
upon the Face of it.
Per Cur. {viz. Lord Mansfield and Mr. Juftice DeniJ'on,
the Other two Judges Iseing abfent,)
Judgment for the Plaintiff.
Wilfon, Clerk; verf. Greaves.
MR. Serjeant HtW/^ fhewed Caufe againft a Prohibition, which
Mr. Serjeant Poole had moved for, (on the 6th of July laft)
to be diredled to the Arch-Deacon of Notiinghain, to flay his Pro-
ceeding in a Suit againft Mr. IVilfon, (Paribn of Neivark,) for braid-
ing in the Church, and alfo for fmiting in the Church : But he
prayed the Prohibition, only as to the latter Charge, the fmiting in
the Church. V. 5, 6 £. 6. <:. 4. § 2 : Which Aft contains 3 diftihdt
Claufes, levelled againft 3 diftindt Offences committed in Churches
and Church-Yards ; viz. the i ft againft quarrelling, chiding, or
brawling, by Words only ; tj)e 2d againft fmiting, or laying violent
Hands ; the 3d againft ftriking with a Weapon, or drawing One
>vith Intent to ftrike.
His Objedion was. That as to this Offence of fmiting in the
Church, there ought to have been a prcvicus Conviction at
Law ; though the Statute fays " That he fli.iU ipfofuJo be deemed
•" excommunicate." In Proof of which, he cited Cro. Eliz. 224.
pi. 6. Dethick's Cafe. Where He was indiSled, upon this Statute
of 5, 6 E. 6. for Striking in St. Paul's Church-Yard : Though he
■got off indeed, for want of being named Garter.
I P'entr. 146. The Cafe of Dyer v. Raft, is full in Point^ "That
*^'. the Striker in a Church- Yard does not, ftand/j^ii faBo cxcommu-
4 • _" nicated.
<(
Hilary Term 30 Geo. 2. 241
nicated, until he be thereof convidled at Law, and this tranf-
mitted to the Ordinary."
And here having been no previous ConviSimi at Law, He prayed
a Prohibition quoad the Smiting : And obtained
A Rule to fliew Caufe.
Againft which Rule, Mr. Serjeant Hewitt (on Monday yth. Fe-
bruary 1757.) fliewed Caufe, as follows.
On 5, 6 £. 6. c. 4. there are 3 Sedions, and three different Of-
fences : And this Offence charged in the Libel, is not an Offence
conftituted fo by this Adt ; But was a Matter within the Jurifdic-
tion of the Spiritual Court, before that Aft, and abjlradlcdly from
it. They have, v/ithout Difpute, Jurifdiclion as to the Braieling.
And as to the fecond Branch, for Smiting in the Church, there
needs not be a previous Convidlion at Common Law : It is enough,
if the Excommunication be in the Spiritual Court. . To prove
which, he cited Hetley 86. The Cafe of Finer v. Eaton : Cro. Jac.
462. The Cafe of Large v. Alton, pi. 7 : Cro. Eliz. 680. The Cafe
of Baker v. Brent and Robinfon. i Haivk. P. C. fo. 139. f. 63.
§ 27.
2 Ld. Raym. 850. The Cafe of Wcnmouthv. Collins. The., Court
denied a Prohibition ; becaufe tliis Offence was originally and be-
fore this Statute, conufable in the Eccleliaftical- Court, rationc loci ;
And that the Statute, though it provides a Penalty, does not alter
the Jurifdidion.
Therefore, he concluded that notwithflanding this Objeftion,
The Spiritual Court have Jurifdidion.
It was then adjourned to the next Day ; when it proceeded and
was determined. Mr. Juflice FofltT and Mr. Juftice V/ilmot
were Both abfent.
Mr. Serjeant Pco/t' — I cited i P^entr. 146. D\er v. £j/?, as ^Turfdav Sik
Cafe in Point, " That there fnujl be a previous Convldion by n^^^'""''^
" Trial at Law ;" And " that fuch Convidion muff be tranfmitted
" to the Spiritual Court."
Cro. Eliz. 224. Dethick's Cafe: Where there was an Indidmcnt
adually found and pleaded to.
As to My Brother Hewitt's Cafes —
Hetley 86. Finer againft Eaton, is a loofe, incomplete Ncte^ and
gives no Reafon why the Prohibition was denied.
3 0^ Cro.
2.42, Hilary Term 30 Geo. 2.
Cro, Jac. 462. Large v. ^Iton proves Nothing at all to the prefeni
Purpofe : And it was for hrancling, onlj ; In wbic/j Cafe, 1 agree
that no Prohibition rtiall go.
Cro. Eliz. 680. is indeed in the Ahernative, " after Sentence, or
*' due Trial and Convidtion, and not before." But that is only faid
by Dodderidge, then at the Bar, in arguing for the Defendant.
Wenmouth v. Collim might be for a Prohibition generally. Indeed
a Reafon is given for denying the Prohibition ; viz. " That the
" Spiritual Court originally had Jurifdidlion to hold Plea of this
" Matter before the Aft."
But I deny tliat they had fuch Original Jurifdiclion : And the
A&. gives thtm None. This is a Force l^i et Armis ; An Aflault and
Beating : And the temporal Courts will prohibit them from proceed-
ing upon it.
Bro. Prohibition pi. 14. and Bro. Confultation 6. are exprefs, " that
" Where a Man fues in the Spiritual Court ; And an Adion at
" Common Law lies for the fame Matter ; A Prohibition lies, And
" No Confultation fliall be granted." [Thefe are Both the fame
Cafe; viz. 22 E. 4. 20.]
Mr. Taylor White fpoke on the fame Side for Mr. Wiljon.
He even attempted to fliew that a Prohibition would be reafona-
t)le as to the Brawling : For that the Facft flated could not come
•within the Notion of brawling ; As it was only fpeaking to a third
Perfon, to turn Greaves out of the Church.
As to the Striking — The Spiritual Court had no Jurifdidion
before the Statute ; And the Statute gives them None : They have
only Power to pronounce the Sentence of Excommunication ; but not
the Power of Judging.
As to the Cafe of Wennniith v. Collins^ It is but a Joofe Note ; and
Holt was abfent J and there might have been a Confeffion.
And there have been many Indidments He faid, on this Statute :
And this Method of Convidion was the ancient Method.
Lord Mansfield — \
The Statute of 5, 6 Ed. 6. c. 4. has three Degrees of Offences,
and three different Punifhments.
And
Hilary Term 30 Geo. 2. 243
And whatever Jurifdidlion the Spiritual Court might claim before
the Adt, they are now proceeding jince the Adl ; Therefore it is not
very material how the Matter ftood before the Adl.
The PuniOiment is given, by this Acft, to the Eccleiiafllcal Court:
And the Punifliment is fuch as can only be executed bv the Or-
dinary.
The Cafe ftated with regard to the firft Offence, is fufficiently a
Brawling, within the Meaning of the Adt.
The fecond Offence is Smiting i?i the Church, or Church I'ard.
Now this is indeed///// an Offence at Co7nmon Law ; And He may
be indidted for it : But, befides this. He may, by this AcS, be ipfo
FaSlo^ -excommunicated. By whom ? By the Ordinary. Indeed
the Ordinary may ufe a Convidlion at Law, as a Proof of the Faft.
And the Cafe in Raym. [2 Ld. Raytn. 850. Wenmouth v. Collins^
is a plain Proof that the Ecclefiaflical Court may proceed upon the
two firfl Claufes, and are not to be prohibited.
But then there is a third Offence and a third Punifhment men-
tioned in the A(9: of 5, 6 E. 6. c. 4 : Which has made all the Con-
fufion : This Offence is raaliciouHy flriking with any Weapon, in
any Church or Church- Yard, or drawing any Weapon there, with
Intent to flrike. For this 3d Offence, the Adt infiidls a double
Punifhment ; One, Temporal ; the other. Spiritual : The Tempo-
ral Punifliment is Lofs of an Ear, or Marking in the Cheek, after
ConviSlion ; the Spiritual is, " And befdes, Every fuch Perfon to be
" and fland ipfo fadio excommunicated as is aforefaid."
Here, indeed, there mufl be a previous Convidion ; And a Tranf-
miflion of the Sentence ; and a Declaration.
But on the fecond Claufe, No previous Convidion is neceffary :
(though, //'there is one, it may be ufed as a Proof of the Fadl.)
This Libel is upon ih& frjl and T^fo;;^ Claufes : Not upon the
third.
And the Proceedings of the two Courts being diverfo intuitu, it
is no Objeftion, to fay, " That a Man will at this rate be twice
" punifoed for tho. fame Offence."
And this is common.^ in many Cafes : For We proceed, to punifi ;
They, to amend,
'Tis
244 Hilary Term 30 Geo. 2.
'Tis clear that upon the two first Claufes, the Ecclefiaflical
Court HAS a Jurifdidlion.
And the Cafes upon Words do not apply to the prefent Cafe.
Mr. Juft. Denijm concurred.
Their Proceedings are pro Salute Animce. Indeed if they pro-
ceed for Damages, this Court will prohibit them. And that was^
laid down by the Court in the Cafe of Large v. Alton, in Cro. Jac.
462. where the Cofts being given on\y pro Expcnjls Litis, the Court
would not prohibit them : But they declared that they would have
done other, if it had been pro damnis.
And it is plain to me, that the Cafe in i Ventr. 146. Dyer v.
Rajl, was really a Determination upon the third Claufe of the Adl ;
and is a Miftake : I fuppofe the Words " ivith a Weapon,'' are left
out, by Mijiake, The Reporter was then a Young Man.
But however, this is the only Cafe to be met with, to this Piir-
pofe; And it muft be a Miftake, either in the State of the Cafe, or
in the Opinion : For on the fecond Claufe, Surely, We can not
prohibit them ; becaufe they are exactly within the Words of the
Statute, " That if any Perfon or Perfons fliall fmite or lay any
" violent Han<is upon any other, either in any Church or Church-
" Yard, they ftall ipfo FaSJo be deemed Excommunicate."
Per Cur\ [yiz. the only two Judges now prefent)
The Rule was dischargeI).
'February
rw..>',y. 9th Woolley ct aF verf. Cobbe et al' ("Bail of Cohbe. a
Bankrupt.)
THE Defendant became Bankrupt, pending the Adlion, The
Bail was fxed in yuly. The Bankrupt obtained his Certi-
Jicate, in Augiijl following.
The Qiieftion was, " Whether the Bail fliould be dijcharged,
'" by this Certificate,'' (which was not obtained //// after they
were fixed and the Debt levied upon them by Ti. fa. and. the
Money actually in the Hands of the Sheriff;) Or " Whether tliC Bail
" were becon:ie abjolntely liable ; And Confequently, the Certificate
*' came too late to help them."
2 Lord
Hilary Term 30 Geo. 2. 245
Lord Mamfidd made a Diftinftion, And Mr. Jufl:. I)ei'ifon and
Mr. Juft. Fojlrr agreed to it, " That if the Certiticate is obtained
" bij'o!-e the Bail are fixed, they fiiall be difcharged : But if they are
" fixed J before the Certificate is obtained, they remain liable,"
V. pcft. Mich. 1757. 31 G. 2. B. R. Cockcrill v. Oivflcm S. P.
agreed to by the whole Court.
Rex v27-f. Gayer Efq.
R. Gould and Mr. Willes fliewed Cauic againfl qiiafliiiig an
Order of Seffions, which (upon Appeal to them, by Mr.
Gayer,) difcharged an Order of two Juftices appointing James
Gayer Efq; and Benjamin Cohley to be Overfeers of the Parifli of
Rockbea-r in Com. Devon.
Mr. Gayer alone appealed from this Order of Appointment ; and
the Sefllons difcharged it, as to the Appointment of Mr. Gayer
only: [The Words of the Order are — " It appearing unto this
" Court that &c. and alfo &c. and that &c. This Court doth
" THEREFORE Vacate and make void the faid Warrant, as to the
" faid J. Gayer."'] It appearing unto them that he had fome Years
been, and was at the Time of the Nomination, and ftiil at the
Time of making the Seffions Order, an Acting Jvstice of Peace
for the faid County, refiding within the faid Parifli of Rockbear,
and a fubftantial Houfekeeper there ; And alfo a Lieutenant of Ma-
rines in his Majejly's Service, on Half-Pay ; And that there are other
fiifficient fubftantial Houfeholders within the faid Parifli, for the
doinc fuch Office. The Court " therefore vacated and made
" void the faid Warrant, as to the faid James Gayer."
Mr. Norton had, on 13th November 1756. moved to quafli this
Order of Seflions : For that neither of thefe two Reafons were fufH-
cient to juftify the Seffions in quafliing the Order of tv/o Juftices,
whereby Mr. Gayer was legally and regularly appointed One of the
Overfeers of the faid Parifli.
A Rule was thereupon granted, to fliew Caufe.
On (hewing Caufe, The Counfel on both Sides went (at large)
into a long Argument, " Whether the Reafons given were fuffi-
" cient :" ^Particularly, " Whether the O^cw of Juftice of Peace,
" and of Overfeer, wtrt compatible ; and" Whether the Objecftion
" could be removed by appointing a Deputy-OvQvi'cGj: •" If it
3 R could.
246 Hilary Term 30 Geo
could, then " Whether a Jullice of Peace was liable to be appoint-
" ed Overfeer, in order to his executing the Office by Deputy."
Lord Majufield fald that the General Queftions concerning the
Incompatibility of Offices, and the Power of appointing Deputies, are
a large Field indeed : But the prejent Queflion feems to me to turn
in a very narrow Compafs.
The SeJJionSy upon an Appeal, have a Right to exercife the fame
Latitude of Difcretion, in judging " Who are fit to be Nominated
" Overfeers," as the two Juftices had. They have given their
Opinion " that Mr. Gayer was not a proper Perfon to be ap-
" pointed Overfeer." They are Jiot obliged io give atiy Reafon for
their Opinion : becaufe the Legiflature has intrufled them, upon an
Appeal, with the Power or Authority of appointing Overfeers.
If they had given no Reafon, their Order had undoubtedly been
good : We mull: have presumed that they adled upon proper Grounds.
It is true, that where the 'whole Reafon is fet out, and is clearly
ivrong. We may and ought to quafh an Order manifefly made by
miflake, upon An erroneous Foundation.
But then the bad Reafon given mufl: appear to have been their
only Inducement. If there may have been other Grounds, they
ihould be prefumed fufficient : And the Order ought not to be
fet afide, becaufe fame of their Rcafons, unneceffarily given, appear
to be bad.
There was m Neceffity for appointing Mr. Gayer: The Seffions
ftate " that there were other fufficient fubftantial Houfeholders
*' within the faid Parifli." They might think Mr. Gayer, under
all the Circumftances, improper unnecejfarily to be appointed : His
being an adling Juftice of Peace refiding within the Parifh, and a
Lieutenant of Marines, might be two Circumftances which weighed
among others. But it don't follow, neither is it faid, that they look-
ed upon both or either of thefe Reafons, as an Exemption from being
appointed, or a Difability to ferve the Office of Overfeer; and that
they vacated the Warrant of two Juflices as illegal upon that Ac-
count.
The Execution of a Difcretionary Power, where it is not necef-
fary to give a Reafon, ought to be fupported ; wilefs the lahole Rea-
fon is fet out, and manifeftly wrong. Here, the whole Reafon upon
which the Seffions aded, is not given. They fiiy there were Other
Pcrfons, qualified. Suppofing Mr. Gayer liable to ferve the Office,
they might think Him ?iot so proper as many Others. And there-
2 fore
Hilary Term 30 Geo. 2. 247
fore We are not obliged to fay that the whole Reafon they went upon,
is bad ; allovving (for Argument) that there arofe no legal Objedion
to the Appointment of Mr. Gayer : Which, I think, there is no Oc-
cafion now to examine.
Mr. Juftice Denifon concurred. They were not obliged to give
any Reafon at all : And if it be only an imperfedl One, We ought
not to quafli their Orders.
I remember a Cafe, {Rex v, Spalding, I think it was,) Where the
Juftices held a Man fettled in a Parifh, by reafon of an Appren-
ticefhip ; Not faying " That He had ferved 40 Days in the Pa-
" rifh, under it:" Yet the Court would not intend that they did
wrong.
We will intend every thing in Favour of the Juftices, In their
Orders.
Now here, the Reafon does fiof appear to be a wrong Reafon : It
is enough, that they judged Kim an improper Perfon to be Overfeer.
Mr. Juft. Fojler concurred.
Per Cur. unanimoufly
Order of Sessions confirmed ;
Order of two Justices quafhed.
Rex verf. Inhabitants of Chidingfold. nurfjayxo\
J tj February
«7S7-
R. AJlon had moved to quafli an Order of SefTions without fta-
ting the Cafe, at all, but merely the Queftion which was
" Whether the Tenant's /^y/w^ the Land-Z^x (which was allowed
" Him again by his Landlord,) amounts to fuch a Notice, as (liall
" crain the Tenant a Settlement:" Which the Sefiions held that it
did not.
Mr. Allon alledged that it did: and cited Pafch. 7 G. 2. B. R.
Rex V. Inbab. de Oakehampton, where a Tide- Waiter being taxed
to the Land-Tax, for his Salary, was holden to be Notice within
3 ©* 4 /F. © M. c. II. § 6. and that he thereby gained a Set-
tlement ; even tho' it was paid by the CoUeilor.
mi. 9 G. 2. B. R. Rex v. Inhab. de Bramley : Where the being
flflVlTsd AND paying two ^larters only to the Land-Tax, was hol-
den to gain a Settlement. [See Mr. Burn's Jujice of Peace and
Parijb Officer, pa. 532, 533. S. C]
And
1 757-
248 Hilary i erm 30 Geo. 2.
And now, Mr. Gould (who was to have fiiewn Caufe againft
the Rule for quafliing this Order of Seffions,) very candidly acknow-
ledged that tie could not fupport the Order; the Point being al-
ready fully fettled, by former Determinations.
Whereupon, the Rule for quafliing it, was made abfokite.
Sj^turday Mr}^ Pl'jmnier V3rf. Benthara.
February •'
^ I HE Recorder of London (Sir IVUUam Morctoii) came to the
J_ Bar, and CERTIFIED two 0//?5;/« of that City, Ore tenus.
Mr. WilUcum moved, (when Sir IVilUam Moreton was down at
the Bar,) that the Recorder of Lotidon might return two Writs of
Certiorari direded to the Lord Mayor and Aldermen of London, to
certify two of the Cuftoms of their City.
And then Mr. Williams opened the Cafe, 'viz. That it was an
Adion of Trefpafs on the Cafe brought by the Plaintiff againft the
Defendant, for ob/iruBing his ancient Lights, by a new Ereilion or
Building which the Defendant had raifed againfi: them : To which,
The Defendant had, (by Leave,) pleaded two Juftificatlons, Both
of them under the Cuftom of the City of London. One of them
was, that there is an ancient Cuftom in the City of London, " That
'* if any Perfon has a Mefluage or Houfe in the City o^ London, ad-
. ;" joining or contiguous to another Messuage or House or to the
'" Ancient Foundations of One in the faid City, which former Houfe
" has ancient Lights or Windows fronting oppofite to or' over fuch
" other adjoining or contiguous Messuage i r House or ancient
" Foundation of one ; Such other Perfon, Owner of the latter Mef~
" f^^^'S^ ^'~ tioufe or ancient Foundation oj One, m.ay well and !aw-
** fully exalt fuch his AJtfuage or Houfe, or rebuild upon the ancient
'' Foundations of fuch his adjacent or contiguous Messuage or
" House any new Mejjuage or Hoife, to any Highth that he JJjall
" pleafe, againf and oppofite to the faid ancient Lights and Windows
" of fuch firft-mentioned neighbouring Mefluage or Ploufe to which
" his Mcfuagc or Houfe or ancient Foundations of a Mefuage or
" Houfe are lb contiguous or adjoining ; and thereby darken and ob-
" fcure fuch ancient Lights and Windows of fuch firft-mentioned
" neighbouring Houfe, having fuch ancient Lights and Windows :
" Uniefs there has been fome Writing Inftrument or Record of an
"' Agreement or Reftridion to the contrary."
3 In
Hilary Term 30 Geo. 2. 249
In this Plea, Iflue was joined: And a Certiorari iflued, direfled
to the Mayor and Aldermen of the City oi London^ to certify " Whe-
" ther they have or have not fuch a Cuftom."
The fecond Plea, Iffue, and Certiorari, were the fame with the
'firft, only with this Difference or rather Extenfwn of the Cuftom
-pleaded; wz. " That the Owner of any Erection or Building,
*' or the ancient Foundation of any Erection or Building,
■" might well and lawfully exalt fuch Erection or Building, or
" eredl and build thereon a new Erection or Building to any
" Highth that he pleafes £?£■;" and fo on, as in the former Plea :
Only that the former Plea confined the Claim of the Privilege, to
Mejfuages or Houfes ; which this latter Plea extends to all EreBions
or Buildings.
Sir IVilliatn Moreton Knt. Recorder o'i London, accordingly certi-
fied Ore tenus, by Command of the Lord Mayor and Aldermen,
(after having recited the Pleadings zw^l Certiorari,) " That there ** See the finl:
" is fuch a Cuftom as is alled2;ed in the former Plea : But that there r*!f/,'",^"^i^'
C '' Lallhroj) s Ke-
■" is no fuch Cuftom as is alledged in the latter Plea." ports (prettily
reported and
The Recorder then delivered in both the Writs of Certiorari , -^^^ .-^ ^^here
with written Copies of the refpedive Returns annexed 5 though He the Queftion
had delivered them Ore tenus 2X the Bar: (Which, he told Me, was ^;'='5^">'. ''"^'e
> ' ' the pre lent
ufual.) The Returns were worded as follows; mz. The Execu- and the De-
tion of this Writ appears in a certain Certificate by Us the Mayor termination
and Aldermen of the faid City oi London, made by the Recorder of to'the^Certifi-
the faid City at the Day and Place within contained, according to cate, to this
the Cuftom of the faid City, by Word of Mouth, as is within com- ''^'^ ^'"•
manded.
T^he Anfwcr of Mar Hie Dickinfon Efq; the Mayor, and of the
Aldermen of the faid City.
We the Mayor and Alderfrien of the faid City, by Sir William
Moreton Knt. Recorder of the faid City, by Word of Mouth of
ihe faid Recorder, according to the faid Cuftom of the iaid City,
Do, in Obedience to the faid annexed Writ, humbly certify That
there is now had, and from the Time whereof the Memory of Man
is not to the contrary there hath been had and received fuch ancient
and laudable Cuftom in the faid City ufed and approved ; to wit,
" That if any One hath a Meftuage or Houfe in the faid City, near
" or contiguous and adjoining to another ancient Messuage or
" House, or to the ancient Foundations of another ancient Messu-
■" age or House in the faid City, of another Per/on his Neighbour
3 S "■ there;
250 Hilary Term 30 Geo, 2.
" there ; And the Windows or Lights of fnch McJJiicige or Hcufe
"'- are looking fronting or lituate towards upon over or againft the
" faid other ancient Messuage or House or ancient Foundatwm
" of fuch other ancient Messuage or House of fuch other Pt, -
" fo?i his Neighbour, fo being near adjacent contiguous or adjoining;
"" Although fuch MelTuage or Houfe and the Lights and Windows
" thereof be or were Ancie7it, Yet fuch other Perfo?2 his Neigh-
" hour, being the Owner of fuch Other Messuage or House or
" ancient Poundations fo being near adjacent or adjoining, by ar.d
" according to the Cuftom of the faid City in the fame City for all
" the Time aforefaid ufed and approved, laell and laitfully may
" might and hath ufed, at his Will and Pleafure, his Jdid other
" Messuage or House fo being near adjacent or adjoining, by
" Building, to exalt or ere^, or, of new, upon the Ancient Foii/i-
" dations of fuch other Messuage or House fo being near adja-
" jacent or adjoining to build and ereSi a new MejJ'uage or Houfe to
" SUCH HiGHi H AS riiE saidOwnkk SHALL ¥ L K A^E , agaij//i
" and oppofite to the faid Lights and Windows near or contiguous to
" fuch ojHER Messuage ok House, and by Means thereof
" TO oBscuRt; ANDDARKFN fuch Windows or Lisilus : Unkfs
" there be or hath been fome Writing Inftrr.ment or Record of an
" Agreement or Reftridion to the contrary thereof in that Behalf."
The Return to the other Writ of Certiorari was in the fame
Form, and to the very fame Eftedl as to the Cuftom certified
by the former ; and repeated the Return to the former Certio-
rari in totidem 'verbis, very nearly : But it went on further,
with a Negation of the Exiftence of any fuch Cuftom as the
Defendant had alledged in his ytVw/i^ Juftification. The Ad-
ditional Part was as follows.
And that in the faid City of London there is Not now or ever was
any fuch Cuftom, " Tliat if any One hath a Mefluage or Houfe in
" the faid City, near or contiguous and adjoining to an Erection
" or Building or to the ancient Foundations of an Erection or
" Building, in the faid City, of another Perfon his Neighbour
*' there ; And the Windows or Lights of fuch Mcflu;;ge or Houfe
" are lookin;^ frontinsf or fituate towards upon over or againft fucli
" Erectkjn or Building or the ancient Foundations of fuch
•' Erection or Building of fuch other PcTfon his Neighbour fo
" being near adjacent contiguous or adjoining ; Although fuch Mef-
" fuage or Houfe and the Lights and Windows thereof be or were
" ancient. Yet fuch other Perfon his Neighbour, being the Owner
" of fuch Erection or Building or ancient Foundations of fuch
" Erec rioNcr Building fo being near adjacent or adjoining, by
" and according to the Cuftom of the faid City in the fame City for
" all the Time aforefaid ufed and approved, well and lawfully may
2 " might
Hilary Term 30 Geo. 2. 251
" might and hath ufed, at his Will and Pleafure, his faid Erec-
*' f ION or Building io being adjacent or adjoining, by Building
" to exalt and ere£i, or, of new, upon the ancient Foundations of
" the faid Erection or Building fo being near adjacent or ad-
" joining, to build and eredl a new EreSiioii or Bui!dJn((, to such
" HiGHTH as the Owfier J]:all plea fe, againfl and oppolite to the faid
" Lights and Windows of fuch MefTuagc or Hoiife, and by means
" thereof to obfcure and darken fuch Windows or Lights."
The Court Ordered the Certiorari to be filed, and the Re-
turn RECORDED.
Note — Nothing of this kind has Adlually happened, for many
Years paft, (not even fince H. the fixth's Reign,) in this
Court ; (though it has, in the Court of Chancery.) And a
Confultation was had in the City, concerning the Sort of Gown
which it was proper for the Recorder to put on, to make
this Ore-te?iiis Return : In which Confultation, it was deter-
mined that it ought to be the Purple Cloth Robe, fiiced with
black Velvet ; and not his Scarlet Gown, his Black Silk One,
nor the common Bar-Gown.
See Finer' s Abridgment ; Title Ciiftoms of London^ Letter P. placita
2 G? 4. concerning this Manner of trying the Cuftoms of Lon-
don ; and how to furmife " that they ought to be tried thus,
" and not by the Country :" 'Tis in Fo/. 7. Fage 246. Note —
Without fuch a Surfnife, they fhall be tried by the Country, as
other Iflues in Fadl are.
Rex verf. Strong.
MR. Serjeant Poole fhewed Caufe againfl: quafliing an Indldl-
ment on § Eliz. c. 4. feSi. 31. (for exercifing a Trade, not
having ferved an Apprenticefhip therein,) found at the SelTions for
the City of Carlijle.
Mr. Norton had (on 27th November 1756) moved to quafii it,
upon an Objedion, that the CzVjy-Seflions had no "JtirifdiSlion. And
He had cited, in Proof of it. The Cafe of Regina v. Taylor, 2 Ld.
Raym. jbj. Where fuch an Indidlment was quafhed, " becaufe the
" BuRRouGH Seffions had no JurifdiBion to take fuch Lidid-
" ments." He infifted that Only the %tfr/fr-Seflions of the
County have Jurifdiftion. The Indictment in that Cafe oi Taylor,
was found at the Scflions for the Corporation of Wells ; and moved
hither by Certiorari,
1 Lord
2-52 Plilary Term 30 Geo. 2.
Lord Mansfield^ at the Time of the original Motion, looked into
the Ad: of 5 Eliz. c. 4. and faid that this A<ft [§ 39.] exprefly
gives the Power to Mayors or other Head Officers oi Cities or I'owm
Corporate, at their SefTions.
Aad now, upon fliewing Caufe,
The Court was unanimoufly of that Opinion.
The Cafe of the S>ueen 2ig'x\n^ Taylor was mEaJler Term 1702,
1 Amice : And is contradiSfed by that of Regina v. Franklyn, in
2 Ld. Raym. 1038. which was determined in Mich. 3 Ann. 1704.
though it is in i Salk. 370, by Mijiake, put under MVi6. 3 Will. &
Mar.
Per Cur. Rule discharged.
MEMORANDUM.
The Court was not up till near an Hour after Midnight j
though many Rules were enlarged, and many long Motions
adjourned over till next Term.
AS the Regulation made by the Court concerning Views took
it's Rife in this Term, it may be proper here to ftate every Thing
relative to that Subjed: ; which, at the Time of this Publication, is a
Pradice fully fettled.
•x. 5. 4,5 The Grantlns; of Rules for VIEWS in * Civil
§ 8. does not Caufcs ftands f now fettled upon the following Foot.
extend to Lit- ' ^ o
minal Cafes :
So that in /^^REAT INCONVENIENCE had arifen from theAiufeof Views
be no RuTe fo"r ^^ ^"'^ ^^^^^ being perverted into Means of Delay, to the in-
a View, with- tolerable Hindrance of Juftice. Some late Inftances fhewed the
out mutual Mifchief in a glaring Light : And the Example being once fet,
. ,„ V there was no Doubt it would be followed.
tin '7(3 J- .r,
After
^ Hilary Term 30 Geo. 2. 253
yifter the 4 C?" 5 Ann. c. ib.feB. 8. Views were granted, upon
Motion, of Courfe. And upon this Aft and 3 G. 2. <:. z^.feSi. 14.
a Notion prevailed " That Six of the firfl 'Twelve upon the Pannel
" muft view and appear at the Trial : If they did not, there could
" be no Trial, and the Caufe muft go off."
Where either Party wlfhed Delay or Vexation, He moved for a
View. A thoufand Accidents might prevent a View, or Six of the
firft Twelve from attending the View, or their attending the Triai.
He who wifhed them not to attend, might by various Ways bring
it about. Where a Defendant in FolTeffion was well liked, and the
Plaintiff a Stranger or unpopular^ Gentlemen of themfelves found
Excufes; Efpecially, if the View was troublefome and at a Diftance,
Caufes in feveral Counties had at a great Expence been repeatedly
carried down, and put off; either becaufe there was no View, or
becaufe Six of the firft Twelve did not attend the View or did not
attend the Trial. Though Twelve Viewers fhould appear at the
Trial, yet according to the Notion which prevailed, if Six of the
firfl Twelve upon the Pannel were not among them, the Caufe could
not be tried.
The Tendency of this Abufe, to Delay, vexatious Expence and
the Obftrudlion of Juftice, was fo manifeft, that the Court thought
it their Duty to confider of a Remedy: And in Michaelmas Term
1757, and at other Times Lord Mansfield informed the Bar to the
following Effcft, " That they had conferred together upon the
" Abuse of Views, and confidered of a Remedy in the Power of
" the Court."
Before the 4 cf 5 Ann. c. i6.JeB. 8, there could be no View till
after the Caufe had beea brought on to Trial. If the Court
faw the Qneftion involved in Obfcurity which might be cleared up
by a View, the Caufe was put off, that the Jurors might have 11
View before it came on to be tried again. The Rule for a View
proceeded upon the previous Opinion of the Court or Judge, et the
Trial, " that the Nature of the Queflion made a View not only
" proper, but necefi'ary :" For the Judges at the Affizes were not to
give way to the Delay and Expence of a View, unlefs they faw that
-the Caufe could not be underftood without one. However, it
often happened in Fadt, that upon the Defire of either Party Caufes
■were put off for want of a View, upon fpecious Allegations from
the Nature of the Queftion, " that a View was proper;" without
•going into the Proof, fo as to be able to judge whether the Evidence
might not be underftood without it.
-3 T This
254 Hilary Term 30 Geo. 2.
This Circuity occafioned Delay and Expence: To prevent which,
the 4 £i? 5 Aim. c. ib.JeB. 8, impowered the Courts at Wejlminjler
to grant a View in the firfl Inflance, previous to the Trial.
Asa View might be of Ufe, and in this Shape was attended with
no Delay and but little Expence, it became the Pradice to grant
them cfCowfcy upon the Motion of either Party.
The 3 G. 2. c. 25. fe5}. 14. provides " that ichcre a View fhail
" alkiocd, the Jurors who have had the View fliall be firfl: fvvornj
" (or fuch of them as fhall appear,) before any Drawing:" Which
Means in Oppofition to fuch other Jurors as are to be drawn bj
Ballot ; and net to eftablifh " that Six at leafl: of the Jiiji Tweh^
" iliall be fworn."
Upon a flridl Conftrudion of thefe two Ads, in PraSfice, the
jikife which is now grown into an intolerable Grievance has arifcn.
Nothing can be plainer than the 4 ©" 5 jinn. c. 16. feB. 8. The
Courts are 7iot bound to grant a View, of Ccurfe: Tlie Ad only
fays " they 7nay order it, where it fliall appear to thejn that it will
" ht proper and necejfary."
It is infinitely better that a Caufe fhould be tried upon a View
had by any Thcelve, than by Six of the Jirj'l Twelve; or by any Six;
or by fewer than Six; or even without any View at all; than that
the Trial fhould be delayed from Tear to 27ar, perhaps for ever:
It can never be proper or necejfary to grant a View which is afked
and ufed for fo unjujl a Purpole.
There have been Inftances of great Caufes put off for Years:
And though even nine ten or eleven Viewers have attended, yet
upon ObjeUon *' that they were not Six of the frjl Twelve," the
Caufe has been put off, and a View moved for, as of Courfe, again,
by the Party who had availed Himfelf of fo glaring a Chicane.
We are All clearly of Opinion that the Ad of Parliament meant
a View fhould not be granted, unlefs the Court was fatisjicd that it
was PROPER AND NECESSARY.
The Abufc to which they are now perverted makes this Caution
our indiipenfabie Duty: And therefore upon every Motion for a
View, We will hear both Parties, and examine (upon all the Cir-
cumftances which fhall be laid before Us on both Sides) into the
.Propriety and jSec.fity of the Motion; Unlefs the Party who applies
will confcnt to and move it upon Terms which fhall prevent an
.unfair Ufe being made of it, to the Prejudice of the other Side and
the Obftrudion of Juftice.
2 His
Hilary Term 30 Geo. 2. 255
His Lordfliip defired the Gentlemen of the Bar to think of it;
and, if any Objections fhould occur, to mention them.
The Expedient propofed by the Court was unlverfally approved.
The firft Inftance happened in Hilary Term. 17 sy, in a great
Caufe between Pierce and the Earl of Faulconberg and Others;
which was an Iflue out of Chancery, often tried at Durham by Spe-
cial Juries, and now ordered to be tried at Bar by a Special Jury
from Torkjinre. (See the Rule at large, together with the Addition
of the Confent-Part, infra, pa. 256, 257.)
Subfequent to this, was the Caufe of \}citY.\x\ o{ Darlington v.
George Boives, Efq; which was an IfTue out Chancery, and had
been thrice carried down to be tried at Durham (where there are
Affizes only once a Year) at a great Expence, and every time put
off by the Defendant, upon Objections on Account of the View.
Once, nine Viewers appeared: but they were not Six of the firfl
Twelve. Another Time, only four Viewers appeared at the Af-
fizes. In 1757, a View was granted, by mutual Confent, upon
Terms: But by an Accident (of a Fall from his Horfe) the Judge
of Affize was prevented from trying it. The Defendant Bowes
moved, in Tri?iity Term 1758, for a View; but refufcd to renew
his former Confent, or to come into any Terms; infixing that by
Law He was intitled to a View, of Courfe. The Plaintiff had
likewife moved for a View; confenting to the Terms. Both Mo-
tions were adjourned to the laft Day of the fame Trinity Term 1758 :
"When the Court, upon all the Circumftances, rejedted the Defen-
dant's Motion, unlefs he Hiould confent (within a Week) to the
Terms propofed. He would not confent. The Caufe came on to
•be tried at Durham, without a View, before Mr. Baron Sinythe. It
■happened, many of the Jurors had viewed, upon fome of the for-
mer Occafions. A Verdid was given, for the Plaintiff, to the Sa-
tisfadion of the Judge. The Defendant moved the Court of Chan-
cery for a new Trial; becaufe He had been refufed a View; and
becaufc it might be fit to h;ive another Trial, before his Inheritance
■was bound. Mr. Baron Smythe certified " that he was fatisfied
" with the Verdict"; and alfo, " that a View was totally unnecef-
" fary, there being no Difpute concerning the Locality Difcrimi-
" nation or Limits of the Premiffes, but merely a Queftion To
" Whom certain Lands belonged." The Court of Chancery thought
proper to grant another Trial; but approved the denying a View,
unlefs he renewed his Confent; and made it Part of the Order for a
New Trial, " that He JJ:ould confent to tJie Terms." It was again
tried, before Mr. Juftice Bathurjl: And a VerdiCt was found for the
ic Plaintiff,
256 Hilary Term 30 Geo. 2.
PlainrifF, to his Satisfadion. The Defendant moved the Court of
Chancery for a new Trial : Which was refufed.
Had not the Court put a Check to granting Views, from Time
to Time, as o£Coi/rfe, a rich Defendant, confcious that the Merits
were againft him, might, from Pique or Humour or Litigiouf-
nefs, have kept off the Caufe as long as he lived, for want of a
View, upoh a Queftion where a View could not be of the leaft
Utility.
The Wifdom and Fitnefs of what the Court had done to regulate
Views was (o fully manifefted upon the OccaJion of this Caufe,.
and appeared to be fo well jufti6ed by the Authority given them by
the A(fl of Parliament and by every Principle of Juftice and Con-
venience, that no Party has ever fince moved for a View, without
confenting to the Terms: And it is found in Experience, that Views
*AttheTimeare * now regularly had, and a competent Number of Viewers ap-
of this Pub- J. j^j jj^g Trial. A View is not asked + now, except in Cafes
(1765.) where it may probably be or ulc: And as the Non-Attendance of
-}■ r./uj>ra. Viewers can now gratify neither Party, Both concur in wifhing the
Duty performed.
The Rule that was made in the firfl: Inftancc that happened
after the Expedient was propofed by the Court, and was re-
ceived with general Approbation as is above mentioned, was
drawn up in the following Words.
• 29th jaKu- " * Saturday next after 15 Days of St. Hilary in the 30th Year
"O '757- <' of King George the 2d."
" Pierce, Efq; v. Earl Faulconbcrg and Others.
" By Confent of Counfel on both Sides, It is ordered, that there
" IfTue a Writ of Diflringas Juratores to be direded to the She^
" riff of the County of Tork; in which fliall be contained a Claufe
■" commanding the faid Sheriff to have Six or more of the firft
" Twelve of the Jurors to be impanelled and returned to try the
" Iffue between the Parties, at the 1 lace in Quellion, before the
" Time of the Trial of the faid Ifllie, to wit, upon, ©V; And that
" B. R. on the Part of the Plaintiff, and T. IV. on the Part of the
" Defendants, fliall attend on the fame Dny and fhew the Matters
" in Queflion to the faid Six or more of the hrft Twelve of the
" faid Jurors; And that the Expences of taking the faid View fhall
■" be equally born by both Parties: And no Evidence fhall be given,
" on either Side, at the Time of taking thereof."
" *.And
I
Hilary Term 30 Geo. 2. 257
* " And by the like Confent, It is further ordered, that in cafe
" NO View fliall be had; Or if a View (hall be had by any of the
" faid Jurors, (whether they fliall happen to be any of the twelve
" Jurors who fhall be first named in the faid Writ, or not;) yet
" the faid Trial fliall proceed; And ;zo ObjeSlion fliall be made on
" either Side, either for want of a View, or that a View was not
" had by any of the twelve Jurors Jirjl named, or for that it was
" not had by any particular Number of the Jurors named in the
" faid Writ, or ibr want oi^ proper Return to the faid Writ.
" On the ?vlotion of Mr. Norton, of Counfel for the Plaintiffj
" and Mr. Gould:, of Counfel for the Defendants."
The Caufe was tried at the Bar, on the 7th oi May 1757: And
a full Jury of Viewers appeared.
The above recited Rule was for a View to be had by a special
Jury; and was made abfolute at once, being confented to by both
Parties: But during the Remainder of the fame Term {pi Hilary
1757,) and alio during the three following Terms {oiEaJler, 'Tri-
nity and Michaelmas 1757,) The Court, upon proper Affidavits
granted iik€ Rules {mutatis mutandis) in Cafes that wtre to be tried
by Common Juries; making them only to fliew Caufe, not abfolute
in the firft Inftance. The next Term (Hilary 1758,) They made
fcKue of them, to (hew Caufe; Others, abfolute in the firft Inftance;
but none without proper Affidavits. Soon after, viz.. in Trinity
Term 1758, They made all thefe Rules abfolute in the firft In-
ftance; Some, upon Affidavit; Others, as of Courfe: Since which
Time, they are become Motions of Oourie, without Affidavit.
The Form of them is as follows—
If the Trial is to be by a Special Jury, the Rule runs thus — '
" It is ordered that there iiTue a Writ of Tjijlringas Juratores,
•■" Gff. &c. — taking thereof:" [in the Words of the Jirji Claufe of
the above recited Rule between Pierce and Lord Faulconbcrg and
Others.] The additional Claufe is exprefi!ed in thefe Terms —
" The Plaintiff, [or the Defendant, viz. the Party who prays the
" View"] confenting that in cafe no View fliall be had; Or if a View
" fliall be had by any of the faid Jurors, whether they fliall happen
" to be any of the twelve Jurors Vv'ho fliall be Jirjl named in the
" faid Writ, or not; Yet the faid Trial fliall proceed; And no Ob-
* Note — The former Claufe of this Rule was in the ufual Form of Rules for
-Views, where the Trial was to be by a Special Jury.
But this latter Claufe (" And by the like Confent it is further ordered, &'r.")
^as nau) firji added.
3 U " jedion
258
Hilary Term 30 Geo. 2..
» A'. B. This
Aa (of 3 (J.
2.) does not
require them
to be Six of the
frft Tivel've.
t Thefe
Words are
taken from the
fame Aft of
Parliament
f^a. 14.
X r. fupra.
Note (•) (t).
" jedlion fliall be made, on either Side, on Account thereof^ or for
'■^ ijoant of a proper Return \.o^ti\iA^x'\X.."
The Rule for a View, where the Caufe is to be tried by a Co7n-
mon Jury could not continue the fame, fmce the ballotting Ad (3 G.
2. c. 25.) as it was before -^ nor could it be exadlly like to that for
Views by Special Juries, (by reafon of the particular Direftions
given by the 14th Sedlion of the balloting Acfl:) But it ufed to run
much like it, only mutatis mutandis. The prefent Form (fince that
Adl,) is this — "It is ordered that there iflue a Writ oi Di/iringas
" Juratores, to be diredted to the Sheriff of the County of T: in
" which, Ihall be contained a Claufe commanding the laid Sheriff
" to have Six or fome greater Number of the * Jurors to be im-
" panelled and returned to try the Iffue between the Parties, -f Who
" fjall be mutually confented to by the faid Parties or their Agents, at
" the Place in Queftion, before the Time of the Trial of the faid
" Iffue, to wit, upon, C^C; And that R. R. on the Part of the
'• Plaintiff, and T. W. on the Part of the Defendant, fhall attend
" on the fame Day, and fhew the Matters in Queftion to the faid
" Six or fome greater Number of the % f'^id Jurors, laho Jiall be
" mutually confented to as aforefaid; And that the Expences of
" taking the faid View fliall be equally born by both Parties: And
" no Evidence fliall be given, on either Side, at the Time of
" taking thereof."
§ V. fupra.
Notes * & f.
The Additional Claufe, now added to this Rule, is in thefe Words —
" The Plaintiff," or " The Defendant," [the Party at whofe In-
ftance the Rule is prayed) " Consenting that in Cafe no View
" fliall be had; Or if a View fliall be had by any of the Jurors,
" whether they fliall happen to be Six § or any particular Number
" of the Jurors § who fiall be fo mutually conjented to as aforejaid-y
*' Yet the faid Trial fliall proceed; and no Objedtion fliall be made,
" on either Side, on Account thereof or for want of a proper Re~
" turn to the faid Writ."
The End o( Hilary Term 30 Geo. 2. 1756.
Eafler
^59
Eafter Term
30 Geo. 2. B. R. 1757.
Three Judges prefent, viz.
Lord Mansfield,
Mr. Jufi. Denifon, and
Mr, Juft. Poller.
(Lord Commiflloner Wihnot ab/ent, in Chancery.)
Cooper verf. Marfhall. Friday 29th
THIS Cafe was the fame Point with a Cafe of Cope v.
Marjhall, which had been formerly twice argued, {yiz.
on 28th June 1754, and 31ft January 1755.) Both of
them flood now in the Paper for Argument ; The prefent
Cafe having been never argued at all, and the other having never
been argued either before Lord Mansfield or Mr. Juftice Wilmot,
'This Cafe of Cooper v. Marjhall flood firfl in the Paper, and
came on firfl. It was an Adlion of Trefpafs for breaking entering
and digging up the Plaintiff's Clofe, 2lx\6. filling up and fpoiling the
Coney-burrows there Gff. And there was a 2d Count for doing the
like in the Plaintiff's Free Warren.
Several Pleas were pleaded, by Leave of the Court.
Plea — As to the ifl Count was a Juflificatlon under a Right of
Common in 20 Acres Gfc. And that the Coney-Burrows were wrong-
fully unlawfully and injurioufly newly-eredcd and kept up there ;
3 By
a6o Ealler Term 30 Geo. 2.
By reafon whereof the faid Common wz?, furcharged and jpoikd-.
So that the Defendant could not enjoy fufficient Common in the faid
20 Acres as of Right he ought. And therefore He juftifies the
^ breaking entering and digging up the Plaintift"'s Clofe, and filling
up and fpoi ling the Coney-Burrows, as it .was lawful for Him to do,
in order to abate the faid Nufance.
There v^'as alfo a fecond Juflification, much to the fame Effeft.
To the 2d Count — Were Two Juftifications not much different
from the former.
The Plaintiff demurs to thefe Pleas : And the Defendant joins
in the Demurrer.
Mr. Moreton fro ^er. — The Juflification arifes merely from the
Plaintiff's having furcharged the Commoji : And the Wording; of
the Plea cannot alter the Matter and Subftance of it. So that" the
Defendant's calling it a Nusance will not make it fo : But it really
is a 7nere Surcharge of Common. Therefore the Word " Nusance"
is here mifapplied.
And He cited Cro. Jac. 446. The Cafe of Fowler v. Sanders :
Where the Prefcription was treated as a Prefcription to make a Nu-
fance, though not fo expreffed in Terms.
But it is not an illegal Ad, for the Lord to place Conies upon his
civn Land ; though the Land be liable to Right of Common. They
are Beafts of Warren, and profitable to the Lord : And tlie Commo-
:ner can?iot chafe and kill them,
BraSion, Lib. 4. 221. makes a Difference between a Nocumen-
tum jufium, and a Nocumentum injurifmn.
Fleia, Lib. 4. c. 26. de Nocumenf Servifutibus injunifis, makes
the like Diflinftion : " Nocumentorum aliud, injuriofum ei damp-
•*' nofumj et aliud, dampnofum et w« injuriofum."
Thefe Authorities fliew that the Injury arifes cnl^ from the Ex-
€efs.
And the Commoner has no fuch Remedy, as the Defendant here
Tclies on.
The Queftion therefore is " Whether the Commoner has a Right
•** to DIG V? the Lord's Soil'; m Order to prefervehis Right of Com-
« men."
4 The
Eailer Term 30 Geo. 2.
261
The Lord cannot Indeed totally dejlroy the Commoner's qualified
Intereft, contrary to his own Grant. Yet the Lord has Rights com-
patible with the Commoner's Right : And thefe are legal in their
own Nature ; though they may ^f^ow^ injurious, \i^ Excejs.
On which Head, he cited Fleta^ Lib. 4. Pa,. 253. ]y. Pa. 252,
253, in Cap. 18. de pertinentiis.'\
But this Juilificaticn puts the latter Cafe upon the fame Foot with
the former: Whereas the^Commoner's Remedy is, really, adequate
only to the Injury done to Him. Now a Surcharge of Common is
of the latter kind of Injury : And yet He here claims a Right to dig
up the Soil and dejlroy the Conies. So that the Remedy claimed by
the Juflification exceeds the Injwy done. And indeed it would go
further than a Judgment upon a Writ of Admeafurement would
carry it,: for which, He referred to Fitzh.Nat. Brev. 295. [276]
and Wejbfi. 2. c. 8. [13 E. i.] There, the Tenant who is guilty
of a fecond Surcharge fhall only pay Damages, and forfeit the Over-
charge to the King : Whereas what is here claim.ed, is a total Con-
Jifcation of the Lord's Property, for his firft Injury done to the Com-
moner.
Authorities in Point, or nearly fo, " that the Commoner cannot
" do this," are Godbolt 122. Coney'?, Cafe, H. 29 Eliz. which is
full in Point : And the Principal Refolution is confirmed by. 4 Leon.
7. Ould and Cofiye's Cafe S. C : In which Cafe it was adjudged
" That the Commoner cannot kill or dejlroy the Conies which de-
" ftroy his Common :" But it appears by Godbolt, that " He may
■■" have other Remedy. And per Suit Juftice, he may have an
" A(flion of the Cafe or Affize, againft the Lord, for putting in
" the Conies, if he has not fufficient Common left." Indeed it is
faid in 1 Leon. 7. " That He hath not any other Remedy." But
Fleta, Lib. /\.. c. 23. de admenfur. Pajlurce, pa. 262, 263. juftifies
Mr. Jurt:. Eidt'% Opinion, " that He has Remedy ;" 'uiz. either
Admenfuration, or Affize of Novel DJfi'eifin.
A Commoner cannot even di/lrain the Lord's Eeafts which fur-
charge a Common. For which Pofition he cited Godbolt, ut fupra^
Pa. 124. as an Authority. \_V. what is there faid per Godfrey, ar-
guendo ; but not any part of the Refolution of the Cafe.] Much
lefs, then, can he dejlroy them.
Cro. Eliz. 876. P. 43 Eliz. The Cafe of Bcllcw v, Langdon the
fame Point, and adjudged accordingly; " that the Keeping of Co-
" nies by the Owner of the Soil is lawful ; And the Killing them,
" unlawful." AndOwen 114. S. C. there called the Cafe of Pf//m
■V. Langden, S. P. accordingly : Which adds, that the Owner of the
3 X Soil
z6i Eafler Term 30 Geo. 2.
Soil may make a Fifh-pond upon the Common ; and that the Com-
moner could not deftroy it.
Tfh. 104. Hoddefdon Mil. x.Grefil, M. 5 Jac. B. R ; and Cro.
Jiic. 195. P. 5 Jac. S. C. there caWed Hade/den v. Grijfel; It was
adjudged " That the Commoner cannot kill nor chafe the Lord's
" "Beads oft' of the Common j But his Remedy is by AfTize, or
" Adion on the Cafe."
Agreeably to this Refolutlon — In a Cafe in Cro. Jac. 229. M. 7
Jac, I. there called Sir Jerom Horfey v.Hagberton, a Plea very like
the prefent, was over-ruled without Defence. The Ciife really was
between Sir Jerome Horfey and Mead and Havor and his Wife. The
Juftification was, " of levelling the Coney-burrcws, and laying them
" fmooth and even with the Ground:" And the Reafon given for
doing it, was, " that uti non potuit his Common, prout dchuit."
Adjudged, without Argument, " that the Commoner could not do
" this."
After this, the Commoners tried their Chance again, by altering
their Manner of Pleading. This was in the Cafe in 2 Bulflr. 1 16.
Carrill v. Pack and Bakery Tr. 1 1 Jac.
Here, the Coney-burrows were treated, by the Juflification, as
Holes made upon the Common, by the Plaintiff, into which the
Commoners Sheep fell, and that the Sheep of the Commoners often
fell into thofe Holes, and were thereby loft : And therefore they
juftify the chafmg the Conies, and digging and filling up the Bur-
rows.
And agreeably to this Cafe, the Pleading in the prefent Cafe is,
" That the Plaintiff ereded Coney-burrows, ^c."
In that Cafe, all the Cafes and Arguments were urged : And yet
it was adjudged againft the Defendant ; who had jul^ified the Cha-
fing the Conies, and digging down the Burrows and jiiUng up the
Holes,
Since which Time, the Grand Point has never come in Queflion<
Mr. Afton p-rc Def.
In the firfc Place, it does not appear that the Defendant did kill
any of the Conies : though Mr. Moreton would fuppofe that to be
implied in his digging and filling up the Burrows.
The
Eailer 1 erm 30 Geo. 2. 263
The Lord may feed or departure the Common, I agree : And the
Commoner cannot kill or chafe his Cattle.
But it does not follow that where Necefjity obliges the Commoner
to abate a Nusance, he may not do it.
And Surcharging a Common v/ith Rabbets in a great Degree, is
a private Nusance.
1 Hawk. PI. Cor. 197. c. y^. treats of Common Nufances, and
how they may be removed. And He fays " that any One prejudiced
" by a private Nufancemay deftroy it." Pa. 199. § 12. is exprefs.
2 Rol. Abr. Tit. IndiBment, Letter Q^ufance, PI. 7, 8. A Pre-
fentment of a Surcharge of Con>mon is not good : Becaufe it concerns
a private Intereft. The fime, of an Inclofure of Common, in Nu-
fance of the Commoners.
BraBon, Lib. 4. c. 21. Pa. 221. fliews that though the Adt
was legal atjirjly the Excefs makes it a Niifance.
But here the 2d Plea is " That the Lord has ereded fo many
" Coney-burrows that the Commoner had 7iot fiifficient Common
" left." And this Fadl is admitted by the Demurrer Therefore
the Lord has broken through the Bound of Right between the Lord
and the Commoner.
The Lord cannot inclofe or build upon the Common.
And there are no Degrees of Infufficiency : The only Qneftion
IS " Whether there be or be not fufficient Common left :" As in the
Cafe in 2 Mod. 7, Smith v. Fever el.
And the Commoner may in fiich Cafe abate the Nufance. 2 hrfl.
88. is in Point. 15 H. 7. 10. ^. is alfo in Point, He may also,
indeed, if he choofes it, bring an Action of Tre'rafs or Affile.
But he may abate them, without Suit. Hale's Analyjis iic. [/^.
pa. 125. § 42.] Robert Marfs Cafe, 9 Co. i\2. b. affords the Rea-
fon : '-^iz. the preventing Multiplicity of Suits.
As to the Dodtrine of the Commoner's not meddling with the
Soil.
The Lord could approve befor-e the Statute of Merton. 1 Ro„
■Rep. The Cafe of Sir S. ProSlor v. Sir J. Mallorie j per Coke ; and
agreed
264 Eafter Term 30 Geo. 2.
agreed to by the Lord Chancellor. Fitzh. Title Approvement^
(there cited.)
And this appears too by the Writ of ^od fernnttat. BraBon^
Lib. 4. pa. 227. b. (the Writ there) fhews that the Commoner
might pull down Pales z^c. 2 Infl. 88. ad idem.
This is like all other Cafes of Nufance : A Perfon may abate a
Nufance to his Property, though upon the Land of another. 9 E. 4.
35. a. is fo.
As to Mr. Moreton\ Cafes — There is no material 'Difference be-
tween deftroying s. Hedge, and deftroying a Coney-burrow. Now-
2 Mod. 65. The Cafe of Ccefar v. Mafon is in Point, " That the
" Commoner may proftrate and abate a Hedge :" And fureiy that is
meddling with the Soil.
And there may be Cafes where the Commoner may chafe off the
Lord's Beads : As fuppofe they are infedled.
As to Cony's Cafe, it was very different from the prefent : For
there the Ki/Iing and carrying away was juftificd : Whereas We do
not juftify Killing, chafing, or taking away.
So, the Cafe of Belkw v, hangden was Killing. There was no
Pretence of any Surcharge of Common. It is a Juftification of
Killing the Conies as being Damage-feafant : And it's only adjudged
there " that the Killing them was unlawful."
So Teh. 104. was chafing and killing.
And in thofe Cafes, there 7mght he fiifficicnt Common left, for
aught that appears to the contrary, in any One of them.
Sir 'Jerome Hcrfey% Cafe is not like this. That is for breaking a
Warren : And the Coney-Burrows there are not faid to be newly
creeled. And it was done to prevent the Coney-Burrows increafing,
fo as to be a Nufance : Not averring " That they were then a Nu-
'" fance."
Whereas here it-is averred to be a Nufance, and a new Eredion.
As to the Cafe of Caryl v. Pack and Baker — 'Tis for entring the
Plaintiff's Free Warren, and digging the Land. And there, in the
Juftification, it is alledged to be done for the better Prefervation
of the Common. And the free Warren is admitted: And there-
fore he could not juftify the killing &c.
2 As
Eafler Term 30 Geo. 2. 265
As to a Pond— If it was fo large as not to leave fufficient Com-
mon, it would be a Nufance, and might be abated.
I Liitw. 10 1. The Cafe oi Hajfard v. Cantrell (which was men-
tioned on a former Argument) was only " that the Commoner
" could not enjoy his Common info beneficial and ample a Man-
*' ner as before." But it does not fay, as here, " that there was
" not fufficient Common left:" Which is going a great deal further
than that Cafe does.
Mr. Morton in Reply —
Mr. Afion agrees that the Adl of the Lord is legal. Therefore
it is not like Ads wJiich are againft his own Grant; or Cafes
which become ?nanifejla Diffeifma.
" Ulteritis Nocumentum" imports a frefent Nufance —
Lord Mansfield flopped Mr. Morton in his Reply.
"Whether it be or be not hurtful;''' or " how far it may be
■" fo;" is not the Queftion: The Qiieftion turns upon the Re-
medy ; " Whether it is Abatable; Whether the Commoner can
" do Himfelf ]vi{^ii.z:'
It may be Prejudicial to tlie Commoner, yet not Injurious: It
may be both Frejudicial and Injurious^ yet not Abatable.
The Lord, by his Grant of Comm^on, gives every 'Thing incident
to the Enjoyment of it, (as Ingrefs, Egrefs, ^c-j) And thereby au-
thorizes tlie Commoner to remove every Obftrudlion to his Catties
Grazing the Grafs which grows upon fuch a Spot of Ground: Be-
caufe every fuch Obftrudion is diredly contrary to the Terms of
the Grant. A Hedge, a Gate, or a Wall, to keep the Commoner's
Cattle out, is inconfiflent with a Grant which gives them a Right
to come in.
But the Lord ftill remains Owner of the Soil; and is not debarred
from exercifing any ASi of Oiimerfip.
The Commoner has no Right to meddle with the Soil.
The true Diftinction is taken in the Cafe of Mafon v. -Cafar in
2 Mod. 66: Where the Court was of Opinion " that the Defen-
" dant, a Commoner, jnight abate the Hedges; For thereby He
" did not meddle with the Soil, but only pulled down the Erection."
3 Y The
266 Eader Term 30 Geo. 2.
The Hedge flopped the Commoner from entering, and putting
in his Beafts. The Grant gave Him Leave to enter, and put in
his Beafts : Therefore it 'virtually authorized Him to remove any Ob-
ftrudion directly repugnant to that Liberty.
But in the prefent Cafe, the Lord has done nothing contrary to
the Grant: He has not objlructed the Commoner from entering and
putting in his Cattle.
The Lord has a Right to put Conia upon the Common: As ap-
pears from the Cafe of Carrill v. Pack and Baker, in 2 Buljir.
115, 116.
The Conies themfelves naturally make the Bur?-ows. So that
they are incident to the Right of putting on the Conies.
If the Lord furcharges, the Commoner is injured in his Right
of Common, it is true: But what is the Commoner's Remedy? Not,
to abate: Not to be his civn Judge, in a complicated Queflion,
wliich may admit of Nicety to determine.
There is a certain Line to be drawn: The Lord h;:s a Right fo
far; but 710 further. Yet the Commoner cannot dejtroy or drive
off the Conies: Nor, confcquently can he dejiroy the Burrows;
which is, in Eff^ft, deftroying the Conies.
This is founded upon Reafon, and upon many Authorities.
Sir Jerome Horfey's C.\fe. \V. ante, 262.] 2 Buljir. 115, 116.
The Cafe oi Carrill v. Pack and Baker [F. ante, 262.]
And it's being a Free Warren makes no Difference.
So that the Queftion is not, " Whether this be an Injury": but,
" Whether it is abatable."
I think it fo clear a Cafe, that I have no Difficulty at all about it.
Mr. Juft:. Denifon declared the fame Thing: And He fiid He
faw no Difference between this Cafe, and the Cafes cited j but
merely in the Exprejjion, viz. that in this Cafe it is treated as z.Nu-
fance; which is not the ExprelTion, in them. But this Form cf
Exprejjion makes no Difference.
Upon this Record, it muft be taken, " that the Plaintiff was
" Owner of the Soil, and had a Free Warren; and that there is not
3 " Mcieut
Eader Term 30 Geo. 2. 267
" fufficient Gammon left, (by the Increafe of the Conies) for the ufe
<' of the Commoner."
The Qiieftion then is, " Whether the Commoner {hall be in-
" trufted to defiroy the Estate of the Lord, in order to preferve
*' liis own y?//^//i?^]g"/j/ of Common."
I Rol. Abr. 405. pi. 2. gives the Reafon why the Commoner can-
not * kill the Conies, but ought to bring his Affize or Adion ; » yet /j^//
"jiz. " becaufe he cannot be his on-n Judge." fays, "Dubi-
tatur.
So here, this Juftihcation would make him a Judge in his own
Caufe. No: Let him take his proper Remedy.
This is plain Reafon ; even if it was 72ot fiipported by Authori-
ties: But the Cafes are alfo flrong, to prove it.
The only Point of this Cafe turns upon thefe Pleadings calling
it a Niijance.
But this will not make it a Nufance abatable by the Defendant
Hitnfelf; nor can it alter the Law.
In -Sir Jerome Horfefs Cafe, Cro. Jac. 229. It was adjudged
" that the Commoner has no other Intereft than to take the Com-
" mon, by feeding his Cattle there: And may not dejlroy the Co-
" nies nor Coney-burrows."
A Coney-burrow is not, of it's oian Nature, a Nufance : On the
contrary, it is effential to a free Warren.
Therefore the Nufance depends upon the Number of them : And
You can, at the utmoft, only abate fo much of the Thing as is a
Nufance. You can not deftroy the Whole, (which is the Right here
claimed;) but only yo much of the Thing as tnakes it a Nufance.
In I Sir J.S. 688. In the Cafe o^Rexv. Fapimicau, Lord Ch.
Juft. Raymond exprefsly declares io. Suppofe a Man builds his
Houfe up fo high, as to be a Nufance to his Neighbour, by ob-
ftruding his Lights or in any other Refpedl arifing from it's Excefs;
You can't deftroy the ivhole Houfe; but only /i much of it as by its
Excefs above what is allowable, confliitutes the Nufmce.
Mr. Jufl. Fofer was of the fame Opinion.
This Juftification is clearly bad. It is founded on a Claim of
Right which cannot be maintained.
^ It
:2^6S Eafter Term ^o Geo. 2.
J"
It is admitted " that a Commoner can not, in this Cafe, de/Iroy
the Comes." Confequently, He cannot deftroy the Burroivs : For
the EfFed is deftroying the Conies.
If the Lord has exceeded the Bounds of his Right, the Law is
to determine the ^antum of fuch Excefs; and to the Law the Com-
moner muft refort for his Remedy, if He is aggrieved.
T
Per Cur. unanimoufly
Judgment for the Plaintiff,
See the next Cafe — The fame Point.
Cope V. Marfhall.
U. 27 G. 2. Rot'lo, 145.
HIS being the fame Point with the laft preceding Cafe of
Cooper V. Marjhally
The Court without argument at this Time, (but this very Cafe
fF.attfe z^g. had been argued twice before, * though not before Lord Mansfield
and Mr. Jufl. Wilmot,) gave the Hke Judgment as lafl above, viz.
Judgment for the Plaintiff.
T
Hope, ex idimiff. Brown et Ux. v. Taylor.
HIS came on, upon a Cafe flated, upon the Trial of an
Ejeftment.
The Cafe ftated was this —
Robert 'johjfon^ feifed in Fee (inter alia) of a Copyhold of Inhe-
ritance, and bu\ ing firfl: furrendered to the Ufe of his Will, devifed
to ohn IVedgehorough, his Sifter's eldeft Son, his Houfe in the Brook
•with the Out-buildings ; and 30/. to be paid within Twelve Months
iif er his Dcceafcj To his Nephew Robert "Taylor, 50/. to be paid
within Tv/c!ve Months after his Deceafe; To his Nephews Charles
'Taylor, Robert Taylor and William Taylor, his Sifters three Sons, 29
Acres of Arable and Meadow Land bought of 5; not to be parted
but to part the Rent equally between them} then, to William
4 Taylob,
Eafter Term 30 Geo. 2. 269
Taylor, his Sifter's Son, the Houfe in queftion, by the Defcrip-
tion of " his Houfe on the Green ; with the Ground and Out-
" houfes thereto belonging ;" And gives him alfo lo /; And to his
Brother-ifi-Law Charles Taylor 5 / ; And He direds the faid Lega-
cies to be paid 'within 1 2 Months after his Deceafe ; And declares
his Will and Meaning to be " That if either of the Perfons be-
" fore named die 'without Jjfue lawfully begotten, then the faid
*' Legacy fliall be divided equally between them that are left alive."
Note — It was ftated that the Teftator had Jive Houfes in all :
And that the Will begun with this Expreffion, " As to all
" fny worldly EJiate &c." And it concludes thus, " And all
" the Rest of my Houfes, Goods, Lands, and Cattle, I give
" to my Kinfwoman Elizabeth Wedge borough ; and make
" Her my fole Executrix."
The Teftator died feifed of the faid five Houfes and Lands.
William Taylor entered, and was admitted, and enjoyed till the
13th oi June 175^ ; when He dird, leaving the Defendant William
Taylor, his only Son and Heir at Lavv.
The Wife of Brown, the Leflor of the Plaintiff, is Heir at Law
to the Teftator ; And, as fuch, brought this Ejedment, againft the
Defendant WilUam Taylor the Son, who claims as Tenant in Tail.
In this Cafe, there are made
Two Points, which are [in Subftance]
ift. What Eftate William Taylor, the Devifee, took by the Will j
TO2;. Whether an Eftate Tail, or for Life only.
sdly. If only an Eftate for Life, then Whether the Refiduary
Claufe did not carry the Reverfwn in Fee, to the Refiduary Devifee :
(In which Cafe, the Heir at Law could have No Claim.)
Mr. Clayton for the Leflor of the Plaintifi", the Heir at Law.
To the I ft Queftion, He argued that William Taylor the Defen-
dant's Father, took only an Eftate for Lije ; not an Eftate Tail.
The Devife is only to William Taylor Himfelf; without any fur-
ther Limitation whatfoever.
The fubfequent Words are, " that if either of &c. fliall die
" without Iftlie, then the faid Legacies to be divided amongft
" the Survivors.''
3 Z Now
270 Ealler Term ;o Geo. 2.
yu jj/aiLV.'X X waiii ^
Now the Word " Legacies" will be fatisfied by the Mofjey-hc-
gacies : And there were Four Money-Legacies before given. There-
fore this Claufe fliall not be extended to the Devife of re^il Eftate.
For an Heir at Law fhall not be dilinherited, by doubtful Words,
or by Implication.
2d Queftion, Upon the Refiduary Claufe. —
The Refiduary Claufe does not carry the Reverjion in Fee of thefe
Fremiffes in queftion, to Elizabeth Wedgeborough.
There were other Lands befides thefe, for the Words to ope-
rate upon : And thefe Words here are, " all the Rejl of my Houfes
" Lands ^cr
3 Feere Wnn. 56. The Cafe of Chefter v. Chefier was a Cafe,
(and many other Cafes might be mentioned,) where there were tio
other Lands for the Words to operate upon.
But here He had Five Houfes j And only 3 were devifed : So
that " Rejl" means his other Houfes.
But (What goes to both Points — )
This was Copyhold ; And he had likewife Freehold Lands, diftind
from the Copyhold : And therefore the Copyhold not being parti-
cularly named, the Words of the Devife fhall only extend to the
Freehold. Which is fully proved by two Refolutions in Cafes in
Equity abridged, pa. 124. pi' i^. & pi. 14.
Mr. Nares pro Defend'.
He made the fame two Points, with Mr. Clayton.
I ft. The Teftator had no Child, hut fevcral Nephews ; viz.
y. W. his Sifter's Son by a former Hufband, and 3 Nephews Tay-
lors, her Sons by a latter Hufband : And He gives Houfes and Le-
gacies amongft them, in different Proportions.
The Word " Legacy" relates, and the Teftator Intended it to
relate, to the Houfes, as well as to the Money-Legacies. He could
never intend to give fuch a Trifle as the Inttr-jl of 5 /. to his Bro-
ther-in-Law, for his Life only. And it may be obferved, that if-
this Charles Taylor, the Teflator's Brother-in-Law, (one of the
Legatees above named) fliould happen to die •without Iffue, the other
3 Legatees (his 3 Sons) muft confequently be dead too : And then
there would be Jio Body left alive, to divide it amongft.
And
Eafler Term 30 Geo. 2. 271
And if the Word " Legacv" relates to the real Eftate, It is a
clear Eftate Tail in William Taylor. (Which Polition Mr. Clayton
agreed to.)
2d Queftion — The Will begins, " As to all my worldly Eftate.'*
Therefore He meant to pafs every thing by this his Will.
The Cafes of Ibbetfon v. Beckwith, [Forrefler 157.] ilf. 1735, in
Cane, and of Tanner v. Wife^ in 3 Peere Wins. 295. both of them
prove this.
I Lev. 212. The Cafe of Cooke v. Gerrard is exprefly in Point —
" That the Word Land" in a Devife meant- not only the Thing
itfelf ; but the " Inter ejl of the Thing."
As to Cafes in Equity abridged 124, there was no Surrender of
the Copyhold Eftate : But it is here ftated " that the Teftator had
^'' furrendered the Copyhold Eftate, to the Ufe of his Will."
Which renders his Intention clear, to difpofe of it.
However, this Reafoning only reaches the 2d Queftion : For
the Jirjl Devife is exprefs.
And the Defendant is Son and Heir to William Taylor.
Therefore He prayed Judgment of Nonfuit againft the Plaintiff.'
Mr. Clayton in Reply —
All the Money-Legacies are to be paid within a Tear. There-
fore the Event muft happen within that Year : Or elfe the eventual
Devife could not take Effedl.
The Word '' Rejl" clearly excludes what He had before devifed.
Lord Mansfield — Mr. Clayton admits that if the Word
" Legacy" is applicable to Lands, W. T. has an Eftate Tail.
This is plainly a Will of the Man's own drawing.
He profefles to difpofe of his whole Eftate. He means to make
One of his Relations his General Heir : The other Objedls of his
Bounty are 4 Nephews. And He gives them Land ; And alfo
gives fome pecuniary Legacies, to be paid within 12 Months after
his Death : (Which indeed the Law would have implied.)
2 Then
272 Eafler Term 30 Geo. 2.
Then He gives his Brother-in-Law 5 /.
And if either of thefe Perfons before named fliall die without
lllue lawfully begotten, then he gives the " faid Legacy" to thofe
that fliall be left alive, to be equally divided between them.
The Explanation of this Word " Legacy" muft be governed by
the Mention of the Teftator : And to this Purpofe, fome Strefs may
be laid upon this Introduftion of the profeffed Difpofitlon of All his
wordly Eftate. A different Conftruclion has been fometimes put
upon the very fame Words, as applied to Money and Lands ; in
order Xafupport the Intent of the Teflator : As in the Cafe of Forth
V. Chapman^ by Ld. Macclesfield.
It is mojl agreeable to the Intention of the Teflator in this Cafe, to
conftrue this Word " Legacy" to extend to Lafids.
It would not be a legal Limitation, if confined to Money.
The Legacies may happen to be /pent, foon after the Twelve-
month is expired.
And it could never be intended that fo [mail a Sum as the 5 /.
{hould be put out to Interefl, and kept liable to this Limitation.
If the Brother-in-Law died ivithout IfTue, there would be No One
left to divide the Legacies.
Common People do not make fuch Diflindion between Money and
Land, as Perfons converfant in Law Matters do.
The Teflator meant this Claufe as a Reftraint upon his former
Bequefl ; and meant that the Iflue fhould have it.
The Word " Legacies" does extend to Lands, as well as to Mo-
nies. Common Perfons would not think of ufing the Word " Dc-
" vife:" (Which is the more ufual legal technical Term.)
Therefore upon the ifl Queflion I think it is an EflateT'^//.
But his Lordfliip did not choofe (it not being at all necefTary) to
declare any Opinion upon the 2d Queflion : becaufe a third Perlbn
not now before the Court, might be affeded by it.
Mr. Jufl. DeJiifon concurred — He thought the Word " Lega-
" ciEs" extended to real Eflutej And confequently that it was an
Eflate "tail.
Mr.
Eafler Term 30 Geo. 2. 2.73
Mr. Juft. Fojler alio held That the Teftator intended the Land to
go over 3 and that it was an Eflate T^ail.
If the Word " Legacy" was confined to pecuniary Legacies,
the Devife over could not have taken Effedl;" being after a dying
without Iffue; \y. Ante P. 272. Lord M^«£/i!>Ai accordingly.]
Befides, Charles Taylor who was One of the Perfons before named,
has no pecuniary Legacy given him, fo that it jnujl mean Land j as
to Him.
And thefe are fmall Legacies, (one of them only of 5 /.) And
payable within a Twchemonth. Therefore the Teftator cannot be
fuppofed to apply this Limitation to them ; but to the Land which
He had devifed by his Will.
' Per Cur. unanimoufly
Judgment for the Defendant
{yiz. of Nonsuit of the Plaintiff.)
Dcnn verf. Lord Cadoo;an ct ai'. - w-/^.v5oth
J O April 17C7.
T
HIS Day having been appointed for a Trial at Bar, in this
Caufe, Only 9 of the jfury appeared.
Sir Richard Lloyd pro ^er' prayed a Decern Tales.
By the Courfe of the Court, this Trial could not have come on
again, till Michaelmas Term ; (the immediately next Term being an
IJJ'ueable Term, wherein there are no Trials at Bar.)
Btrt the Court obferving the great Expence and Delay which
would by this Method of Proceeding be occafioned to the Parties,
aflced " Whether there were Gentlemen of tiie County enow in
" Town, to make a Complete Jury."
And being told " that there 'mrre ;" And the Gentlemen of the
Jury who now attended, exprefiing a Defxre " not to be kept in
" Town."
The Court ordered the Return of the Decern Tales to be on the
Monday following ; (though there had never before been an Inftance
of it.)
4 A And
274 Eafter 1 erm 30 Geo 2.
And by fo doing, they faved vaft Expencc, as well as fome Delay
to the Parties concerned.
For now, on Mottday 2d May 1757, a full Jury appeared: And
the Trial proceeded.
The Caufc itfelf had no Difficulty in it ; And was foon over.
For the Leflbrs of the Plaintiff claimed as Heirs at Law of George
Smilh Efq; who died in 1 607: And they drew down their De^
fcent through two Sifters-, who had married Carlos and Underwood.
Oi-ie of then- other Anceftors, as they pretended, was Francis Smith,
third Brotlier of the firft Lord Carrington, (Charles Smith, alias
Carriiigton :) But they could not by any Means make tWs out.
Their Claim was as Heirs at Law, under a Family Settlement of
the Lord Carrington, in 1687. But they could not {hew the leaft
Probability that Francis the third Brother of the Lord Carrington
(whofe Eftate was prior to the Plaintiffs Claim) was dead without
IJj'ue.
Whereupon the Plaintiff was Nonsuited.
The Court, on the Application of the Gentlemen of the Jury,
took off the Fines (of 20/. a-piece) which had been fet, on
Satiird^ay laft, upon the Defaulters.
Tuefiay 3d Hawkins vcrf. Colcloiigli.
7r/>/. 29, 30 G. 2. Roth 962.
{Lord CommiUhner Wilmot ahfent, in Chencery.)
IN an Adion of Trefpafs for an Alliult Battery and falfe Imprifon-
ment an Award (made pending the^ Adlion) being pleaded to
this Adion, and a Tender of the Sum awarded ; The Plaintiff de-
murred.
The Award (which was made upon a Submiffion of all Difputes,
^c.) was in thefe Words — " Whereas there has been a Suit at Law
" between the Parties, that has run to a great Expence on both
" Sides ; And it being left to me to make an End of it ; I determine
«' That they (hall Each of them pay their own Charges at Law ;
" And that the Defendant pay the Plaintiff five Shillings, for his ma-
" kine; the firfl Breach in the Law.",
^ Mr.
Eafler Term 30 Geo- 2. 275
Mr. Anguijh fro ^er' objedled to the Award, as being
I ft. Uncertain-;
2dly. Not final.
Firft — It is uncertain. The Submiffion is o^ fever al Matters :
And the Award does not at all (hew, which of them it means to
determine, i Ro. Abr. 242. Letter B. pi. i. 252. pi. 10.
And an Averment without a Fadl to fupport it is of no Avail.
I hd. Raym. 246. in the Cafe of Bacon v. Dubarry, the 4th Refo-
lution is expreily fo.
This is an Aftion of Trefpafs. The Submiflion is of <?// Tref-
pafles : And the Award does not diftinguifli what Trefpafles it de-
termines. 1 Ro. Abr. 251. Letter L pi. i. and pi. 3. and the Cafe
of Maw V. Samuell mPcpham 134. and 2 Ro. Rep. i. the Cafe of
Bacon v. Dubarry (before cited.) The 3d Refolution fays " That the
" Award was void for the Uncertainty, without Releafes."
Now here are no Releafes. Each is to pay their own Charges.
And the Defendant is awarded to pay to the Plaintiff 5 s. for his (the
Defendant's) having been guilty of the firft Breach of the Law,
The Injury complained of was Affanlt Battery and falfe Impri-
fonment. And here is no Satisfadlion awarded for the Injury, i Ld.
Raym. 247. The Cafe oi Freeman v. Bernard.
Second Point — 'T'lS not final : Which it ought to be.
An Award muft be final. But this Award was made pending
the Adion : And it does not put any End to it, at all.
Under this Head, He cited i Ro. Abr. 252. pi. 16, 17. [But
One of thefe is marked by the Abridger, " Dubitatnr :" The
other, " Contra 15 ioT. 7-. 22."] Alfo 2 Straji^c 1024. The Cafe of
Tipping v. Smith: Where the Award was held ill; being uncer-
tain, and not final. And Cro. Eliz. 904. The Cafe of Col/Ion v.
Harris: Where the Award was holden void ; becaufe Nothing was
awarded to the Defendant, nor to be free from Suits : So no Advan-
tage to Him.
Mr. Caldecot contra pro Def'.
This Award is pleaded by Cenfent of the Plaintiff, and by Leave
of the Court, And though pleaded as being made pending the
Adion,
/
276 Eafter Term c;o Geo 2
^"
Adion, viz. between the Adlion brought and the Plea pleaded ;
yet the Court v/ill determine upon the mere Validity of it.
ift. It does appear upon what particular Suit, the Award was.
The Generality of the Submifiion is not inconiiiftent M'ith the Par-
ticularity of the Award. 8 Rep. gS. b. Bafpole's Cafe. [2d Refu-
lution.]
This fhall be taken to be the ivhole Matter depending between the
Parties: And 710 other Suit than this appears to have been depen-
ding, between the Parties.
Tlie Cafe of Bacon v. Dubarry, in i Ld. Raym. 246. is not like
.or fmiilar to the prefent Cafe.
j:^fter Payment made or tendered, the A<flion of Trcfpafs is dif-
chargcd.
Hob. 49. The Cafe of Nicholh v. Grunnion is exprefly fo. [The
Words are — " For a SatisfaSiion implies a Difcharge."]
The prefent Award (which was made by a Coblcr) recites that
there was fuch a Suit; And that it being left to Him to make an
End of the faid Suit, He determined as follows, viz, " That the
" faid J.H. and J. C. Hiould each of them pay their own Ccfis and
'' Charges at Law ; And that the faid j. C. (liould pay the/aid J. S.
" 5 Shillmgs for his making thejirjl Breach in the Law."
And this may be pleaded in Bar, in another Adlion.
The Arbitrator certainly intended to make an End of this Suit
depending between the Parties ; and thought 5 s. adequate to the
Injury.
Mr. AnguiJJj in Reply — Notwithftanding the Confent " to plead
" this Award in Bar," Yet all Objcdions to the Award itfclf are
flill open.
This is not Jl-vwrn to be the only Mitter between them : And non
conjiat that the Award was made concerning this particular Adion.
I agree that Payment difcharges the Trefpafs. But then it ought
to appear that the Payment was in Satisfadion of the same Trefpafs,
Which does not appear in this Cafe.
Lord
Ea/ler 1 erm 30 Geo. 2. 277
Lord Mansfield —
The Queftion is Whether this be a good Award.
Awards are now confidered vj'ith greater Latitude and lefs StriSinefs,
than they were formerly. And 'tis right that they fliould be libe-
rally conftrued ; becaufe they are made by Judges of the Parties owii
Choofmg. And this is often, (as it is here,) in Cafes oi fmall Con-
fequence, where the Play is not worth the Candle.
Indeed they mufl have thefe two Properties, to be certain^ and
jinal.
But the Certainty may be judged of according to a common In-
tent, and confident with fair and probable Prefiimption.
This Submiffion is, in general Terms, " of All A(9:ions, Con-
" troverlies and Suits between them." The Arbitrator recites One;
referring to the Submiffion, as authorizing him to determine it: And
it appears that this Suit was depending between the Parties, And.
the Parties have not defired to be heard upon any more than this
One. Therefore there is tio probable Frefumption of any Other.
2dly, As ts its being j?«^/ — It feems to be a reafonable and fair
Award.
The Arbitrator, plainly, thought it a mere Trifle; and feems
to have thought both Parties to have been in the wrong; and there-
fore awarded each to ftand by his own Cofls.
And the 55. awarded to be paid, is plainly in SatisfaStion of this
fame Adion; and therefore is a Difeharge of it, being paid or
tendered.
And he declared agalnfi: critical Niceties, in fcanning Awards d^
made by Judges of the Parties own choofmg, in order to the Deter-
mination of Difputes between them.
Therefore He was clear that the Judgment ought to be for the
Defendant.
Mr. Jufl. Denison concurred —
The Submiffion is General: The Arbitration is alledged to be
" de et fuper Pra}mJJjs;" And it does not appear that any Thing
elfe was before the Arbitrator. It's plain that this Matter was fub-
mitted: And We have no Reafon to prejume " that there was any
" other :\
4 B And
ZJ^
Eafler Term 30 Geo. 2.
And it h fiifficiently final: It is to pay 55. for having been guilty
of the firft Breach of the Law. Therefore it is the fame as if it had
faid " in Satisfad^iion." Therefore it is mutual and final.
And Awards ought to be conftrued liberally ^Vidi favourably.
Mr. Juft. Foster concurred, for the Reafons already given.
Judgment for the Defendant.
Perry v. Nicholfon.
AFTER an unfuccefsful Motion, made on the Part of the De-
fendant, " to fet afide an Award j" and an equally unfuc-
cefsful One, made on the Part of the Plaintiff, " to enforce it by an
*' Attachment for Nonperformance;" The Plaintiff found Himfelf
obliged to have Recourfe to his A5lion againfl the Defendant upon it.
And now, upon an Adion of Debt brought by Him on this
Award, reciting that in an Aftion of Ajfiaiipjit, the Parties, at the
Trial, had fubmitted the Matters in Difference in the said Cause,
to certain Arbitrators, &c. fo as they fliould publifh their Award in
Writing concerning the Premiffes, before, &c. And that they ac-
cordingly did publifh their Award in Writing, Cs^c. and awarded
' that the Defendant Nicholfon fliould pay to the Plaintiff" Ptrry,
' 48/. Hi. 10^. in full Payment Difcharge and Satisfadtion of all
' Money whatfoever or any Ways due or owing unto Perry, by
' Nicholfon, at the Time of commencing the faid Adf ion ; and that
' ALL Adtions depending between them for any Matter, Caufe or
' Thing lohatfoever arifing before or at the Time of referring, fliould
^ from the7iceforth ceafe ; and that upon Payment of that Sum, they
' fhould within two Days after the Taxation of Cofls in the Ac-
* tion and Payment thereof to Perry, feal and execute to each
' other. General Releafes of all Matters in difference in the faid
' Caufe."
Then the Plaintiff avers that ''tere was, at the Commencement
of the Adion, or at the Time of i- rference, tio other Money what-
foever, any Ways due to Him the laid Plaintiff Ptrry from AV-
cholfon, but the Matter in Difference in the faid Caufe; And that
No other A£lion was depending between them; And that the Cofls
were taxed at 28 L
The Defendant pleads " that No fuch Award was made." Re-
plication— " that there was fuch an Award, &c." And Iffue there-
■upon. 4 The
Eaitcr 1 erm 30 Geo. 2. 279
The Plaintiff gave in Evidence, an Award in Writing, indented,
under the Hands and Seals of the faid Arbitrators named in his De-
claration and Replication, with the following P'anations from and Ad-
ditions to the Award fet forth in the Declaration — viz. There was
in the Declaration,
I ft. An Omiffion (after the Award "to pay, &?<:.") of thefe fol-
lowing Words — " That Nicholfon at the fame Time deliver up
" to Perry a Promijfory Note of Perry's payable to Nicholfon or
" Order for 5/. js. to be cancelled."
2d. A Mifreprefentation of the Releafe: Which is " that they
" fhould execute mutual and general Keleafes of all Adlions, &c.
" Debts, &c. for any Matter Caufe or Thing whatfoever from the
■*' Beginning of the World tPito the Day of the Date hereof."
3dly. The Award produced in Evidence, is by Deed indented,
under Hand and Seal: Whereas the Award declared upon is only an
Award " in Writing," merely.
Upon this Evidence, there was a Verditft for the Plaintiff, fub-
jedl to the Opinion of the Court, on this Queftion, — " Whether
" there be material Variances between the Award declared upon;
" and the Award given in Evidence."
Mr. Serjeant He wi t t — pro ^er\
This Adlion is an Aftion of Debt on the Award itfelf; Not an
AQion of Debt on the Arbitration Bond: And on fuch an Adlion,
no more needs be fet out, than is material, and enough to intitle
the Plaintiff io his Demand, i Leon. 72. the Cafe of Smith v.
Kirfoot. I Salk. 72. xhtCaicoi Foreland \. Marygold. Both which
Cafes are exprelly fo.
Another Rule concerning Awards is, that the Generality of the
Words of them may be rejlraified, fo as to be conftrued to amount
to no more than they ought to amount to. One Way of doing this,
is hy Avertnent conntiymg the Award with the Submiflion: As it
is faid in the Cafe in Aleyn 51, 52. Rofe v. Spark [firft Point.] " That
' the Words de Pramtjjis have been newly ufed in pleading Awards;
' in order properly to apply the General Words proportionable to
' the things fubmitted."
Another Way of doing this, is by pleading them according to
their legal Operation.
Another Way of reftraining the Generality of Words is by In-
tendment of Law: As was done in i Salk. 74. Sitnonv, Gavil.
Another
28o Eafler Term ^o Geo. 2.
j>"
Another Way is by plcaiii?ig the Matter; (which is the proper
Way for the Defendant to take Advantage of of it:) As in Moore
885. N"'. 1242. The Cafe oi Lea v. Paine.
Another Way is, that an Award may be good in Part, and Ifad in
Part; if relative to diftincft Things.
To apply thefe Pofitions — Here are four Things awarded : Which,
it is true, are not all particularly fet forth.
But ALL tlmt is NECESSARY to THIS Stiit, IS fet forth: The
Other Things are not relative to it. And here is an Averment " That
«' no other Thing was in Difpute."
The Queftion is, " Whether this Award produced in Evidence
" proves the Declaration."
Now All that is material in the Declaration, upon this Adion of
Debt upon the Award, is the Award of the 48/. and the 28/. Cofts.
So that it is fufficient to prove the Declaration.
Mr. Anguish contra pro Def".
ift. Here is an OmiJJion of that Part which obliges the Defendant
Nicholfon to deliver up a Note: Which Note compofes Part of the
Sum, and was in Confideration to make up the 48/.
To fuppofe it otherwife, is inconfiftent : Bccaufe, otherwife, they
would not have ordered it to be given up.
He cited 2 Lev. 235. The Cafe of Adams v. Statham: Where
an Omiflion vitiated the Award.
Lord Mansfield — after ftating the Cafe, faid that nothing
was clearer, than that in an Adtion of Debt upon an Award, a
Man has no Need to ftate in his Declaration any more of the Award,
than fupports his Cafe.
If there be any Thing by way of Condition precedent to the Pay-
ment of the Money, the Defendant may fef it out in pleading.
This has been the Law, fo long ago as from the Time of the
Regifter : Where there is a Writ which fets forth only fo much as
is neceffary. [F, Regijier 111.]
1 Then
Eafler Term 30 Geo. 2. 281
Then with Regard to the Releafe — The Court will ifif end th^t
I the Releafe fliall extend only to the Matter under the Suhmijjhn.
Bcfides here they have averred " that there was no other Matter in
" Variance."
Therefore I think there is no material Variance between the
j'Declaration and the Evidence.
Mr, Juft. Denison — was as clearly of the fame Opinion : Which
\\it declared to the following EfFedl,
1 The Queftion is " Whether the Award given in Evidence is fu{-
r" ficient to fupport the Award fet forth in the Declaration."
Now Nothing is claimed by thii Adion, iut the Money.
And the Queftion is Whether it was neceflary, in this Adion, io
fet forth any Thing more than fupported his Claim to recover, and
P^ewed his Right to this Money^
It has been fettled that in Adtions upon Awards (which are no
Specialties,) there is 7io Occafion to fet forth the whole Award: The
Plaintiff needs not {hew any thing more than what is neceffary to
■fupport that particular Claim; and to intitle him to the Thifig;
And if the Dejhidant will imfeach the Award for any thing, that
is to come on his Part.
■J Leon. yi. Smith and Kirfoot's Cafe, is exprefly fo refolved.
Littleton's Rep. 312, 313. Leake v. Butler, is a like Refolutioni
Where the Form of declaring is faid to be taken from a Writ in
the Regijler 1 1 1 .
And this DifiinSlion between Debt upon the A'ward itfelf, and
Debt upon the A^\^\iXA.i\on-Bondy was admitted in
I Salk. 72. the Cafe of Foreland v. Mary gold: Which was an
Action of Debt upon Bond to perform an Award. And i Lord
Raym. 715. Foreland v. Kornigold is the fame Cafe: Where alfo
it appears to have been an Adion of Debt upon the Bond.
Here, the Award is " That Nicholfon fhall pay the Money, and
« pgfyy deliver up the Note." And this is an Adlion of Debt
brought hy Perry, upon //j/V Award, for the Money. It would,
as I have already faid, have been a quite different Cafe, if it had
heen an Aftion upon the jirl?iiratio?!-BoND. But it is here good,
4 C even
282 Eafter Term 30 Geo. 2.
even though on the mere Face of the Declaration it fhould ap-
ptar as a bad Award, by appearing thereupon and as there fet forth,
as if it were only an Award on one Side. For the Plaintiff, jn
thh Adion upon the Award itfelf, needed only to fliew fuch Fart
as he grounds his Adtion upon.
Then as to the Rekafes — The Award " of General Releafes "
was void, as to other Matters not fubmitted. Here, nothino- is
fubmittedj but in this particular Adlion. And in an Adlion upon
the Bond, " a Releafe as to all Matters under SubmiJJioti,'" would be
a good Plea J though the Award be an Award of "General Releafes."
But here it is exprefsly averred, " that there '■iCcre No other
*' Matters in Difpute." However, there was no Occafion for that
Averment, becaufe We would not have intended " that there were
*' any other."
Mr. Juft. Foster wasoftlie fame Opinion.
He faid it was fufficient in an Adion of Debt upcn the Award
ITSELF, to fet forth yo much only as is neceflary to fupport the
Plaintiffs Claim: The other Part of the Award may, perhaps, /^^
performed.
He thought therefore, that the Evidence well proved the De-
■ claration.
Per Cur. unanimoufly (Mr. Juf^. JVihnot abfent)
Let the Postea be delivered to the Plaintiff,
o
Wright, ex dimiff, Plowden Arm. v. Cartwright.
N a Cafe ftated, from the AfTizes.
Edtmmd Plowden being feifed in Fee, demifed on the 5th ofO^--
tobcr 1676, by Deed, viz. by Indenture of Leafe between Him
and Elizabeth Cartwright, only, to the faid Eliz. Cartwright for
99 Years, if fhe fhould fo long live; and after her Death, if She
happen to die within the faid Term, or other End or Determina-
tion of the fiid Term, the Remainder thereof to Rowland Cart-
wright her Eldeft Son, (then under h^t,) for and during the Re -
Jidue oj the faid Term, from thence enfuing and fully to^bc com-
plete ,nd rnded: Yielding and paying, &c. and doing Suit at a Mill,
^t ; wi h n Penalty for every Time that he or Rowland fliall grind
at un ;'er ivlilij znd paying a Heriot on the Death of Either. And
4 it
Eafter Term 30 Geo. 2. 283
it is covenanted that Both of them fhall repair &c. And the LefTor
on his Part covenants that Both fliall quietly enjoy &c.
Eliz. Cartwright entred and was poffeffed ; and died on the 4th
of September 1694. Whereupon Ro-voland Cartwright entered, and
was poffefTcd, till the faid Rowland died ; which happened on 5th
ISlovember 1753.
The Leffor of the Plaintiff is Heir at Law to Edmund Plowden,
the Lefibr. The Defendant is the perfonal Reprefentative of Row-
land Cartwright^
The Queftion is " Whether the Term exijs :" i.e. Whether it
continues beyond the Life of Eliz. Cartwright. For if the Term
does fiot continue beyond the Life of E. C. then the Lefibr of the
Plaintiff has a Title to recover : j^it does, then the Defendant hatli
a Title, as Reprefentative of Rowland Cartwright.
' Mr. JJIon pro ^er\
Argued that the Term was expired : It expired on the Death of
Elizabeth ; the Limitation over, being void. And He cited Tr.
8 Eliz. Dyer 253. b. pi. 102. which is exactly the fame Limita-
tion ; viz. *' to IV. Cecil pro Termino 1 2 Annorum, fitam diuvixerit ;
" et fif obierit infra prc^diBum Terminum, tunc &c. The Re- '
" mainders were holden void ; becanfe the Term is determinable
" upon the Life of fV. C." And He alfo cited Cro. Eliz. 216. Tr.
32 Eliz. The Cafe of Green v. Edwards. That was exadiy this
Cafe. It was a Leafe to J. S. for go Years, if he live fo long ; and
. if he die within the Tern/, that then his Wife fliall have it, durante
toto refid" Termini praditT: It was held void to the Wife ; and
that She took Nothing. And He faid that 1 Co. Rep. 153. ^. Rec-
tor of Chedwgton'% Cafe, is exprefs and full to the fame Effetfl ; and
was agreed per tot' Cur'. And that Co. Litt. 45. b. is exprefs that
*' Term" fignifies the EJiate and Iniereft that paffes ; and difers
from a Specification of the Number of Years : And fays, " So note
" the Diveriity."
All which Cafes, He infifled, prove this Limitation to be 'uoid.
He cited ^beppard' s Touchjlone of Common Affurances 274. Where
it is faid, that if a Man makes a Leafe to A. for 80 Years if he fo
]ong live ; And if he die within the faid Term, or alien, that then
his Eftate Hiall ceafe ; and by the fame Deed the Leffor farther lets
to B. for fo many Years as fliall then remain unexpired after Gfc.
for the Refidue of the faid Term of 80 Years, if he fhall fo long
live ; In this Cafe the Leafe to B. " during the Refidue of the
" Term,"
284
Ealler Term ^o Geo. 2.
y
" Term," is void: For after the Death of ^, the Term is at an
End. But if He fay, " for and during the Refidue of the 80
Years," it is good.
Mr. AWes co?2ira pro Def was beginning to fpeak —
But I./ORD Mansfield flopped Him; (as not being neceffary:)
And He Himfelf proceeded thus —
Lord Mansfield — TheDiftinftion ju ft cited (r oxn Sheppard,
(which He takes from the Recftor of Chedington'% Cafe,) makes no
Difference; //" the Word " Term" may fignify the T^ime^ as well
as the Intereft : For then it becomes merely a Queftion of Conftruc-
tion, " Which Senfe the Word ought to be iinderJlood-\u."
So Andcrfon argued, in Green v. Edwards : He faid, " If the
" Wife had been a Party to the Deed, Durante termifio fhould not
" be taken for the Intereft, but for the Time." He faid, " The
" Word Term cannot be taken to mean tht Intereft which the Huf-
'" band had for 90 Years." (For if it hfo underftood. By his Death
the Whole would be determined ; And the Wife could have No-
thing : And therefore it could not be ufed in this Senfe. But the
Leflbr, by the Word " Term," muft mean the Tifne of 90 Years:
And the Word " Term" fignifies as well the Time or Space of 90
Years, as the Intereft.) The other Judges held the Limitation by
way of Remainder to be void, from the Uncertainty of Commencement :
And denied that the Wife's being a Party would have made any
Alteration.
The O/^ Cafes held " that there could be wo Remainder or Sub-
" ftitution of a Term, after an Eftate for Life, by Deed or IVill."
It was a mere PoJJibility. It was iwid, from the Uncertainty of Com-
mencement. There was 710 particular Eftate. The Gift of a Term
(like any other Chattel) for an Hour, was good for ever.
The Objeftions were fubtle and artificial.
When long and beneficial Tcnns came in Ufe, the Convenience of
Families required that they might be fettled upon a Child, after the
Death of a Parent. Such Limitations were foon allowed to be crea-
ted hy Will : And the Old Objcdlions were removed, by changing
the Name, from Remainders, to Executory Z)f^'//^^f.
The fame Reafon required that fuch Limitations might be created
by Deed: As, for Inftance, Marriage-Settlements, to anfwer the
Agreement of Parties, and Exigencies of Families. Therefore, to
:get cat of the literal Authority of Old Cafes, an ingenious Diflindion
was
Eafter Term 30 Geo. 2. 285
was invented : A Remainder might be limited for the Refidue of
the 27i2rs ; but nof for the Refidue of the Term.
Now in fbis Cafe, upon the true Conftruftion of the Leafe, I am
clearly of Opinion, " That the Land is demifed to the Son for fo „
" tnafty of 99 Tean as fliould be unexpired at the Death of his
^' Mother."
There are many Maxims of Law, That Deeds, efpecially fuch
as execute mutual Agreements for valuable Confideration, fliould be
conftrued liberally, ut Res magh valeat, according to the Intent:
which ought always to prevail, unlefs it be contrary to Law.
The PafTage from Coke Littleton 45. cited by Mr. A/lon, defines
the Word " Term" to lignify, in Underftanding of Law, " not only
' the Limits and Limitation of lime, but alfo the Eflate and Intereft
" which pafles for that Time."
If in this Leafe, the Word be taken in the latter Senfe, The
Widow can only have it for fo many of 99 Years as She fliould live ;
And the Son have Nothing afterwards.
But it is manifeft that an Intereft was undcrflood to continue after
her Death, to be enjoyed by her Son.
From the Courfe of Nature, it could not be fuppofed that She
would outlive the 99 Years. Rowland is to pay a Penalty for grin-
ding at another Mill. He is to pay a Heriot on the Death of his
Mother. He is to repair. The LefTor covenants " that Rowland
" Jliall quietly enjoy :" i. e. for fo many Years as fliould not be run,
at the Death of his Mother.
The frjl Senfe of the Word makes every Thing confiflient and
effedilal : The fecond Senfe deftroys One Half of the Leafe, as re-
pugnant and contradiftory to the Other. There ought to be no
Doubt, therefore, in JVbicb Senfe the Word fhould be underflood,
Mr. AJlon has laid no Strefs upon the only Objedion whicii
weighed with Anderfon, fo long ago as the 33d of Elizabeth; viz.
" That Rowland was no Party to the Leafe ;" And rightly. The
Reafon why He was no Party, appears from the Leafe : He was then
an infant. The Mother contrads, and procures this Limitation
for Him. A Grant may be made to a Perfon, by a Deed to which
He is no Party. Rowla?id accepted, and adually enjoyed, after his
Mother's Death, from the 4th of September 1694^ to his own Death,
the 5th of November 1753. The Leafe was fo intelligible to every
unlearned Eye, that no Body doubted of his Title, for 60 Years.
4 D Limita-
:^S6 Eafler Term 30 Geo 2.
Litiiitntlons of Terms are now of general Ufe. Their Bounds
are fettled. The Rules concerning them are certain and eftabliflied.
When they came to be allowed by Will, or by Declaration of
Truil, the fubjlantial Reafon was the fame for allowing them by
Deed. A drained Confl:rud:ion ftiould not be made, to overturn
the laiiful Intent of the Parties. It was lawful, to fccure this Leafe
for the Benefit of the Mother during her Life, and afterwards by
way of Provifion for her Son. All the Parties undoubtedly intended
it. The Covenant here, " that Rowland fhould enjoy from the
" Death of his Mother, for the Refidue of 99 Years," is fuffi-
ciently certain ; and might, of itfelf amount to a Leafe.
Mr. Juftice Denison — This muft be taken that She {hould bold
it for fo much of the Term of Tears as She fhould live ; and Rcw-
landj during the Remainder,
The Intention of the Deed is obvious : And it certainly fhews,
(upon the whole Tenor of it,) that the Intention of the Parties was
" that Both fhould enjoy during the whole Term and Number of
" Years." And if We ca« fupport the /w/^wif/ow, by tf«y Conflruc-
tion, We will do it.
Mr. Juft. Foster was clear that the Intention was that Both
fhould enjoy during the whole Term and Number rf Tears : Viz.
Elizabeth for fo long of it, as She fliould live; and Rowland, du-
ring the Remainder. All the Circumftances fhew this : And the
referving a Heriot upon the Death of Rowland proves the Intention
to have been " That the Term fliould contijiue to Rowland, after
" the Death of his Mother." And the Covenants all along run,
" That Rowland fliall quietly enjoy."
Therefore He concurred.
Per Cur. unanimoufly (Mr. Jufl. Wilmot abfent,)
Rule — That the Plaintiff be nonsuitbd.
Lant
Eafler Term 30 Geo. 2. 287
Lant Efq; verf. Norris, ^ta^T^-f"
P. 29 G. 2. Roilo 609.
The -Court full.
THIS was an Adion of Covenant, by Robert Lant Efq; Son and
Heir of Thomas Lant Efq; againft JVillia?n Norris, Admini-
ftrator of John Norris Efq; his late Father ; which "John Norris was
Affignee of Thomas Wilfon : And it was upon an Indenture of Leafe
made on 23d January 1707, by the faid Thomas Lant deceafed,
who was feifed of certain Meffuages Ground and PremifTes (men-
tioned in the Indenture,) of the One Part, and the faid Thomas Wil-
fon, on the other Part; whereby, in Confideration of 200/. to be
laid out in upon or about rebuilding upon the Ground and PremifTes
thereby demifed, and other Covenants, the faid Tho. Lajit did de-
mife to the faid Tho. JVilfon, all that Piece of Ground, and all
the Meffuages Tenements Houfes &c. thereon Jlanding, in Suffolk
Place, in the Parifh of St. George the Martyr &c. butted and
bounded &c. from Chrijlmas ijis ^^"^ 43 Years at 17/. per Annmn
Rent.
Thomas Wilfon, the LefTee, covenants to lay out the faid Sum of
2co/. within 1 5 Years, in erecting and rejuilding of Mef-
fuages or Tenements or fome other Buildings, upon the Ground and
Premif ^-j And from Time to Time, and at all Times, all and fin-
gular the faid Meffuages or Tenements y3 to be ereSfed, with all
fuch other Houfes Edifices ^c. as fhould at any Time or Times
thereafter be ereSled^c. to repair &c\ And the said de- i^;^
MisED Premisses, isith all fuch other Houfes ^c. so well re-
paired ^c. at the End or other fooner Determination of the faid
Term., to deliver up &c.
Wilfon entered. Tho. Lant died 29th May 1722, feifed: And
the Reverfion defcended to John Lant^ his Son and Heir.
On z^th March 1738, Wilfon afligned the Term to John Norris :
Who entered.
On 24th March 1728. John Lant died feifed: And the Rever-
fion defcended to the Plaintiff, his Brother and Heir.
The Breaches affigned were, firft, That after the Term came to
J. Norris, and after the Plaintiff became feifed of the Reverfion,
and
288 Barter Term 30 Geo. 2.
■and whilfl the faid J. N. was pofleffed, -viz. on i May 1745, the
faid y. N. in his Life-time permitted All the faid dejnifed Mefuages
to be uncovered &c ; by reafon whereof the Walls of the fame
'demifed Prcmifes were out of Repair ; and goes on to other Da-
mages, ftill calling them (all along) " the faid demifed Premiffes."
2dly, That the faid J.N. did permit 6 Mefluages, Parcel oi the
faid " demifed Premijfes," to be proftrated ; and to remain fo, till
his Death. 3dly. That the faid ^. A^. on ifl March 1747 did
pull down 6 other Mefluages then eredted and built on the faid de-
mifed Premifl^cs.
Plea as to the ifl Breach, That the faid T. Wilfon or his Execu-
tors did not within 15 Years, or at any other Time lay out 200/.
or any Part thereof, in ereSling or rebuilding of any Mefluages : And
that the faid Mefluages had never been rebuilt. As to the 2d Breach,
the fame Plea. As to the 3d Breach, " Non ijif regit Conventiojiem."
To all the Breaches, the fame Plea as above to the i fl: and 2d over
again, " That T". ^/^. never laid out 200/." and" That the Mef-
" fuages never were rebuilt;" and " That "J. N. after He became
" Aflignee, and after the Plaintiff became feifed of the Reverfion,
" id March 1753, died inteflate, fo pofl"efl"ed j and Adminifl:ration
" was granted to the Defendant : By Virtue of which, He entered ;
" And being fo pofl"efl"ed, before exhibiting the Plaintiff's Bill, viz.
" 24th June 1754. afllgned the demifed Premifl'es to One John
" Town/end, for the Relidue of the Term ; who entered, and is
" pofl'effed."
The Plain tifl^ demurs generally to the ifl: Plea to the ift Breach,
and alfo to the ifl Plea to the 2d Breach ; fpecially, to the ifl Plea
to the 3d Breach ; generally, to the 2d Plea to the 3d Breach ; and
generally, to the lafl: Plea to all the Breaches. There was alfo a
Plea of Non projlravit : And a Demurrer to it.
The Defendant joins in Demurrer, to all the Demurrers.
Mr. JVynn, for the Plaintiff, urged that the Pleas were no Anfwer ;
and that they neither confefled nor avoided the Charge in the De-
claration, nor denied it.
Mr. Gould contra — for the Defendant, gave up the Pleas : But He
objeded to the Declaration, viz. That the Intention of the Parties was
to confine the Repairs to the Buildings thereafter to be eredled:
as it appears that there were No Buildings (of any Confideration)
upon the Land, at the Titne of the Leafe ; nor is there any Averment
in the Declaration " That the LefTee" [Wilfon) " ever did ereSl any
" luch." Which Averment ought to have been made, in order to
have maintained this Adion : For, without fuch Eredion, the De-
2 fendarrt
Eafler Term 30 Geo. 2. 289
fendant could not he obliged to repair. And a Plaintiff muft Hiew
every thing in his Declaration, that is neceffary to maintain his
Aiflion.
The Words " the /aid demifed Premfes" muft relate to thofe
in the beginning of the Covenant j And therefore only mean and
intend " That he fhould leave fhcf/i, viz. the new ereiied and re-
" built Edifices, in Repair, at the End of the Leafe."
The Covenant is future : And the Leflbr could not have any
Adion upon it, till the End of the Term.
It appears by 5 Rep. 21. a. Sir A7itlwiy Maiti's Cafe, that if a
Man lets a Manor for Years ; And the Leffee covenants to keep the
Houfes of the Manor and whatfoever was within the Manor, in as
good Eftate as he found them, during the Term ; And the Leffee
makes Wafte in the Houfes, and in cutting Oaks j the LefTor may
bring an Adtion of Covenant, before the End of the Term, for the
Oaks ; For, for them, it was impoiTible that the Covenant could
be performed : But 'tis otherwife, of the Houfes.
And with this agrees Fitzb. Nat. Brev. 8vo. Edition, 324,
Letter L the fame Law. Though if he fells Timber, &c. [if he
do Wafte in Wood] he may have an Adion of Covenant during
the 'Term : " For that (fays the Book) cannot be repaired."
He likewife cited i Salk. 199. The Cafe of Grefcot v. Green,
Where the Leffee covenanted for Him and his AfTigns, to rebuild
and finifh a Houfe ivithin fuch a Time ; And after the Time ex-
pired, the Leffee afTigned over the PremifTes, the Houfe not being
then built and finifhed according to the Covenant : And per Holt
Ch. Jufl. This Covenant fliall not bind the Aflignee; becaufe it
was broken before the A[]ignment. Aliter, if broken after the Af-
fignment : As if the Leffee had, affigned before the Time had been
expired. Which Cafe was cited to prove " that the Adion did not
lie in the prefent Cafe ; becaufe the Affignment was made after the
15 Years were expired."
Mr. Wynn — The Record is now to be confidered as upon a Ge-
neral Demurrer to the whole Declaration : And 1 (hall rely on the
ifl and 2d Breaches, and not on the 3d, (which has I own, re-
ceived a proper Anfwer, by Ilfue being offered.)
Covenants are to be conflrued for the Benefit of the Con^enantee ;
not of the Covenanter.
4 E Thefe
-po Eafler Term 30 Geo. 2.
Thefe are Buildings demifed ; And 200 /. is agreed to be laid
out in Repair of them, or in eredling New Ones : Then there is a
Covenant " to repair the Buildings to be erefted on the demifed
" PremilTes; and the said demised Premisses, and others fo
" to be eredted, fo being well and fufficiently repaired &c. to
" leave &c"
This intimates that the demifed Buildings, as well as the New
Eredions, were to be kept in Repair. Here is fufficient, from
whence to colledl the Intention and Meaning of the Parties, to be
fo : Which will amount to a Covenant. And upon this General
Demurrer, the Court will not intend that the 200 /. was laid out
only on the other Buildings newly to be eredled.
Lord MansfielI) —
I choofe to look into it, and confider it a little. No particular
technical Words are requifite towards making a Covenant.
Mr. Juft. Denison — The Queftion only is Whether the Words
" demifed Preiniffes," iare omitted, by Miftake, in the former Part
of the Covenant ; or fuperadded, by Miftake, in the latter : For
there appears to be a Miftake in either One or the Other, in the
Deed itfelf. The Leafe is a Building-Leafe.
Now the PremifTes then Jlanding were to be pulled down. There-
fore it could fcarce be intended to covenant to repair them. The
Covenant " to repair," is confined to the Tenements to be eredted:
The Covenant " to leave in Repair" extends to the demifed Pre-
' mifles, together 'with all fuch Other as fhall be thereafter erefted.
Mr. Juft. Foster — 'Tis a Building and Repairing Leafe.
In Ordbr to look into the Leafe, it ftood over, with' a
Curia advisare vult.
, And now, having confidered it till the next Day only. Lord
'^^ansfield faid. We are extremely clear. That not only the
fVords of the Covenant, but alfo the Intent of the Parties, mani-
' feftly fhew that it was not meant that any of the Money fhould -be
laid out on the Old Buildings : But that they were to be pulled
down; and that whatever He should ereSi, with the 200/. or
otherwife, for his own Convenience, fliould be kept in Repair.
The Words " demifed Premiffes" are put in Oppojition to the
Buildings that were to be fn'<5?f^ thereupon with the 200/.
And
Eafter Term 30 Geo. 2. 291
And the Covenant " to deliver up," is agreeable to this Conftruc-
tlon : That Covenant being to leave " the demifed Premifles, toge-
" ther with all fuch other Houfes &c. as JJmdd be afterivards
" ereSied&c. fo well repaired."
It' is therefore clear againft the Plaintifr, upon the ift and 2d
Breach : And Mr. PVpin acknowledges it to be againft Him on the
third.
Therefore The Court gave
Judgment for the Defendant.
Frazer's Cafe. Wedndda^ 5th
A/fly 1757.
The Court isoas full.
THIS Frazer, being an Attorney of this Court, had taken for
his Article-Clerk, One Smith, a Turn-key of the King's Bench
Prifon ; a full aged Man, and who ftill continued to adt as Turn-
key. It did not appear that any Money was paid ; or that' the
Mafter fed lodged or entertained the Clerk, (though the Articles in-
deed covenanted " that He fhould:") Nor did the Clerk officiate
for Frazer, but in Matters relating to the Prifon. It appeared that
Frazer had, fince thefe Articles, (which were dated only two Years
ago, in 1755) become concerned in 63 Caufes, on Behalf of the
Prisoners in the Gaol.
This whole Matter being difclofed to the Court, upon the Appli-
cation of Mr. Mofs, the Clerk of the Papers of the Prifon, '
The Court were All very clear that thefe Articles were merely
coUufive, that the Whole was a Coiitrivance between Frazer and the
Turn-key, to fecure the Bufinefs arifing from the Prifoners ; that
the Exercife of the Office of a. Turn^key in a Prifon was, both in
itfelf, and alfo according to the Intent and Spirit of the Aft for re-
gulating Attornics, a very improper Education for the Profeffion of
an Attorney j And that thefe Articles ought to be cancelled.
- And accordingly, they. were, by the exprefs ^Qrder of the Court,
Cancelled in Court (by Mafter Clarke) and directed to be
kept in Court, and not delivered back.
Peirfe
292, Ea/ler Term 30 Geo. 2.
Saturday 7th Pcirfe, Efq; verf. Lord Fauconberg.
AJay 1757.
(Lord ComimJJioner Wilmot abjent, in Chancery.)
"^ H I S was a Trial at Bar, on the Civil Side of the Court,
by a Special Jury of the County of Tork.
The Queftion was concerning a Right to track or tow Veffels,
upon the Banks of the River T^eei (which divides Torkflw-e from
the County-Palatine of Durham) from Tarum-Btidge up to Low
Worjkll.
There had been a former IfTue tried, " Whether the River Tea
" was a 7iavigcible River, from Tarum-Bxidgt to Low Ji''orJ'all:"
Which IfTue had been found in the Affirmative.
And the prefent Trial was a new Trial (a fecond new Trial in-
deed) direded by the Court of Chancery, upon an Iffue " Whe-
" ther the * Plaintiff had a Right to a Track-path on each Side
" of the River (alternatively according to the Courfe of its Banks)
" for the Convenience of Towing; without Let or Hindrance from,
" or paying any Acknowledgement to the refpedive Owners of
" the Soil."
The Trial lafled till about Two o'Clock on Simday Morning:
At which Time, the Jury (after flaying out about a Quarter of an
Hour) brought in a Verdidt
For the Plaintiff.
:>unday gth j^g^ ^^^ Rogcr PhilHps, Mayor of Carmarthen.
(Lord Commijponer Wilmot ahfent, in Chancery.)
TH E Defendant had pleaded to an Information in Nature of
a ^0 Warranto exhibited againfl him, " to fhew by wliat
" Authority he aded as a Mayor of this Borough," a Title of
Eledlion and Swearing under a Mandamus purfuant to 1 1 G. i. f.4.
* N. B. The PlaintifF did not claim this, as a diftinSi peculiar Right of his own;
but as a general Right claimable by all Perfons wbofe Occafions led them to navi-
gate this River.
But
Eader Term 30 Geo. 2. 293
;Biit the Swearing was (by Miftuke) fet forth to have been in the
;fame Manner as it ought to have been in Cafe the Eledion had
been upon the CHARTER-Day.
Upon the Replication, no lefs than 14 IfTues w^ere joined: Which
went down to be tried before Ld. Ch. Baron Parker, as Judge of
Nift Prius. But one of the Iffues (the 9th) was taken upon the
Swearing thus (erroneoufly) alledged to be before fuch Perfons as
were only proper to prefide upon the Charter-Day ; (juft as if
it had in faSi been an EleSlion under the Charter:) Which was
a n^ere Mijlake in the Defendant's Plea; For his rf.al Swearing
■in Fact was rights viz. agreeable to the Direcfions of 11 G. i.
concerning the Manner of being fworn under and purfuant to a
Writ o^ Mandamus. The Plea was worded thus, as to his being
fworn in; viz. *' That after the Defendant had been fo eledfed and
" chofen to be Mayor, &c. and before He took upon himfelf to
" execute the faid Office, to wit, at that same Meeting and Af-
" fembly so holden upon the faid Friday the faid 30th Day oi May
" in the 28th Year aforefaid in Manner aforefaid. He the faid Roger
" Phillips, immediately after his faid Eledion, did then and
" there, according to the Directions of the Letters
" Patent of the faid late King Henry the Sth take his Cor-
" f oral Oath, upon the Holy Evangelifts of God, before John
" Evans Merchant, George Jenkins^ Daniel James, William Sears,
" Lazarus Thomas, Samuel Morgan, John Evans Carpenter, John
" Evans Currier, Richard Leigh, George Bayle, Thomas Richard,
" and Lewis Philipp, then and there being twelve difcreet and
" homjl Men of the Burgesses of the faid County-Burrough,
" rightly well, and faithfully to execute the faid Office of Mayor
" of the faid County-Burrough, in all Things touching and con-
" cerning the faid Office; They the faid John Evans Merchant,
" G. J. D. J. W. S. L. T. S. M. J. E. C. J. E. C. R. L. G. B.
" T.R. zndL.P. then being twelve difcreet and honefl Men of
" the BuRGEst.ES of the faid County-Burrough, then and there
•" APPOINTED according /o/i)^ Directions c/'^/6?y^/^LET-
" TERs Patent laft before mentioned, by the faid then Com-
•" mon Council of the faid County-Burrough, before whom
" the fiid Roger Philipps, fo eleded and chofen Mayor of the faid
" County-Burrough as aforefaid, was to t avl^ his faid Oath:
" And that He the faid Roger Philipps was thereupon, then and
" there, in due manner, admitted into the faid Office of Mayor of
'• the faid County-Burrough. By virtue whereof He the
" faid Roger Philipps, on the fime Friday the faid 30th Day of May
" in the 28th Year aforefaid and from thence continually after-
■" wards, for, &c. was Mayor, &c. And by that Warrant, He
'*'• the faid Roger Philipps, on, ^c. and from, Gfc. until, ^c. did
a¥ " there
294 Eader Term 30 Geo. 2.
*' there ufe and exercile the faid Office of Mayor, &c. And for
" and during all the faid Time, did there claim, &c."
The Lord Chief Baron, who tried the Caufe, reported that He
was of Opinion, upon the Trial, "That upon the 9th IfTue, the
" Defendant cou/d not give Evidence of a different Swearing from
" what He had ^Hedged upon the Record;" And " That upon the
" loth llTue" (taken upon the Allegation of being by Virtue
thereof Mavor, tfc.) " He could not vary from the 'Title before
*' fet out, by Virtue whereof He claimed to be Mayor," And He
had direded the Jury to find for the King: And they found a
Verdift accordingly. And he'alfo reported "That no Evidence
" was entered into, upon any of the IfTues; And that Verdids were
" found for the King upon rt//of them: But that this was agreed to
" he ivithout Prejudice in zny future 'trial."
Mr. Norton, Mr. Morton, and Mr. Frice — for the Defendant
had thereupon moved for and obtained a Rule for the Profecutors
(who had thus gotten a Verdid,) to (hew Caufe " why there /hould
" not be a new Trial;" upon an Infinuation " that the Judge who tried
" the Caufe, had jnifdircSled the Jury:" Which M//^//;rf//(/« con-
fined, as they alledged, in this, viz. " That the Judge had pre-
" eluded the Defendant from giving any Evidence to prove his
" Swearing, as fct forth in the faid 9th Iffue; the Judge appre-
" bending and (o direding the Jury, that it could be of no Kind
" of Service to the Defendant, to be admitted to prove an IfTue,
, " which IF proved or even admitted, could hot at all tc7id to make
" out his Right; For that if this Swearing as under a Char-
" TER-Eledion were to be admitted, yet fi;ill it would not appear
" /;; ANY Part of the Record, that He was regularly fjoorn under
" a MANDAMus-Eledionj Which was the Species cf Election \in-
" der which he claimed."
Sir Richard Lloyd, Mr. Serjeant Poole, and Mr. yl/ion were pre-
pared as they faid, to fliew Caufe, by convincing the Court " that
" the Diredion of the fudge was rightj and confequentlv, that
" the Verdid ought to f and."
Lord Mansfield — The Diredion of the Judge was certainly
right. Therefore, if You fliould prevail in this Application for a
new Trial, it could be of no Service: For, as the Record Jla?ids,
the fame Diredion muft be given again.
Yet I am very deiirous to cure this Slip, if poffible: For the Me-
rits have ?iever been tried.
Confider whether the Verdid may not te fet afide; And the
Parties admitted to plead again. The
4
Eafler Term 30 Geo. z. 295
The Rule was enlarged; with this Addition, viz. to (Lew Caufe
" why the Verdid fhould not be fee alide, a^d a Repleader
*' anvcirded."
Mr. Serjeant Poole, for the Profecutor, now fliewed Caufc againft
fetting afide the Verdidl and awarding a Repleader, And He al-
ledged that, though there fliould be a Repleader awarded, yet the
ivhole Record muft neverthelels Jiand as it is at prefent.
As to Repleaders in General — He cited 6 Mod. i. The Cafe of
Staple V. Haydon — (ift. Refolution:) It can only be on fuch an im-
pertinent IlTue, as that the Court caii give ?io Judgment upon.
Mr. Norton, Mr. Morton and Mr. Price — contra — for the Defen-
dant— The lilues are not all found againft us, abfolutely; but with-
out Prejudice to any future Difpute, except as to the loth Iffue.
Mr. Norton, Mr. Morton, and Mr. Price ftated the Miftake:
Which they faid was thus, viz. The Defence fet up was " An
" Election of the Defendant under a Mandamus, iffued purfuant to 1 1
" G. I." And in fetting out his Oath of Office, he avers it to have
been duly taken; and ihews it to be an Oath, taken by him upon
this Election, and fets out the right and proper Oath of Office; but
the Plea 'tis true goes on, (following, by Miftake, a precedent of
a Plea of an Oath of Office taken under an Eleftion upon the proper
Charter-X^x-^,) and alledges it to be a Swearing at the fame Meeting
Jo holden, &c. B£Fork Perfons who were only proper to prefide
upon the Chart EK-Z)^_)'; viz. (before 12 Burgejfes, &c.)
Which Swearing before thefe improper Perfons, they urged to be
totally immaterial; And that, for the Sake of attaining Juftice, it
ought to be /owt' how or other, fet right; the true ^efion ha-
ving ?2ever been tried, viz. "■' Whether He took the Oath of Office,
" agreeably to the Directions- of ii G. i."
Therefore it fliall either be amended, or a P^epleader awarded: For
upon the prefent Record, there is no Juftification at all; And there-
fore the IlTue joined is totally immaterial. The Cafe of Staple v,
Haydon. 6 Mod. i. is almofl in Point. J Ld. Raym. 707. S. C.
[iSalk. 173, 216. S.C]
This is a good Plea in Subjlance ; but ill pleaded in Point of
Form.
They ought to have demurred to this Part of the Plea; and
not to have taken Jfue upon it: For it is a Matter of Law, " Whe-
«' ther
2.96 Eader Term 30 Geo. 2.
" ther the taking this Oath would have jiiftificd the Defendant/'
And a Verdidl cannot make that good, which the Court lees cannot
be in Law. Therefore this Verdidl is utterly ijoid: Juft like that
in Hobart 112. Taskcr v. Salter.
And fuch Repleaders, In Informations, are no Novelties. For in 1
Ventris 122, the Cafe of * Reynell v. Hcale.; a Repleader was awarded,
becaufe the IfTue was mif-jolned.
And they offered to pay Cojls, in order to have this Matter fet right:
And infifted that this is but juft and reafonable; efpecially, as many
other Perfons Rights depend upon the Right of this Mayor.
They alfo cited Cro. Eliz. 245. the Cafe of Love v. Wotton —
Where a Repleader was awarded after Verdid; the Defendant having
mifpleaded the Statute. The Reafon of awarding the Repleader
there, muft be, " becaufe the true Merits had ne'ver been tried."
They even urged farther, that it might well be taken, upon the
Face of the Record, " that he was fworn before the proper Perfons:"
it being alledged " that it was at the same Meeting then and
" there fo holden."
But they infifted that at moft, this is only Form.
As to Repleaders in general — They cited 1 Sir J. S. 394. The
Cafe of Rex v. Philips Mayor of Bodmyn. Where the Defendant's
Title was clearly defective^ and confefTed an Ufurpation; And there-
iore, as the Merits appeared to be againft the Defendant, the Re-
pleader was not indeed there granted: But the general Pofition feems
fto be, " that it might, otherwife, have been granted."
Mr. Serjeant Poole, Sir Richard Lloyd, Mr. jlflon, and Mr. Nares
pro Rege — argued that it is needlefs to grant a Repleader, where
there is fufficient appearing upon the Record, whereupon to give
Judgment againjl the Party, exclufive of the Part which is pre-
tended to be immaterial.
Nor fhall a Repleader be awarded, where the Defendant has fet
forth a defective Title.
* K B. This was a ^li tarn Information, atleaft; if not a ^'t torn Anion:
The Book is inconfiftcnt with itfelfj but the Title of the Caufe flwws that it was
jsn jiiiion,
Naw,
Eafler Term 30 Geo. 2. 297
Now, certainly, this k a deft'Ctive Title: He appears to be fworn
before improper Perlbns: And does ?iot at all appear to have been
ever fworn before the /ro^^r Ones.
This is not a mere defective Manner of Pleading; like Cro.
Jac. 434. the Cafe of Holms v, Broket — where IfTue was joined on
a Plea of Payment /^^o;r the Day; or Hob. 112. the Cafe o'i Taf-
ker V. Salter; where the IlTue, (upon the JVay,) was in effedt no
IfTue at all.
But this is abfolutely a defective Tit l'E; a Swearing before im-
proper Perfons; And is like 6 Mod, i. the Cafe o( Staple v. Hay don.
And they cited Cro. Eliz. 214. the Cafe of Lacy v. Reyjiolds; where
though the IfTue was immaterial, yet; the Plea confefUng the Words,
the Court gave Judgment as upon a ConfefHon. So, Cartbew 37 1«
The Cafe of Jones v. Bodinner; and i Salk. 173. S. C. a like Re-
folution. So, I Ld. 2?<7y7«. 390. the Caie. of Fitts v. Poleljampton.
But if a Repleader fiiould be granted as to this IfTue, yet enough
(befides this) will fland upon this Record, to intitle us to Judg-
ment for the King.
Repleaders are never awarded for the Sake of the Partiet; but
for the Sake of the Court.
And this is the Reafon why there are 770 Cojis upon Repleaders:
As appears by 2 Salk. — Title Repleader. [Fo. 579. Which is an
Abridgment of the Cafe of Staple v. Hay don in 6 Mod. i. and i Ld.
Raym. 707.]
Nor fhall Repleaders ever be awarded, where fiifficient appears
upon the Record, 'whereupon the Court can give Judgment. They
fliall not he awarded, only becaufe the Party has mistaken
his Cafe : They {]~iall never be aw'arded, but where the IfTue is so
ifinnaterial that the Court cannot tell how to give Judgment. In the
Cafe of Serjeant v. Fairfax in i Lev. 32. it is laid down by Tivyfden,
and agreed by the Ch, Juflice and IP^ndham, That " An immate-
■" rial IfTue is, where, upon the Verdicff, the Court can not know
" for whom to give Judgment; whether for the Plaintiff, or for
" the Defendant,"
It depends upon the Plea pleaded; not upon the real Merits:
For though the IfTue be in?proper, yet Judgment fliiall be given; as
is exprefly laid down in the fame Cafe of Serjeant v. Fairfax —
iLfU. 32. "If an IMPROPER IfTue is taken, and Verdift given thereon;
" Judgment fhall be given thereupon; be it for the Plaintiff, or
^* for the Defendant." Cro, Jac. 288. the Cafe of Tampion v. New^
4 G fon
298 Eafler Term 30 Geo. 2.
Jon and Bridget bis Wife : The Plea of the Feme, without the
Baron was no Plea at all, nor confefled any Thing. In Bro. Re-
pleader 55. It did nut appear how much the Executors had ; who
pleaded " riens inter maines," which was found againft them. Cro.
Eliz. 245. The Cafe of Lcve v. Wotton, (where the Statute of
Ufury was mifrecitcd,) v/as a Cafe where no 'Judgment ccidd be
given : For the Court were bound to know the Statute ; and that
there was no fuch Statute as was pleaded, which was a Statute made
the fxtb of February.
In the prcfent Cafe here is no Fa'Jlt in the Pleadings. There-
fore where fhall the Repleader begin ? This Cafe is not the Sub-
je£i-Matter of a Repleader : This is on/y a defective Title.
It would be an Error, to grant a Repleader, where the Court
can give Judgment upon the Pleadings already before them.
Now here, the Defendant who claims to be Mayor has not
fjeivn " That he was fivorn before the proper Perfons:" And the
Court cannot prefume it. He is afivcd " ^lo Warranto" he aded as
Mayor : And his Defence is, //'/; " by a proper Elcdion and (/'/;;-
proper) Swearing ;" And that " eo Warranto," he aded as Mayor.
But this plainly appears to the Court to be no Warrant at all.
Therefore the Court muft give Judgment againfl him.
And the Chief Baron certainly determined right : For a Man
cannot plead One Cafe, and then prove Another.
Hob. 112. The Cafe of T'afker v. Salter Is not like this Cafe.
This is a Facl ; on which the Jury have judged.
And furely it does not follow, nor can it be taken upon the Face
of this Record, that becaufe he was fworn at that Assembly,
He mufc therefore be fworn before the proper Persons.
On the contrary, it is moft manifeft that He has no/ fet out a
cojnplete Title to exercile the Franchife : And therefore the Court
muft give Judgment againft him.
The other IfTues were never proved : And even this bad Title, fet
up by this Iflue, is iouu^ falfe ; viz. " That He v/as not so
" fworn in, as he has pleaded."
And Judgment fliall be given againft the Defendant, even upon
an Iftue misjoined, if found for the Plaintif. Cro. Eliz. yyS.
The Cafe of Dighton v. Bartholomew. 5 Co. Rep. 43. Nichol's.
Cafe. Cro. Jac. 2,77- The Cafe of Edward Maria Wingfield v.
Bell. 2 H. 7. II. b. Rex v. Herle. Which Cafe proves that if a
Man
Eailer Term 30 Geo. 2. 299
Man fets up a Right, different from his true Title, it fhall be againft
him ; And he fliall not let up another Title, afterwards.
The Court may here give Judgment as upon a Confeffion, when ■
the Iffiie is immaterial, and the Miftake not amendable : And there
fiiall in fuch Cafe, be no Repleader. Carthew 371. The Cafe of
j'cni's V. Bodinner, exprefly. 5 Mod. 226, 227. S. C. Cro. 'Jac.
bj'i. The Cafe of '^fohns v. Ridlcr : Where though the IlTue was
immaterial, yet being found for the Plaintff it was adjudged for
him, upon the Defendant's confeffing of the Ejefting.
In the Cafe of Lo'oe v. Wofton, Cro. Eliz. 245. the Court coidd
not give a complete Judgment.
Cro. Car. 25. The Cafe of Knight v. Harvy Admlniftrator of
Harvy, M. i C i. (where the Defendant pleaded an impoffible
Judgment, and riens en fes maines, but only to fatisfy it ; and the
Plaintiff replying, the Iffue was found for the Plaintiff, and He had
Judgment ;) is a Cafe parallel to the prefent : For as the Judgment
there pleaded was a had Judgment, fo this is certainly a bad Swear-
ing in. Therefore the Court will here give Judgment upon the In-
formation ; as they did upon the PlaintifFs Declaration there, not-
withflanding that impoffible Iffue being found, it being found for
the Plaintiff.
Here, Both the Eleftion and Swearing in, ought to have been
well pleaded : Neither is a Defence, of itfelf alone.
And the Court cannot take Notice of the FaB, otherwife than as
it has been pleaded.
Therefore Judgment may be given, as upon a Confeffion, in the
prefent Cafe : For the Defendant Jljews no Right at all, to aft as
Mayor.
So that, upon the Whole, Judgment ought to be entered for the
King, upon the Face of this Record. To prove which, they cited
2 Strange ^.JT^. The Cafe of Broome v. Rice & al' in C. B. as in
Point: Where, though the fuflification confefled the Caufe of Ac-
tion, in Etfed, yet the Plaintiff replying " de injuria fua propria
" abfq; tali Caufa," Iffue was thereon joined, and found for the
Defendant ; But the Verdid was fet afide ; and Judgment ordered
to be entered for the Plaintiff, and a Writ of Inquiry of Damages
to ifllie.
Mr. Norton in Reply —
The SUBSTANTIAL Part of diis Plea, is the " being /:cw-« at
" this jiffembly, immediately ^/tr the Eledion :" And the Persons
4 " before
300 Eafter Term 30 Geo. 2.
" before 'whom the Swearing is alledgt;d to have been," mjy be con-
iidered as Siirphijage. If Jo, We ought to have been let in, at
Nifi prius, to prove our Plea : If it is ;zo/ fo to be taken. We
ought now to be let in, either to amend, or to replead.
This would plainly be a good Bar, if nioell pleaded. Therefore
the Court will, for the fake of Juftice, grant a Repleader.
The Title fet up by the Defendant, is an ElcSlion under a Man-
damus ; and the Defendant has accordingly dated an Eledion made
■purfuant to the Diredions of the 1 1 G. i. and a Swearing in, pur-
fuant to it : But He goes on, and particularly rtiews a Swearing in
before 12 BurgeJJ'es, the CHARTER-Officers, (which fliould have
been alledged to be before " The Perfons direded by the 1 1 G. j.
viz. the then prefiding Officer-,'") And this, upon IfTue taken there-
on, is found againfl him. Now furcly this has not tried the Me-
rits : This Iffue was quite immaterial. And therefore there fliall
be a Repleader : And this muft be a Repleader of our ii-'hole cntirt
Title.
But they fay that " this is a defective Title ; not a mere im-
" proper Title : And that therefore Judgment fliall be given againft:
" the Defendant."
Now this is not the Rule of Repleaders. Indeed if the Bar be
evidently not a good Jujlif cation, it is idle to grant a Repleader:
But othej-wife, a Repleader fall be awarded. In Cro. Jac. 5. The
Cafe of Coxe v. Crop%vell, The Hulband pleaded " Not guilty,"
when no Tort was fuppofed in him ; So that this was a Cafe where
the real Queftion had not been tried : And therefore the Court
granted a Repleader.
And the Party who makes the firfl Fault, may, notwithftanding
that, pray a Repleader.
Wherever the Court fee, upon the whole Record, that the IfTue
joined will not try the true Slucjlion, the Court will grant a Re-
pleader.
The Cafe of Serjeant v. Fairfax, 1 Lev. 32. P. 13 C. 2. B. R.
is ftrongly for Us. It was a bad Plea ; it proceeded originally from
the Defendant ; an immaterial IfTue was joined ; and a Verdicft
-•No: The was * (tgoinft him: And yet a Repleader was awarded; because
^"''If D^^ ^'^'^ Merits HAD NOT been determined, and the Court could not
•fendant ; and therefore know for 'whom to give Judgment.
the Plaintiff
moved for a Repleader. Indeed Tivy/thn laid that it was the fame Thing, " bethe Verdidl for the PlaintifF,
"' or for the Defendant."
But
Eafler Term 30 Geo. ^. 301
But they fay that " Here is fiifficient for the Court to give Judo--
*' ment upon."
I anfvver that thefe are not to be taken as hidepe;idant iwconneEled
Illues ; but as One entire Title, though confifting. indeed of
various diftinft Pm-ts. And he faid He could fee no Reafcn for the
Crown's taking fuch a Number of Iflues, upon thefe ^o Warranto
Informations : Indeed perhaps the fingle IfTue of " Not Mayor,"
would take in the Whole.
Lord Mansfield —
, General Rules, are wifely eftabhfhed, for attaining Juftice with
Eafe, Certainty, and Difpatch.
But the Great End of them being " to do 'Jiijlice^' the Court
are to fee that it be really attained.
In order to difcover what was juft upon the prefent Occafion,
He faid He would confider this Cafe in two Views ; viz.
I ft. Upon the mere Foot of the Swearing, as It is here pleaded
and put in IfTue ; and
2dly. What Alteration is made by the other Iflues, and the Ver-
dicls upon them, found in the Manner as they have here been.
Firft — If this Iflue upon this Swearing-in, had flood alone, this
had been an immaterial and void Ifllae ; as it tends to prove Nothing,
either for the Crown, or for the Defendant ; And from which. No
Conclti/ion can be drawn, either Way.
It appears too^ upon the Record, that this might have been fo
pleaded, as to have ftiewn whether he had, or had not a Right:
(Suppofing the Queftion to be confined to this fingle IflTue.)
What is the Rule of Law then as to fuch an immaterial Ifllie
joined, and VerdiSl upon it ?
It is, " That when the Finding upon It does not determine the
" Right, the Court ought to award a Repleader : Utilefs it appears
" from the whole Record, that no Marnier of Pleading the Matter,
*' COULD have availed."
The principal Cafes to prove this are (amongft many others to
the fame Eftedt)
4 H 6 Mod.
302 Eafler Term 30 Geo. 2.
b Mod. 2. The Cafe of Staple v. Haydon, [ift Refolution ;]
where the Court held " That a Repleader is to be awarded, when
" fuch an IlTue is joined, as the Court, after Trial thereof, cannot
*' give a Judgment ; as being impertinent. And not ddcrniinivg
" the Right •:' (I lay the Strefs on thefe Words, " And not deter-
" mining the Right.")
Moore 867. The Cafe of Tnjker v. Salter, [S. C. with Hohart
112,] The Verdicft paflcd upon a void IfTue : And the Court
awarded a Repleader. It was as no Iflue at all, and impertinent,
as pleaded.
Her#, it might have been pleaded right : But as there pleaded,
it did not conclude ; And therefore the Court could not determine
the Right.
So the Cafe in Cro. Eliz. 245, Love v. Wotton, (A Plea of the
Statute of Ufury, upon the ufurious Bond — ) There, as the Sta-
tute was pleaded. The Conclufion " that the Obligation was taken
*' by Ufury &c." was immaterial : But the Statute might have been
pleaded right ; and then it would have been a good Defence. And
therefore the Court awarded n Repleader.
But there is a later Cafe, (And the Courts have been more liberal
of late Years, in their Determinations, and have more endeavoured
to attend to the real Ju/lice of the Cafe, than formerly;) And this
is the Cafe of Tryon v. Carter, M. 8 G. 2. which is reported in
2 Strange 994, and is a very material Cafe : " A Bond Condi-
" tioned for Payment of Money, on or before 5th December. Plea
" of Payment on 5th December ; Replication, IfTue, and Verdift
" for the Plaintiff." This was holden to be an immaterial Iffue;
and a Repleader was therefore awarded : Though it would have
been conclufive, if found for the Defendant j but did not con-
clude, when found for the Plaintiff. Therefore, (though that w:.s
a Slip of the Defendant) as it did not determine the Queflion, a
Repleader was awarded.
The Cafe that has been mentioned, of Rex v. Philips, M.j G.i.'in
I Strange 394. is material, for the Reafon given by Ld. Ch. J. Pratt.
For if the Juftification is fuch in Point of Matter and Subflance, as
could not, if put into any Form of Words, be material with regard
to the Defendant by Way of Defence, it is in vain to grant a Re-
pleader; It being to no Purpofe to do fo, where the Cafe itfefmn-
not be amended, or would be at all material, if put in any Sh tpe
whatfoever: Which was that Cafe; For it amounted to a Confeffion
of the Ufurpation, as was there holden. And if it did, then he very
rightly
Eafler Term 30 Geo. 2. 303
rightly faid " that if the Court fliould grant a Repleader, the De-
" fendant could not inend his Cafe: For the Pica would fland; And
*' after the Formality of a Demurrer, the Court muft give Judg-
*' ment upon the Goodnefs or Badnefs of it:" And Ld. Ch. Juft.
Fratt went on, and compared it to an ill Juflification in Trefpafs,
(where no Form of Words would have made it a Defence;) And
therefore was of Opinion that as the Plea was ill, and contained no
Title to the Franchife, the Court might give Judgment upon it, as
confefling an Ufurpation. [F. i Strange l<)'i^\
Now here, fuppofing (as I faid before) the Swearing to be the
onh Iffue; is it not a Queftion totally inconcluftve, " whether he was,
" or was not, fworn before these PcrjomV Does it at all con-
clude to the real Question? Is not this, manifeftly, a Slip'? Does
knot appear that this Plea * could have been mended'? Certainly, * -^' ■"• This
it COULD J i:iz. by Pleading the Swearing-in, to have been <^g^eeabk y^^^^^l^^ ^^^
to the Statute of 1 1 G, r. '[c. 4. § 4. which diredls it to be before the joFokm; but
prefiding Officer.] Therefore, the real j'tt/^/c^ of the Cafe is, That 'V#">»'. as
this Slip fliould not be fatal /or ever, ^Torufcue\'i\-
ftinftion in i
This is a Franchife of great Importance. It is fo, in itfelf: And, ^"''"'5'' 398-
befides, the Rights and Privileges of maiiy other Perfons do depend
upon it. And thefe Writs of Mandamus ifluing purfuant to this Aft
were intended for the Jettli?ig and preferving of Corporations,
If this was the fngle IfTue, I think they would be clearly inti-
tled in this Cafe, to a Repleader. Yet
Secondly — It is objefled " that here are 7nany other IJfucs, all
^^ found for the Crown, as well as this."
But the IlTue juft now fpoken of as immaterial and void is an
IlTue taken upon an Effential Part of an entire Defence: For the
Defence here pleaded by the Defendant is One entire Defence; not-
withftanding that the Crown is at Liberty to take diflinft Ifllies upon
the diftindl Parts of it. And therefore it would be abfurd and in-
confiftent, that the Finding againft the Defendant upon the other
Iflues, the other Parts of One entire Defence, fliould fl:and ; in cafe
we fliould grant a Repleader upon, or an Amendment of this Part:
For, if that fliould be permitted, the Finding would ftill be againji
the Title of the Defendant, it being fet up and pleaded as 0?2e en-
tire Title.
I agree that if it appeared upon the whole Record, " that the
" Defendant was not duly eledted," it would be as Ld. Ch. juft.
Pratt fays, a vain and idle Thing, to grant a Repleader.
But
-304 Eafler Term 30 Geo. 2.
But if the reft of the Iffiies are only Parts of, and dependafit u^on
the WHOLE Title } the fame Reafon does not then hold.
The Way to do co?nplcte Juftice indeed, is to let in the one Side,
without prejudicing the other.
If a Repleader was to be granted, (upon the Suppofition of this
• V.6 Mod. being the onh Iffiie,) it muft be * without CoJJs. But as this was
accord* ^°'"'' ^ ^{ft"^-^ of the Defendant; (in which xht Profecutor was «o/ to
blame,) We ought to do the moft complete Juftice We can, be-
tween Both.
My Ld. Ch. Baron was right in his Opinion, " that He could
" not admit V^ooi different from the Iffue joined j" And alfo " that
" this IfTue was conneBed with the others."
If fo, the Verdids were ivithoiit Evidence: And it was agreed
" that they were to be loithout Prejudice." Therefore fuch Ver-
difts ought to be fet afide, as without Evidence; and not to con-
clude againft the Defendant, which icould be a Prejudice.
Therefore He propofed to fet afide thefe whole Verdidts,
on Payment of Cofls ; and to give the Defendant Leave to amend
his Plea.
If it had been upon a Demurrer (which there might have been)
the Court 'would have given Leave /o amend.
This feems to be the true Way to come at Juftice ; and what
We therefore ought to do: For the true Text is " boni Judicis ejl,
" ampliare Justitiamj" (not " JurifdiBionemy" as it has been
often cited.)
This is what I would ivijh to do, if We can do it. "
Mr. Juft. Denison —
Formerly, Verdidls were not ufed to be fet afide : And therefore,
at that Time, Repleaders ufed very commonly to be granted. But
they have been lefs ufual of late, fince the Pradice of fetting afide
Verdidts has prevailed.
On Repleaders, the Ifilie was confidered as void; and the Ver-
dift too: And confequendy, the Judgment was, "to replead."
An Information in Nature of a ^o Warranto does not differ from
ether Cafes. Here
3
Eafler 1 erm 30 Geo. 2. 305
Here is an efitire Plea: The Ke^Wcdiiion feparates it, and takes Ifliie
on different Parts of it. The Rcphcation ought to have demurred
to this immaterial Part of the Plea: But IJj'ue is joined upon it: And
there is a Verdid: upon it in the Negative, viz. " That the Defen-
" dant was not fo fworn as he has pleaded." What can the Court
do ? The Iflue and Verdi(fl are impertinent and void. How then
can the Court give Judgment, when it does not appear whether the
Defendant had a Right, or not? (I fpeak now upon this iingle
liTue 07ily.)
Well then, If you fet afidc any Part of tlie Verdid, You mull
fet afide the Whc'k.
And this ufed, formerly, to be one Iffue.
I well remember that Cafe of Rex v. Philips, Af. y G. J. It went
upon an Ufage to hold over. The Point was Whether a Repleader
fliould be granted, when the Cafe could not be varied: And it was
holden that that would have been vain and idle. On the contrary,
it was fud that it would be a different Thing, if the Cafe could
have been mended upon a Repleader. I don't doubt but that there
•were great Numbers of other lifues in that Cafe, as well as in this:
And yet a Repleader would have been there gra?ited li iho. Cafe could
have been mended, on the Ufage.
The Whole muft be fet afide, if Part is fet afide.
It is fiid " that this is a defective Title.
But it is NO Title at all: It is only one Link of the whole Chain.
I think We may fet afide the ivhole Verdidl upon one of the
Iffues being void. And this is better than granting a Repleader:
Upon which a Writ of EiTor may be brought, and may long de-
pend; which will be a much greater Delay of Juflice.
Mr. Jufi:. Foster —
This was an Election under a Mandamus, upon the Statue of 1 1
G. I, in order to fettle the Peace of the Burrough.
Here are 12 IJfues joined. All found for the Kirrg; and icithout
Evidence, on any of them : So that none of them have been yet
really tried.
It is agreed " that in cafe of a Jingle IfTue Vv'hich doth not deter-
" mine the Right, (which way foevcr found,) a Repleader may
" be granted."
4 I The
c6 Eader Term '^o Geo. 2.
j^^KJ JLCtll^i. i ^Atll J
The 'gth Iffje, in this Cafe, falls direftly within this Rule. It
is totally immaterial to the Quefcion of Right.
If therefore the Vcrdiifl-s on the other Iflues, :/pon ivhich no Erjt-
dence 'was given, vary the Cafe and ftand in the Way of a Repleader^
they ought to be Ail fct alide: Or otherwifc, complete Juftice can
not be done.
And I think, as this Cafe is circumftanced, the Agreement men-
> r, .7«/? 29.).. tioned by the Lord Chief Baron, * " that the Verdidls were to be
" witl;out Prejudice in ^ny future Trial," may without a 'train be
extended to zny future Litigation in the Caufe.
Lord Mansfield —
I am now fully fatisfied, by what my Brethren have faid, that
the 'whole VerdiSl may be fet a/ide, on Faywe7it of Cafi ^nd with
Liberty to amend the Plea.
But that mufl: be upon a particular Motion.
And I have no Doubt but that We may do this without the
Confent of the Profecutors.
Which Motions were accordingly afterwards made by Mr. Nor-
ton; and granted, after a faint Attempt by Mr. Serjeant Poole to fliew
Caufc, and then to get Cofls as between Client and Attorney; in
both which Attempts, he was unfuccefsful : For the Rules were
both of them made abfolute, upon Payment of Common Cofts;
obliging the Defendant, however, to take fhort Notice of Trial.
Friday 13th Rcx veff. Iiihabitaiits of Fremington.
May 1757.
(Lord Commifjioner Wilmot abfent.)
TW O Juftices removed Mary Bevans from Fremington to Sher-
ivell in Dtvonfjire: And the Seffions, upon Appeal from this
Order, difcharged it.
The Subftance of the Cafe ftated was no more than this — viz.
This Pauper, Mary Bevans, had been bound an Apprentice, by a
Parlfh Indenture, to one Richards in Fremington : Who, after fome
Time, declared th..t he had no Bufinefs for Her; and gave Her
Permifjion to go an I work elfe where, ^or her own Benefit. Where-
upon fhe went, to one Mr. iVo//, a Relation of her faid Mafter's,
3 • purfuant
Eader Term 30 Geo. z. 2*^7
and made an Agreement with Mr. Nott, '' to ferve Him i'rom ift ,3>,i. ijjgi
" June 1753. iAl Lady-Day J754. for the Wages of 32 Shillings:" N^
And She accordingly went and lived ivith Mr, Nott, in Skerivcl/,
from the-faid ift of June 1753. //// 15//' Nov. 1753. and received
■Wages for thut Tinie ; and then went back to her Indenture -Majhr
(Richards) in Fremington; with whom She flayed 8 "Days; And
then her ApprenticeHiip expired, by her coming to 2 1 : (For it was
a Pariih-Indenture; And She was bound to fcrve Him till Age cv
Marriage.) And it was ftated that She had gained no Settlement ftnce.
The Seffions declared themfelves to be of Opinion " That the
" Pauper's Settlement was in Fremington:'" And they therefore va-
cated the Order of the two Juftices, (which had removed Her from
Fremington to Sherivell.)
This Court was moved, for a Rule to fliew Caufe why the Or-
der of SefTions fliould not be quaflied: For that the Setdement of
the Apprentice was in the Parifh where fhe had ferved the last
40 Days, namely in Sherivell; And it was a Service under the In-
denture, being with the Confcnt of the Mafter, and the Indenture of
Apprenticefhip having never been difcharged. i Strange 10. i Strange
554. I Stra}ige 582. and 2 Ld. Raym. 1352. S. C. 2 Strange looi.
The Counfel who were to (hew Caufe, in Support of the Order
of Seffions, acknowledged the general Pofition " That the Scttle-
" ment of an Apprentice is in the Parifli where the lafl 40 Days
" Service was performed:" But, without pretending to controvert
this Principle, they raifed a Doubt " Whether this was the pre-
" fent Cafe, upon the Fads flated." For here the Mafter could
receive no Advantage from this Service of his Apprentice; but feems
to have given Her free Leave to make her oivn Advantage of it, in
the beft Manner She could: And therefore flie may well be confi-
dered, as being, by his Permiffion, Svi juris.
It was replied that the Indenture was never difcharged: So far
from it, that She returned to her Mafter, and ferved out her Ap-
prenticefhip. And the intermediate Service, (by his Permiffion)
was under it.
Lord Mansfield faid that, as the general Principle was ad-
mitted, the Cafe was reduced to a very fliort Qiaeftion. It was
very plain. He faid, that the Pauper was not difcharged from her
Apprenticefnp : Her Mail:er only gave her Permiflion to go elfe-
where and ferve another Ferfon, for her own Benefit. She did fo:
And
.3o8 Eafter Term 30 Geo. 2.
And afterwards, She came back again to Her Mafter, and was re-
ceived h Him, and flayed with him 8 Days, which was to the End
of her Term of Apprenticefliip. So that it was no more than a
generous Intention of her Mafter, to give Her this Permiffion to
ferve the other Perfon for her own Benefit : But the ApprcnticeOiip
neither was, nor was intended to be difcharged. Confequently, the
Service with Mr. Nott in Sherivell was a Continuation of the Ap-
prenticefliip, and performed urJcr it.
Mr, Juftice Denison and Mr. Juftice Foster exprefTed them-
feh'es to the hke Effedl : And the latter mentioned the Cafe of a
^Rexv.ln- Servant who was * permitted by his Maftsr to go away three
.habitants of Wecks before the End of his Year, in order to take the Benefit of
Goo "V"'"* jjjg Herrinsi-Finiing Seafon ; And was, notwithllanding his having
iv. 1745. O CJ ' ^ ' o o
18 is" igG. done fo, adjudged to have gained a Settlement.
B.R.
Per Cur. unanimoufly
Order of Sessions quaflied :
Order of two Justices affirmed.
Saturday ,4th ^^^ ^^,^^,/; Inhabitants of Alton.
May 1757. J
[Lord Ccjnmiffioncr Wilmot ahfent.)
TWO Juftices removed Ann Crockford, the Wife cf Richard
Crockford jiin. and her four Children by Him, from jE/w-
thavi to Alton, (Both in Hainpjinre :) Which Order was confirmed
by the Seflions.
The fpecial Cafe flated by the Seffions was, rtiortly, this. The
Father and Motlier of Richard Crockford Junior (this Woman's
Hufband) came l?y Certificate from Alton to Elvetham ; where
Richard Crockford Junior was born, after the faid Certificate.
Richard Crockford Junior afterwards (on 29th Auguft 1734.) be-
came a hired Servant to Sir Harry Calthorpe, at Elvetham, (the
Place of Sir Harrfs Refidence ;) and was hired and ferved Kim
there, for one Year ; and the like, for a fecond Year : But the
LAST forty Days Service of the fecond Year was at Scarborojjgh
in Torkfire. TThe faid R. C. Junior did not quit the Service of the
faid Sir H. C. at the End of the fecond Year ; But at the Expiration
of the faid fecond Year, (viz. on 29th Augiijl 1736,) the faid R.C.
Junior applied to the faid Sir H. C. to make a new Agreement for
another Tear: When, the faid Sir H.C. faid, " // 'would be
■" Time enough, nvhen they returned Home to Elvetham."
Whereupon the faid R. C. Junior continued on, for about 6
4 Weeks,
Eafler Term 30 Geo. 2. 309
Weeks, until the faid Sir H. C. returned back from the faid Parifli
■of Scarborough unto the Parifli of Elvetfjant : Whet:, the laid R. C.
Junior was again hired by the faid Sir H. C. for a thir^l Year, af
advanced Wages ; and ferved the faid third Tear out, in the faid
Parifh of Ehetham ; znd continued in the Service of the faid Sir
H. C. for feven Tears more, in tlie faid Parifli of Ehetham ; And his
Wages were, every Year, by Agreement, advanced. After the faid
R. C. Junior quitted the Service of the faid Sir H. C. He married
Ann, the Perfon named in and removed by the Order: By whom,
■He had the 4 Children alfo named in the Order.
The Seffions confirm the Original Order; for that the Parifh of
Alton gave the Certificate, under lahich, the faid R. C. Junior was
born; And neither his Father nor Himfelf did any Act, whereby
to gain a Settlement in Eivetham.
Upon a Motion to quafli thefe two Orders, two Objedions were
made to them -: viz.
ifl. That the Wife a?}d Children, only, are removed;
without any Notice at all being taken of the Hujband : So that
this Removal is, or at leaft (for Aught that appears to the Contrary)
may be, a Divorce of the Woman from her Hufband.
2d Objedion, That tho' Richard Crockford Junior the Hufband
•could not indeed originally gain a Settlement at Ehetham, by his
■Service there, fo long as he remained Part of his Father's Family, (as
his Father came thither by Certificate;) Yet he might, and aftually
did regubrly gain a Settlement for Himfelf at * Scarborough, which * i ^ra„gt
was a third Paridi, by his frvin^ there above 40 Days: And 5^,+', ''''•"'■
then, after tfiat 1 ime, and after having gained a Settlement of his Sanai Petri
<own, he confequently muft gain a fubfquent Settlement at Ehetham, o*""'-
under his new Hiring and Service with Sir H. C, for the third
Year ; having been, before fuch Hiring and Service, already eman-
cipated from his Father's Family, by having once already gained
a Settlement for Himfelf, at Scarborough.
It was anfwered, upon fhewing Caufe —
ifl. That as the Hufband\ Place of Settlement appears, upon the
Order, there can be no Doubt but that the Wife and Children may
be fent to //.
2dly. That the general Pofition upon which this Objedlion is
founded, is contrary to the Intent and Meaning of the Certificate-
Aft, and would defeat it's End.
4 K Befides,
3IO Eader Term 30 Geo. 2.
Befides, here was a Continuation of the firft Original Contraft :
Which 'went on, notwithftanding this cajual Reiidence at Scarbo-
rough ; and was 7iever dijfohed, or even interrupted.
And the Court determined accordingly, upon both Objec-
tions ; after having taken Time to confider of the Cafe, with re-
gard to the 2d Objedion.
Lord Mansfield delivered the Opinion of the Court.
iftObjsaion. I ft. Alton appears to Us (for the Reafons I (hall give in anfvver
to the 2d Objediion) to be the Hufband's Settlement. He w s at
Ehetham, only under a Certificate from Alton ; And He is exprefly
faid to have gained no Settlement in Ehetham, by any other Adi
than what is particularly ftated : And we can't intend that He did.
* r. I Strange Therefore his Wife and Children were * properly fctit thither. He
544' Himfelf could not be removed from Ehetham, if he was not at
Ehetham : And if he fliould be found there in future. He may be
removed by another Order.
zdObjeflion. zdly. The Original Service at Ehetham (to which Parifh this Man
was certificated from Alton) continued and went on, during the
whole Time j notisjithfaiuling the cafual intermediate Reiidence at
Scarborough.
Undoubtedly, a Servant may gain a Settlement, by ferving 40
Days, in a Place where the Majler Himfelf has none.
And it may (o happen, that a Servant may gain a Settlement in a
Place where the M-ajlcr never comes: For the Service may be
performed, in a Place from which the Mnfter, in his own Perfon,
is locally abfent; or if the Servant has his Mafter's Leave to be ab-
fent at any Place, for his Health, yet his Service continues.
But in the prefent Cafe, the Servant gained no Settlement at Scar-
borough; either upon the general Grounds of thefe Determinations j
or upon the particular Circumftances of the Cafe itfelf j or upon
the Authority of thofe Cafes that have been imagined to be fimilar
to it.
This Perfon was a Certificate-Man, hired by Sir H. C. (a Gentle-
man of Fadiion,) in a Pari(h where Sir Harry lives and refides. Sir
Harry goes to Scarborough, (a Place of Public Refort,) for his
Health or Amufement j and not as an Inhabitant, but only as a
Sojourner. Whilft they were there, the fecond Year of his Service
ended. This was mentioned by the Servant to his Mafter : And
on
Eader Term 30 Geo. 2. 311
on the Servant's propoling a new Agreement, for another Year,
the Mafter faid " It would be time enough when they returned Home."
When he came Home, He hired the Servant, for another Year:
And the Servant continues to live with him leven Years.
Now if this Service for 40 Days at Scarborough were to acquire
a Settlement there, it would be a very great Hardjhip, both upon
the Parifh oi Scarborough, the Place of Public Refort; and alfo upon
the Parifli of Elvetham, who depended upon the Certificate given them
by the Parifh of Alton.
Suppofe, a Servant was to break his Leg, and be left by his Ma-
fter upon the Road; or fhould be waiting at a Sea-Port Town, for a
Paflage, above 40 Days; the Service, in both thefe Cafes, conti-
nues: And yet, ivoiild it be rf^w^^/c that this iliould gain a &///?-
inent in fuch Parifli? This could never be the Intent of the Law-
Makers.
The Mafter's Place of Abode, his Domicil, can never be fup-
pofed to be at Scarborough : And if his cafual foj owning there were
to obtain a Settlement there for his Servant, attended with the
■Confequences drawn fron it, this would be a Fraud upon the Pa-
rifli to which the Certificate is given, and where the Servant was
hired upon the Faith of fuch Certificate.
Indeed, the Cafe of the King againft the Inhabitants of St. Petet 's
in Oxford, reported in i Strange 524. has been ftrongly urged, to
prove that the Servant fliall, in the prefent Cafe, gain a Settlement
in Scarborough, fnice the Maid, in that Cafe, was adjudged to have
gained one in Faicly, only by ferving her Mifl:refs there during
a Vifit.
But — [Here, his Lordfliip entered into a very full DifcufTion of
this Cafe ; and expatiated very largely upon it. In doing which,
He obferved that the Report of this Cafe, as it appears in i Strange
524. is very infufficient and incorredl, in point of Faft; and that
. the Reafon there given, is as incorredt as the Faft: And added that
he had looked to fee how this Cafe was ftated by Mr. Burn, and
by Mr, Foley, (For it is mentioned in Mr. Burn'?, Book, Title Poor,
Fo. 526. in the Folio Edition, and in Foley's Cafes on the Laws
relating to the Poor, Fo. 215.) and found that none of them ftate
it truly. However, out of them all, he faid, one might difcover
it: And accordingly he ftated what he colledled, from all thefe Ac-
counts, compared together, to have been * probably the true State * r. hfm,
of the Cafe; which he took to be this— Mrs. Coo/^^ was Mother ^h^.^^^^^^jSute
in Law to Dr. Clavcring, and alfo to Mr. Freeman; and lived, (as f^on,' the Re-
a Lodger, or Vifiter, or Friend,) fometimcs with Dr. Clavering in cord.
Chrifichurchf
312 Barter Term 30 Geo. 2.
Chr'ijlcburcb, and fomctimes with Vix . Freeman -iX Fanvly -Court : So
that She had really no Place of Abode-, and was as much at Home,
with Mr. Freeman, as with Dr. Cla'vering. Therefore She conld
not be confidered upon the Foot of a Perfon who had a frttled
Dwelli)ig at Chrijl church, and only went on a mere Vifit to Faivly-
Court. Upon the whole, he concluded that this Cafe did not at all
fland in the Way of the Court's determining, in the prefent Cafe,
that R. C. Junior, the Servant of Sir H. C. did not gain a Settlement
at Scarborough.
Note — Since there has been £o much Doubt and Mifappre-
henfion concerning the Cafe here cited, I have had the Cu-
riofity to tranfcribe it from the Original Record: And the
true Cafe is as follows —
" Rex V. Inhabitantes SanSli Petri in Oriente in Civit. Oxon'.
Two Juflices removed Mary Norris from the Parifli of St, Peter
in the Eajl in the faid City, to the Parifli of Faaly in the faid
County of Oxford: Which Order was difcharged by the Sc(-
fions, upon Appeal; It appearing (as it is flated in the Order
of Seflions) That the faid Mary Norris was hired at Chrijl-
church'm Oxon, an kxtraparochi al Pkce, on the i6th
of May 17)7. for one Year, to Mrs. Cooke, who then lived,
and ever fincc hath lived with her Son in L.av Dr. Clavrringy
Canon of Chri/lchurch-CoWege afoieiaid, \f a Sojckrner or
Boarder; and continued in her Service there, till he Month of
— in the fame Year; when, Mrs. Coot wont, upon a
Visit, to her Son Mr. Frtcman\, m che Panfli of Faaly
aforefaid, where She continuid three Months, •.!? N the faid
Vifit; And her faid Servant Mary Norris was ic'ith Her at the
faid Mr. Freeman's and continued ther i, m her Service all the
three Months: At the End of which, the Mi/Jrefs rctu:ncd
again to Chrifl church aforeuid; And there the Year's Service
expired. She having ferveJ her Miftrefs the whole Year, in
purfuance of ih^frjl Hiring.
Die Pvlartis prox' poft qbinden'
Sex Trin' Anno 8^°. Georgij Regis.
The Ruls (which I took from the Rule-Book) is Ordinatum
eftqdOr-i'i? Session is in hac Caufa fatfta, de et concer-
nen' Amotion' cujufd.im Mariaj Norris a paroch' Sci Petri
Oricn' infra Civit' Oxon' ad piiroch' de Faaly in Com' prs-
dift', CASSETUR; et qd Ordo Originalis Affikme-
TUR."
Lord
Eafler Term 30 Geo. 2. 313
Lord Mansfield proceeded to mention another Cafe (which had
not been cited at the Bar) from Mr. Foley's Book abovementi-
oned, Pa. * 1 97. between the Parifhes of Bijloofs Hatfield, and * "Tis Pa.
^t. Peter' % in S\:. Man's, HertfordJJnre : Where two Juftices ha- Ed[tion"'it^'^
ving removed one Langky from Bijhop's Hatfield to St. Peter's, and was Tk 'i
their Order being appealed from, it was flated, upon the Seffions- ^- ^'
Order, That Langley, the Pauper, was a Huntfman to one Mr. Ar-
nold; And that Mr. Arnold Hved fometimes in Wefimijifler, and
fometimes at his Houfe in Northamptonfinre; but that Mr. Arnold
bimfelf had no Settletnent in St. Peter's in St. Alban's: But that
Langley ferved the lafi 40 Days of his Year in the Parifh of St. Peter
in St. Alban's, with his Mafter Mr. Arnold. This, the Juftices
at Seffions thought, gained «o Settlement for Langley in St. Peter's
in St, Alban's: And they quafhed the Order of the two Juftices,
which removed Him thither. But this Court quaflied that Order
of Seffions; and held Langley' s Settlement to be in St. Peter's in
St. Alban's, by serving his Mafter, Mr. Arnold,.thc laft 40 Days
of his Year there; though Mr. Arnold, the Mailer, had no Set-
. tlement there.
And that is clearly fo, " That the Mafter' s having no Settlement
" in St. Peter's, would not at all vary the Cafe." And that is there
ftated, as the mchjle Point of the Queftion,
But upon the very Face of that Cafe there arifes another Di/linc-
tion. For the Servant was a Hiintfman; And Gentlemen who are
keen after the Diverfion of Hunting, have their Huntfmen and
Hounds frequently removing from one Sporting Country to ano-
ther, and often kept in other Places than where they themfehcs ge-
nerally refide: Nothing is more common. And this Huntfman
might go from Place to Place, with his Hounds, into various fpor-
ting Countries, and perhaps never live in the fame Vhct where
his Mafter's Refidence was. Now if this was the Cafe, it is no
more than the Cafe of the Oxford Stage-Coachman's Servant
{i Strange 528:) who gained a Settlement in Chipping-Wicomb,
where He performed his Service; though the Mafter never refided
there at all.
And there is no other Cafe (as far as has come to my Knowledge,)
that interferes with our prefent Opinion upon the Cafe now under
our Confideration.
Therefore I think that upon the Cafe now ftated in the prefent
Order; And for that the Servant neverqjjitted his Mafter's
Service, but returned with Him to Sir Harry's own Habitation,
and continued in his Service there for feveral Years; this is a Con-
4L TINUATION
314 Eafler Term 30 Geo. 2.
TiNUATiON of the On'gijial Service \n Ehethani; which was be-
gun under the Certificate from Alton.
And I lay great Strefs upon the Circumftance of Sir H. C's tel-
ling the Servant (when he informed his Mafter, at Scarborough, of
Ills Year's being ended, and propofed his being re-hired for ano-
ther Year,) " that it would be time enough, when they returned
*' Home to Elvctham:" Since it appears plainly, by this Anfwcr of
the Mafter to the Application of his Servant " to make a new
" Agreement for another Year," That the Contrad between them
was NOT JimJIied and put an End to, at Scarborough; but a/ijounicd
and coNi iNUKD over.
I alfo lay great Strefs upon the Circumftance of the Servant's
being {^accordingly) re-hired by his Mafter, upon their Return Home
to FJvethani; and continuing y Years more in his Service at Ehetham.
And I likewife lay great Strefs upon the Circumftance of this
Pauper's having come from Alton by Certificate, to Ehethajn-, where
Sir i7. C. originally hired Him; and muft have hired Him as a
Perfon Jiot capable of gaining a Settlement in Ehetham by fuch Hi-
ring and Service under it, by reafon of his being under C -tificate
from Alton.
Theretore We are of Opinion that this Rule be dif-
chargedj And that the (3rder of the two Justices,
And alfo the Order of Sessions confirming it, be
Both of them affirmed.
And the Rule was drawn up and entered accordingly.
M
Pax ton verf. Knight.
R. Norton fhewed Caufe againft a Prohibition.
This was a Queftion whether a Prohibition fhould be granted,
to ftay Proceedings in an Ecclefiaftical Court in a Suit by a Qua-
ker, for a Seat in a Church; founding his Title upon Ti prefer iptive
Right: In which Suit the Ecclefiaftical Court had determined againft
him. And he now came, after Sentence below, for a Prohibition.
Note — An immemorial Prejcription was alledged on both Sides.
Mr. Norton — againft the Prohibition, cited 2 Ld. Raytn. 7J5.
the Cafe oi Jacob v. Dallow. 2 Salk. 551. S. C. 5 Mod. 436. S.C.
Cafes in B. R. temp. /T. 3. 233. S. C. Farrejley, 8. S. C.
As
3
Eailer Term 30 Geo. 2. 315
II ■ ■ ■— ^^^— ^— — ^^— ^^ ..-■■.- — ■ . ..^.i . ... . — . — — III — — _.^
As to Prohibitions after Sentence —
Hetky 94. the Cafe of Eaton v. Aydiffe (which had been cited
on the other Side,) is a Cafe to which the Court will not pay great
Attention: It was determined tewp. C. i. and is a loofe Note; And
even * Mr Watfon in his Complete Jncwnbent treats it as a Cafe of *^'lr Jul-^'-
no Authority. ' f ;^°f -^
pliie Iiicum-
The Court will not after Sentence, grant a Prohibition, iinlefs ^"" "'^^ "°'
the Defeft of Jurifdidion appears upon the Face of the Libel. *^'lX/but
by Mr. Place
1 Strange 187. the Cafe of Argyle v. Hunt — is exprefly {o, in°'"^'"'^-
Point. And the Cafe of Stotie v. Foivler, Mich. 9 Anna — there cited
[Fo, 188,] is to the fame Effed. i Ld, Raym. 436. is alfo in
Point: The Church- Wardens of Market Bojworth v. the Redor of
Market Bofworth; where the Spiritual Court had adjudged againjl
the Cuftom fet up; though their Law allows a lefs Time, than the
Common Law, to make a Cuftom: But the Prohibition was denied.
So here, if the Spiritual Court will admit lefs Evidence of a Pre-
fcription, ''lan the temporal Courts will; And the Prefcription is
neverthe'^^:^ ionwA to be groundlefsj it is certain that the Party w/^o
feti it /, can have no Reafon to come for a Prohibition, after Sen-
tence. And his only Reafon for it can be, (as the Court obferved
in the laft cited Cafe,) to get clear of thofe Cofls, which he has by
his own vexatious Suit, rendered himfelf liable to; And which (as
was there adjudged) they ought to pay.
But The Court feemed to think that //'the Sentenck of the
Ecclefiaftical Court was a Nullity, their Award of Cofls muft be fo
too. And here are reciprocal Prefcriptions alkdged: And the pre-
fcriptive Right of the One is determined for-, though that of the
Other is determined againfi. They have adjudged the Adverfe Pre-
fcription to be a good One: Which they could not try; and which
they willeftablifh upon lefs Evidence than theCommonLaw requires.
And My Lord Mansfield faid that though He was very forry
that the Court were obliged to grant the Prohibition, (becaufe the
Party applied for it, only to get rid of paying the Cofts occafioned
by his own vexatious Suit;) Yet He thought they could not avoid
doing it.
Ter Cur, Rule for a Prohibition made absolute.
Rex
2,1 6 Eafler Term 30 Geo. 2.
Moxday 1 6th Rex verf. Jofeph Chaplin Hankey Efq;
{Lord Comm'tJJioner Wilmot abfent.)
M^'f 1757.
o
N E Ralph Carr an Attorney, applied for an Information againft
the Defendant, for fending Him a Challenge.
Upon hearing the Affidavits, and the Letters that pafled between
thefe two Gentlemen, The Court thought that Carr himfelf appea-
red to have fent \he Jirjl Challenge to the Other ; at leaft, that his
Letters manifeftly imported a Challenge : Which the other clearly
fo underftood, and accordingly accepted, and propofed to fight
•with Piftols.
The Court held, that though the Defendant had behaved very
improperly ; And though it would have been right for the Court to
have granted even CKos?,-Informations, in cafe Each Party had
applied for an Information againfl the other j Yet they thought that
when the Aggrejjbr^ who gave the firfl Challenge, came and applied
for an Information againft the Other who only accepted it, (however
improperly and unlawfully ;) it was a very different Cafe ; And fhat
the Court had noReafon to give him this extraordinary l^meQy>
by way of Information : but ought rather to leave Kim to his ord i-
NARY Remedy, by Adion or by Indidtment.
Therefore the Rule " to fhew Caufe why an Information
" iliould not be granted," was discharged.
Robin foil verf. Raley.
Tr. 25 G. 2. Rotlo 775.
THIS was an Adion of Trefpafs, The Declaration contained
a great Number of Counts ; amongft the Reft, One in Tref-
pafs for breaking and entering the Plaintiff's Clofe ; and depafturing
it with &c ; And for breaking and entering his Free- Warren ; A
2d Count, to the hke Effedl ; (but in different Year,-; ;) So a 3d,
4th, 5th and 6th. And 6 more, for breaking and entering ano-
ther Clofe called Sands' s Piece; a 13th for taking and carrying
away the Plaintiffs Trees : and a 14th for taking and carrying away
his Goods and Chattels,
2
The
Eafler Term 30 Geo. 2. 317
The Defendant had Leave to plead feveral Pleas : And accordingly
He pleaded, ift. The General Iflue, to the whole. 2d Plea (by
Leave, ict fupra^ That As to the Clofe called the Rabbet-Walks,
" That it is one Rood of Land, Parcel of a Common-Field ; And
" that Mr. Fificb, in Right of his prebendal Eftate, and all &€.
" have Right of Common &c. in certain Fields called Middle
" Fields, whereof the Rabbet- Walks are Parcel:" Which Right
he derives to Himfelf; and fo juftifies under it. The like Plea,
to the other 5 next Counts. He pleads, as to the 6 IfTues relating
to Sajid's Piece, the General IfTue. To the 1 3th Count, He pleads
Tenancy of another Clofe, under the Plaintiff^ And juftifies under
a Lice7tce , and avers that it was ufed for Gates, &c. Another Plea
•was a Right of Common, &c, &c\
The PlaintifF, in his Replication to the 2d Plea to the ift Count,
traverfes the Right of Common : And in his Replication to the
like Pleas as to the other five Counts, traverfes the Rabbet- Walks
being Parcel of the Middle Fields. In his Replication to the laft
•mentioned Plea, he traverfes the Right of Common. All thefe
Iffues were fcimd for the Defendant. To the Plea to the 5th
Count, the Replication traverfes " That the Cattle were the Defen-
■*' dant's own Cattle ; and that they were levant et coucbant upon the
*' Premifles, a7id commonable Cattle." To this there is a fpecial
Demurrer for Caufe, {viz. " that the Replication is multifarious,
" and that feveral Matters, fpecifying them, are put in Ifllie j
'" whereas only one fingle Matter ought to be fo;") and Joinder in
Demurrer. To the Plea to the 13th Count, the Replication tra-
verfes the Licence ; (after protefting '* that the Tree was not ufed
*' for Gates Z^c. as is alledged by the Defendant's Plea.") And to
this Replication alfo, the Defendant demurs fpecially ; and ihews
for Caufe, '' That it concludes to the Country, whereas it ought to
'' conclude with an Averment."
Serjeant Poole, for the Defendant, complained of the Hardfliip the ift Demurrer.
Plaintiff put upon the Defendant in the 5th Count, by inforcing the
Defendant to prove the Cattle to be his own Cattle, and Commonable
Cattle ; and levant and coucbant upon the Land : Which Hardfhip
had obliged him to demur.
He argued that fome Om Fatfl only ought to be put in IfTue j
Not Several.
He cited Co. Lit. 126. a. [Letter q, r.] It mufl be One single
certain material Point. And fo alfo 8 Rep. 67. b. Crogate's Cafe
[the lafl Refolution,] lays down the Rule accordingly, *' That an
^' Iffue ought to be full and single."
4 M Now
31 8 Eafter Term 30 Geo.
No\v here are three distinct FaBs put in Iflue, by this Repli-
cation : Any One of which was fufficient.
For if the Cattle were not his czot, or were not Icvnvt arid
couchant^ they were 7iot commonable Cattle. The Plaintiff" might as '
well have put Twenty Fads in Illue.
This therefore is, at leaft, 'a Fault in Form : And We have de-
murred Jpecially, and fliewn this for Caufe ; " That the Replication
" is multiflirious, and that fevcral Matters are put in Ifllie (fpecify-
" ing them;) .whereas only One single Matter ought to be fo."
2d Demurrer. As to the Licence — The Replication (prptefting that the Tree wss
not ufed for Gates &c.) traverfes the Licence. To this Replication,
We have demurred, cut oj NeccJJity. For though We really have
a Licence, yet the Perfon who gave it to Us (the Plaintiff^'s Steward)
has denied it; and We apprehended, would do fo again, cn Oath.
Therefore We have demurred fpecially, and fliewn for Caufe
" That the Replication concludes to the Country, whereas it ought
" to conclude with an Averment."
Now they ought to have traverfed the Licence fpecially, and to
have concluded with an Averment. Crogate'% Cafe, 3d Refolution,
[yo. 67. a. (^.] fliews that this Licence ought to have been fpecially
traverfed, and concluded with an Avermenent." And Rajl. 660. b.
bis. 661, 630, 651. and i Brown, 353. and Thompfon's Entr. 365.
' And many other Precedents, are fo.
Indeed where the whole of the Plea is traverfed, the Conclufion
piay be to the Country. But this is ?iot a Traverfe of the Whole.
So that this is a Departure (by Mr. Robinfon) from the conmion
Form of Pleading.
Mr. Tales contra for the Plaintiff.
aft Demurrer. One Part of the Duplicity {viz. the Cattle not being commonable)
is not pointed out by the Special Demurrer.
However, this Traverfe is 720t double : Though I agree that it
numerally contains feveral Matters ; all which together make up
the Defendant's Plea, and make One entire Defence. And it is
within the Reafon of Crogate'% Cafe, 8 Co. 67.
■ Whereas Duplicity is, where diftindt Matters, not being Part
of one entire Defence, are put i;i IfTue. For there are Cafes wliere
feveral Matters may be put in One Traverfe : As, for Inftance, a
Cuflom confining oi feveral Parts.
4 Now
Eailer Term 30 Geo. z. 319
Now All thefe Parts here traverfed, make One entire Defence.
For the Cattle muft be commonable^ levant ajid coucha?it, and his
own : Or elfe, it is no fufiicient Defence. To prove which, he
cited I Ro. Abr. 398. Letter G. PL 2, 3. Letters H and I, through-
out. I Saund. 227. The Cafe 61 Stennell v. Hogg, and 2 Sboiv. 328.
The Cafe of Manneton v. Tre'vilian, in Point.
As to the Licence, the Caufe of Demurrer {hewn is, " that he 2d Demurrer.
" ought to have maintained his Declaration ; and that he ought
" to have concluded with a Traverfe and Averment.''
But Precedents are both ways. 2 B?'Own's Entr. 283. concludes
as the prefent does. And whoever has ken the whole of this Record
will not think that either of the Parties has concluded too ha/lily.
He cited the Cafe of C/ark v. Glafs, Tr. 28, 29 G. 2. B. R. to
prove that where the whole Cojitents of the Plea are denied, the
Conclufion muft be to the Country : But where, only a particular
'Fa^ is denied, the Conclufion muft be with an Averment. He alfo
cited 2 Liitw. 1399, 1401. The Cafe of Hiijller v. Raines.
Serjeant Poole, m Reply—
i(\. As to the two Matters making but One entire Defence — »ft Demurrer.
Yet being Variety of FaSfs, they ought not Both to be put in IfTue.
Crogate's Cafe, 8 Co. 67.
And the common Method is, to traverfe " that the faid Cattle
" were k'vafit and coiichant."
As to the Cafe of Manneton v, Trcvilian, I agree that the Cattle
ought to be levant and couchant. My Demurrer here is in Point of
Form ; and is Special.
2dly. I do not know but the Party may go to Iffue, in Jome 2d Demurrer.
Cafes : But I fliy this is not the common Form.
The Cafe of Htijller v. Raines, 2 Lutiv. 1399, 1401. proves
Nothing againft Me.
Lord Mansfield held both thefe Demurrers to be frivolous.
• The Substantial Rules of Pleading are founded in Jlrong
Senfe, and in the fcimdejl and clqfeft Logic ; and fo appear, when
well underftood and explained: Though, by being mifunderftood
and mijappliedy they are often made ufe of as Inflruments of Chi-
cane.
As
320 Eafter Term 30 Geo 2.
id Demurrer. As to the prefent Cafe — 'Tis true, You muft take Iffue upon a
fingle Point : but it is not necefTary that this lingle Point fliould
confift only of a fingle Fact. Here, the Poi>2t is, the Cattle being
intkled to Common: This is the fingle Point of the Defence. But
in FaB, they muft be both his uwn Cattle, and also levant and
couchant ; which are tiao differejit ejfential Circumftances, of their
being intitled to Common ; and Both of them abfolutely requifite.
2J Demurrer. So, as to the Licence — The Licence is the Point in Queftion. And
this Point in Queftion, " Whether the Licence was given, or not,"
is put in Iflue : The Whole turns upon this particular Propolition.
Indeed it may be a different Cafe, where the whole of the Plea is
not dc?2icd; but 07ily fome Parts of it. But that is not this Cafe.
Mr. Tates has made right and reafonable and intelligible Dif-
tinftions : And He has cited an exprefs Authority.
Mr. Juft. Denison concurred.
trt Demurrer. I ft. As to Crogate's Cafe — The Replication " de injuria fua pro-
" prid abfq; tali Caufa^" will do, in all Cafes where Matter of
Title, and other Things of that kind, are not included in the " abjq;
" tali Caufa ;" And il You admit them^ You may then plead
" Dc injuria fud prop>:d, abjque residio Caufa ;" traverfing that
Refidue. But the Ruie in Crogate's Cafe don't affedl this Cafe.
For here the Queftion i.s One fmgle Propojition, viz. the Meafure of
the Common : Aiid the Meafure of the Common is the Levancy
and Couchancy jointly with the Property.
Skinner 137, is a more fenfible Report of the Cafe o{ Molliton
and Trevilian, than 2 Show. 328. And there, the Levancy and
Couchancy, together with the Property, were efteemcd to be the
Meafure of the Common ; and not the Levancy and Couchancy
only.
So that Nothing more is here traverfed, than the Meafure of the
Common. The Cafe is in Point.
Befides, I think it is within Crogate's Cafe.
2d Demurrer. As to the Licence — It is right, and avoids the Prolixity of Plead-
ing. The old Way indeed was otherwife ; but it is altered, of late.
And He cited a Cafe (of an alternate Way of traverfing a corrupt
Agreement,) which was in iVf. 5 G. i. J5. R. Fen v. Aljion — Where
it was holden " That the Plaintiff" has a Liberty either to reply
2 *' that
Eafler Term 30 Geo. 2. 321
" that the Bond was given upon another Account," and to tra-
verfe the Corrupt Agreement with an Abfque hoc ; or to deny the
corrupt Agreement direSlly, and conclude to the Country. And the
Ccife of Baynham v. Matthews, 2 Strange 871. goes upon the very
lame Foundation ; and mentions the fame Alternative.
Mr. Juft. Foster, I am of. the fame Opinion.
Mr. Norton, who was alfo of Counfel for the Defendant, defired
the Court not to give Judgment yet ; but to give them an Opportu-
nity to move for Leave to withdraw their Demurrers, and amend :
Which the Court agreed to. And in a few Days afterwards, Mr.
Norton moved for Leave to ivithdraw the two Demurrers, and plead
to Iffue ; (upon Payment of Cofts :) And a Rule was thereupon
granted, to Shew Cause.
And now Mr. Tates fliewed Caufe, for the Plaintiff, againfl: the
Defendant's being at Liberty to withdraw the two Demurrers, and
plead to Iffue. And he cited 6 Mod. 102. The Cafe of Crofs v.
Bilfon. 6 Mod. i. The Cafe of Staple 'v. Hay don. 1 Ld. Raym,
668. The CiSco? Fox v.JVilbraham, and 2 Strange 1002. The Bank
of England V. Morrice.
Serjeant Poole — and Mr. Norton contra, for the Defendant —
The Merits have not been tried upon thefe Demurrers. We move
this at Common Law ; not under any Statute. And the Court are
not bound down by any certain Rules. And they cited 2 Saund.
402. Rex V. Ellames, [2 Strange 976.] Dutchefs of Marlborough v.
Widmore, Hil. 4 G. 2. B. R. The Cafe of Cope v. Marjhall, Tr.
28 G. 2. B. R. \y. ante 259. S. C]
The Cafe of Giddins v. Giddins, [Tr. 29, 30 G. 2. 5. i?.] was
even after the Court had given their Opinion. * 'It was after
a Demurrer
And here is a Declaration of 20 Counts, manifeftly intended to ^^ly /|"["j*"g
catch the Defendant, and to fave Cofts. the Court had
given no Opi-
If our Motion is granted, the contingent Damages affeffed, will Rule' was
be out of the Cafe, and will be as none at all. made abfoiute
without De-
Lord Mansfield— It is admitted to have been done, after a
Demurrer and Argumetzt : But this is after a Trial j and
without any favourable Circumftances.
Now as no Cafe of fuch an Amendment after a Trial Is cited,
I take it for granted that None exists.
4 N Thefe
'^22 Eafler Term 30 Geo. 2.
:>
Thefe are frivolous Demurrers : And the only View of this Mo-
tion is to get rid of the Cojis. But the Plaintiff would have had
his Cods, if the Defendant had done right at firft, and joined
Ifliie upon thefe Fad:s ; if they had been found againjl him.
So that here is neither Precedent, nor Reafon for allowing this
Motion.
Mr. Juft. Denison concurred.
Where the Demurrer is firfl argued, before any Trial of the
Iflues, the Court will give Leave to amend: As in the Cafe of
Giddins V. Giddi?is. But this is an Attempt to amend an IfTue at
Law, AFTER a FerdiB has been found on the Iffues upon Facts,
and contingent Damages found upon the Demurrers : Of which,
there never was an Inftance. And We do not know where it would
end ; Nor do I well know how the Caufe could be again carried
down to Trial.
If this had at firft: gone down to IfTue ; and had been found
againfi the Defendant ; It would have carried Cofts.
The Court cannot help feeing that this is upon Record : Here
are VerdiSls and contingent Damages found. Therefore We cannot
help this : I wirti We could ; becaufe the Merits feem to be with
the Defendant.
The Cafes of Amendment cited are where the Whole is fup-
pofcd to be in Paper : Or elfe the Court could not have done
if. We have no Authority to do this, after 'tis plainly upon
Record.
Mr. Juft. Foster concurred.
Per Cur' unanimoufly Judgment for the
Plaintiff upon the Demurrers.
Roberts
Barter Term 30 Geo. 2. 323
T
Roberts verf. Peake. ^uefjay 1 7th
M. 29 G. 2. Roth 625.
(Lord Commijfioner Wilmot abfent^ in Chancery.)
HIS was a Special Cafe referved at Nifi prius at Guildhall,
on a Trial there before the late Ld. Ch. J. Ryder.
It was an Aflion upon a promijfory Note, brought by the In-
dorfee, againft One Defendant only; though the Note imported,
upon the Face of it, to have been made by two Perfons: And the
Declaration was upon the Note, as if \t had been an absolute
One, payable on the * Death of a Pcrfon named in it: Whereas it *F.antez26.
appeared, upon the Face of it, to have been given upon two feveral G-j^y.Neiron,
Conditions. For the Note when given in Evidence, came out p"y*(j,g°^j,g^
to be thus " We (naming the Defendant Peake and another Per- Defendant
" fon) promife to pay io A.B. i\6l. lis. (Value received,) on the [J°^|'^^f°/"g';
" * Death of George HeijJJmw: Provided He leaves Either of Us ^^i^yt^gjhen
" fufficient to pay the faid Sum, Or if We Jhall be otherwise that was to be.
" able to pay it."
Signed by Peake only.
And yet it was laid in- the Declaration, merely as a Promiflbry
Note abfolu^ely and^p all' Events payable on the Death ofG.H.
Mr. T". Clarke of Lincoln' s-Inn — pro ^er.
The two Queflions upon this Cafe are —
ift. Whether this be a negotiable Note.
2d. Whether this Note, given in Evidence, fupports the Decla-
ration; which is upon an absolute Note payable on the Death
of G. H.
Firft Point — There can be no Doubt but that if the Note given
in Evidence had 7iot had the Provifo added to it ; but had merely
been made payable on the Death of George Henfiaw, it had been a
good negotiable Promiflbry Note, within the Statute of 3 ©* 4
Ann. c. 9. [§. I.]
For
324 Eader Term 30 Geo. 2.
For the Conthgei^cy of the Death of G. H. is «o? fuch an un-
certain Contingency, as that the Event may poffibly or probably
never happen ; And fo the Note might perhaps iicocr become pay-
able: But it is an £ww^ certain ^W necrssary; and wo other-
ivife, nor in any other Refpedl uncertain, than merely as to the
particular Time when it will happen. So that it is no more than
the ordinary Cafe of a PromilTory Note payable at a future Day.
ind to prove this Doftrine, and that this is a negotiable Note,
cited 2 Strange 1217. the Cafe oi Cooke v, Colehan full in Point;
Ar
He ci
being " to pay, &c. within Six Weeks after the Defendant's Fa-
" ther's Death." i Stra?2ge 24. the Cafe of Ajidrws v. Franklin:
ftill ftronger; being " to pay, ^c. within two Months after fuch
" a Ship Jhall be paid off."
Then as to the Frovifo or Condition, it is made ahfolutely pay-
able, on George Henjhaw'% Death, an Event which laill ceitainly
happen: Therefore the Frovifo is repugnant to the Body of the Note.
And he endeavoured to (hew a Refemblance between this Cafe, and
that in 2 Salk. 463. the Cafe oi Welti v. Tregufan; and the Cafe in
21- £.4. 36. zvidi Brooke, Obligation 58. [S. C. abridged.]
Second Point — The Note produced in Evidence will fupport the
Declaration.
ift Objeflion is " That the Note is only laid, as the Defendant's
*' feveral Note:" Whereas it imports upon the Face of it, to be
made by two Perfons, jointly.
Anfwer. Perhaps One only 7?g-«^^ it: Or if the Other did alfo
fign it, it was, neverthelefs, equally the Note of the Defendant. It
is laid, and muft be pleaded according to its /co-rt/ Operation, i Strange
76. the Cafe of Butler v. Maliffey is moft diredly in Point.
2d Objedion. " That this is laid as an absolute Note, imth-
" out mentioning the two Conditions," (of being payable) " (F he
" fhall be able;" or " if Henjlaw fliall leave either of them fuf-
" ficient to pay it."
Anfwer — But I fliy that this Note produced in Evidence, which
contains thefe two Conditions, will fufficiently fupport the Decla-
ration.
In nfiempting to fupport this AfTertion, he mentioned 6 Mod.
228. the Cafe uf Roberts v. Harnage. 2 Salk. 659. S. C, 4 E. 4. 29.
and I grange 76. the Cafe oi Butler v. Maliffey, before mentioned.
3 Mr. Norton
Eafber Term 30 Geo. 2. 325
Mr. Norton for the Defendant was about to fpeak: But
Lord Mansfield ftopt Him, and faid, I fancy you will hardly
argue this: (meaning that it was fufRciently clear on Mr. Norton's
Side of the Queftion.)
Mr. Norton — This was an Adlion brought by an Indorfeej and
is under very particular Circumftances.
I agree that a Note in the Name of two, and importing to be
made by two Perfons, may be adually figned by One only and
will be good : Alfo that a Note may be declared upon, according
to it's legal Operation.
As to the reft — If the Court was clear, He faid He would not
trouble them.
Lord Mansfield — I am very clear.
This Note was payable upon a Contingency: But it is not an ab-
SOLU \ E Note. What would it fignify, to have put in all thefe
Contingencies, if the Party was abfolutely and at all Events bound
to pay it upon the Death of George Uenfiawl Moft manifeftly, it
was not intended that he fliould be bound to pay it upon George
Henjloaiv's Death, at all Events.
Therefore this is not a negotiable Note: For a Note payable upon
an uncertain Contingency, is ?iot a negotiable Note.
Mr. Juft. Denison concurred.
A Note payable eventually upon an uncertain Contingency can
never be a negotiable Note. And if it had been fo, yet there ought
to have been^an Averment " that George Henjl^aw did leave One of
" them fufficient to pay itj" or " that the Defendant was other-
" wife able to pay it."
And indeed this fhews plainly that it is not' z negotiable Note
within the Meaning of the Adl of Parliament; which means and
intends an abfolute Note payable at all Events.
And I think too, that it is a Variance in the Declaration, from
the Note itfelf, ^or want of Jetting out thefe Conditions: It ought
to have been fet out, as it really was.
4O But
326 Eafter Term 30 Geo. 2.
But indeed Onfe of thefe Points depends upon the other: And I
think this Note is only eventually and conditionally payable; and by
no Means abfolutdy arid at all Events.
Mr. Juft. Foster concurred both as to the Variance-, and alfo
that it was not a negotiable Note, as being payable evetitually, and
72Ct abjolutely.
Per Cur. Judgment for the
Defendant as upon a Nonfuit.
Denn, ex ciimiff. Burges, Vid. V2f~f. Pufvis et al'.
THIS was a Special Cafe, upon an Ejedment tried at Maid-
Jlone Affizes, in Aiiguji laft.
Richard Burges, being feifed in Fee Simple of divers Gavel-kind
Meffuages, Lands, Tenements and Hereditaments in the feveral Pa-
riflies of Z/. M. B. M. and H. made his Will in Writing, on 15th
Feb, 1735: and thereby devifed his faid Mefluagcs, Lands, &c. to
his Wife £//s^/^^/^ for her Life; with Remainder to his Brother
Thomas Burges, in Tail Male; with Remainder to JVilHam Burges
(Sffin of his late Brother John Burges) in Tail Male; with Remain-
der to his own right Heirs for ever. And the faid Richard Burges
died without IlTue, and without revoking or altering his faid Will.
And the fiid Thomas Burges and William Burges are fince dead
without Iffue.
On 8th September 1746. the faid Thomas Burges made his Will:
Whereby He devifed All his real Eftate in the feveral Pariflies afore-
fuid, to his Wife Ann Burges, for her Life.
On 6th March IJSS- the faid Elizabeth Widow of Richard
Burges died.
In Ea^er Term 29 G. 2. the faid Ann Burges, the Devifee of
the faid Thomas B. brought her Aiflion ofEjedment, for a Moiety
of the above Gavelkind Lands and Prem"Tes, upon a Supposi-
tion " that her Teftator Thomas, (as the Brother of the fiid Ri-
" chard,) and William B. (as the Nephew of the faid Richard,)
" ivcr'e the only Heirs of the f .Id Richard, at the Time of his
" Deceafe, according to the Cuftom of Gavelkind; and, as fuch,
" intitledto the real Eflate of the faid Richard in Moieties."
3 On
Eailer Term 30 Geo. 2.
j^/
On Trial of this Ejedment, it appeared, in the Courfe of the
Evidence, " that the laid Richard Barges, at the Time of his De-
" ceafe, left a Nt'ece (named Mary) the only Child of William
" Burges, One other Brother of the Tcftator, who, by the Cu-
" ftom of Gavelkind, was iiititled as Co-Heir, TOGEXREk with
" the laid T^/ww^i (the Brother) and William (the Nephew of the
" Teftator,) to the PremilTes in Queftion."
Whereupon, by Confent of Parties, it was ordered by the Court,
that a Vcrdidt fliould be given for the Plaintiff, as to One third Part
of the PremilTes in the Plaintiff's Declaration fpecified; fubjed ne-
verthelefs to the Opinion of the Court oi King's Bench, upon a Cafe
to be ftated upon this Point — viz.
" Whether the Plaintiff, o?i her Declaration for a Moiety of
" the Lands, Tenements and Hereditaments therein mentioned,
*' can RECOVER One TViiKD Part offuch Premiffes."
Which Order of Nijiprius was afterwards regularly made a Rule
of this Court.
And it came on now. In the Special Paper, to be argued.
Mr. Knowler, being Counfel for the Plaintiff argued—
That the Leffor of the Plaintiff muft recover according to
his Title.
And this is fo. Whether the Ejedment be brought for an undi-
vided, or a feveral and divided Part: for the whole, or for Part of
a Thing; for an Entierty, or for a Moiety.
In Ploivd. 420, 424. b. Bracebridge's Cafe — the Reporter blames
Hinifelf for not having objeded to the Verdid. But 3 Buljlr.
1 84. the Cafe of Coivper v. Frankline, and many other Cafes ex-
plode Plowdefi's Notion " that the Verdid was liable to Objedion
" upon that Account."
Here, the Declaration is for One undivided Part; and the Ver-
did, for another undivided Part. Which is fiot a mate?'ial Vari-
ance from the Declaration, fufficient to prevent the Plaintiff's ha-
ving Judgment.
For there is ho Neceffity that the Verdid fliould agree prccifely
with the Declaration. All that is necellary is, that the Thing, for
which the Verdid is given, fliould be comprized in, and be Part
tf the Thing demanded by the Declaration.
And
328 Eafler Term 30 Geo.
And it could be upon no other Foundation, that the Cafe was de-
termined, which is mentioned in 2 Ro. Abr. Tit. Tr/W, fo. 704.
pi. 22: Where an Ejeclment was brought of a MeiTuage ; And it
appeared in Evidence, and was fo found by the Verdid, " That
" only a fmall Part of the MefTuage was built by Incroachment on
" the Leffor's Land j 7iot the Refidue j and yet the Plaintiff" had
" Judgment."
Here, the Declaration is for a Moiety ; to which it was then fup-
pofed that the Leflbr of the Plaintiff" had a Right, as Devifee of One
oU-ivo Brothers of the Teftator. Indeed it came out upon Evidence,
that the Teftator really left three Brothers and Co-heirs : So that
the Leflbr of the Plaintiff" had in Fadl a Title to a third Part only.
And the Verdidt is accordingly, for a Third.
But the Moiety includes the 0}ie Third. So that what is reco-
vered by the Verdid, being contained in, and being lefs than what
is demanded in the Declaration, this Cafe muft be ruled by the
Ground I have already mentioned, " that the Leflbr (hall recover
" ACCORDING TO his Title." And in Point to prove this, is the
Cafe in i Siderf. 229, of Ablett, Lejfee of Glenhain, v. Skinner:
Where the Declaration was of a fourth Part of a fifth Part; And
the Leflbr's true Title was only to f o/" 7 of a fifth Part ; (which
was CNLY A THIRD Part of what was demanded :) Yet it was re-
folved " that the Verdid fhould be taken according to the Title."
Mr. Biirrcll, for the Defendant, premifed that this was a hard
Cafe ; and therefore deferved Favour, and juftified the Defendant's
infifting on all legal Objedions. Then He urged that the Plaintiff"
muft fliew a clear Title to make fuch a Leafe as is confefled by the
Defendant : And, as he k?iows his own Title, he ought to fet it forth
AS /'/ is.
In the Cafe of Berington ex dimijf. Dormer v. Parkhur/l • toG.
2. B.R. and in Dom. Proc. May 1738. H. 1 1 G. 2. The Court
held that the Plaintiff^ could not recover j becaufe the Demife was
laid before the Time of Adlual Entry : And the Leafe was holden
void in its Creation.
And if the Leafe is laid a Die Datus, it will not fupport an Entry
npon the Day.
Two Tenants in Common cannot declare upon a joint Leafe. So
is Cro. fac. 166. The Cafe of Mantle v. JVollington.
Z Cotnberb,
Eaiter i erm 30 Geo. 2. 329
Comherb. 1 90. in the 'Cafe of Moore v. Parfidon, One Habendum
to two Demifes, was indeed holden well enough, on Error broii<»ht.
3 Lev. 334, 335. The Cafe of Goodwin v. Blackman, was an
Ejedment of the tenth Part of a Mefluage defcribed as being in
/ii'5 Parifhes, whereas the v/hole lay in One of them only : It was
Holden that the Evidence did not maintain the Declaration j which
was precifely, of the tenth Part of an entire Thing.
Hardres 330. In the Cafe of Wheeler v. Toulfon, The Court in-
clined that a Demiie de Herbagio et Fannagio^ did not maintain a
Declaration for the Land.
And he fuppofed there might be a Difference between Trefpafs,
and Ejedlment : And concluded with praying a Rule for a Non-Suit.
Mr. Knowle?' in Reply — Here, the Plaintiff's Title was not known
to Her: For She fuppofed only two Brothers; And it comes out
that there was a third.
And the Queftion is Whether She can recover under this Title.
The Plaintiff here ftands in the Place of a Coparcener : And
therefore She may bring her Ad:ion for her Part, by Herfelf.
The Cafe oi Ablett v. Skinner, in i Sid. 229, is in Point : 'Tis
the very Cafe, as to the Recovery being lefs than the Demand.
Therefore He prayed that the Plaintiff might be at Liberty to
enter up Judgment on this Verdid.
Lord Mansfield —
This is an exceeding plain Cafe. The Rule is undoubtedly right,
** That the Plaintiff" muff recover according to his Title." Here,
She has demanded half ; And She appears intitled to a third :
And So much fiie ought to recover.
Mr. K'7oivler's Principles, and his Authorities are Both right:
And the Cafe of ^blett v. Skinner, which He cites from i Siderf.
229, is in Point.
And fo if You demand 40 Acres, You may certainly recover 20 :
Every Day's Experience proves this.
4 P And
33c> Eader 1 erm 30 Geo. 2.
And Co it is, in an AiJife : Part may be recovered, on a De-
mand for the JVhole. And no poflible Objedion can be made to
this. For if more is laid, there is no Reafon, why lie fliould not
recover less : Though the Reverfe indeed will not hold ; viz.
That if he demands Itj's, he fliall neverthelefs be intitled to recover
more.
Mr. Juft. Demi SON concurred — And faid, He thought the Cafe
of Goodwin V. Blackman, cited by Mr. Burrcll out of 3 Lev. 334,
335. was a Grange Cafe. And the Cafe therein cited, (/'■ 355.)
44. AJjife 27, of au Aflize of a Mill, and a Recovery of only Part
• It is put fljof it is a ftrong Cafe * againft it. And that principal Cafe reported
R orter^- ^ ^" 3 ■^'■'^- 334- ^^ Contrary to all Experience. And Lcvinz there
who makes a cited feveral good Cafes, on Behalf of the Plaintiff; which the
s>u^r,, as to Court; did not deny.
ihe Authority ■'
of the princi-
pal Cafe, and Mr. Juft. FosTER coucurred. And faid the Cafe in Siderjin was
cites this old ij^ PqJj^j^ t-j ^lJ^f.f 229.1
Cale in order >■ "^ ^ -^
to invalidate
the Court's Per CuK. unanimoudy
Let the Pojlea be ddlvered to the Plaintiff, in order
to enter up Judgment for the Plaintiff.
])etermin»-
tion
A
Whifkard, Aflignee &c. verf. Wilder.
Demurrer to a Declaration on a Bail-Bond.
Mr. JVhitaker, for the Defendant, Objefted that the Declaration
ought to have particularly fet forth " that the Debt was fworn to
" by the Plaintiff; and that the ^uxn /worn to be due, and for
" which the Defendant wss holden to bail, was marked on the
" Writ." F'or he alledged that without fliewing this, here was no
SUFFICIENT Authority to arrest the Defendant : And confe-
quently the Bail-Bond is not good, fince the kdi of 12 G. i. f. 29
but void. And he cited i Strange 399. The Cafe of Mtlh v. Bond
Where the original Procefs was returnable at a Day out of Term
And it was therefore holden a void Procefs.
Now here it is not fliewn, " That the Debt was to the Amount
" of 10 /." nor is the Sum due fworn to, or the Writ marked : All
which are ejfentially requifite by the faid Adt of 12 G. i. f. 29.
Sedions i &■ 2.
Serjeant
Eafler Term 30 Geo. 2. 331
Serjeant Poole, for the PlalntifF, argued t' contra. That the Decla-
ration is good, in it's prefent Form.
It is an Adion brought by an Affignee of a Bail-Bond ; Vv^'hich
he properly fets forth ; and then flievvs the Bond to be forfeited :
Which is the ivhole that is neceffary for the Plaintiff" to fliew.
And if the Sheriff has holden the Defendant to Bail, when he
ought not, or improperly ; the Remedy of the Defendant for that,
is (igaiiift the Sheriff': But the Bond itfelf is good, and not void <
(however voidable it might poflibly be by Plea.)
And he faid he would mention a very late Cafe, in Proof of his
Pofition : Which Cafe was, by Name, Norden v. Horjley, deter-
mined laft Week, in C. B. It was an Adion on a Bail-Bond, taken
for wore than the Sum fworn to ; And this Statute of 12 G. i. was
pleaded : But the Court held the Statute to be only diredlory ; and
over-ruled the Plea.
Nor is it USUAL to infert this in the Declaration.
Mr. Juft. Denison — It is often done, and often not: I have
often feen Declarations of both Sortsj fome, one way j
fome, the other,
Mr. Whitaker, in Reply. My Objedion is, " That there is not
" a fufficient Authority fet forth, for the Sheriff to arrest the De-
" fendant." And there is no need to plead this: For it is a void
Bond.
3 Lev. 74. The Cafe of Graham v. Crawffm'w, proves the Bond
taken upon an impoffible Condition, to be contrary to the Statute of
H. 6. (23 H. 6. c. 10.) and to be void by it.
And fo, thii Bond alfo appears, upon the Face of the Declara-
tion to be a void Bond, as being contrary to the Statute.
And 12 G. I. makes this Circumftance ejfential to conftitute a
legal Procefs ; and muft have Reference to the Statute of the 23d of
Henry 6th.
And this is not like the Cafe of Norden v. Horjley in C. B :
Where the Bail-Bond was only taken for a greater Sum.
Here, the Arreft was void: And confequently, the Bail-Bond
was void, too.
Lord
n O 1
Eafter Term ^o Geo. 2.
XiORD Mansfield — This has not been thought neceffary to be
fet forth, till this Time, ever fince the making the Adl of 12 G. i.
iVor does it, upon Reading the Adt, appear to be an essential
Jlequilite to the Validity of the Bail-Bond, nor in the Nature of a
Condition precedent to it. But on the contrary, the Statute of
12 G, 1. appears to be ofily directory to the Sheriff. So that
though the Sheriff' may be Himfelf anfioerable for fuch an Omiffion,
yet the Bond is not void.
And I think, it is properly likened to the Cafe of taking Bail for
a larger Sum.
In both thefe Cafeg, the Sheriffs (or perhaps the Plaintiff,) may
"be anfwerable or punifhable : But the Bond is 7iot void.
Mr. Jufl;. Den I son concurred — He feemed to wonder that this
Point had never yet been <ietermined.
He thought the Plaintiff was not, in Point of Law, obliged to fet
this out, in order to intitle him to his Adiion : Though it certainly
has been often done, pro majori Cautela.
This Original Aftion appears to have been an Acetiam for 50/.
And a good Precept is fet out. Therefore the Defendant ivas liable
to be arrejied. And it is let out " that he was arrejled." This Ad:
of 12 G. I. does not make the Proceedings void, in Cafe the Defen-
dant be arrefted without Affidavit and marking the Sum fworn to,,
upon the Back of the Writ: It onfy prohibits the Sheriff and
Plaintiff from doing it. And they may indeed be Hable to an
Adlion upon the Cafe for it ; (though perhaps not to an Adlion of
Trefpafs :) But it does not make the Bail-Bond void.
Therefore I think there is enough fet out, in the Declaration, to
smaintain this Adtion of Debt upon the Bond.
Mr. Juft. Foster concurred. The Adl of 12 G. i. is only direc-
tory : It does not make the Procefs void. And as this Objection has
never been taken bej'ore from the Time when the. Aft of Parlia-
jiient was made; I think it ought to be difcouraged now, (after
upwards of 30 Years.)
And if the Fadl was fo, " That there was no Affidavit," the De-
fendant might have been relieved in a much eafier Method ; by apply-
ing to the Court, or to a Judge to be difcharged upon Common Bail.
Per Cur. unanimoufly
Judgment was given for the PiAiNTiFF.
.3 Henry
Eafler Term 30 Geo. 2. 333
Hemy Earl of Carlifle verf. Armftrong et al'. Wedm/day
l8tb Maf
«7S7-
(Lord CommiJJioner Wllmot abfcnt.)
'np'HIS was a Trial at Bar on the Civil Side of the Court.
Three Queftions were to be hereby tried.
ift. Whether, upon the Death or Alienation of the Tenants of
the Barony oi GilleJJand m Cinnberland, a reajonable arbitrary Fine
at the Will of the Lord^ be payable to the Lord, or not.
2d. Whether the Tenants have Liberty to let for three Years,
or mortgage, without Licence of the Lord, and without payijig any
Fine at ail.
3d. Whether they had Liberty to exchange, (Sc. without Licence
or Fine.
But the Defendant's Counfel faid they did not intend to infift
on the 2d. Queftion, fo that the firft and third only remained in
Difpute.
About Six in the Arternoon this Trial ended in a Verdict
for the Plaintiff, upon all the three Ifllies.
Rex verf. White and Ward. ^'■'^'>y ^°^^
'^ May 1757.
~* H E Defendants had been convided of a Nusance in erec-
ting and continuing their Works at TiJiickenham, for making
acid Spirit of Sulphur, Oil of Vitriol, and Oil oiAquafortis. The
Indidment run thus, wx:. That "at the Parish oi 'Iwickenham^
" ^c. near the King's Common Highway there, and near the
" Dwelling-Houfes of feveral of the Inhabifi^nts, the Defendants
" erefted 20 Buildings for making noifome flinking and offenfive
" Liquors; and then and there made Fires of Sea-Coal and other
" Things, which fent forth abundance o^ noifome ofenfive and ftinh-
" ifig Smoke; and made, &c. great Quantities of 7ioifome offenfive
" Jiinking Liquors; called, &c. whereby and by reafon of which
" noifome offenfive and ftinking, Gfc. the Air was impregnated with
" noifome and of e?ifive Stinks and Smells; to the Common Nufance
" of all the King's Liege Subjedts inbabiting, &c. and travelling
" and p3.{ring the faid King's Common Highway; and againil: the
*' Peace, &c."
4Q_ Sir
334 Eader Term 30 Geo. 2.
Sir Richard Lloyd — for the Defendants — (on Monday 15th A^o-
vember 1756,) would have movtd 2l mixed M.o(\on; viz. both for
a Jiew Trial, and aljo in Arreft of Judgment; or, at leaft, in Ar-
reft of Judgment ^r/?, and for a new Trial ofterijuards. But
TuF, Court held that neither of thefe Methods could confift
with the General Rule of the Courts or with ^particular Rule
made in this Cafe, to give them Leave to move cither of thefe Mo-
tions on this Day, though the 4 Days given upon tlie Pcftca were
expired. Whereupon Sir Richard was obliged to begin with the
Motion for a 7100 Trial. And He faid that this Indidment was
laid for making a Liquor, from whence the Air was impregnated
with fJoxicHS, hurtful, un'wholfome, and {linking Qualities: And the
Englifi Word " noxious" anfwers to the Latin " nccivus." But it
appeared He fiid, upon the Evidence, that the Fumes, however of-
fenfive and difagreeable to many Perfons, were by no Means in re-
ality noxious, hurtful or univholfome ; but thc'contraiy.
Rule to fliew Caufe: With this Addition, — " That the Defen-
" dants fhould have 3 Days Time to move in Arreft of Judg-
" ment; <7//<t the Court (hall have given their Opinion upon
" the prejcnt Motion, for a new Trial, as upon a Verdid:
" AGAINST Evidence.
On Tuefday the 23d of the fame Montji, Mr, Juft. Df.nison
reported the Evidence; which was of great Length, He faid, there
being about "j <^ WitnefTes on each Side: However He colledled
the Suhjlance of it together in his Report. It appeared to be very
flrrong on the Part of the Profecution: And He declared himfelf
fail fed with the Verdidl, And it appeared upon his Report, that
the Smell was not only intolerably offenfive, but alfo noxious and
hurtjul, and made many Perfons fick, and gave them Head-Achs.
Mr. Juft. Foster fiid that " Noifome" and " Noxious," were
fynonvmons Terms; and that there was no other Latin Word for
" noxious," but " fwcivus."
The Rule was therefore discharged, as to Setting afide the
VerdiB.
On the Saturday following. Sir Richard Lloyd, Mr. Norton, Mr.
Serjeant Heicitt, and Mr. Nares, moved in Arreft of Judgment;
(which was not yet figncd.) They objecied to the Indiclment; It
being \a\^ generally, at the Parish of Twickenham', and only faid
" near the Common Highway;" but not faid to be in the Town
or Village: It may be upon a Heath or Common, for Aught that
2 appears
Eafler Term 30 Geo. 2. 335
appears to the contrary. Though it appears by 2 Ro. Abr. 139.
Title Niifance Letter F. pi, 2. Rmikett's Cafe: that making Candles,
even in a Vill, which caufed a noifome Scent to the Inhabitants,
has been holden to be 7io Nufance.
But here, no Offence is predfely laid. It charges " that by
" reafon of the noifome offenfive and {linking Smoke, the Air was
" impregnated with noifome offenfive Stinks and Smells:" which
are vague uncertain Terms. As to " mifome" V. MmfJjew^ and
Skinner's Etyinologicon.
Tremaine's PL Cor. 195. Rex v. Brookes (for keeping a Glafshoufe)
ufes the Words " uu'wholfome and dangerous y Ibid. 198. Rex v.
Cole, (for a Nufance in keeping a Soap-boiler's Furnace,) " iwwhol-
" fotne, turpibus, periculo/ijimis, contagious and infeBious." Here,
'tis only faid to be " Jioifotne and o£enftve." It ought to have been
laid precifely and particularly. * 2 Hawk. P.C. 184, 185, 1 86. » But all tlii*
" Hurtful" is alfo a vague Term. It ought to have been laid to ''«''''" ""'^ "»
1 ■ r / • JndiamenU
be infalubriOUS. ^^ Murder
and Maa-
As to the vague Term, "Near," there was a Cafe of ^H^e^^l^f^"^^^^
v, Broadbent, Pafcfj. 1745. B.R. where a Cuftom to lay Rubbifh cemNufancw.
«^tfr the Eye of a Coal-pit was held bad: though that was a Civil
Suit, and the Cuftom found by a Verdicfl. Much more, upon an
hidiclment. And this is a lawful Trade; and can become a Nu-
fance only by Accident, viz. by being fo to a Tcicvz or High-road.
It can be indiiftable only for being exercifed in the Heart oi a. Town.
For, according to 2 Shonv. 327. Rex v. Pierce, " Such Trades
" ought not to be in xkit principal Parts of the City; but in the Out-
" Skirts." And the Court will not here prejiime that this was in the
Town. Befides Hurtfulnefs is the Gijl of this Indidtment. Pahn.
198, 199.
Serjeant Davy, Mr. Allon, Mr. De Grey, Mr. Stow, and Mr.
T'hurloia, contra, for the Profecution, anfwered, that " Ncifonie"
conveys indeed a complex Idea; but dill includes "Hurtfulnefs."
It ftands in the Place of the Latin Word " nocivus," and certainly
imports a Nufance. 2 Ro. Abr. 139. Letter F. pi. 2. Rankett's Cafe
of a Tallow-Chandler is as it has been cited: But i Hawk. P.C.
Pa. 199. c. y^. §. 10. Wonders at and difputes that Determination.
" Near" is fufficiently certain; and was as particular as the Na-
ture of the 'Thing would admit: For it was not equally near to all
the Houfes. And after a VerdiB, it Ihall be intended to be fo near
as to be a Nufance.
• As to the Cafe of Wilkes v. Broadbent — A Prefcription muft be
certain: Befides, that was laid too extenfive and arbitrary. But
here.
i
33^ Eafler Term 30 Geo. 2.
here, it's being laid " at the Parijl} of Tivickenhani' is fufficient.
And in Fadt, it is a very populous Place.
They cited Jacob Hall's Cafe i Mod. 76: who had erefted a
Rope-Dancer's Stage at Charing-Crofs. Per Hole, Ch. J. " It be-
" comes a Nufance to the Parifi." That was the Foot he put it
upon. And this Indidment of ours is laid extenfively enough to
he a. Common Nufuice; though not a. puMc One: Nor did it, in
Fad:, afte(5t other Perfons than thofe living and paffing ?iear it.
Their Objedions come too late, after Verdidl: For it is a mere
Matter of Evidence, " Whether it was noxious, or not." And 'tis
plain that the Defendants underjlood the Word " Noxious" in the
Senfe of " Unwholfome;" becaufe they defended thcmfelves upon
tbai Foot, and examined many Witneflcs ahitt the Unvvholfome-
nefs of the Stench. In Cro.Car. 510. Tohayle'^ Cafe, (there cited in
the Cafe of Morley v . Fragnell,) Eredling a Tallow-Furnace crofs the
Street of Z)t';;/?7^r^ Houfe in the Stratui was adjudged a Nulance,
and to be removed. Nay, an ojfenjroc Stench is of itfelf a Nufince;
even though it fhould net be ftridlly hurtful. An Indidment
merely for a Stench would have been goodj even mithont any Epi- 11
thets. It depends upon rendering the Property of other Perfons in-
commodious and uncomfortable to them: And this Point is to be tried
by a Jury, " Whetlier the Thing be xe&Wy fiich a Prejudice or In-
" commodioufnefs to the Neighbourhood, as amounts to a Nu-
•' fance." And here the Jury have found it (o.
And as to the Place — That alfo is Matter of Evidence. The
Court can not take Notice, ex officio, of the Boundaries of the Pa-
rifli of '^n.uickenkam. It is the Concourfe of People that this Point
mud: depend upon. And " 7iear" is the Ifrongeil Word that We
■ could v\k, agreeably to the Circumftances of this Cafe. And the
■Jury, who have examined it, have found for Us.
Sir Richard Lloyd in Reply — Aflerted that the Epithet " Offcn-
" five," alone, would not be fufficient. And as to the Word "near,"
He obferved that the Jury have not found hcio near it was. And
the laying it generally " in the PariJJj" at large, does not fliew that
it is a Fad indidable: For it might be at a vafi: Diftance from any
Houfe, or Place of Refort.
Lord Mansfield thought there was nothing in the Objedions:
Which, he faid, are reducible to 3 Heads j viz.
J ft. That there is no fufficient Charge of the Hut/ulnefs;
2dly. That it is not precifely charged, " /o whom" the Hurt is done;
3diy. That
2
Eafler Term 30 Geo. 2. 337
3dly, That it is only laid generally, " in the Parish of Tivic-
kenhatn."
Pirft — The Jury hzve found " that // is to the Common Niifance
" of the King's Subjects dwelling, &?<:. and travelling, Gfc."
And the Word "noxious" not only means "hurtful and of h five
" to the Smell;" but it is alfo the Tranflation of the -very tech-
nical Term " nocivus;" and has been always ufed for it, ever fince
the Adl for the Proceedings being in Englif.
But it is NOT neceffary that the Smell fhould be unnvholfome: It
is enough, if it renders the Etijoyment of Life and Property a»-
comfortable.
Secondly — The Perfons incommoded are fufficiently defcribed:
And the Offence is charged to be to the Common Nufance of Perfons
inhabiting and travelling near, &c. And unlefs they had been so
7iear as to be hurt by it, the Indidlment could not have been proved.
Whereas in the Cafe of Wilkes and Broadbent, it was quite timer-
-tain how ?iear, the Rubbifh might be laid.
Thirdly — It is fufficiently laid, and in the accuftomed Manner.
The very Exiftmce of the Nufance depends upon the Number of
Houfes and Concourfe of People: And this is a Matter of Fa6l, to
be judged of by the Jury. And in the very Cafes in Tremaine
195. of a Glafshoufe, and 198, of a Soap-boiler's Furnace, — they
are laid \n Parifes, " apud Parocb' 6cc," Therefore there is no
Foundation for the Obje<ftions.
^^- Mr. Juft. Denison — There is a fifficient legal Certainty in this
Indiftment: So that the Defendants liad an Opportunity of making
a proper Defence at the Trial.
Upon a former Trial, the Indidment then before the Court
charged the Air to be corrupted. 'This prefent Indidment is better
expreffed. The Word " noxious" includes the complex Idea, both
of Infalubrity and Offenfivenefs. And there was no Need to fpe-
cify particular Inftances of the Effedts of it. There is nothing in
zdly.this Objeflion. And it is alfo fufficiently charged, to whom the
Nufance is done.
3'^'y- As to the laying it in a Parifo — It is llkewife fufTicient. In the
Cafe of the Ki?ig v. Bloiver, Hil. 27 G. 2. B. R. The Court declared
they would take the Vill and the Parifh to be co-extenfive: And
they held that there were only two Cafes where it was neceffary to
4 R lay
338 Eafter Term 30 Geo. 2.
lay a Vill; which were upon the Statute of Additions (where you
are tied up to the Vill,) and in an Appeal of Death, upon the
Statute of Gloucejier, cop. 9. The Defcription of being "pkope
" altam 'oiam regiam," is the Common Method. And it is laid ad
fow;OT/;;£' Nocumentum: And the Jury hxvt found it , as it is laid.
Therefore 1 think 'tis in legal Form.
"O
,11. Mr. Jufl:. Foster — The only Queftion is "Whether the Fadt
" laid trjiplies a Nufance." I think it does. Otherwife, the mere
Laying \i to be ^^ ad commune Nocumentum," would not perhaps
2dly. help it. This is certainly a C(5Wff«)«. Nufance. And "near the
" Highway and Dwelling-houfes," is properly alledged, in order
to Ihew it to be fo. V. i Strange 686, 687. Rex v. Pappineau H. 12
G. I. B.R. in Point, accord. It never was objeded that laying a
*V.\E.6. Robbery " in ok NtAk" a * Highway, is bad: No; 'Tis Matter
'^^i* '° of Evidence. [Note — Mr. Juftice M^ilmot was abfent, in the Court
^ ^' of Chancery.]
So that the Court were unanimous in denying the Motion.
Yet ISJ.B. That (according to the ufual Courfe in like Cafes)
no Rule at all was here taken in the Rule-Book: Only, the
Counfel for the Defendants took nothing by their Motion^ in
Arreft of Judgment.
On Thurfday 5th May 1757. On a Motion for the Judgment (or
rather Sentence) ot the Court upon the Defendants, for the Offence
whereof they flood convidled, — It appearing that the Nufance was
abfolutely ki: moved; (the Works being demoliJ1:ed, and the Mate-
rials, Utenfils and Inftruments, all fold and parted with;) They
were, upon entering (Each for himfelf only, and for fuch as aded
for or under him) into a. Rule "not to renew them," o'c\\y Jined
bs. 8rt'. each. But on a Difpute afterwards arifing, how the Rule
fliould be drawn up, It was on Friday 20th May fettled by the
Court, to be thus — " By Confent of Counfel on both Sides, It is
' ordered that, upon the Defendant Ward's undertaking that nei-
' ther He nor any other Perfon by his Confent or DireSlion or for
' hi^ life or Benefit^ fhall for the Future make or caufe to be made
' in the Works lately carried on by the Defendant White at Tivic-
' kcuham, mentioned in the Indiftment in this Caule, any acid
' Spirit of Sulphur, or Preparations of Vitriol, or Oil of ylqua fori is;
' a Fine of 6j. 8^. be fet upon the faid Defendant Ward, for the
' Nufance of which He has been convicted." And
The Defendant White entered into a like Rule, mutatis mutandis.
3 Bond
Eafter Term 30 Geo. 2. 339
Bond 'verf. Ifaac. s.,turdaj z\9i
Uay 1757.
THE Defendant being brought into Court, in Obedience to a
Writ of Haban Corpm applied for by his Ball; and it being
agreed that He was in Cuflody of the Keeper of the Savoy ^ as an
imprcff'ed Man ; The Counfcl on Behalf of the Bail infifled upon
their Right to surrender bim.
Cur. (namely Lord Mansfield, Mr. Juft, Denifon, and Mr. Juft.
Fofter) had no Doubt of their Right : But only hefitated as to the
Difpofition of Him, after He had been furrendered. Lord Mans-
field mentioned the Ciaufe in the PrefTing Aift [F. 29 G. 2. c. 4.
§ 14. />. 175-) of not taking Him out of the Service. Mr. Jufl.
Denison cited two Cafes ; viz. i Strange 641. The Cafe of the
Bail of Boife and Sellers, in this Court ; Where the Defendants were
returned to be charged with two Civil Suits and feveral Exchequer-
Informations for Frauds in the Cuftoms : And when the Court was
fatisfied of the Reality of the Debts and Priority of the Adions here.
The Defendants were furrendered, and committed to the Marjlml.
And a Cafe in Tr. 22, 23 G. 2. Rex v. Chitty B. R. where the De-
fendant was returned to be charged with a Contempt in the Exche-
quer : He was furrendered by his Bail here ; and committed to the
Marfhal ; who was immediately ferved with a new Habeas Corpus^
to remove him to the Fleet.
This Man is a Soldier now : And by this Adl cannot he taken out
of the King's Service, but upon fome Criminal Matter : [V. the
Aft, as above.) So that it feems that He may be remanded to the
Savoy, in the prefent Cafe.
Mr. Juft. Foster — In the Cafes cited by my Brother Denifon, the
Proceedings were grounded on 25 E. 3. c. 19. (which enads
" that the King's Debtors fliall not be proteded from the Pro-
" ceedings of their other Creditors againft them :") And it was a
Matter oi Right. This is an Indulgence to the Bail, to permit them
to bring in the Defendant and furrender him. But We cannot
take him out of the King's Service ; this not being a criminal Mat-
ter : {F. utfupra, 29 G. 2. c. 4. § 14.) So that We may, after We
have entered an Exoneretur upon the Bail-Piece, remand him to
\ the legal Cuftody at the Savoy.
Lord Mansfield — We va^y frjl commit him to the Marflial ;
\nd then remand him, immediately, to the Savoy.
Suppofe
;4o Eader Term 30 Geo.
Suppofe him to be a Soldier at Large, (not in Cuftody ;) and that
his Bail were to bring him in, and furrender him : He muft be com-
mitted to the Cuftody of the Marjhal upon fuch Surrender ; but
injlanter Jet at large : And fo We may do here. And accordingly.
Per Cur.' He was, upon being furrendered by his Bail, firfl com-
mitted to the Cuftody of the Marflial : But the Marflial was Ordered
to deliver him injia?iter to the Keeper of the Savoy ; And He did
fo, immediately, in Court. And an Exoneretur was Ordered ta
be entered upon the Bail-Piece. V. Pojl.
Capron verf. Archer.
UPON a Queftlon concerning the Terms upon which the Bail
fliould have Time to furrender the Priticipal, after a Writ of
Error brought —
Mr, Juft. Denison and Mr, Juft. Foster, the only two Judges
in Court, held That it was the Allowance of the Writ of Error,
that was a Supcrfedeas to the Proceedings below ; And that the
Notice of its being allowed was only to bring the Party in Poffef-
fion of the Judgment below, into Contempt, in cafe he ftiould per-
fift in proceeding l\\cvex\}^on fubfeguently to fuch Notice. And there-
fore, as in the prefent Cafe, the Defendant's Writ of Error was al-
LowED BEFORE the Time was expired within which the Bail had
Indulgence to furrender the Principal, though notice of fuch
Allowance was not given to the Plaintiff's Attorney ////after the
Expiration of that Time ; The Court gave the Bail the fame Terms
as are ufual where they apply within the Time indulged to them
(by the prefent Courfe of the Court) for furrendering the Principal.
And accordingly, The Rule to fliew Caufc " why the Proceedings
'" upon the Writs of Scire Jacias iftued againft the Bail fhould not
" be flayed, until the Writ of Error Ihall be determined; The Bail
" undertaking to pay the Plaintiff the Damages recovered by the
■*• faid Judgment, or furrender the Defendant into the Cuftody of
" the Marlhal of the Marfhalfea of this Court within four Days next
" after the Determination of the faid Writ of Error, in Cafe the
" fame ftiall be determined in Favour of the Defendant in Error,"
• For the WaS MADE * ABSOLUTE,
clearer Un
Jelh
•which D\ew the DiJlinBion
Pell-
Eafter i erm 30 Geo. 2. 341
Pelly the Younger verf. Governor and Company of the ^'^""^^•y 23d
Royal-Exchange Affurance.
THIS came before the Court, upon a Cafe referved on a Trial
at Guiidbalt, before Lord Mamfield : Wliere a Verdidl was
found for the Plaintiff, fubjed to the Opinion of the Court. It was
an Adion of Covenant upon a Folicy of Infurance.
Cafe. The Plaintiff being Part-Owner of the Ship OnfiOii\ an
Eaji-India Ship, then lying in the Thames, and bound on a Voyage
to China and back again to London, infured it at and froni London,
to any Ports and Places beyond the Cape of Good Hope, and back' to
London ; free from Average under ten per CeJit. upon the Body
Tackle Apparel Ordnance Munition Artillery Boat and other Fur-
niture of and in the fiid Ship : Beginning the Adventure upon the
faid Ship Gfc. from and immediately following the Date of the
Policy ; and lb to continue and endure until the faid Ship, ivitb all
her Ordnance Tackle Apparel &c. fhall be arrived as above, and
hath there moored at Anchor 24 Hours in good Safety. And it
fliall be lawful for the faid Ship, in this Voyage, to proceed and
fail to and touch and fay at any Ports or Places whatfoever, with-
out Prejudice to this AlTurance. The Perils mentioned in the
Policy, are the Common Perils -, viz. of the Seas, Men of War,
Fire, Enemies, Pirates, ^c. &c. and all other Perils, Loiles and
Misfortunes, &c. The Premio was 7 Guineas per Cent, with the
ufual Abatement of 2 per Cent, in Cafe of a Lofs.
The Ship failed &c ; arrived in the River Canton m China ;
where She was to ftav, to clean and reft, and for other Purpofes.
Upon her Arrival there, the Sails, Yards, Tackle, Cables, Rigging,
Apparel, and other Furniture were, by the Captain's Order, taken
out of her, and put into a Warehcnfe or Storehoufe called a Bank-
Saul, BUILT FOR THAT PuRPOSE on a Sand-Bank or fnall
Ijland, lying in the faid River, near one of the Banks, called Bank-
Saul If and, about 200 or 220 Yards in Length, and 40 or 50
Yards in Breadth; in Order to be there repaired, kept dry, and
PRESERVED, till the Ship fliould be heeled and cleaned and refitted.
Sometime after this, a Fire accidentally broke out in the Bank-
Saul belonging to a Siirdip Ship ; and communicated itfelf to ano-
ther Bank-Saul, and from thence to the Bank-Saul belonging to the
Onfoiv; and confirmed the fame, with all the Sails, Tards, Tackle^
Cables, Rigging, Apparel, and other Furniture belonging to the
Onfoiv, which were therein.
4 S It "
342 Eafler Term 30 Geo. 2.
It was ftated that it was the univerfal and icell knoivn Usage,
and has been fo for a great Number of Years, for all European Ships
which go a China-V oynge, except Dutch Ships, (who for fome
Years part are denied this Privilege by the Chintje, and look upon
fuch Denial as a great Lofs,) " when they arrive near this Ban/c-
" Saul IJIarJ in the River Canton^ to unrig the Ship, and to take
" out her Sails, Yards, Tackle, Cables, Rigging, Apparel, and
" other Furniture ; and to put them on Shore, in a Bank-Saul built
" for that Purpofe on the faid Ifland (in the Manner that had been
" done on the prefent Occalion by the Captain of the Onjlow,) in
" order to be there repaired kept dry and preferved until the Ship
" Oiould be heeled cleaned and refitted." And the Cafe further
ftates that it appears that the fo doing is prudent, and for the Com-
mon and General Benefit of the Owners of the Ship, the Infurers,
and Infured, and all Perfom concerned in the Safety of the Ship.
The Ship arrived from her faid Voyage, in the Thames, in Sep-
tember 1755 ; (having been unrigged, and put in the bcft Condi-
tion the Nature of the Place and Circumftances of Affairs would
permit.)
Queflion. Whether the Infurers are liable to anfwer for this Lofs,
(fo happening upon this Bank-Saul,) within the Intent and Meaning
of this Policy.
Mr. Williams, for the Plaintiff, — after premifing that this Que-
flion arifes upon the Conftrudion of a Policy of Infurance ; That
thefe Policies of Infurance are of ancient Date j are beneficial,
as they tend to divide the Rifque ; and have been every where en-
couraged, in Trading Countries ; made thefe three Divifions of his
Argument.
ifl;. He undertook to prove that the Plaintiff's Demands are
founded on ftridl Jufiice j
2dly. That they are agreeable to both the Words and Meaning
of the Policy ; and fupported by Legal Determinations. —
3dly. He faid He would mention the Opinion oi foreign Law-
yers, upon the Subjedl.
Indeed it has been objeded " that this is not a Lofs at Sea ;"
Obj«aion. But " A Lofs at Land."
Anfwers to it. Firft, The Policy is general i It is not confined to Loffes at Sea.
Secondly.
Eafler Term 50 Geo. 2. 343
Secondly — This is not a Lofs at Land: It is what happened upon
a Sand Bank in the Rtver.
Then he proceeded to his 3 Heads or Divlfions of his Art^umcnt.
ift. As to the 'jiiflice of the Plaintift^'s Cafe — id. Head of
Argument.
The Infurers have profefledly and explicitly infured the Ship and
all her Rigging, Furniture, ^c. from Fire, &c. from her going out,
TO her Rkturn. And they muft be taken to be apprized of the
XJfage ; and to have calculated their Premium accordingly. And
what has here been done is ftated to have been done " for the Ec-
" 7iefit of the Infurers, and of the Ship, and of all Perfons con-
*' cerned in the Safety of it;" and alfo " to have been prudent."
If the Body of the Ship had been burnt in this Interim ; and
thefe Sails and Furniture, had hztnfaved by bring in this Ware-
houfe; the Infurers would then have had the Benefit o? this Sal-
vage. Therefore they ought in the contrary Event, to be anpwer-
able for ihem, when they were by thefe IVIeans burnt, and the Ship
not burnt. It was the Captain's Duty to perform the Voyage in
the ufual and proper Courfe. And this was fo far from being a
Negled: or Milbehaviour in the Captain, that He is ftated " to have
" acied prudently, and for the Benefit of the Infurers and
*' of all concerned."
2dly. This is within the Words of the Policy — 'Tis an Infurance sd. Head of
" from London to any Ports or Places beyond the Cape of Good ^^^^^'^^°^-
" Hope, and back; and during i he Voyage;'* And Fire is
exprefly infured againfl.
And it is alfo within the Meaning and Intent of the Policy. For
this Lofs has happened within the usual Courfe of the Voyage, and
of this Species of Trade. And therefore the Infurers are liable.
And this is the true Diftindlion. To prove which. He cited 2 Salk.
445. Bond V. Gonfalcs: " Deviation or not, muft be taken accord-
" ing to the NecefTity and Vjage." Clayton v. Simmons 1 ith March
1741. at Guildhall. Per Lee, Ch. J. " If the Mafter puts into a Port
not ufual, or flays an unufual Time, it is a Deviation, and dif-
" charges the Infurer: Not, if he does as usual." Ticrney v. Ethe-
rington 5 March 1743. per Lee, Ch. J. at Guildhall— Tht Goods
were unloaded and put into a Store-Ship at Gibraltar; and there
loft. The Queftion was. Whether this was a Lofs at Land; or a
Lofs in the Voyage. He held " that Policies ought to be conflrued
largely, and for the Benefit of the Injured; and according to the
" Courfe of Trade and the Methods usual at the Place:" And as
3 that
344 Eailer Term 30 Geo. 2.
that was the known Courfe of Trade ^ii Gibraltar, He held "the
" Infurers to be refponlible." And in Eajier Term following (P.
1744. 17 G. 2.) there was a Motion for a new Trial: VVliich was
7~efiifed. Now that was not within the Words of the Pohcy: And
yet holden to be within the Meaning of it.
Where an Infurance is for one entire Voyage, the Contract can
not ht Jafpe?idt'df and rivived again: If it be fulpended at all, 'tis
determined. And yet they will hardly argue that this Contract was
abjclutely determined by this Aft that is ftated.
3d. Head of sdly. As to the Opinions of foreign Writers they hold " that
Argument, ct ^here the AfTurance is general, the Infurer is li.ible to all Lofs
" happening in the f//iW Courfe of the Voyage."
And to this Purpofe, he cited Loccenius, de Jure Maritimo L. 2.
c. 5. feSt. 10. de Averfione Periculi. Whofe Diftindions turn upon
the Mafter's purfuing the tifual Courfe of the Voyage. Marcurlus,
de Jure Merc at or. L. 2. c. 15. N*"'. 148. Roc ens, de ylj}' cw ationi-
bus, N'-'. 138. The Infurer is liable for all Loflcs durarjte Itinere.
So that the Principles of Juftice and Equity, the Stridnefs of
Law, and the Opinions of Foreign Writers, Ail concur in Favour
of the Plaintiff.
Sir Richard Lloyd, for the Defendants (the Infurers,) agreed to
Mr. Williams'^ General Principles; And that the Inlurers were liable
for all Loffes during the Courfe of the Vosage. But He denied Mr.
IFillianis' Conclufions; and infifted that this Policy was certainly
confined to Lofli-s at Sea: Whereas this Lois was a Lofs on Sik-kh.
This is a Policy upon the Body of a Ship; And therefore is mani-
ftffly confined toLofTes at Sea only. Befides, thefe Goods are averred
» Some of the by the very Declaration itfelf, " to have been carried * on Shore."
/Iifened^'^^ And it's being an Infurance " cut and H'.mc," does not into fen
with this Pofition. As to the Suppofition " that the Ship had been
" burnt, and the Sails, &c. faved;" It is no Argument at all: For
if they had no 1 been loft, the Infurers could vict certainly have been
liable to pay for them. As to the Prudence of the Captain — It
might be prudent with Regard to the Owners: But this Care of
them is not to affed the Infurers. He is indeed to ad Iiis beff, lor
Both: but di-vcrfo Intuitu; and not to ferve the One, at the Rifque
of the Other. As to the JP'ords of the Policy — He denied it to be
•within them; referring Himfelf to the Words themfelves.
The Cafes cited do not affed the prefent Cafe: And foreign Wri-
ters have faid no more than Englifj Ones. For no Doubt, the In-
furance mufl; be underftpod to be in the ufual Courfe of Trade, and
durante Itinere. But the Queftion is, " What is the Iter infured."
^- This
Eafler Term 30 Geo. 2. 345
This is a Common Policy of Infurance, in the old and ordinary
Form: And it muft be underftood, as thefe Policies were underftood,
before the Eaji India Company had a Being. And the Intent of it
muft be collected from the Inftrument itfetf.
Now this is an Infurance of the Ship with it's Tackle and Furni-
ture, G?c. fro/n Port to Port. And Policies murt; be conftrued upon
the JVords of them, or- from necejfary Confequences. If any Thing
beyond the natural Import of the Words was intended, it ought to
have been fpecified: If not fpecified, it cannot be fuppofed.
The Court alone are to judge of the Extent of the Contradl. And
thefe Contrads have been conftrued ftriSlly. A Deviation from the
particular Voyage infured, fhall difcharge the Infurer; unlefs a Ne-
cejjity intervenes; which does, and ought to alter the Cafe. But
even that muft be within the Compafs of the Voyage dcfcribed: For if
it happens after a Deviation, the Infurer is difcharged, even
though the Ship ftiould have returned into the right Road again,
before the Accident happened. Now this prefent Accident did not
happen within the Voyage infured: For it happened at Land.
But Mr. Williams fays " this happened in the Coiirfe of Trade."
My Anfwer is, " That We have nothing to do with the Courfe of
" Trade." We have nothing to do with any Thing but the Courfe
of Navig AT ION; which is quite a different Thing. Thefe Sails,
Tackle, G?f. were infured in the Ship: And if the Captain takes
them out of the Ship and puts them any where elsi-, the Infurers
are not anfwerablc. And it's being for the Benefit of the Ship, &c.
makes no Difference. It did not arife from Neceffity: Much lefs
from a Neceffity arifing in the Voyage. This A&. of mere Pru-
dence or Convenience cannot rffecft the hfurers. And their blow-
ing this to be the Courfe of the Voyage, will not prove that they
meant to infure any Thing at Land. They caitnot, by their Char-
ter, doit; for thiit reftrains them from infuring at Land: and there-
fore they certainly mver intended it. As to the Cafe oiTierney v.
Ethcringtcn P. 17 G. 2. It v\'as riot a Common Policy. It was thereby
agreed " that they might unload, &c. and reJJjip into an Englif}
" Ship." But no Englif Ship being there, they unloaded upon a
Etore-^\i\r>. And ihis was a Peril <■?/ Sea; for the Ship was loft
at S>ea: So that it ftridly and properly was within the Voyage.
And as to it's being the Mode of Re-fliipping, in Cafe no other
Ship was there; here is no fuch Agreement in the prefent Cafe, as
was there inferted in the Policy : So that it was within the very
Terms of the Policy, in that Cafe. He cited the Cafe of Fitz-
gerald V. Pole, in P. 23 G. 2. in B. R. and afterwards in Dom'
Proc. in May J 752. which was an Infurance of a Privateer for four
4T Months:
\^6 Eailer 1 erm 30 Geo. 2.
Months : And there the ivho/e Cruize was by this Court undcrftood
to be infured ; And the Infurers were holden here, to be bound,
though the Ship itfelf was fafe ; and accordingly they gave Judg-
ment for the Plaintiff. But the Houfe of Lords held them dif-
charced ; as the Ship was fafe ; and affirmed the Judgment of the
Exchequer Chamber, who had reverfed that of B. R. And there
is no Inconvenience in my Doftrine : Becaufe whatever is by the
Parties particularly t»e^nt to be infured, /;tjoW the general Meaning
of the Words, may be fpecially inferted in the Policy ; And then
ail will be clear ; and nothing left to uncertain Conftruclion.
Mr. Williams in Reply —
This Fire happened during the Courfe of the Voyage. And this
Infurance is not merely upon the Ship ; but upon the Rigging, Sails
Tackle and Furniture likewife ; which in their Nature are capable of
being carried on Shore, and ujually are fo, upon thefe Occafions, as
is exprefly flated.
And this is a Lofs happening in Fort. It is the proper, and the
only Port, where the EngliJJj can clean and refit their Ships. And
being upon a Sand-Bank in the River, is a Lofs at Sea, not at Land.
If the Goods cannot be removed from on Board One Ship to ano-
ther, the Reafon of that muft be, that the Infurer has had only
that particular Ship in Contemplation, on ic-hich he infured ; and
perhaps the Care and Caution of the Majler of it too, as well as the
Goodnefs of the Ship.
This Taking out and depofiting the Rigging, Sails and Furni-
ture was a ?iecejfary AB ; and is done by all the Nations in Europe,
except the Dutch ; who are flated to confider it as a Difadvantage
that they arc not permitted to do it. And it is flated to be for the
Benefit of the Ship, and of the Infurers, and all concerned. And
this being the ufual Courfe of the Voyage, it was unneceffiry to
particularize or fpecify this in the Policy : It muft necefiarily have
been in the Contemplation of the Infurers.
And as to the Company's being obliged by their Charter, not to
infure on Land — The Merchants infuring with them are t2ct obliged
to know this ; Nor do the Company in hOi praSlife it. Befides,
if they do it, notivith/landing their Charter, they are not the lefs
bound to anfwer what they have undertaken. And indeed the
Charter only means to preclude them from infuring Hcufes and
Buildings at Land, (which is quite another thing ;) not Ships at Land.
As to the Cafe of Fitzgerald v. Pole, There was no Lofs of the
Thing injured : Whereas here is a Lofs of the very Thing infured.
4 Lord
Eafier Term 30 Geo. 2. 347
Lord Mansfield faid It was very necefTary that the Determi-
nations upon Policies of Infurance fliould be fixed and certain::
And therefore they would confider this Matter, and look into
the Cafes J and then (within the Term) give their Opinion,
•C'JR. ADVISARE VULT.
Lord Mansfield now delivered the Opinion of the Court.
He ftated the Cafe minutely, and then the Queflion, which was
"" Whether this was a Lofs for which the Infurers are refponjible^
" within the Intent and Meaning of the above-mentioned Policy of
^' Infurance."
By the exprefs Words of the Policy, the Defendants have infured
the Tackle, Apparel, and other Furniture of the Ship Onjlow frorn
Fire, during the whole Time of her Voyage, until her Return ia
fafety to London, 'without any ReJiriSiion.
Her Tackle, Apparel, and Furniture were inevitably burnt in
China, during the Voyage, before her Return to London.
The Event then which has happened, is a Lofs within the General
Words of the Policy : And it is incumbent upon the Defendants,
to fliew, from the Manner in which this Misfortune happened, or
from other Circumftances, " that it ought to be conftrued a Peril
" which they did «(5/ undertake Xo^t^zx."
From the Nature, Objeft and Utility of this kind of Contrad,
Confequences have been drawn ; and a Syftem of Conftrudlion
eftablifhed, upon the ancient and inaccurate Form of Words in which
the Inflrument is conceived.
The Mercantile Law, in this Refpedl, is the fame all over the
World. For, from \hz fame Premifles, the found Conclufions of
Reafon and Juftice mufl univerfally be iht fame.
Hence, among many other, the following Rules have been fet-
tled.
If the Chance is varied or the Voyage altered by the Fault of the
Owner or Mafter of the Ship, the Infurer ceafes to be liable : Be-
caufe he is underftood to engage that the Thing fliall be done, fafe
from fortuitous Dangers j provided due Means are ufed by the Tra-
der to attain that End.
But
34^ Eafter Term 30 Geo. 2.
■ But the Mafter is ml in Faidt, if what he did was done m the
ufual Coiivfe, or necejjarily ex jujld Caufa.
The Infurer, in eftimating the Price at which He is willing to
indemnify the Trader againft all Rifques, muft have under his Con-
fideration the Nature of the Voyage to be performed, and the ufual
Courfe and Manner of doing it. Every thing done in the ufual Courfe
muft have been forcfeen and in Coritemplation, at the Time he en-
gaged. He took the Rifque, upon a Suppofition that what was
ufual or neceflary, ivould be done.
It is abfurd to fuppofe, when the End is infured, that the ufual
Means of attaining it are meant to be excluded.
Therefore, when Goods are infured " till landed ;'" without ex-
frefs Words, the Infurance extends to the Boat, the ufual Method oi
Landing Goods out of a Ship, upon the Shore.
If it is ufual to ftay fo long at a Port, or to go out of the Way,
the Infurer is confidered as under/landing that Ufage. Bond v. Gon-
fales, 2 Salk. 445. was fo ruled by Ld. Ch. J. Holt.
If Goods are infured on Board one Ship, to a Port ; and from
thence, on board another Ship, the firft that can be got; The
Infurance extends through all the intermediate Steps of removing
* Vt fufra. from one Ship to the other, as ufual. * For the Means muft be
taken to be infured, as well as the End.
All this has been determined in the Cafe oiTierney v. Etherington
at Guildhall, 5th March 1743. That was an Infurance on Goods
in a Dutch Ship, from Malaga to Gibraltar, and at and from thence
to England and Holland, both or either ; on Goods as here under
agreed ; beginning the Adventure from the Loading, and to con-
tinue till the Ship and Goods be arrived at England or Holhmd, and
there fafely landed.
The Agreement was " That upon the Arrival of the Ship at
" Gibraltar, the Goods might be unloaded, and reflnpped in one or
" more Briti/l:> Ship or Ships, for England and Holland; and to re-
" turn One per Cent, if difcharged in England."
It appeared on Evidence, that when the Ship came to Gibraltar,
the Goods were unloaded, and put into a Store-Ship, (which it was
proved was always confidered as a Warehoufe ;) and that there was
then no Britijh Ship there. Two Days after the Goods were put
into this Store-Ship, they were loft in a Storm.
For
Eafter Term 30 Geo. 2. 349
For the Defendant, It was infixed that the Infiirance was only
upon the Dutch and Britif: Ships ; and tliat it did not extend to the
Store-Ship; which is confidered as a Warehoufe at Land, and Jo not
a Peril at Sea. ,
For the Plaintiff, It was infifted. That this was a Lofs //? t/je
Voyage : For the Policy is, for all LoiTes at Gibraltar, as well as
to and from. If there had been a BritrJIj Ship there, and the
Goods had been put into a Ligbter, in Order to go to the BritiJJi
, Ship, and loft in the way ; That would have been a Lofs within
the Policy. We have Liberty to unload and refhip ; and therefore
have a Liberty to ufe all the Means in Order to do that.
Lee, Ch. J. faid — It is certain, that in Conftrudion of Policies,
the JlriSlum Jus, or j4pcx Juris is not to be laid hold on : But they
are to be conftrued largely, for the Benefit of Trade, and for the
Injured. Now It feems to be a ftridt Conftrudion, to confine this
Infurance only to the unloading and refhipping, and the Accidents
attending that Ad. The Conftrudion fliould be according to the
Courfe of Trade in this Place. And this appears to be the ufual
Method of unloading and refhipping in that Place : Viz. " That
" when there is no Britip Ship there, then the Goods are kept in
" Store-Ships."
He added, that where there is an Infurance on Goods on Board
fuch a Ship ; that Infurance extends to the carrying the Goods to
Shore, in a Boat. So if an Infurance be of Goods to fuch a City ;
and the Goods are brought in Safety to fuch a Port, though diftant
from the City ; That is a Compliance with the Policy, if that be
the ujual Place to which the Ships come.
Therefore as here is a Liberty given of unloading and refliipping.
It muft be taken to be an Infuring the Goods under fuch Methods
as are proper for the unloading and refhipping. Here is no Neg-
led on the Part of the Merchant, (the Infured :) for the Goods
were brought into Port the 19th and were loft the 22d oi Noijejnber.
This Manner of unloading and reftiipping is to be conlidered as
the necejfary Means of attaining that which was intended by the
Policy ; and feems to be the fame as if it had happened in the Ad
of refhipping from one Ship to the other. And as this is the knoivn
Courfe of Trade, it feems extraordinary if it was not ijitended.
This is not to be confidered as a Sufpetifion of the Policy, durino-
the unloading and reftiipping from One Ship to another. For, as
the Policy would extend to a Lofs h.ippening in the unloading and
4 U refhipping
350 Eafter Term 30 Geo. 2.
rediipping from One Ship to Another, fo any Means to attain that
E?id come within the Meaning of the Policy.
-And accordingly, a Verdid was given for the Plaintiff.
In the Eafler Term following, a new Trial was moved for : But
it was refufed, by Lord Ch. J. Lee, Mr. Juft. Chappie, and Mr.
Juft. DcJiifon ; Mr. Juft. Wright indeed being of a different Opi-
nion ; namely, " that it was a Removal at the Peril of the Injured."
So in the prefent Cafe, the fame Reafoning will hold. And, in
n^neral. What is ufually done by fuch a Ship, with fuch a Cargo,
an luch a Voyage, is underftood to be rejerrcd to by cucry Policy ;
and to make a Part of it, as much as if it was cxprejfed.
The Ufage, being forefeen, is more flrongly allowed to be done,
than what is left to the Mafter's Difcretion upon unf ore fern Events:
Yet if the Mafter, ex juftd Caujd, goes out of the Way, (as, to
refit, or to avoid Enemies, Picates &c.) the Infurance continues.
Upon thefe Principles, It is difficult to frame a Queflion which
can arife out of this Cafe, as flated.
The only Objedlion is, " That they were burnt in a Bank-Saul
"and not in the Ship ; upon La)id, and not at Sea or upon Water ;
•* and, being appurtenant the Ship, Loffes and Dangers ajhore could
" jiot be included."
The Anfwer is obvious, (ift.) The Words make no fuqli Di»
ffindion. (zdly.) The Intent makes no fuch Dillindion.
Many Accidents might happen at Land, even to the Ship.
Suppofe a Hurricane to drive it a Mile on Shore. Or an Earth-
quake may have a like Effecfl. Suppofe the Ship to be burnt in
a dry Dock. Or fuppofe Accidents to happen to the Tackle upon
Land, taken from the Ship, while accidentally and occafionally re-
fitting ; as on Account of a Hole in it's Bottom, or other Mifchance.
Thefe are poffible Cafes. But what might arife from an acciden-
tal Occafion of refitting the Ship, is not near fo flrong as a certain
neceJJ'ary Confequence of the ordinary Voyage, which the Parties
could not but have in their diredt and immediate Contemplation.
Here, the Defendants kiiew that this Ship mujl be heeled cleaned
and refitted, in the River of Canton. They hiew that the Tackle
^c, would then be put in the Bank-Saul. They kncio it was for the
Eafetj of the Ship, zxA prudent ^ that ihtyjhould be put there.
Had
Eafler Term 30 Geo. 2. 351
Had it been an accidental Necejfity of refitting, the Mafter might
have excufed talcing them out of the Ship, ex juftd Caufa. But
Defcribing the Voyage is an exprefs Reference to the ufual Manner
of making it, as much as if every Circumftance was mentioned.
Was the Chance varied by the Fault of the Mafter ? It is im-
poflible to impute any Fault in him.
Is this liice a Deviation ? No : 'Tis ex jujld Caufa ; Which {(Tways
excufes.
And yet Sir Richard Lloyd, being preffed in his Argument, was
obliged to infifl *' that it refembled a Deviation : Which deter-
" mines the Infurance, and difcharges the Infurer."
Anfwer. This Suppofes the Parties to infure from London and
back again, knowing that the Pohcy would be determined in the
River Canton : Which would be abfurd. Befides, it ought to make
a difference in the Praemium : Yet the Under- Writers have Aril kept
the Prsemium upon other China Voyages.
One Objedlion was formed by comparing this Cafe to that of
changing the Ship or Bottom, on board of which, Goods are ig-
fured : Which the Infured have no Right to do.
Anfwer. 'there, the identical Ship is effential : For that is the
Thing infured. But that Cafe is not like the prefent.
Another Objedion was, " That Policies ought to be conftrued
** /iriSlly, and 7Wt to be extended to Cafes omitted :" (Which latter
Pofition is true ; and muft be agreed.)
Anfwer — But that is not the prefent Cafe : For this is not a Cafus
omijfus ; but clearly within the View and bona fide Intent of the Po-
licy.
The Cafe of Fitzgerald v. Fole is no way applicable to the pre-
fent. The Queftion there was, " Whether it was a partial, ox
" a total Lofs, within the Meaning of the Policy." In tha' Cafe,
there was Nothing fixed by Ufage, or by known and eflablifhed
Conflrudion, (as there is in this Cafe :) So that no Inference can
be drawn from that Cafe, concluding to this.
Here, the Defendants knen.io that the Tackle and Furniture would
be put in this Bank-Saul, as the ifual, certain Confequence of the
Voyage at Sea ; which always made it Jieceffary to heel clean and
3 refit
35- Ealler Term 30 Geo. 2.
refit the Ship in the River of Canton. Had the Infurers been afked,
they muft, for their oitm Sakes, have infifted they fliould be put
there, as tlie beft and fafeft Method. They would have had Rea-
fon to complain, if, from their 7iot being put there, a Misfortune
had happened : In that Cafe, the Mafter 'would have been to blame,
and by his Fault ivoidd have varied the ufual Chance.
They have taken a Price for ftanding in the Plaintiff's Place, as
to rtwjLoffes He might fuftain in performing the. fever a I Parts of the
Voyage ; of which, this was knoivn and mtciided to be One.
•Mr. Juft. Therefore We (All of Us who * heard the Argument) are very
no't preft^r; clcarly of Opinion, That in every Light and every View of this
being ingaged Cafe, in Reafon and Jufticc, and within the Words, Intent and
i" One"of The ^'I^'^"'"? ^^ ^^e Policy, and within the View and Contemplation
Lords Com- of the Parties to the Contratff, the Infurers are liable to anfwer
raiflioners. for this Lofs. Wherefore
Per Cur'. Let the Postea be delivered to the Plaintiff.
Anderfon verf. George.
UPON a Rule for the Plaintiff to Oiew Caufe " Why a Ver-
" ^y<^ obtained by Him for 16 /. fhould not be fet afidc, and
" a new Trial ordered. Upon Payment ofCoJis;"
The Cafe appeared to be, That the Plaintiff had fold Goods to
the Defendant : Who paid for them by a Promiffory Note of One
Jiopky ; which the Defendant indorfed. Tiae Plaintiff demanded
the Money of Hopley : But indulged Him with further Day of Pay-
nyenr, feveral times ; till Hopley broke.
The only Difpute between the Parties was, " Which of them
" ought to bear the Lofs of this Note." For the Plaintiff was paid,
if the Lofs ought to fall upon Him, through his Negled or Induk
gence in giving further Credit to Hopley.
There were two Counts in the Declaration: One, for Goods fold;
the Other, againft the Defendant as Indorfor of the Promiffory Note.
Vv^hen the Caufe came on to be tried, though Both Parfies eame
to try the real Merits of the Qucftion between them, viz. " IVbith
" (liould bear the Lofs of tht Note, occafioned by Hopley' s Failure ;"
And the Plaintiff's Agents had the Note in Court ; Yet, finding
upon their own Evidence, " that the Plaintiff hud given repeatedly
" lurther
Eafter Term 30 Geo. 2. 353
*' further Credit to Hopley" they reforted to a Trick, and reflied
their Cafe upon proving the Sale and Delivery of the Good^, which
never w^as difputed. The Defendant could not produce the Note :
It was in the Plaintiff's Cuftody. Relying upon it's being the only
Ground of the Plaintiffs Cafe, the Defendant had not given Him
Notice " to produce it.'' The Count, ftating it, could not be
given in Evidence : And the Defendant had not intitled Himfelf to
prove the Contents, for want of Notice to produce it. Lord
Mansfield told them, at the Trial, It was an improper Artifice;
That no Verdidl could fland, which was fo obtained. But the
the Plaintiff refufed to produce the Note; and had a Verdiit, of
Courfe.
It was now contended, for the Plaintiff, that the Verdidl was
regular, and the Plaintiff in no Fault : For, without Notice, He
was not obliged to produce the Note. Therefore the Verdid ought
not to be fet afide.
The Court thought the Plaintiff had taken an unfair Advantage^
contrary to Jujiice and good Confcience. That the Rules of Pratftice
muff be general: But He who abufed them in a particular Cafe,
fliould not fhelter a T'rick^ by Regularity. The Plaintiff did not
want Notice to produce a Note he bad in Court, and which he had.
laid in the Declaration as his Ground of Action. Befides, He took
a Verdidl for the Price of the Goods ; though he had received Satif-
faSlion, the Evidence of which was in his own Cuflody and fap-
prejfed.
They not only fet afide the Verdict ; but fet it afide Without
Paymefit of Cojls : And declared, " the next Time that a Party
"*' fhould obtain a Verdidl in like Manner, by an unfair unconfciona-
*" ble Advantage, without trying the real Queftion, they would fet
** afide the Verdid:, and make Him pay the Cojls."
A new Trial being ordered; This Caufe was tried at Guildhall,
the Sittings after this Term : And the Defendant had a
Verdidl upon the Merits, to the Satisfadlion of every Body ;
the Cafe being clear, beyond a Doubt.
4 X Rex
354 Eafter Term 30 Geo. 2.
^3^^''-' Rex verj: Inhabitants of Bentley.
"^ W O Juftices removed 'John Pickering and his Wife and Son,
from Baxtcrly to Bentley: And their Order was confirmed
by the Seflions. It was moved, in this Court, to qualh both thefe
Orders.
The Cafe ftated was, That this John Pickering was hired and
ferved for a Year in Bentley; And before the [then] Lift General
Quarter-Seffions, he was removed, by proper Order, from Bax-
terly to Stourbridge, as the Place of liis laft legal Settlement: Which
Order of Removal ivas qj;ashed, upon an Appeal, by the faid
[then] lafl General Quartcr-Seflions. And Jince the faid laft Sef-
iions, the Pauper being removed from Baxter ly aforefaid to Bentley,
Bentley appealed, and offered to prove a Settlement /« Stourbridge, by
a Hiring and Service for a Year in Stourbridge, bb;fore the /aid
lafi Siffions, but subseqjjent to the faid Hiring and Service in
Bentley: But the Court of Seflions r e f u s i d to go into it; being
oi Opinion " That the 'Determination of the Court at the faid laft
" Seflions was final and conclusive ; fo that no Evidence could
*' be given by the Hamlet of Bentley, of a Settlement in Stourbridge
" gained prior to the faid laft Seflions."
It was objeded to thefe Orders, as a Reafon why they ought to
.be quafhed, " that this Opinion of the Seflions was altogether er-
" RONEous:" It being a yt///^'^ Distinction, " that though an
" Order of Confirmation is indeed conclufive and binds all the
" World; Yet an Order of Reversal or Discharge is only con-
" clujive on the contending Parties, and is final only between the
" two Parijhes concerned, but does not bind a third Parifli."
In proof of which Diftindlion, the following Cafes in Point were
cited, viz.
2 Salk. ^2j. Inter Inhab' of My?iton and Stony -Stratford.
I Strange 232. Between the Pariflies of Little Bithiim and So-
tnerby.
Carthew 516. Between Bedingham and Kingflon Bomfey P. riflies.
Mich. 8 G. 2. 1734. B.R. K&x v. Inhdih' oi Cirencejler, Mary
Coates's Cafe: [It ought to have been fo cited: Not as the
Cafe of Inhabitants of Coin St. y^ldwyn's.]
And the Court unanimoufly agreed to this Diftindlion: (And
indeed Mr. Norton, who fliewed Caufe againft quafliing the Orders,
did
Eafter 7 erm 30 Geo. 2. 355
did not difpute it ; but only endeavoured to fhew that the prefent
.Cafe was not within the general Rule.)
They faid It had been long ago fully fettled and eftabliflied ; and
with very good Senfe and Reafon, and upon right and juft Princi-
ples. For where the Order of Removal is conjirmcd upon Appeal,
'and the Pauper thereby fixed upon the Parifh appealing, fuch Pa-
rifh fo charged was Party to the Litigation^ and has been fully
heard, and the Law has run it's Courfe as to them ; And therefore
the Determination is, and 'tis reafonable that it fliould be, conclu-
five upon THEM as to all the World, And all the World may take Ad-
vantage of it: But where the Order of Removal is vacated and dif-
chargcd, the fivo contending Parities are indeed ejiopped and concluded
by the Determination; but No third Parifh is eftopped or con-
cluded thereby; For the Point has never been determined as to
THEM, who were no Parties to the former Litigation, or have ever
■been heard at all.
Now in the prefent Cafe (asLd. Mz;2^f/^ obferved) there is only
a negative Opinion, in a Litigation between Baxter ly and Stour-
bridge, " That the Pauper was NOTy^^/Zf^^/ Stourbridge." But,
notwithftanding this, tho' Baxterly might not be able to fliew that
the Settlement was really at Stourbridge, Yet Eetitley may be able
to give ftronger Evidence than Baxterly could, and may be able
clearly to prove it.
So, in the Cafe of Coin St. Aldivyn's, that was negatively deter-
mined " NOT to be the Settlement of Mary Coates, in a Litigation be-
*' tween Minety and Coin St. A/dwyn's" : (From the former of which
Places the two Juflices had removed Her, to the latter ; And their
Order was difcharged on Appeal.) But when two other Juflices
made a fubfequent Order to remove Wqx from Cirencejler (a third
Parifh) to this fame PariOi oi Coin St. Aldwyn's, ivithouf her having
gained any fubfequent Settlement there, lince the former Order ;
And the SefHons, upon Appeal from this fecond Order, were of
Opinion that it was illegal, and difcharged it ; and the Point there-
upon came before this Court ; Lord Hardwicke faid Lie took the
Diftinclon now laid down, to have been clearly fettled, and He
held it to be a reafonable One : And he added the Reafon for it,
namely, " becaufe a third Parifh might be able to give better and
"•'''■ ftronger Evidence, than the former Parifh could produce, to
" charge the Parifh io which the Pauper had been antecedently re-
■ " moved by the difcharged Order ; And if the third PariHi, that
" is to fay, ^/zy other Parifli, into which the Pauper fliould come,
" had fuch ftronger Evidence, they ought to be at Liberty to Ufe
" it, Since all the former Tranfadion was res inter alios a£la."'
So
356 Edfler Term 30 Geo. 2.
So here, Bentley may be able to give ftronger Evidence to fix the
Settlement at Stourbridge, than Baxierly could : And what then
pafTed, was res inter alios a5ia.
Therefore this Cafe of Coin Sf. Aldwyn's, and the Reafon of it,
are decifive in the prefent Cafe.
* Per Cur. unanimoufly and clearly
Both Orders quaflied.
* Mr. Juftice IVilmot was now prefent.
The End of Eafter Term 1757. 30 Geo, 2.
Trinity
357
S)
Trinity Term
30 & 3 I Geo. 2. B. R. 1757.
Rex vcrf. Inhabitants of Great Torrington. fjlf.^l^'!'
T
W O Juftices removed Mary Bray, Singlewoman, from
Bideford to Great Torrington: And the Seflions confirm
their Order.
It appeared, upon the Special Cafe ftated, That Hugh Bray, and
his Wife, and E. & M. their Daughters, came into Bideford by
virtue of a Certificate from Lancrafs directed to Bideford, and in-
habited there fome Years; And that M, the Pauper, was then
bound an Apprentice, by the Officers of the Parifh of Lancrafs,
by the Allowance of two Juftices of the Peace, to Thomas May,
for an Eftate in Lancrafs; and lived in Great Torrington aforefaid
an Apprentice, for fveral Tears, under thefaid Indenture. That
after the faid Apprenticefliip expired, the faid Mary hired Herfelf a
Servant for a Tear, with Solomon Lyon, in Bideford; and lived
with Him tJjere, for fuch Year, and for eleven Months after.
The Seffions, being of Opinion that the faid Mary, coming at
FIRST in the faid Parifli of Bideford under the faid Cekt if \~
GATE as aforefaid, did not gain a Settlement there, by the fub-
fequent Service as a Covenant-Servant as aforefliid in that Parifh,
confirm the faid Order.
Mr. Gould moved to quafli both thefe Orders: And urged that
the Pauper, by having ferved an Apprenticefl-iip in a third Parifli,
became emancipated from her Father'^ Family, and fui juris, and
quite clear of the Certificate; and therefore was as much at Liberty
to gain a new Settlement in Bideford, as any uncertificated Perfoa
whatfoever could be.
4Y MuHuJey
35^ Trinit}/ Term 30 &: 31 Geo. 2.
Mr. Huffey was to have {hewn Caufe why the Orders ftiould not
be quafhed: But he very candidly acknowledged that He had looked
into the Cafes, and was fatisfied that thefe Orders could not be
fupported.
Lord Mansfield — Certainly, they can not.
Rule to quafh them, made abfolute.
V. the next Cafe, Rex verf. Inhabitants of Keynjl?am : which
is the fame Point, and determined on the like Conceflion
of the Adverfe Counfel.
Tueficiy .4th Rex vejf. Inhabitants of Keynfliam.
7«««757- -^ ^
M
See the laji Cafe—S.?.
R. GouU having moved to quafli an Order of two Juftices
removing IVilliam Harris, his Wife, and their three Chil-
dren, from Hafiham in Gloiicejierpnre to Keynjham, and alfo the
Order of Seflions confirming it; and Mr. Norton now coming to
fliew Caufe why they (hould not be quaflied; this appeared to be
• V. poji 27th the very * fame Point with the iaft Cafe, of the King againft the
>«.««ai758. Inhabitants of Great Horrington. And
Mr. Norton now acknowledged (as Mr. HttJJey did Yeflerday)
that He could not fupport the Orders.
Whereupon Both Orders were qjjashed.
fJJ'IJ^^ Weller verf, Goyton and Walker.
»757-
ACTION againfl: Two, upon a JoiNT-Promife; Judgment
againjl Walker, by Default; IfTue joined by Goyton; and the
I'luintiff neglected to bring it on to Trial: And the Common Rule
was obtained, for Judgment as in Cafe of a Non-Suit.
This was a Queftion on 14. G. 2. c. 17. §. i. concerninp' the
Court's giving Judgment as in Cafes of Non-Suit: And it arofe upon
a Doubt of the Mafter's, " Whether He could tax Cofts ns in Cafe
" of a Non-Suit; as there was a Judgment by Dciault, ^cr the
" Plaintiff, againft the Other Defendant."
Mr. Lmvfon
Trinity Term 30 & 31 Geo. z. 359
Mr. Law/on moved for the Diredbn of the Court to the Mafter,
that he flaould tax the Defendant Goyton his Cofts, purfuani to
the Ride.
Lord Mansfield (though no Counfel appeared on Behalf of
the Plaintiff") had a Doubt, " Whether there could be 'judgment
" AS in Cafe of a Non-Suit, in a Cafe where the Plaintiff" was not
« liable to a Non-Suit." This Adt of 14 G. 2. c. ij. enaf^.s " that
•*' all Judgments given by Virtue of it, fl)all be of the like Force
*' and Eff^edl, as judgments upon Non-Suit; and of no other;" (§ 2:)
And provides " that the Defendant or Defendants thai!, upon fuch
■■" Judgment, be awarded his her or their Cofts, in any Aftion or
"*' Suit where He She or They would upon Non-Suit be intitled
*' to the fame; and in No other Adion or Suit whatfoever;" (§ 3.)
So that the Point feems to be " Whether the Plaintiff" fow/rt', in this
" Cafe, have been nonfuited at the Trial." For if he could not, then
the Cafe of a Non-Suit does not here exist: And confequently
the Court cannot give Judgment and Cofts, as in Cafe of a Non-
Suit, when the Cafe of a Non-Suit does not at all exift. Now here
was a ^Judgment obtained by the Plaintiff" agaitijl One of the Defen-
dants, already: How then can the Plaintiff" be out of Court ^i to
Him ? But if he is tionfuited in this Ad:ion, He will be out of Court,
as againft both Defendants.
Mr. Juft. Denison feemed to think alfo that the Plaintiff" would
not have been liable to a Non-Suit at the Trial. And to that Pur-
pofe. He recollected and mentioned the Cafe of Gree v. Roll and
Neivell; which is wrong in 2 Salkeld Title Nonfuit^ pi. 5. pa,
456. *
Nothing was taken by the Motion.
* See s. c.
alfo, at large,
in Cafes in
B. R. temp.
^. 3.Pa.6si.
Hall et Ux' verf. Woodcock.
Tri?!. 1756. 29, 30 G. 2. Roth 921.
Friday 17 th
"June 1757.
(Lord Commifjioner Wilmot abfent, in Chancery.)
ERROR to reverfe a Common Recovery. The Error afligned
was — " that the Vouchee, before the rendering of the Judg-
" ment, died without Iflue." Upor> the Scire faciafes previoufly
iflued againft the Demandant in die Writ of Entry and againft the
Terretenants, ^c; who were returned to have been fummoned, &c.
and
3
3^0 Trinity Term 30 & 31 Geo. 2.
'C_ ,
and thereupon, Errors afllgned, Lucas, the Demandanf, comes in
and pleads " That there is no Error;" And one of the Terre-Te-
nants fuffered Judgment by Default. But Woodcock who was alfo
one of the 'terre-lenants, prays Oyer of the Scire facias ; and pleads
" Non-tenure, and that Henry Balguy and his Wife are the
" Terre-tenants ;'' And prays Judgment on the Scire facias.
To this Plea there is a Demurrer by the Plaintiff in Error, and
Joinder in Demurrer, by Woodcock the Terre-Tenant.
Serjeant Pook for the Demurrer, viz. for the Plaintiffs in the
Scire facias, and in Error.
The Scire facias which iffued againfl: the Terre-tenants is not ex
Necejitate, nor ex Debito JuJUtiu; but only difcretiopary in the
Court, and only to fee if the Terre-tenant has a Releaje of Errors:
But the Terre-tenant can not plead "Non-tenure," and " that
" another perfon was Tenant of the Freehold, at the Time of the
" iffuing of xht Scire facias." That O^Zvr may as well plead (in
like Manner) to another Scire facias to be iffued againfl hitn, " that
" a THIRD Perfon is Tenant of the Freehold;" and fo on. And
the Terre-tenant's Title will iiot be affcdted by this Judgment and
Recovery: For an EjcBnicjit muff be brought. The Terre-tenant
cannot plead in Abatement of the Writ of Error; but ojtly in Bar oi
it. I Lev. 72, 130, 146. Winn v. Lloyd \% fo. i Siderj. 213. S. C.
I Kcb. 54, 35i,"c^f. S. C. 'i\xT.Raym. 15, ^z^. S. C. Dyeryix.a. is
alfo a ftronf{lntimation " that the Terre-tenant can only plead in^^r
" of the V/rit of Error." The Cafe oUVinn v. L/cyd is in Point. And
the prefent Cafe muff be taken to be a Plea put in merely for Deiay,
(as that was.)
Mr. Ltfke Robinfon centra for the Defendant Woodcock, whofc Plea
was demurred to. It appears upon the ivholc Record, th;.t the Plaii .tiffs
in Error have no Title: And if fo, there is an End of the Matter.
As to this Plea of the Terre-tenant, " of Non-tenure; and that
" Balguy and his Wife are the Terre-tenants" — The Fadl is ad~
mitcd by the Demurrer: And the Plaintiffs in Error ought to have
taken oiit a iiciv Scire facias againft Balguy and liis Wife. The
Scire facias againft the Terre-tenant, is oi neceffity, and not rf!//-
(reti'i'.arv. For the Tenant to the Precipe is merely nominal: But
'tis the Terre-tenant who is the true Tenant of the Freehold. And
the Terre-tenant may plead ma^y ether Pleas befdes a Releafe: He
may plead " that the Plaintiff has conveyed the Land to another;"
or he may plead NcJi-tenure. That " a Scire facias againil the
• This Cafe " Terre-tenant isftriHly neceffary" is proved by 3 Mod. \ 1 9. * Ki^^g-
wa^ adjourn- n^j^ y, Herbert. 3 Mod. 274. Anon, fays, " that there -f- iTiould be
ej ; and there •^ , r n l •
fore is no Au hority. + Tht Court there held it not to be necefTary, in Toint of Laiv : But that it was
necelTary, by theCourfe of the Court, and leajoiiable t^at it ftiould be fo.
Trinity Term 30 & 31 Geo. 2. 361
" a Scire facias, both againfl the Heir and againft the Terre-te-
*' nants." (Now here is none againfl: the Heir, at all.) Dyer
•121. a. b. proves exprefly, " that there ought to be a Scire facias
" to the Terre-tenants before the Court proceeds to an Examination
" of the Errors." 5 Mod. 209. Stokes v. Oliver. A Writ of Error
was brought to reverfe a Conamon Recovery : And there ivas a
Scire jacias againfl: the Terre-tenants. b Mod. 134. Adams v.
'terre-tenants of Savage, was a Scire facias by the Adminiftrator,
to warn in All the Terre-tenants of Savage, [not naming them :)
And fo. 199. was a Plea in Abatement; " That J. S. was a Terre-
" tenant of Savage ; and was not fummoned." * * This Cafe
flands alfo ad-
But fuppofing the Plea to be bad, yet there is neither Heir nor ^"""^"^ '
Terre-tenant before the Court. And He faid He had other Objec-
tions too. But
Lord Mansfield faid He had better referve them, till he
fhould fee whether this Plea to the Scire facias would hold.
And He afked Mr. Robinfin Whether He had any Autho-
rity to prove " that the Terre-tenant could plead any
" Thing elfe but a Release."
(Which Mr. Robinfon could not produce.)
Serj. Poole in reply — The prefent Qneflion is upon this Plea of
the Terre-tenant. I dtny that a Scire jacias againfl: Terre-tenants
is ex Debito fujlitice. However, We have ijfiied a Scire facias
againfl One of the Terre-tenants ; v/ho has fuffered Judgment by
Default. Dyer 321. «. cites the Cafe of Leyghe v. Colyn & al',
7 H. 8. Error to reverfe a Judgment in Aflize. * The Cafes in * r.DyfrS^
5 Mod. 209. and 6 Mod. 134. are not applicable to the prefent ^|,-^-^^ 5 j^^^
Cafe : That in 6 Mod. 1 34. was in Order to bring all the Co-Terre- not s'. C.
tenants in, to make Contribution.
If they have a Releafe to plead, let them fliew it : If not, 'tis
plainly a Plea only for Delay. -
111,1
Lord Mansfield — By the * cflablifJ.ed Method of Proceeding, * ^'. c^rz/v™
there mufl: be a Scire facias againfl: the Terre-tenants : Otherwii'e, '"- "^ '^'-
indeed, it is an Irregularity but ?io more.
The Terre-tenant has nothing to do with the Matter. All that he
can do, is only what any Amicus Curie may do ; viz. produce a
Releafe of Errors : But he has Nothing to do, in Interejl. There-
fore there ought to be a Refpond. oiifler, in this Cafe.
As to the other Objedions, 'tis not proper to meddle with them
^ ■ 4 Z Mr.
362 Ti'inity Term 30 d^ 31 Geo. 2.
Mr. Jaft. Denison concurred. This is not like a Scire facias
• [Which was (3,-, tije * Dr^/Z) of a Party: 'Tis only a Scire facias againft the
6 iiw nl" Terre-tenant, who is 7io Party to the Record, and has Nothing to do
i3 199.] with the Matter, in Point of hterejl.
In Cartheiv in, 112. The Earl o{ Pembroke's Cafe, Thefe Sf/re-
faciafes againft the Terre-tenants are faid by Lord Ch. Juflice Holty
to be difcretionary, and " not to be ftriSli furis ; but yet to have
" been the conftant and ufual Courfe of the Court ; and therefore
" not to be departed from." And the Terre-tenant can only plead
a Releafe of Errors ; to defend his own Pofleflion, or for the Sake
of Purchafers : But he cannot plead in Abatement to the JVrity
when he is 710 Party to the Suit.
In the Cafe of Witin v. Lloyd, the three Terre-tenants pleaded *
* f- f''^'^'(^ three different Pleas ; which were rejeded as * frivolous. And fo
" 'is this •, and ought to be rejecfted. And it is premature to enter into
the Errors objefted to in the Record : For Mr. Robinfon is only
Counfel for Woodcock, One of the Terre-tenants.
Mr. Juft. Foster was clearly of the fame Opinion. Here, the
Defendant Woodcock comes in, and fays " He has No Intercft in the
" Land." Therefore he certainly cannot be heard, in Obicdlion to
the Judgment, and to ftiew that to be erroneous : "This was no Part
of the Intention of the Notice given him by the Scire Jacias. His
Plea is infufficient : Therefore He ought to anfwcr over.
Per Cur. Respond, ouster.
Far, (Spinfter,) verf. Denn.
XT' R R O R to reverfe a Judgment In Ejedlment.
Mr. Serj. Martin for the Plaintiff in Error,
This was an Ejedment, wherein Denn was Plaintiff, and Eliza-
beth Far and Rebeccah Savil Far were Defendants : And Iffuc hud
been joined between the Plaintiff and both thefe Defendants. And
Day was given to the Parties &c. At which Day comes as well the
Plaintiff as the faid Elizabeth Far : But the other Defend, nt Re-
beccah Savil Far, doth ?2ot come. And the Sheriff doth not return
his Writ.
Then the Death c/'Rebeccah Savil Far is suggested upon
the Roll, in the ufual way. And a new Venire is awarded to try
the Iffue againft the furviving Defendant Eliz. Far : And it is fur-
2 ther
Trinity Term 30 6: 31 Geo. 2. 363
ther awarded, " That all further Proceedings againft Rrbeccah Savil
" Far (hall ceafe." Then it fets forth the Record of the Pojlea at the
Aflizes ; and the Recovery ag.iinft Elizabeth Far, And the Judg-
ment is " That the Plaintiff recover his Term againft the faid Eli-
" zabeth Far."
Errors affigned — " That there is no Record of Nift prim •"
[which Serjeant Martin faid, was only done, in Order to give them
Opportunity of Gbjeding to the Variances ;] And " That Judgment
" is given for the Plaintiff below, whereas it ought to have been
" given for the Defendant." Then a Certiorari iffuedj to certify
the Record of Nifi prius : Which was certified accordingly. And
*' h Nu/lo eft erratum" was pleaded, by the Defendant in Error.
This Writ of Error was brought. He faid, by the Approbation
of the Court of C. B. on Confent to waive a Motion there in Ar-
reft of Judgment. He cited Bifiof^ Cafe, in 5 Co. 37. b. to fliev?'-
thiit he was at Liberty to make Exceptions not ajjigned {ov Error.
Alfo 1 Salk. 268. S. P. Carlton v. Mortagb.
And then He proceeded to make his Objedions ; inz.
ift. The Nifi prius Roll is erroneous, in itfelf.
zdly. The Nifi prius Record 'varies materially from the Plea Roll
3dly. This may be taken Advantage of, after VerdiB.
4thly. The OmiJJion of " ^lod oiierens Nil capiat per Breve," as
to Rebeccah Savil Far, makes the Judgment erroneous.
5thly. The judgment ought not to have been for more than a
Moiety of the Lands demanded.
And Firft — The Death of Rebeccah Sdvil Far, One of the De-
fendants, ough-t to have been fuggefted i/pon the Ni/i prius Record.
It is NOT fufficiejit that this be mentioned in the Jiirata-ip\\rt of it.
Barnes's Notes, Tr. y & S G. 2. C. B. Fo. 8. IValdo v. Harrifon :
Where the 'Jurat a in the P^ecord of Nifi prius was amended. Which
was done upon the Foundation that the Jurata-^diXt of the Record
is not an Award of the Court -, but only to annex the Proceedings.
Indeed Rebeccah Savil Far is, in that Part, faid to be dead : But 'tis
only in a Parenthefis, and by way of Recital. However, that is
not the Place for a Sugge/lion of the Death of Parties. And it ought
to be a Jull and poftive Affertion : For there are to be Proceedings
upon it.
If
364 Trinity Term 30 & 31 Geo. 2.
If any Special Matter had been fuggefted, about awarding the
Venire out of the Common Courfe, a Copy mufl have been given.
I Strange 235. Brccas v. City of Londo7i.
This Recital did"«o/ authorize the Judge to try the Caufe between
One of the Parties only. There ought to be a New Venire awarded ;
. Or it ought to have been awarded againft both Defendants. For
here is no proper Suggejlion of the Death of One of the Defendants.
The Jurat a is wrong. 2 Hawkins P. C. 290.
The Death muft be fuggejled. 8, 9 7F. 3. f. 1 1. § 7. But a
Recital is 7io Suggeftion. And this is not a Difcontinuance ; but a
Mis-Tr/'rti, (which is not helped by the Stat, of Jeofails.)
Secondly — This Nifi priits Record varies materially from the
Plea-Roll : For it is not between the fame Parties. And fmall Va-
riances are fatal. i Ld. Raym. 329. Dobertecn v. Chancellor.
Palmer 378. Toimg v. Eijglejield. Cro. Eliz. 340. Lo?Jg v. Michell.
Vincr's Abridgment 553. Pi. 8, of Title Error.
^^ Mr. Juft. Foster — Brother, Yiky.r is tioT an Authority. Cite
the Cafes that Viner quotes : That You may do.
Serj. Martin proceeded —
Thirdly — This may be taken Advantage of, after Verdi^.
Fourthly — The Judgment is iwperfcB, without thefe Words
" ^od querens 7iil capiat &c."
Lord Mansfield — Would You have it, " That he (liall take
" Nothing by the Judgment, againft a dead Perfon ?" How-
ever, it is in the Entry of the Judgment, " That further Pro-
" ceedings fliall ftay againft this dead Perfon."
Fifthly — The Judgment ought only to have been for a Moiety of
the PrernifTes. My Argument arifes on 1 1 G. 2. c. [19. I fuppofe.]
And here might have been two feparate Records. Both are mude
Defendants by the Rule. It is faid in i Ventr. 355. If cverv One do
not appear, the Plaintiff cannot proceed againft the Reft. And
though Ejedments be the Creatures of the Court, Yet the Records
muft preferve as regtdar a Form as other Records muft : And fo it
is, even upon Common Recoveries.
Lord
Trinity Term 30 & 31 Geo. 2. 365
Lord Mansfield — If it be wrong, to award the Recovery of
the Term againft the Tenant in Poffeflion, how would You
have had it awarded ? For it might have been very inconve-
nient to award it in Moieties.
Serj. Martin — Perhaps, the proper Method may be, to apply to
the Court where the Judgment is, " that the Execution fhould be
'" taken out, of fuch Part only as was the Poffeflion of the living
" Defendant."
Serj. Hewitt corJra —
Firft, — The Niji prim Record is perfedlly right. Even before
the Statute of 8, 9 I-f. 3. c. 11. the Death of the Party might be
fuggefted upon the Roll. And here it is done, upon the very next
Appearance Day after the Death.
My Brother Martin fays, *' It is only done by way of Recital upon
" the Niji prius Roll." But it is not neceflary to enter it upon
the ISiJi prim Roll at all ; iinlefs to direcft the Judge, between ivhom
He is to try the lifues, and that He has JuriJ'diilion to try it.
Secondly, Here is 710 material Variance : Whereas his Cafes are
Cafes of material Variances. Indeed here is no Variance at all.
Thirdly — Here is nothing to take Advantage of.
Fourthly — The Judgment is perfeifl enough.
Fifthly — The Judgment mufi: be, " to recover the Term.'" In^
■deed the Plaintiff muft take Care to take out ExecutioJi for mo more
than He has a Right to, by the Recovery. ' And Many of his Ob-
jedions (even if they had airy thing in them,) are cured by the Sta-
tute.
Serj. Martin^ in Reply, to the fame Effeifl, as before.
Lord Mansfield thought there was no Difficulty in the Ob-
iections. They are reducible indeed to three. For the 3 firft are
no more than, Whether the Judge had Jurifdiclion to try the
■Caufe, between the Plaintiff, and the hving Defendant only.
Now the Suggeftion, and the Award, and All the Proceedings
fliew One of the Defendants to be dead ; And there is an Award
for the Proceedings to Jlay as to this Defendant ; and to go on
againil the other only : And the Jury is awarded as againft the
5 A living
366 Trinity Term 30 & 31 Geo.
livino- One, the Other being dead. Both were alive, when the
Iflue was joined : And it is properly awarded upon the IfTue Roll j
and acknowledged. And tlie Nifi prim Roll is only for the Direc-
tion of the Judge, to try it : And it is not traverfabJe on this Roll.
And the two laft Points are as plain.
The Judgment is right enough: And the Execution muft be
taken out according to the Right and Juftice of what is reui/y re-
covered.
Mr. Jufl. Den I SON held it not neceffary to enter and tranfcrihc
the very Wokds of the Suggeftion, from the Plea-Roll, upon the
Ni/i prius Roll; and all the Continuances: But ofi/y enough to fliew
and notify to the Judge, what IlTues he was to try, and between
whom. And it is as properly put in here, in the Jurata, as any where
clfe: And it could not be travcrfed ow the Nifi prius KoW. And
here is 7io Variance ; but only an Omijjion of what was unnecejj'ary
to be piit in. And there was no Need of the " ^icrens nil capiat
" per Breve:'' there hfufficie?it withcut it.
And as to the 5th Exception — They niight be Joint-tenants ; and
then 'tis ftridtly right. But if not, the Plaintiff recovers his Term:
And he muft take Care not to take out Execution for more tlian
he had Right to recover.
Mr. Juft. Foster was very clear In concurring.
Per Cur. unanimoufly
Judgment affirmed.
Saturdij
I 8th June
.«7S7-
Ball, qui tarn vcj'f. Cobus.
MR. Whitaker fhewed Canfe againft quadiing an Information
qui tarn, for exercifing the Trade of a Baker at the Parijlj of
Speldhurft in Kent, not having ferved an Apprenticeship ; contrary
to 5 Eliz. c. 4.
The I ft Objedion taken to this Information, by Mr. Clayton, on
the Original Motion was " That Speldhurft does not appear to be
** a City, Market-ToTOW or Corporation: It may bea Villa gk."
For fupporting which. He had cited 2 Keble 583. Rex v. French;
(ift. Exception.) which Cafe is alfo reported in 8 Mod. 26. S. C.
Rex V. Turnith; and i Fentr. 51. S. C. But though thefe are all
Reports of the fame Cafe (which was cited by Mr. Clayton, only
out oi Keble,) Yet Mr. Whitaker alledged that they are inconfif-
tent with each other.
Mr. Clayton^
Trinity Term 30 & 31 Geo. 2. 36'
Mr. Clayton, centra — The Adl was intended merely for the 'Qtnc-
^t oi Corporations: And it has * always been taken, " that it does * ;^rtMr.,/"«;-/
" not extend to any Village, or any Place lefs than a City, Market- '''°"g'^'o'''<"'"-
" Town, or Corporation." And it would be extremely / wo«w- ^rf ' '" ' ^^'"^'
." nient to the Inhabitants of all dillant retired Villages, if it did.
Lord Mansfield — The Queflion is not now upon the £1;/'-
dcnce; but upon the Laying the Offence. Have You any
Authority, that it may not be lai^ at a Parifi?
Mr. Clayton — None but that in Keble^ {viz. 2 Kel). 583.)
Lord Mansfield — There Is nothing in the Adt, that reftrains
it to be LAID in a City, Market-Town, or Corporation : And this
Laying it in a Farijh will 72ot affe5l the Evidence.
Mr. Juft. Den I son expreifed Himfelf in Terms exadly to the
fame Eifeft.
Mr. Juft. Foster — Many Trades are carried on in Villager:
Moft of the C/o/y^- Trade in Torkjhire, is carried on in the Villages.
Mr. ^ Clayton offered another Objedion; viz. That it was not zd. Objeaion.
averred " that he did not then exercife the Trade," (namely, at
the Time of making the Ad.) But
The Court (without any Hefitation) over-ruled this Objec-
tion. So that, (Both Objedions being over-ruled,) the Rule " to
fliew Caufe why the Information fliould not be qualhed, was
" discharged.
Tarrant verf. Flaxby.
MR. Norton and Mr. Winn njoved for a Prohibition to the Con-
fiftory Court o( York, to ftay their Proceedings againft Tar'
rant the prefent Parifh-Clerk of St. OJith in I'ork; which Proceed-
ings were there inftituted at the Inftance of Haxby the deprived Pa-
R'ish-Clerk, for the Rejloration of the faid Haxby.
The Office of PariOi-Clerk is of a temporal Nature: And the
Fees are of temporal Cognizance. There are two Cafes in
Sir J. Strange's Reports to this Purpofe; V. 2 Strange 942.
Peak V. Bourne; and 2 Strange 1108, Pitts v. Evans C. B. And
there is an exprefs Cafe in 2 Brownl. 38. Gaudy e's Cafe with
Dr. Newman^
2,6s Trinity Term 30 6c 31 Geo. 2.
Dr. Newman, C. 5., P. 8 Jac. i. That the Office of Parifla -Clerk
is Lay: And the Spiritual Court have no Jurifdidlion concerning
his Deprivation.
This Haxby they faid, was deprived by the Parfon and the whole
Parifh, for Drunkannefs during Divine Service, and other Mifde-
meanors: Whereupon, the Parfon appointed Tarrant in his Room.
Againfl whom, Haxby libelled, in the Confiftory Court of Tork;
Where there was a Monition ; and they were proceeding to reftore
Haxby. And all this was fuggefiied. Upon which, a Rule was
granted to fhew Caufe. And now Mr. Nares was to have (hewn
Caufe: But, being flitisfied that it was too ftrong againfl: Him, He
avould not trouble the Court. Whereupon
The Rule for the Prohibition
was made absolute.
ffw<7y2oth Rex verf. Inhabitants of Uffculmc.
"^ W O Juftices removed Jchn Hine and Tboinazm his Wife,
and James and Jolm their Children, from the Parifli of Uff~
cuhne, to that of St. Sidwell in Exeter: And their Order was quafhed
by the Seffions, upon an Appeal from it.
The Cafe ftated on the Seffions Order, was this — "{ohn Hine, the
Pauper, purchased a Tenement in St. SidiaelH: For which, he
gave 8/. in Money, and a Note for 4/. more; amcunting, in alc,
■to 111. He lived there, upon the faid Tenement, with his Family;
and was then rated to the hA-ND-Tax for the Year 1746. in the
following Manner, to wit, " Occupier, late Widow Hooper's, now
" John Hii-iTL's Tenement 12/." and for 1747. in the following
Manner, to wit, " Occupier, late Widow Hooper's Tenement, now
" John Hike's Tefiemcnt 12/." And was a/fo rated to the Poor-
Rate for the Year 1746. as follows, to wit, " Occupier of late
" James Hooper's Tenement 4 per Week:" And for the Year 1747.
in the following Manner, " Occupier of the late James Hooper's,
"*' NOW Hine's -1- per Week." And that the faid John Hine did,
after fuch rating, live in the faid Parifh of St. Sid-well for about
one Year,; and did, during his Rcfjdence there, pay the fdid Rates,
both to the Land-tix and the Poor, according to the Rates afore-
faid; and then fold the faid Tenement and went, with his Family,
■into the faid Parifli o^UJjhdme: From whence, he was removed into
the £iid Farifl) of St. Sidwell.
The Seffions, being of Opinion that the faid John Hine did not
gain a Settlement in St. Sidwell' s by being rated and paying as afore-
4 faid
Trinity Term 30 & 31 Geo. 2. 3^9
faid, the Consideration of the [aid Purchafe being under 30/4
do THEREFORE vacatc the faid Order.
Mr. Gould now moved to qua/h this Order of Seflions: And
He cited
2 Salk. 478. Inter the Inhabitants of St. Mary le More and Heavy-
Tree in Devonfiire : Where it was adjudged that one Facy, who,
being fettled at Heavy-Tree, went afterwards into the PariHi of St.
Mary le More, and took a Houfe there, of one Pound per Annwriy
wherein he lived a Year and a half, and paid the Rates and Taxes
due for the faid Hov^v., became thereby fettled at St. Mary le More;
though his Perfon was not rated.
[See alfo Rex v. hihabitants of Chidingfold, ante, pa. 247. and
the Cafes there cited.]
Serjeant T>a'vy and Mr. Ajlon ftiewed Caufe againft quafhing this
Order of Seffions.
They argued that the Queftion turned upon two different Acfts
of Parliament, viz. T, & /\. W. & M. c. 11. and 9 G. \. c. j. The
former whereof, they infifled, was virtually repealed by the latter.
1& /\.TF.(3 M. c. II. §. 6. provides and enads " that being
" eh,;rged with and paying his Share towards the public Taxes or
" Levies of the Pariih, fliall be deemed to gain a legal SettlemeJit
" in fuch Parifh, without Notice.'"
9 G. I. c. y. §, 5. enads " that no Perfon fhali gain a Settlement
" in any Parifh or Place, for or by Virtue of any Purchafe of any
" Eflate or Intereft whereof the Confideration doth not amount to 30/.
" bond fide i\iid; for any longer or further Time than fuch Perfon
" fhall inhabit in fuch Eftate."
They urged that this latter Statute controlled and virtually repealed
the former.
They afferted that the Parifh-Officers were obliged by 43 Eliz.
c. 2. to rate this Man, as Occupier j And that by 17 G. 2. c. 38.
§.4. either the Man Himfelf may appeal, if left out of the Ratej
or other Ferfons may appeal from it, as an unequal Rate.
And it is againft Reafon, to argue that their Rating Him fhould
be a Recognition of Him as a Parifjiioner j when they could neither
refnove Him, nor help taxing Him.
5B Lord
37° Trinity Term 30 & 31 Geo. 2.
Lord Mansfield and Mr. Juftice Foster afked whether
there had been any Determinations upon Certificate-Perfons charged
with and paying Parifli-Rates, in the fmali Interim lietween the
two Certificate-A£ts of 8, 9 IF. 3. c. 30. and 9, 10 JF. 3. c. 11.
The latter of which, only recites, in general, " that fome Doubts
" had arifen upon the Conftruflion of the former, By what ASis
" fuch Certificate Perfon might procure a legal Settlement in the
" PariOi to which he came." For if there were any fuch inter-
mediate Determinations, they would ferve to guide the prefent.
In order to look into which, it flood over, with a
Cur. advifarc vu/t.
And now Lord Mansfield delivered the Refolution of the
Court.
It will be necefliiry to confider how the Law flood before the
9 G. \. C]. Becaufe the SefTions feem to have confounded different
Ads of Parliament, and different Qualifications.
Now before that A6f, no Man was removeable from his oivn;
be the Value of the Purchafe of it, 7Z(,i;er fo f mall a^td inconfuler able.
And there were then other Ways alfo, of gaining Settlements: As,
under 3, 4/-^. & M. c. 11. §. 6. either by fcrving a Public annual
Office in the Parifli, for a whole Year; or by being charged with
and faying a Share towards the Public Taxes or Levies and Burdens
of the Parifli.
But this Acl of 9 G. I. was levelled ciily agalnO: fraudulent Pur-
chafes, of fmall Falue, made in order to gain Settlements: And it
declares that Purchafes of lefs than 30/. Value, bond fide paid, fhall
not gain a Settlement for any longer Time than the Inhabitancy
thereupon fliall continue; ^^^r which, the Purchafer fliall be liable
to be removed to his former legal Settlement prior to fuch Purchafe
iind Inhabitancy upon it. And the eflabliflied Conflrudion of this
Ai5l has been purfuant to the Intention of the Legiflature, to prevent
FRAUDULENT Purchafes: And therefore Z)^^//*'^, or otheryJ/r^ Me-
thods of coming to Effates, have not been confidered as Purchafes
ivithin this Acftj becaufe they are noT fraudulent.
Whereas the prefent Settlement is claimed by being rated
mid having paid towards the Public Taxes of the Parifli: Which is
quite a different Method of gaining a Settlement.
The Man Himfelf is here perfonally rated: The Tax is laid upon
a Tenement " late Hooper's, now John Hine's." But if He had been
only
Trinity Term 30 6c 31 Geo. 2. 371
only rated as Occupier, without adding his Name, yet furely that
would imply Notice of the Man's being an Inhabitant.
But it is objeded " that the Parifh were obliged " io rate Him.'"
Now I de7}y that they were obliged to rate Him, if He was a
Man of no Abilities: And he could not oblige them, (even by
17 G. 2. c. 38.) to rate Him, if he was 7iot fit to be rated.
There is great Analogy between this Cafe, and Cafes upon the
Certificate-AQ:. And though there are no Cafes upon that AQ. to
be found, between the Making of it and of it's explanatory Ad-,
Yet that explanatory Ad (9, loW. 3. c.ii.) does, of itfelf, fuffi-
ciently determine that a Certificate-Perfon would have gained a
Settlement by being rated and having paid towards the public Taxes
of the FariHi, notwithflanding the former Certificate- Ad, of 8 0"
■9 /'/-'". 3. £".30. That Ad therefore goes a great Way towards the
Conftrudion of this Ad.
And We are All clear thztthis Ad only means to put a Negative
■upon a Perfon's gaining a Settlement by making a f mall Pur chafe,
with a fraudulent Intention to gain a Settlement thereby, in the
Parifli where fuch Purchafe is made ; And that it does not afcSl
any other Method of gaining a Settlement,
And indeed it is but reafonable that Perfons who have been rated
and have paid towards the public Taxes and Levies of a Parifh,
(hould receive Affiftance from that Parifh, when they become ne-
ceffitous themfelves.
Order of Sessions quashed :
Order of the two Justices affirmed.
Pvcx -oerf. Inhabitants of Milvvich. ^""'"^ -°*
J June 1757.
TW O Juftices removed Thomas Thacker and his Wife and Chil-
dren, from Creyton to Milwich : And the Seifions confirm
j riieir Order, upon this Cafe flated —
Thacker was hired by Mr. Blur ton of Milwich, for eleven
i Months, for 4/. 10 s. And it was agreed between them, " that
j ," Thacker fliould give Mr. Bhirton a Month's Service in, beyond
*' the eleven Months." Thacker ferved Mr. Blurton the eleven
Months, in Milwich; and alfo all the giveji-in Month, except the
i| laft 3 Days : And as to thofe 3 Days, Thacker could not fay Whether
4 He.
2,-]^ Trinity Term 30 & 31 Geo 2.
He ferved them, or went away without ferving them ; But he re-
ceived the whole 4. 1. 10 s. Wages.
The SefTions confirm the Order; being of Opinion this was a
Hiring for a I'ear, and a Service for a Tear.
Mr. Norton moved to quafh thefe Orders, upon 2 Objedtions.
J ft. This is not a good Hiring for a Year, within 3, 4 W.
& M. c. i\. being only for eleven Months.
1 Strange 83. Rex v. Inhabitants of Haiighton.
2 Salk. 535. Inter Inhab. of Dunsfold 2iX\6. Ridgivick.
1 Strange 143. Between the Parijhes ofCoombe and Wejl Woodhav.
2d]y. 'Tis ?iot a good Service for a Tear : Becaufe three Days
are wanting, at the End oJ it.
2 Strange 1022. Betioeen the PariJJ:es of Seafordzv\^ Cajlle church.
But The Court viz. Lord Mansfield ^ Mr. ]u(i. Denifon, and
Mr. Jullice Fofier, were extremely clear,
ift. That this Agreement (taken all together) is a manifeft Con-
tradl " toferve for a Year ;" notwithft.ndiiig the Form of Ex-
preflion : (which, by the way, they coiiGdered as ari Attempt to
prevent the Man's gaining a Settlement, by a very paltry E afioii.)
The real Queftion is no more than " Whether j i Montlis and One
" Month muke 12 Months." There are no particular technical
Words necefikry, to make a Hiring for a Year. ThiC Siib.Hance of
tJiis Agreement is " to ferve 12 Months, for 4 A 10 i," And wiiat
Signifies the Variation of Exprejicn? Every Contri.<3 to ferve, is a
• y. Co. Lilt. Contradl to ferve *• for a Tear ; unlefs there be fomething to explain
42- b. it otherwife. Now certainly here is Nothing to explain it other-
wife. And Mr. Juftice Vojlcr obferved tl]..t this was an entire
fingle Contraft ; And not like to the Cafes of different Contrads, at
different Times : And He added, that no Ac'Hon would have lain
for the Wages, till the End of the "whole 12 Months.
2dly. That as to the Servant's going away 3 Days before the End
of thel^ear — The State of the Fafl don't fuf pert the Objtflion : For
it don't appear that He did go away belore the End of the Year.
It is only ftated " that He could not fay Whether He ferved 'hefe
" 3 Days, or went away v.fithout ferving them." But it is pofitive-
ly ftated " that He received the ii-hole 4/. 10 s. IFages :" Which,' at
leaft, feems to imply the Mafter's Confcnt or Permiffion. Whereas
in the Cafe of the King againft the Inhabitants of Ifiip^ P. 7 G. i.
in I Strange 423. it was holden that the Servant's going away 3
Days before the End of his Year, direSlly in Oppofition to his Majler'i
WUl and exprcfs pj-ohibition, upon a reafonable Occafion, and upon
2 a
Trinity Term 30 & 31 Geo. 2. 373
a reafonable Requefl (unreafonably refufed,) did not vitiate the
Settlement.
Per Cur. unanimoufly
Both Orders affirmed.
Harris 'verf. Huntbach. ^«c/% ^^^
J June 1757.
THIS was a Caufe in the Civil Paper; and came before the
Court, upon a Cafe referved for the Opinion of the Court, in
an Adlion upon a general Indebitatm AJJumpJit, in which the Plain-
tiff declared upon two Counts ; The ift of which was for Money
lent and advanced by the Plaintiff, at the Defendant's Requefl ; The
2d was for Money laid out and expended by the Plaintiff, at the
Defendatit's Requefl : And the Queflion upon the Cafe flated, was
*' Whether the Evidence fupported the Declaration."
The Cafe ftated — ifl. That a Note of the Defendant's was pro-
duced in Evidence by the Plaintiff, in the following Words:
" 3d December 1751. Then received of Mr. Harris the Sum of
" 19/. on the Behalf of my Grandfon : Which I promife to be
" accountable for, on Demand. Witnefs my W'^nA S. Huntbach."
This Evidence was produced in Support of the firfl Count.
On the 2d Count — The Evidence was, that One Davidfon
coming to the Plaintiff, by the Defendant's Order, for Money to
pay Workmen, the Plaintiff refufed to pay the Money, unlefs the
Defendant would fign a Receipt. Whereupon the Defendant wrote
the following Note, viz. " Mr. Harris, At the earneft Requeff of
" the Gardiner, the Workmen wanting Money greatly, for the
" Work at the Woodhoules, This is to certify that it is My Rcqueji
" that You pay to Mr. Davidfon, on the Account of Mafter Hil-
" Her, for the Worktv.ens Ufe the Sum of 15/. As Witnefs my
" Hand S. Huntbach." And a Receipt was given by the laid Da-
vidfon, the Gardiner, to the Plaintiff, on the Plaintiff's paying him
this 15/, Verdict for the Plaintiff— Cafe fived upon this Que-
flion, viz. " Whether the Evidence was fufficient to fupport the
« Verdidl."
Mr. Afton for the Plaintiff— The firfl Count is for Money lent
and advanced by the Plaintiff, at the Defendant's Requefl. And
here is a Note under the Defendant's Hand produced, acknowledg-
ing the Receipt of it, and promifing to be accountable for it :
Which is tantamount to a Promife to pay it. And it's being ad-
ded, " on the Behalf of my Grandfon" makes no Difference : For
5 C there
374 Trinity Term 30 &: 31 Geo. 2.
there is No Remedy againfl: the Ltfant. Therefore it is an Original^
not a Collateral Undertaking. In 2 Ld. Ray//i. 1085. Buckmyr v.
Darnall, It is agreed " That where no Adion will lie againft the
" Party himlelf, Undertaken for, it is an Origituil Promife." In
the Cafe of Reidv.NaJh, M. 24 G. 2. B. R. and Tr. 175 i, 24 &
25 G. 2. It was fettled accordingly. And here is w Remedy againjl
the Infant, upon this Note.
:i. 2d Queftion. Whether the other Evidence above ftat-ed was fuf-
ficicnt to maintain the 2d Count.
Now the Plaintiff could not have maintained an Adion agninft
the Infant, for this Money, no more than for the former. The
Plaintiff refufed to advance it, till the Defendant wrote thus, " It is
" my Requeft that You {hall pay, on the Account of Mafter Hi/lier,
" to Mr. Davidfofi, to the Workmens Ufe, 15 /." And this is an
Original Undertaking " that the Defendant will pay the Money :"
And it was advanced on the Account and Credit of the Defendant.
Mr. Nares co7Jtra for the Defendant —
jtl. The Queftion is, how far a general Indebitatus Ajjlunpfit will lie,
•upon thefe Fads, and the Evidence brought to fupport them. This
is a general InJebitatus Ajjiimpfit : And Indebitatus Ajj'umpfd does
not lie, but when an Adion of Debt will lie. i Salkeld 23.
Hard's Cafe is exprefly fo. 2 Ld. Raym. 10-54, ^035' ^^nith v,
Ayrey : " Indebitatus AJfunipJft does not lie for Money won at Play."
1 Strange 680. JVelch v. Craig : " It does not lie on a Promiflbry
Note." No more will it, upon a Collateral Undertaking. And
therefore the prefent is not a proper Ccwit, if the Evidence would
fupport it. This cannot be confidered as Money lent. It cannot
be more than Evidence of a Collateral Promife. And why will not
an Adion lie againjl the Infant? I think it loill. And then it is
exadly within the Cafes of Buckmyr v. Darnall, in 2 Ld. Raym.
1085 ; and Reid v. NaJJj, Where NaJJj promifed to pay 50 /. if the
Plaintifif would withdraw his Record; (Which was indeed an Ori-
ginal Promife.)
2d. Secondly, on the 2d Count — The Note only imports a Certi-
Jicate " that the Money is proper to be paid." No general Inde-
bitatus Ajfumpfit will lie upon this. Here is no Evidence of Money
lent.
Mr. Ajion, in Reply —
I ft. A Note of Hand acknowledging the Receipt, and promifing
■Xo be accountable, is certainly Evidence of Money lent. And it
4 is
Trinity Term 30 & 31 Geo. 2. 375
is every Day's Experience, that Notes of Hand are given in Evidence
upon General Indebitatus Ajjumpjitu And as to inferting " on Be-
" half of my Grandfon" it makes no Sort of DifFerence. 2 Strange
955. Thomas v. Bifxp — The Addition of " Cafliier to the York
" Buildings Company," was holden to make no Difference. And
there is no Privity between Mr. Harris und the Infant : Nor will any
Aftion lie.againft Him.
This is ndt a Promife in Aid, or a Collateral Undertaking -, but
a file, abfihite, Origi?ial Promife. Therefore He prayed that the
I>oJlea might be delivered to the Plaintiff.
Lord Mansfield — ■
TheQueftion is Whether there be Evidence oi^LTitht contraded
'by the Defendant, payable to the Plaintiff.
The Declaration confifts of two Counts, for two different Debts*
And there cannot be clearer Evidence, than the firil: Note is,
of the former Debt. And as to the 2d — Here is a Manfion-
Houfe belonging to an Infant : Which Manfion-Houfe has a
Garden belonging to it. It might not be necejjary (in regard to the
Infant's Situation and Circumftances) to fupport this Garden,
(which might be a Pica/are Garden :) And No Aftion will lie
againft the Infant kit for Necejfaries. It don't appear at all, thaC
there could be any Remedy againft the Infant.
You can bring an Indebitatus Affumpjit for the Debt ; and^/w the
.Note in Evidence : And furely, it fupports the Declaration.
This is Ikid to be a Collateral Undertaking. But the Argument
about Original or Collateral Umlertakings, depends merely upon the
Want of fufficiently defining the Terms " Original" and " Collateral-."
Otherwife, there can be no Doubt about them. This is clearly
Tin Original Undertaking. And the Jury have found thefe Notes
to be fitficieftt Evidence of the Debt : And it is indeed a Matter of
.Fa£l, rather than of Law.
Mr. Juft. Denison concurred* —
Surely, This Note is Evidence of Money lent. And between
the Plaintiff and Defendant, this is certainly an Original Under-
taking : And the Money was paid at the Defendant's Requejl. And
there is no Privity between the Plaintiff and the Infant. The Cafe
of Reid V. Nap is, in fome Meafure, like this. * Here is Nothitig cafc ^t'de-
iike a Collateral Requeil or Promife; 'Tis an On^/«a/ Undertaking, terminedupon
mature Con-
j^Ij.^ fideration.]
37^ Trinity Term 30 & 31 Geo. 2.
Mr. Juft. Foster likewlfe concurred. —
The Infant was not liable, and therefore it could not be a collateral
Undertaking. It was an Original Undertaking of the Defendant to
pay the Money.
Fer Cur. Let the Postea be delivered to the Plaintiff.
T
Hammond verf. Brewer.
HIS was a Cafe for the Opinion of the Court, from the
Sujfex Aflizes, before Mr. Baron Smythe.
The Cafe ftates that an Ad of Parliament was made in 26 G. 2.
(f. 54.) for repairing and widening the Road from Flimwell Vent in
the Parifh of Ticehurjl in the County of Stijfex, to the Town and
Port of Hnjlitjg in the faid County : And it ftates many other
Matters not worth noting ; as the fingle Queftion was " Whether
" the Town of Battel was meant to be iticludcd or excluded.
The Queftion arofe upon that Part of this Turnpike-A<fl which
gave Diredions for repairing the Road to and. frotn the Town of
Battel y which Town was ftated to be lately paved before the Adt
of Parliament, by the Inhabitants ; and that it was kept in Repair
by them, and is noio fo.
Note. In many other Parts of the Ad, the Roads are defcribed
as leading from to atnl through fuch and fuch Towns : But
when it mentions the Town of Battel it only fays " to and
FROM it," but omits the Word " through." And the only I
Queftion was " Whether t!ie Ad intended to include or '
" EXCLUDE the Town of Battel itfelf."
Mr. Kmicler was for the Plaintiff (of whom the Toll had been
taken :) And Mr. Harvey, for the Commifiioners, (the Defendant
having aded by their Authority ;) who had fet up a Turnpike in
the very Heart of the Town.
The Court were clear that the Ad of Parliament intended to
EXCLUDE the Town of Battel; And that it was right and reafon-
able that it fhould be excluded.
And Lord Mansfield obferved that it was neither ufual nor
convenient to ered Toli-Gates in the Middle of great Towns;
2 (Which
Trinity Term 30 & 31 Geo. 2. y,-]
(Which thefe Commiffioners had done:) Which might objirii^
the neceffary Intercourfe amongft the Inhabitants; or even hinder
an Inhabitant from fending his Horfes to Water, without paying the
Toll. Therefore They Ordered the
PosTEA to be delivered to the Plaintiff.
Rex verf. Maniilno;. K'ldnefi^y
J ^ 22d Jute
MR. j4/Ion Shewed Caufe againft quafliing an Order of Sefl'ions
made upon a Road-Ad: made in 29 G. 2. c. ^y. (for enlar-
ging the Terms and Powers granted by former xAfts :) V/hereby the
Surveyor of the Highways beyond Shcppard Shord and the De^jiza
&c. is authorized and impowered to d/g Gravel &c. or o.her Ma-
terials &c. in upon or out of and from all and every the Lands
Fields or Grounds in the Occupation o^ Jolm Maiming in the Parilh
oi All Cawiings in the County o? Wilts.
The Subftance of the Order was as follows — It begins with reci-
ting the A61 of 29 G. 2. c. ^j. impowering the Surveyor or Survey-
ors of the Highways or Roads therein fpecified, or any other Per-
fon or Perfons appointed by him or them, (having firft an Order
from the Quarter-SefTions ; Six Days Notice, in Writing, of the
Application for fuch Order, being firfl given by the Surveyor or Sur-
veyors, to the Owner or Owners, Occupier or Occupiers of the
Lands and Grounds then intended or purpofed to be cut digged or
gathered for Materials for repairing and amending the Highways or
Roads, or left at his or their Places of Abode ;) to cut dig gather
take and carry away any Furze Heath Gravel Sand or other Mate-
rials proper and fufficient for repairing of the faid Highways or
Roads, \if fuch Materials cannot be had or found in or upon any
Wafte or Common Grounds in any Parifh Town or Place adjoining
to or lying near the fame Highways or Roads,) in upon or out of
and from any Lands, Fields or Groimds or either of them (Not be-
ing a Yard Garden Orchard Park. Paddock Wood Coppice Nurfery
or inclofed Ground planted with any Walk or Walks of Trees or
Avenue to any Houfe ;) Paying fuch Rates for fuch Materials, or
for the Damage done to the Owners and Occupiers of the Ground
where any and from whence the fame (hall be cut digged gathered
taken and carried away, or over which the fame fhall be carried,
as the Surveyor or Surveyors, or other Perfon or Perfons by
them appointed or to be appointed by Virtue of the faid former
Ads or the faid recited Ad, for that Purpofe, (hall thmk reafonahk.
5 D Then
«757-
37^ Trinity Term 30 & 31 Geo. 2.
. Then the fn'ii Order of Seffions recites That Application had been
made to that Court, iy the Surveyor of the faid Highways or
Roads, for an Order to cut dig gather take and carry away Furze
Heath Stones Gravel Sand or other Materials proper and fufficient
for repairing of the faid Highways or Roads, in upon or out of
and from All <7W Every the Lands Fields ^?;(/ Grounds 7^^'^ /«
rbe Occupation of Jolm Matining of the Parifli of ^// Cafinings in the
faid County of Wilts Yeoman, (not being a Yard Garden Orchard
Park Paddock Wood Coppice Nurfery or inclolcd Ground planted
with any Walk or Walks of Trees or Avenue to any Houfe.)
Then the Order goes on thus —
And the faid Surveyor having made and given Jnll Proof to this
Court " that /^x Days Notice in Writing, of Lis intended Applica-
" tion to this Court for fuch Order, hath been given by Him
" TO t be faid John Manning, or left at bis Place of Abode j"
And tbe faid ]o\\ii Manning, in Confequence thereof having of-
fered to tbis Court by his Counfel, Reafons againft f'ch Order being
made; and endeavoured to fupport the fame by Prools, Which Rea-
fons and Proofs tbis Court adjudge to be very infufficicnt ;) An^
the faid Surveyor alfo having made and given full Proof to this
Court, " that proper and sufficient Materials for repairing of
*' the faid Highways or Roads cannot be had or found in or upon
" any Wafte or Common Grounds in any Parifh Town or Place
" adjoining to or laying near the fame Highways or Roads,"
This Court doth therefore, in purfuance and by Virtue of
the faid recited Adl of Parliament unaninioufly Order that the faid
Surveyor of the faid Highways or Roads, or any other Perfon or
Perfons by Him appointed and employed, may. And He and They
is and are (by virtue of the faid A6t of Parliament and by virtue
hereof) authorized and impowered to cut dig gather take and carry
a way any Furze Heath Stones Gravel Sand or other Materials pro-
per and fufficient for repairing of the faid Highways or Roads, in
upon or out of and from All and Every the Lands Fields or
Grounds in the Occupation of the faid John Mamiing, in the faid
Parip of All Cannings, (not being a Yard Garden Orchard Park
Paddock Wood Coppice Nurfery or inclofed Ground planted with
any Walk or Walks of Trees or Avenue to any Houfe,) Paying
SUCH Rates for fuch Materials, or for the Damage done to the
O-xners o r the faid Occupier of the faid Lands where any and from
whence the fame fliall be cut digged gathered taken and carried
away, as the faid Act of Parliament herein before in Part
recited doth direct and prescribe.
2 Mr. Norton's
Trinity Term 30 & 31 Geo. 2. 379
Mr. Norton's Objedions to this Order upon making the Original
Motion, were only two:
I ft. That there ought to have been Notice to ?^^ Owner, as
well as to the Occupier of the Land wherein the Gravel was to be
dug : Although He owned that the ftridt Words of the Adl had not
the Copulative but only the DisjunBive; viz. upon Notice, &c.
*' to the Owner or Owners, Occupier or Occupiers of the Land,
" &€." Yet, He faid, that Juftice required that the Owner
Jhould have Notice, as well as the Occupier; when his Property is
to be fo materially affeSied: And He argued this to be the Intention
of the Aft, And 'tis frequent, in fuch Cafes, to underftand nega-
t'}ve Conjundlions, as Copulative.
2dly. The SatisfaBion is direded by the Ad, to be made both
to Owner and Occupier: Whereas they have here awarded none
at all to the Owner of the Land, who is the Perfon principally in-
fured. Upon this Motion a Rule was made to fhew Caufe. After
which, 9 additional Objedions were given in, in Writing. And
now, Mr. ylfton fliewed Caufe why the Order of Seffions fhould
not be quaflied.
ift. Objedion. (given in in Writing) is that the Name of the
Surveyor who applied for the Order is not mentioned.
Anfwer — That is Not Necejfary^
2d. Objedion. That the Seffions have not adjudged "That
*• fix Days Notice in Writing was given to any Perfon, of the in-
" tended Application:" The Words are only, " The Surveyor
*' having made and given full Proof to this Court," that fuch No-
tice was given.
Anfwer — That it does appear : But if not, ytX.k\z 7iot 72eceJJ'ary.
3d. Objedion. That the Fad of fuch Notice being given, is not
fujiciently fet forth; it being only faid " That fuch Notice was given
" to Manning, or left at his Place of Abode."
Anfwer — That that is fufficient.
4th. Objedion: (which was Mr. Norton's firft.) It is not fet forth
that fix Days Notice in Writing of this intended Application was
given to the Own e r of the Lands.
Anfwer. Notice to the Occupier is enough. So, on a Di-
ftrefs — ^Notice may be given either to the Tenant or to the Owner
of
380 Trinity Term 30 & 31 Geo. 2.
of the Goods. 4 Mod. 390. IVaJter v. Rumballh (o holden by the
Court, [pa. 395.1 And here the Owner may perhaps not be inti-
tled: For the Adt fays, " That the Damages, if any, &c." Befides,
the Owner may be at a vaft Diftance from the Land. And here
the T'enant appeared, and made what Defence he thought proper.
5th. Objcdion. That the Seffions have not exprefdy adjudged
" That proper and futhcient Materials for repairing the Highways
" were not to be found vi any Wafte or Common Ground in any
"' Place jiear the faid Highway:" For it is only faid, " The Sur-
«* veyor having made and given full Proof to the Court, that, ©"t-."
Anfwer — The Order is agreeable to the Adt of Parliament: And
it fpecifies " that /«// Proo/ was made and given to the Court, of
this Fa(ft.
6th. Objedion. That it is not fet forth " That no p?-oper Ma-
" teriah at all, for repairing the Highways, are to be found in
" any fuch Wafte or Common Ground:" But only (in loofe and
general Words) " That proper and sufficient Materials for
" fuch Purpofe are not to be found there." Notwithftanding
which, It is ordered, " that the Surveyor fliall cut and carry away
" ALL Sorts of Materials neceffary for the Repair of the inhole
" Road."
Anfwer — That it is exadtly agreeable to the Ad.
7th. Objedion. Non ccnftat that any Materials proper for fuch
Purpofe ARE TO BE FOUND z« <7/7v P^r^ of thefe Grounds.
Anfwer — That muft depend upon Trial. The Lands are to be
" cut digged, and gathered for Materials."
8th. Objedion. 'Tis not fet forth /6owy^r thefe Grounds //Vyrow
the Highicay; nor to what Diftance all wafte Grounds have been
found barren of proper Materials; nor that thefe Grounds are nearer
than any Wajie where fuch Materials may be found.
Anfwer — The Order is worded agreeable to the AB: And thefe
Particularities Jieed not be infer ted in it.
9th, Objedion. That the Powers here committed to the Surveyor
are uncertain in every Branch thereof. For only that particular
Piece of Land which affords the Materials, is made liable by the Ad.
But here all the Grounds in the Occupation of iWijwwz;;^, (being,
as he alledged, a Farm of 540/. per Annum) are to be dug, at the
Difcretion of the Surveyor. And they are alfo laid under a pcr-
3 petual
Trinity Term 30 & 31 Geo. 2. 381
cetual Incumbrance, or at leaft one that is abfolutely uncertain ; for
4hat no time is prefixed at which fuch Grounds fliall be emancipate.
Anfvver — This a!fo is fufficient; being agreeable to the A61.
loth, Objedtion: (Which was Mr. Norton's Second) That Satif-
faBioti for fuch Materials is by this Order, awarded to the Owner
OR Occupier; but fiot to Both: Nor is it certainly defined to which
■of them. Whereas the Adl of Parliament is, expiefs, " Paying to
" the Owners and Occupiers.
Anfwer — 'Tis fufiicient: The A61 is disjun^flive, in direfling the
Notice; and muft here be taken disjunBively and refpectively.
nth. Objedion. That the Rate of fuch Satisfaction is eflimated
■in the Order only as for the Value of the Materials which fhall be
tcut or carried out of thefe Grounds ; o r for the Damage done thereby;
but not as for both; as it ought, in Juftice, to be: nor is it cer-
-tainly defined, for which of the two, the Compenfation is to
sbe made.
Anfwer — 'Tis in the Words of the Aft.
Mr. Norton and Mr. T'hurlow in Reply, fupported thefe feveral
Objedions; And urged that thefe fummary Authorities given to
Jultices, to the Detriment of the Liberty or Property of the Subjedt,
.ought to be STRICTLY piirfued: And they cited many Cafes, of
what they apprehended to be fimilar Inftances, or at leail proceed-
ing upon the fame Principles, Whereas in the prefent Cafe, the
Juftices have not (as they alledged) given themfelves Jurifdiction,
by any Adjudication of the neceffary Fadls: but have only
recited the Evidence of them.
LcvRD Mansfield — fiid this Order v/as very ill penned; and
the Juftices ought undoubtedly to purfue their Authority: But how-
.ever, He did not agree to all the Ohjedions; and particularly to the
* 2d. ?.nd -f- 5th. which are founded upon a fuppofed Neceffity that *+ The zd.
there mull be cxprefs Adjudications; where the Recitals and AUe- ^"'^ 5'h- of
gations are fufiicient, and where Conclufions are adually di^awn. Writing.
As to the 4th Objedion — He did not think that the Ad could
mean that it fhould al-ways be necefiTary to give Notice to the Own e k :
Which might be impoffible.
But as to the 6th and 7th Ohjedions — It is necejfary to JJxiv that
there were no proper Materials to be found in or upon the Waftes
or Coinmon Grounds near the Highway. Which is not done here.
5 E And
3^2 Trinity Term 30 & 31 Geo. 2.
And they are not wiirranted to dig in the private Soil for All the
Gpccies of Materials; bccaiife somil of tbcfc Species are not to be
found in or upon the faid Waftes or Common Grounds. They
ought to SPECIFY what ca7i not be found in or upon the Wqjles
or Common Grounds; and what may be found in the private Soil,
And they can ;«/ dig, to try for it, in the private Soil: They
Ihould previoufly knoio that it is to be found there; or at Icaj,
Lave a reafonable Profped of finding it there.
9th. And they cannot make this general Order " to dig over all
the Eftate;'" and leave this to the Difcretion of the Surveyor: They
ought to Jix upon the particular Part; to determine this thc?njelves,
and not leave it to their Surveyor This Objedion is fai al.
loth. So alfo is that of the Satisfaction: For the Satisfac-
tion ought to be awarded to the Owner, or to the Occupier, or to
Both; according to the Damages fuftaincd by the One, or
"by the Other; or by Both.
Perhaps fome other Objedions might hold: But however, here
is enough, that I have already mtntioned.
Mr. Juft. Denison — It is a very imperfed Order, and liable to
many Objedions.
As to the 2d, 3d, 5th, 6th, and 7th, Objedions — An exprefs and
direct Adjudjcation may not be neceffiry: But many ot thefe
"Foundations of their Authority ought, feme bciv cr other, to ap-
pear upon the Face of the Order. Particularly, it ought to appear
that 'Notice was given of the Intention to dig in fome particular
Place: For perhaps very good Caufe may be eafy to be fhcwn
againft it. But
9th. It can never be right to dig over all the EJlate;
6th. Nor to dig in the private Soil for fuch Materials as may be
found in the Walle.
As to the 4th — Notice is not univerfally necefliiry to be given
to the Oiiiicr : This may in fome Cafes be impracticable.
But as to the loth. Satisfaction ou^ht to be be made to
ike Owner, (if he be damaged,) undoubtedly.
Mr. Juft. Foster concurred.
The Perfon that drew this Order, has kept to the Word.", but
;not to the Sp 1 R i r of the Act.
And
Trinity Term 30 & 31 Geo. 2. 383
And as to the 9th Objection in particular, undoubtedly, The
Juftices have exceeded their Power in ordering the Surveyor to dig
over the whole EJlate: This can never be reafonable, nor within
their Jurifdiction.
Per Cur. unanimouily
Rule for quafhing the Ordt^r
MADE ABSOLUTE.
Cogan vcrf. Ebden and Another. nur/j^y 23^
'Jitni; 1757.
ON a Motion (made the 18th inftant,) To// ^i/ide a Verdict,
as being given in by the Foreman, contrary to the Opi-
nion and Intention of eight of the 'jury. — It appeared that the
Defendant juftified under a Right of a Way, over the Plaintiff's
Ground, to t^co Clofes of the Defendants, viz. Broadmoor, and
Three-Acres : Upon which, two different Iffiies were joined ; viz.
One, upon the Right of a Way to Broadmoor ; the Other, upon
the Right of a Way to the Three- A^res. And the Foreman gave in
the Verdid, as a general Verdid for the Defendant, upon both If-
fues. But Eight of the Jury made Affidavit " That it was the
" Meaning and Intention of the whole Jury to find the
" former IlTue for the Defendant ; and the latter Jor the Plain-
*' TIFF : And that this Miftake was difcovered by them, an Hour
*' afterioards ; but not till the Judge ii-as gone to his Lodgings."
And upon the Judge's Report it appeared that, though there was
indeed Evidence on both Sides, yet the Weight of the Evidence was
(as it appeared to Him) on the Side of the Plaintiff, as to this latter
Iffue.
A'^. B. The Foreman had declined making any Affidavit ; be-
caufe, he faid, he fliould make himfelf appear a Fool, to the
Court of Kind's Bench.
o
This Matter was much litigated by the Counfel on both Sides.
And the Counfel for the Plaintiff mentioned the Cafe of Baker v.
Miles, in C. B. in M. 4 G. 2. B. R. S. P. where Eleven of the Jury-
men fvvore " That the Foreman had miftaken their Verdid j" And
it was thereupon fet afide.
The Court were All clear that this was a Mifiake, arifing from
the Jury's being unacquainted with Bufinefs of this Nature ; and
from the Affociate's Omiffion in not aiking the Jury particularly
" how they found each refpeSiive Iffue," and in not making the Jury
fully underjland their own Finding ; And that it was agreeable to
Right
384 Trinity Term 30 & 31 Geo. 2.
t.
Right and Juflice, that the Miftakc jlmild /v rectified. And they
had no Doubt about the FaSl of this Miftake ; from the Affidavit
of the Eight Jurymen, confirmed (as they held it in Effeft to be) by
the Foreman's dedining to make any Affidavit at all : Efpecially,
as the Judge's Notes (hewed the Weight of the Evide?ice to have
been for the Plaintiff, as to this latter IHue.
And Lord Mansfield and Mr. Juft. Denison thought that as
it was a mere Slip, there might be Jbae Method of rectifying
the Verdicl according to the Truth of the Cafe ; from the Judge's
Notes, if they were fufficiently particular; without jhidmg the
illae to be tried over again, at a great Expence,
And the Cafe of Neivcombe v. Green, in 2 Strange 1197. was
mentioned ; where the Poftea was amended by the Judge's Notes.
And Lord Mansfield faid that at leaft they could fet afide the Verdidt
i^ithout Cofts. But Difficulties occurring how the Cofts would be,
in fuch Cafe ; as One llfue was flill found for, and was in Truth
clearly for the Defendant. Therefore Cur. advis'.
And now Lord Mansfield, feeing Mr. Morton in Court, who
was concerned for the Plaintiff, and had (on his Behalf) moved to
SET ASIDE the Verdid, took Occafion to mention this Cafe ; and
faid They had thought of it and He had talked with his Brother
* [Whofe or- * Wilmot too, about it : But, however. He was not now going to
''a'^eraent"' §'^^ ^^^ Opinion ; but only to propcfe what feemed to Him the
were now in moft proper Method of coming at it.
the other
, ourc.j yj^^ Q_^^^ ^£ 'Nc'wcombe v. Green, itfelf, is not applicable to this
Cafe : But there is another Cafe, of Mayo v, Archer, in i Strange
514, 515. Where the Qn^eftion was " Whether a Farmer who
" bought and fold Potatoes could be a Bankrupt :" And the Special
Verdift did not fet forth the Quantities he had bought and foldj
though tliey were proved at tloe 'Trial. The Court did not there
award a Venire facias de novo ; but amended the Special Verdift, in
that refpecft. Which Cafe is more applicable to the prefent Cafe,
than that which was cited : For here they Ordered the Special
Verdid to be amended : though the Plaintiff's Motion was only
" that a Venire facias de fiovo might be awarded."
But another Cafe has been mentioned to me, which is applicable
to the Principle of this Cafe ; though not like the particular Fadl.
It is that of Dayrell v. Bridge, Tr. 22 G. 2. B. R. Trefpafs for cut-
ting down an Oak -Tree — The Defendant pleaded feveral Pleas;
One of which was, " Not Guilty." At the Trial, a General Ver-
■did: was taken down, and fo entered. And the Court rcBiJied the
FcrdiB, by expunging the Finding on all but the " Not Guilty ;"
4 if
Trinity Term 30 & 31 Geo. 2. 385
It appearing that Nothing was in Queftion (at the Trial) but " whe-
" ther the Place where the Tree ftood, was parcel of the Manor,
" or not." In the Cafe oi Neivc.omb v. Green^ Several Cafes * were * None are
cited on the fame Subjeft : Though the Cafe itfelf\% not the prefent ^^"'J""'/^''^
Cale. J197- But
Cro. Car,
If the Court fets the Matter right, they (hould proceed accord- 33S^ EUot
ing to the ivhole Truth of the Cafe. The Judge who tried the ""^ Hafk.\7,.
Caufe agrees to the Fad difclofed in the Affidavit of the Eight Jury- BohPi Cafe,
Men : Whereas Your Mi Affidavit on which the Rule was made, ""f ^ ^^.'"^ °f
^ ' ^ try V. tior-
was an Affidavit of only Four of them. der, in Lord
Raymon£%
Therefore what I would propofe is that You fhould make your ^^l^ "'"'
Motion, and have a Rule to fliew Caufe, Why, upon Reading the
Affidavits of thefe Eight Jury-Men, the Verdidl fhould not be
AMENDED utid SET RIGHT, according to the Truth of the Finding.
Note — Such a Motion was afterwards made; and a Rule to
" fliew Caufe" granted. But it never canie before the Court
any more : It plainly appearing that the Court, upon Delibera-
tion among thcmfelves, had come to an Opinion " that in
" this Shape the Verdid might be fet right."
\
Rex veff. Goddard Williams. Tue/jayzm
J June i7;7.
MR. Nares fliewed Caufe (on Wcdnefday, qtb Feb. lafl:,) againfl:
quafliiiig a Certiorari to remove, from the Quartcr-Seffions
of the City of London, an Information upon i fa. i. c. 22. inti-
tled " The Duty of Tanners, Curriers, Shoemakers and of others
" Cutting of Leather."
Note. The Information runs, throughout, " that the Informers
" give the Lord Mayor oi London to underftand &c." But tiie
Certiorari is dircfted to the Sessions of the City oi London.
Three Objedlions, he faid, had been (upon the original Motion)
taken to this Certiorari :
Obj. I ft. The Certiorari does not lie, at all.
2d.' Tis not well dire Sled. [F. infra, & i Jac. i.e. 22. § 50.]
3d. It does not lie, before Convivlion. i Salk. 145. Dr.
Sands's Cafe, i Siderf. 296.
5 F Anfwers—
386 Trinity Term 30 & 31 Geo. 2.
Anfwers —
As to the I ft ObjedVion — I Ld. Raym. 469. Dr. Groenvelt's Cafe
proves that a Certiorari will lie : For this Court, by Common Law.,
■ may iffue it. i Sulk. 148. Crojs v. Smith. A Certiorari lies t(> All
Inferior Jurifdiftions. i Fenfr. 68. Smith's Cafe is to the like Ef-
[*Aniirerably fe(5t. Style 351 G? 356. in Point. 8 Mod. 331. * Arthur v. Com-
!'ltfe<f"°Mo"' fmjftoners of Sewers m Torkjlnre. _ i Hawk. P. C. 218. § 79, 80. is
dern Cafes in very ftrong in Favour of CertiorarieSy where the Inferior Jurifdidlion
Law and E- gxcceds it's Authority.
quit/.' ■'
zdly. It is direBed to the Juftices at Seflions, generally. And it
is right: For this is an A5l of Sefjions. z Hawk. P. C. 290. § 43.
proves this Method to be right.
3dly. As to I Salk. 145. pi. 5. Dr. Sar7ds's Cafe, P. 10 W. 3.
The Reafon given for the Opinion is anfvvered by the very next
Cafe [pi. 6.) in the fame Book. The Cafe in i Sidaf. 296. [There
are two Cafes there, in the fame Page, //. 19. Gf pi. 20. Tr.
18 C 2. which both feem applicable to this Subjedt.] fhnds upon
its own bottom. And perhaps the Method mentioned in i Salk.
145. pi. 6. was not then found out. However, notwithftanding
what is there faid. Yet it will lie to every S^arter-Stfjicfis : And
this was at the Quarter- Seflions.
Nir. Norton cojjtra, for the Rule (to quafh the G^-Z/'or/ir/) agreed
to put it upon I y. I. f. 22. § 50. which Claufe gives Jurifdidion
to the Lord Mayor of London for the Time being,- within the City,
AND ivitbin Three Miles compafs of it.
And this Information is here given to the Lord Mayor, prefent
(it is true) in Court of the aforefaid Court of Scffions : And the In-
formers pray the Juiigmcnt of the Lord Mayor, though it is in-
deed added " fo present in the faid Court.'' Therefore this is not
a Proce-^ding at Sefions ; but a Proceeding before the Lord Mayor^
purfuant to the Aft.
Note — The Caption is as at a Court of Seffons : But the Infor-
mation is given to the Lord Mayor ; And they conclude with
praying fiidgment of the Lord Mayor, y3 pufent in that
Court (of Seflions.)
Lord Man<;field — The Certiorari has manifeftly iffued, as
fuppof.ug it to be a i rocreding BEFORE the Justices at the S.[]ions:
And they return it as fiich.
Trinity Term 30 & 31 Geo. 2. 387
N. B. The Return is by " Stephen Theodore 'Janjfen Efq; Mayor
" of the City of London, and also one of the Jujlices within
" written."
The Court thought the previous Queftion to that of the
Regularity or Diredtion of the Certiorari, depended upon the Pro-
priety and Validity of the Lifornmtion ; viz. " Whether the Mayor
" ALONE had the Jurifdidion, under this Adj" or '' iht Mayor
" IN Sessions."
Mr. Norton — ^The JurifdiiStion is in the Mayor alome : For He
has it even for the Space of 3 Miles out of the City ; where the Sef-
'fions have no JurifdiStion at all. It is true that He has here exe-
cuted \h\s Jurifdidlion in Seffions.
Lord Mansfield and Mr. Juft. Denison were fatisfied that the
Propriety of the Di R fct ion of the Certiorari , depends upon the
Propriety of the ConviElion : And they feemed to think that the
proper Method of bringing this Queftion before the Court, would be
for Mr. Narei to move " to quash the Information."
■ Mr. Nares defired to take a Day or two's Time, to confider of
this, and to be better prepared for it. Whereupon it was, at pre-
sent, adjourned.
And on Monday 23d May The prefent Rule was enlarged: And
alfo Mr. Nares (by Approbation of the Court, and of the adverfe
Party,) took a Rule, agreeable to the above Hint, " to Shew
" Cause why the Information fhould not be quaffed."
And now Mr. Norton and Mr. Williams being ready to fliew
Caufe, pro Rege ; —
Mr. Gould and Mr. Nares, for the Defendant, propofed their Ob-
jedions, to the Information, thus ; viz.
I ft. That the Jurifdidlion is not in the Lord Mayor; but in
the Srjfions.
2dly. The Remedy is not by way o/'Information ; but ought
to be by IndiSlment.
Firft — They faid that the Queftion turned upon l fac. i. c. 22.
% 29, 32, 33, 46, 50. They infifted " That the Lord Mayor had no
" Authority, by this Adt, to appoint Triers, where the Leather is
2 ' " made
388 Trinity Term 30 6c 31 Geo. 2.
" made and manufaftured into Wares-," And confequently that as
this Leather appeared to have been manufadlured into Wares, viz,
into Saddles, the Lord Mayor had no JurifJiSiion to proceed in this
fummary Way : Bat that
Secondly — The Proceeding ought to have been by Way of In-
diBment ; and not by way of Information, which is no Common-
Law Proceeding. They added
Thirdly— ^ •
That it is uncertain before whom the Information is taken.
Now If it muft be underftood as taken before the Lord Mayor,
He has no JurifJi&ion, for the Reafons above : But If it be under-
ftood as taken before the Sefiions, it ought (as has been faid) to
have been by IndiSlment. Whereas it is a Rule that Informations
ought to be at leaft as certain as Indidlments. So is 2 Hawk. P. C.
■ pa. 261. c. 26. § 4.
Mr. Norton, Mr. Williams and Mr. Lucas, for the Profecution-i-
anfwered. That this is an Information brought by the Warden of
the Sadlers Company, under this Ad: of Parliament, of 1 J. i.
c. 22. And
^fTZ '°'''* '*■ ^^ "°^ ^^ ^'^ uncertain ; But is an Information exhibited to the
^ J* ' ■ Mayor only ; and prays the Judgt}ient of the Mayor only.
Anfwertothe And the Adl gives him Jurifdidtion, as well where the Leather
III Objection. -g manufadured, as where not. And this is a Proceeding like the
Informations in the Exchequer, in Rem, for a Condemnation.
Anf^vertothe It is not before the Sefions. So that this Objedion of it's not
:d Objection, ^^jj^g ^y ^^y ^^ Indidment is out of the Cafe.
Moreover, They urged that the Court would not gua/lj fuch an
Information, upon Motion: Efpecially, where a Private Person
is intitled to the Penalty ; and none of it belongs to the Crown.
Lord Mansfield — As to the Court's not quajhing on Motion,
but putting the Party to demur — That Reafoning does not hold,
ichere the ObjeBion is to the Jurisdiction of the Court that has
undertaken to proceed.
Now here the Queftion is upon the JurifdiBion,
This
Trinity Term 30 & 31 Geo. 2. 389
This is agreed by Mr, Williams and Mr. Norton, to be a Proceed-
ing before the Lord Mayor personally, though in Scffions. But
the 50th Sedion (which gives Him the Jurifdidion,) does not give
it to Him PERSONALLY ; but ill the Terms of the common Coip.-
miflion of Oyer and Terminer : And the fame Power is given to
Him, as to the other Mayors, BaiHffs, Head-Officers of Boroughs,
Stewards of Leets &c. Now this muft be exercifed according to the
Coiirfe of the Common Law ; i. e. by Indictment.
But it is objeded " That the SeJJions cannot have Jurifdidion
« btyond the Limits of the City:" Whereas this is given to the
Mayor in any Place within 3 Miles of it.
The Anfwer to this is, " That this Jurifdidion of the Sc/Jions is
" therefore, by this Ad, extended to 3 Miles beyond the City."
The Parallel does not hold, with regard to Informations in rem,
in the Exchequer ; (to which it has been compared.) For that
Proceeding in the Exchequer depends upon the Courfe of the Court
of Exchequer : And it is neceffiry there. For it is not there
known, Who will claim ; nor does it afFed the Party : And the
Perfon who owns the Goods may not perhaps be in Court, or may
be unknown, or may not have other Opportunity to come in and
claim. This is an ancient Courfe there ; as ancient as the Court of
Exchequer itfelf, and by Common Law.
But here is no Sort of Incongruity, in the prefent Cafe, in the
Goods being forfeited by the Party's being conviBed of the Offence,
upon an hidiSiment. And here is no Colour for the Notion of a
Jummary JtirifdiBion in the Mayor, under the Authority of this
Ad of Parliament. Therefore the Information ought to be quafh-
ed, for want of JiirifdiBion in the Mayor, to receive and proceed
upon it.
Mr. Juft. Denison concurred. And he agreed with Lord
Mansfield that there was no Need to put them to demur, in a
Cafe where there is DefeSl of JiirifdiBion : And cited a Cafe of
Rex V. Wefey, on his own Motion, in Perjury ; where the Seffions
had no Jurifdidion ; And therefore the Court quafhed the Indid-
ment.
And as to the JiirifdiBion — He concurred with Lord Mansfield ;
a-nd (at large) gave the fame Reafons, drawn from the 50th Sedion
of this Ad : which He faid, manifeftly confidered the Mayor,
merely a-s the Head of his. Corporation ; and did not intend to give
5 G Him
39^ Trinity Term 30 & 31 Geo. 2.
Him a fummary Jurifdiftion, personally. Confequently, they
muft proceed in the ordinary Way ; that is, by IndiEfment.
And this very A(5l of Parliament gives the SpJ}tc?n the extended
'JnrijdiSiion as far as within 3 Miles Compafs of the City : For if
if gives the End, it muft be conftrued to give the Means too.
And it \%not like the Proceedings in rem, in th.e Exchequer. For
the Juftices here may give the Forfeiture, undoubtedly, upon an
IndiSlment, (after Conviction.)
This Information therefore ought to be quaJJ.ed : as it appears that
the Lord Mayor, personally, h'Sid 720 fuch JurifdiSlion.
Mr. Juft. Foster concurred. He held that the 50th Sedlon
did fiot give the Jurifdidtion to the Mayor personally, and in a
fummary Way ; but as the Head of a Court : And He faid That
the whole Claufe (taken together) plainly fhews this. Therefore
the Proceeding ought to be in the ordinary Courfe, viz. by IndicU
vient. And if they have -proceeded without furifdi5lion, they
ought to be flopped ; and the Information may be quajhed upon
Motion : For as there is no Jurifdi^iion, the Reason does not hold,
for putting the Defendant to demur; but We may in fuch Cafe,
very properly quafh, on Motion. Confequently, this Information,
being of this Kind, ought to be quafhed.
Per Cur. unanimoufly — Rule for quafliing the Information
made abfolute : And the former Rule (prayed for
quafhingthe Certiorari) discharged.
Wednipiay Bright, Exccutor of Hannah Crifp, Widow, vcrf.
29th June O ' r-* ^ J
•1757. Eynon.
(Mr. Jujiice "WWinoi ivas abfent ; Sitting in Chancery, as One of the
Lords Commifioners of the Great Seal.)
T
H E Plaintiff's Counfel moved for a new Trial, upon Pay-
ment of Cofts; and obtained a Rule " to fhew Caufe why
this FerdiB fhould not be set aside, upon Payment of Cofts."
Lord Mansfield faid that He did not choofe, in any Caufe
tried before Him, to conclude the Matter by a fliort Report, " that
■" He was fatisfied, or diffatisfied, witk the Verdid." He would
ftate the Cafe particularly to the Court j and referve declaring his
4 Opinion
Trinity Term 30 & 31 Geo. 2. 391
Opinion of the Verdidl, (which he had not yet intimated, either
. at the Trial or fince,) till He had heard the Counfel on both Sides.
This was an Adion upon the Cafe, brought by the Plaintiff, as
':Ex&cniov ox Hamzah Crifp Widow deceafed, againft the Defendant,
. upon a PromifTory Note in the following Words (all of the Defen-
■ dant's own Writing,) which was proved and read: " I acknowledge
' " to have borrowed of Mrs. Hannah Crifp, this 29th Day of Scp-
" tember 1753, the Sum of 60/. For which I promife to pay 5/.
per Cent, per Annum., and to be accountable for the whole, fix
" Months after Notice given for that Purpofe. ^John Eynon, Sep-
■ " tember 29th 1753-"
The Defendant fet up a Dtfcharge by a Writing in the follow-
ing Words : " I promife unto John Eymon, that, in Con/ideration of
" his paying unto Me, Interefl for Sixty Pounds He has of mine,
"" during my Life, after the rate of 5/. per Cent, per Annum, that
" then the faid Sixty Pounds, at my Deceafe, fliall be His, and his
" Note for the fame fliall be void and of none RfeSl. Witnefs
"" my Hand, this loth of October 1753. Hannah Crifp." The
Body was all his own Hand; but he called two WitnelTes who faid
they believed the Name fubfcribed to be the Hand of the Teftatrix:
But their Knowledge of her Hand was very flight, One of them
.having only feen her fign a Receipt.
He alledged that She gave this Difcharge, in Conilderation of a
Marriage between him and Rebecca Bright his now Wife, (Sifter
to the Plaintiff.)
He produced a Will, in his own Cuftody, bearing Date the i ith
o^ Auguji I J SI- by which the Teftatrix had made the faid Rebecca
.Bright her Executrix and Refiduary Legatee.
This Marriage was not till May 1754: The Teftatrix died ifl
April 17 S^'
It came out, upon his own Evidence, that the Teftatrix was not
worth 200/. and that She paid 5.?. a week, or at the Rate of 13/.
a Year, for her Board. He could make no Proof of the Confidera-
tion alledged: The fartheft that any of his Witneffes went was to
fay " that the Teftatrix feemed to approve the Match."
The Plaintiff, in Reply, infifted *' that the Signature was forged."
fofiah Bright fwore, that the. Defendant's Wife did not know the
Defendant had borrowed any Money from the Teftatrix, till after
She was married. After flie was acquainted with it. She prcffed
him to pay the Money, out of a Legacy of 150/. from one Sarah
Hart
392* Trinity Term 30 & 31 Geo. 2.
Hart which he received: For the Teftatrix might call it in. The
De'endant bid her not be uneafy: " for I niuO: have fix Months
" Notice."
Several Witnefles proved, that Hannah Crifp, about Michachnai
1754, talked of calling in the Money upon this Note, and lending
it to other Perfons.
That in 1755 and 1756, She ordered Letters to be wrote to the
■Defendant, for the Money. When She gave thefe Orders, Slie pro-
duced the Defendant's Note, and faid " the Interefl was not enough
" to maintain her."
It was proved that the Defendant entered a Caveat at DoSiors
Commons in April 1756: and when he found She had made a Will
in Favour of the Plaintiff, and confequently revoked that which was
in Favour of his Wife, He was very warm, and mentioned a Note
from him to her; and declared he would not withdraw his Caveat,
unlefs It was given up.
The Plaintiff examined no Witnefs, to fay the Signature was not
her Hand. By Way of Rejoinder, they called Witneffes to the
Defendant's Charader: who gave him a good one.
The Defendant inftruded his Counfel to (ay, that he alway un-
derftood the Gift to be revocable hy Hannah Crifp during her Life;
but if She did not revoke or call in the Money during her Life,
then the Debt was to be difcharged.
The principal Queftion made at the Trial was, " Whether this
" latter Note was lorged, or not." And as to that, the two Wit-
nefles who believed it to be her Hand, were not oppofed by any
Witneffes to the contrary: The Reafon given, was, that they had
no Opportunity of getting it infpefted.
His Lordfhip faid He left two Queftions to the Jury: (ift.)
" Whether the Name of the Teftatrix v42l% jorged-," (2d.) If they
took it upon the Evidence laid before them to be her Hand, then
" Whether it was not obtained by Fraud, and without her knotaing
" the Contents and Effedl of the Writing She figned."
The Jury found for the Defendant.
9
Lord Mansfield intimated nothing, then, as to his own Opinion
of the Cafe; and profeffedly avoided doing it now, till He fhould
have heard the Counfel.
They
Trinity Term 30 & 31 Geo. 2. 393
They were accordingly heard. And They who fliewed Caufe
again ft the Rule, went very much at large into the Propriety and
Rife of granting New Trials. They urged that a Verdict ought to
be conclufive^ where Evidence of any Sort was given on both Sides,
That the Forgery here was the only Queftion : And if the Plaintiff
objeded Fraud and Impojition^ He muft go to a Court of Equity
for Relief.
Lord Mansfield — Trials by Jury, In Civil Caufes, could not
fubfift now, without a Power, fomewhere^ to grant new Trials.
If an erroneous Judgment be given in Point of Z/<7W, there arc
many Ways to review and fet it right.
Where a Court judges of Faft upon Depojitions in IVriting, their
Sentence or Decree may, many Ways, be reviewed and fet right.
But a general Verdid can only be fet right by a new Trial: which
is no more than having the Caufe more deliberately confidered by
another Jury; when there is a reafonable Doubt, or perhaps a Cer-
tainty, that yu/lice has not been do7ie.
The Writ of Attaint is now a mere Sound, in e^ery Cafe: la
many^ it does not pretend to be a Remedy,
There are numbcrlefs Caufes of filfe Verdids, without Corruption
or bad Intention of the Jurors. They may have heard too much
of the Matter, before the Trial; and imbibed Prejudices, without
knowing it. The Caufe may be intricate: The Examination may
be fo long as to diftract and confound their Attention,
Moft general Verdicts include legal Confequences, as well as Pro-
pofuions of Fact: In drawing thefe Confequences, the Jury may
miflake, and infer directly contrary to Law.
The Parties may be furprized, by a Cafe falfely made at the Trial,
which they had no Reafon to expect, and therefore could not come
prepared to anfwer.
Ifunjujl Verdicts, obtained under thefe and a thoufand like Cir-
cumftances, were to be conclufive for ever, the Determination of
Civil Property in this Method of Trial, would be very precarious
and unfatisfactory. It is abfolutdy neceffary to Jtiftice, that there
fhould, upon many Occaflons, be Opportunities of reconfidering the
Caufe bv a new Trial. And it is done in a Way very favourable
to the Parties for whom the wrong Verdict is given : It is, upon
5 H Payment
394 Trinity Term 30 &: 51 Geo. 2.
Payment of Cg/?^. Whereas in other Cafes where a wrong Judg-
ment is reverfed, Cofts are paid as if the right Judgment had been
given in the firft Inftance.
It is NOT trite " that no new Trials were granted before 1655:"
as has been faid from Style 466.
In Slade's Cafe, M. 24 C i. (which was in 1648,) in B. R.
reported in Sty/e 138. The Court was moved for Judgment, for-
merly flayed upon a Certificate, made by Baron Atkifis^ " That the
"' Verdict pafTed againft his Opinion." Bacon Juftice faid, " Judg-
" ments have been arrefted in the Common Pleas, upon fucb
*' Certificates'" Hales, ofCounfel with the Defendant, prayed that
the Judgment in that Cafe of Slade might be arrefled, and that
there might be a New Trial; For that it had been done
THERETOFORE, in hkc Cafes. Indeed that Cafe, as there reported,
reprefents Roll Juflice to hold " that it ought not to be flayed,
" though it have been done in the Common Pleas: for that it was too
" arbitrary for them to do it." And He adds " You may have
" your Attaint againft the Jury; And there is no other Remedy in
" Law for You : But it were good to advife the Party to fuffer a
" new Trial, for better Satisfaction."
In the Cafe of Wood v. Giinflon, Michaelmas 1655, Banc. Sup.
Style 466. (wjiich was an Adlion upon the Cafe, for fpeaking
fcandalous Words of the Plaintiff, and a Verdi(ft for the Plaintif]-',
with 1500/. Damages,) the Defendant moved for a new Trial.
And Glyn Chief Juflice faid " It was in the Difcretion of the Court,
*' in /owe Cafes, to grant a new Trial: But this muft be a Judicial
" and w/ ^;? ^zr/'/Vr^r)' Difcretion. And it is frequent in our
" Books, for the Court to take Notice of the Mifcarriages of Ju- p
" ries and to grant ?n"w Trials upon them. And it is for the Pec-
" pie's Benefit, that it Hiould be fo: For a fury may fometimes, by
" indiredl Dealings, be moved to fide with one Party, and not to
" be indifferent betwixt them ; but it can not be fo intended of the
" Court." And in that Cafe, a neiv Trial teas ordered, upon the
Defendant's paying full Cofts ; the Judgment flanding as a Security
to pay what might be recovered upon the next Verdidt.
The Reafon why this Matter can not be tr:iccd further back, is,
" that the Old Report-Books do not give any Accounts of Deter-
" minations made by the Court upon Motions."
Indeed, for a good while after this Time, the Granting of new
Trials was holden to a degree of Stri£lnefs, (o intolerable, that it
drove the Parties into a Court of Equity, to have, in effeft, a new
Trial at Law, of a 7nere legal Queflionj becaufe the Verdict, in
Juflice,
Trinity Term 30 & 31 Geo. 2. 395
Juflice, under all the Circumftances, ought not to cc?tclude : And
many Bills have been retained upon this Ground ; and the Queftion
tried over again at Law, under the Diredtion of a Court of Equity.
And therefore of late Years, the Courts of Law have gone more
liberally into the granting of New Trials, according to the Circum-
ftances of the refpedtive Cafes. And the Rule laid down by Lord
Parker, in the Cafe of the ^een againft the Corporatio7t of Heljlorij
H. \z Ann. B. R. (Lucas 202.) feems to be the 6e/l General Rule
that can be laid down upon this Subje<fl ; "uiz. " Doing fufiice to
" the Party," or in other Words " Attaining the 'Jujlice of the
" Cafe."
The Reasons for granting a New Trial muft be colledled from
the lahole Evidence, and from the Nature of the Cafe confidered
under all ifs Circumjlances.
This Power may be exercifed at much lefs Expence of Time
and Money, therefore more beneficially for the SubjeB, by the Court
of Common Law where the Caufe has been tried.
Of late Years, New Trials have been granted not only after Trials
at Nifi prius, but alfo after Trials at Bar. And it is at leaft equally
reafonable to do it after Trials at Bar, as after Trials at Nifi prius,
(if the Juftice of the Cafe demands it;) or, indeed, rather more fo,
as the latter mull be done upon what could have actually and perfo-
nally appeared to afingle Judge only, whereas the former is grounded
upon what muft have manifeftly and fully appeared to the whole
Court.
I come now to the prefect Verdict ; and fhould be forry that
the Qaeftion depended upon my being fatisfied, or diffatisfied : and
therefore I have ftated the whole.
If the Matter in Difpute was of great Value, I will not fay that
all the fufplcious Circumftances might not be a Ground for a new
Trial ; to give the Plaintiff an Opportunity of getting thelnftrument
infptBed by Perfons acquainted with her Hand : though I think
upon the Evidence laid before the Jury, the Verdict, in that refpect,
was right.
What I go upon is the apparent manifeft Fraud and Impo-
sition in obtaining the Difcharge from the Teftatrix, if She really
figned it.
Fraud or Covin may, in Judgment of the Law, avoid every
kind of Act : Many Inftances are put in Fermor'?^ Cafe. -^ ^Co. yj.
39^ Trinity Term 30 &: 31 Geo. 2.
" Jfhat Circumftances and Facts amount to fucli Fraud or Covin,"
is always a Queftion of Lais). Courts of Equity, and Courts of
Law, have a concurrent Jurifdiction, to fupprefs and relieve agrinft
FRx\ud. But the Interpofition of the former is often ncceHary for
the better in'oejligating Truth, and to give more complete Redicfs.
The Writing, upon the face of it, fpeaks Imposition. It
purports being for CojiJj deration. She releafes the Principal, in Con-
fideration of ^ l. per Cent, during her Life : Which is only legal In-
tcreft, and the precife Rate he was obliged to pay by his Note.
The Defendant has fet up another Confideration, not expreiTed :
which is not only not proved by him, but difproved by the Evi-
dence on both Sides.
He now contends, and his Counfel have rgued, " that it was
** intended to be revocable by her during ht Life ; and therefore
** was only in the Nature of a Legacy." Th^t "ower " to revoke,"
is omitted t The Writing, all of his oton ha?id, a:.d kept in his o^,vn
Cuftody : And if it was in the Nature of a Legacy, It is revoked by
the fubfequent Will.
The Teftatrix never imagined She had ftripped herfelf of this
Money : In her Circumftajices, It would h:ive been Madnefs. The
Defendant, during her Life, did not dare to fay, even to his own ji
Wife, " that the Tertatrix had given him this Money." '
>
He did not dare to claim it, immediately, after her Death : but
would have compounded, by withdrawing his Caveat, to have got his
Note delivered up. No Anfwer was attempted, by Proof, to the
apparent Impofition. Upon his own Cafe ftated by himfelf, and the
Evidence on both Sides, the Tranfaction to get her Hand to this
Writing inufl have been fraudident : And if it be fo the Luvv fays
" Pie fhall not avail himfelf of it." ^^
The Attention of the Jury was artfully drawn to the heinous
Charge of Forgery, only. And I left the Queftion of Fraud to
them, vv'ithout any exprefs Direction " that the Circumftances fpoke
" Fraud apparent." The T^zw? Jury might, upon Reconfideration,
find a different Verdidt. I dare fay they meant to do right.
But the Merits of the Cafe appearing to Me in this Light, I am
clearly of Opinion that there ought to be a new Trial.
Thefe are my Setiments : My Brothers will judge Whether I
am right, or not.
2. Mr.
Trinity Term 30 & 31 Geo. 2. 397
Mr. Juftice Denison concurred in them.
He added, That it would be difficult perhaps to fix an ahfolutely
General Ride about granting new Trials; without making fo many-
Exceptions to it, as might rather tend to darken the Matter, than to
explain it : But the Granting a new Trial, or Refufing it, muft de-
pend upon the Legal Discretion of the Court; guided by the
Nature and Circumjiances of the particular Cafe, and directed with
a View to the Attainment of "Juflice,
In the prefent Cafe, He faid, It appeared to Him, " That the
" Teftatrix, Mrs. Crifp, had ht&n impofed upon :" And He held
" That Fraud was fnfficient to invalidate this her Defeazance (the
" fubfequent Note of Difcharge figned by Her,) even in a Court
" 0/' Common Lrtw." For Proof of which. He cited 57'rc?/^/;g-cc^'s
Cafe, 2 Co. 9. Where it was holden " That the Deed of an unlet-
" tered Layman, into the Execution whereof he is deceived, by it's
*' being wrong read to him, or falfely explained to him, (though
■'*' by a Stranger to the Party to whom the Deed is made,) fliall net
'f* bindxhQ unlettered Perfon who made it."
Mr. Juft. Foster agreed to the Propriety of what had been
faid ; as to fuch Cafes in which the Juries give Verdifts cgainfl Evi-
jdence;.and even as to Cafes where there may be a Contrariety of
Evidence, but where the Evidence, upon the Whole, in Point of
Probability, greatly preponderates againjl the Verdidl ; (Which de-
pending on a Variety of Circumftances, is matter of Legal Dif-
<cretion, and cannot be brought under any General Rule:) But in all
Cafes where the Evidence is nearly in Mqidlibrio, He declared that
He fiiould always think himfelf bound to have Regard to the Find-
ing of the Jury ; For " ad quasftionem * FaBi rcfpondent Jura- * See Triah
tores." In fuch a Cafe, it is not the Province of the Judge, to deter- f^'' f""' f'"-
mine : It ought to be left to the Jury. pt'agrajh oV
, - the Hook,)
Fraud will invalidate, in a Court of Laia^ as well as in a Court ^''■'"^^^^y
of Equity. We All remember the Cafe of IVyndham v. Cbetivynd, Subj?a, in
P. 1755. 28 G. 2. in this Court : V/here the Court diredled the f^^'o^f of J"^-
Jury to find " Non devifavit," though there was a Devife in Fact ; "^''
but it was obtained by Fraud, and therefore confidered as 7io Devife
at all.
And He agreed with Lord Mansfe/d and Mr. Juftice iDejiifon,
That in the prefent Cafe, the Defeazance or Difcharge (the fub-
fequent Note) was obtained from Mrs. Crifp by Fraud ; And that it
appeared, upon the whole of the Evidence " that it vfiii fo obtained :''
And that the Jury have drawn a wrong Conclusion from Fails
■admitted on both Sides.
5 1 There-
^1
h
,98 Trinity Term 30 & 31 Geo. 2.
Therefore He thought The Verdidl ought to be fit aftde.
Per Cur. * unanimoufly
The Rule for fetting ajide the Verdi(3: was made abfolute,
* Note. Mr. Juftice Wilmot was abfent (in Chancery.)
Mr. Gould, of Counfel for the Plaintiff, moved that it might be
ivithoiit Cofts : But was anfwered by Mr. Juftice Denifon and Mr.
jurtice Fo/ler (Lord Mansfield being now gone,) That this was di-
redly contrary to the Terms upon which He himfelf had moved it.
And accordingly They only Ordered the Verdiilt to be fet alide
Upon Payment of Cofts by the Plaintiff.
Memorandum — The Caufe never came on, to be tried again.
Probably, the Defendant acquiefced in the Opinion of the
■Court, and paid the. Money.
A Black Merchant of Bombay verf. Dorrell.
R. Dorrel, who came from Bombay, and had a Difpute with
a Black Merchant there, of a Civil Nature (concerning Pro-
perty,) had upon his Leaving Bombay, entered into a Bond condi-
tioned for his Appearance in this Court at his Arrival in Englandy
TO ANSWER to any Demands that might be made againft: him by or
on Behalf of the faid Black Merchant in that Country; and alio to
abide by the Determination of the Mayor's Court there, or elfe to
appeal therefrom to the King in Council.
Serj. Heidtt moved, on Behalf of Mr. Dorrell, that He mi^ht
appear in this Court, in fuch Method as the Court Jl.ould judge
proper, in Order io prevent the Forfeiture of his Bond.
The Court after requiring Notice to be given to the Eaft-India
Company (who did not oppofe it,) admitted his Appearance; and
diredled that He fliould enter in a Recognizance (with Sureties) in
the Penalty of the Bond, to anfwer the Demands expreffed in the
Condition of the Hiid Bond : Which He was to do before One of
the Judges of this Court ; as his Sureties were not now prefent.
Note — This Rule was taken on the Civil Side (of the Court.)
Rex
1 rinity Term 30 & 31 Geo. 2. 399
Rex verf. Middlehurft.
R. Norton {hewed Caufe againfl: quafliing an Order of two
1 ▼ 3^ Juftices, and an Order of Seflions confirming it, made in
Purfuance of the A<ft of 1 1 G. 2. c. 19. § 3. (for the more efFec
tual fecuring the Paym^ent of Rents, and preventing Frauds by
Tenants,) againft ouc Thomas Middkhur/i, for willfully and know-
ingly aiding or affilfing John Chejierton the Tenant of Sir Thomas
Fleetwood^ in fraudently removing and conveying away 5 Cows, ^c.
OR in concealing the fame.
Mr. Gould ^ who had moved to quafli this Order, founded his
Motion upon two Objedlions : "viz.
ift Objedion. The whole Adjudication refers to the Complaint
of One Thomas Wcjlon ; Wherein there is no Charge upon Chefterton,
the Tenant^ at all ; nor upon the Defendant Middlehurji, for aiding
and aflifting Him : Neither is it flated " That Chejierton, the Te-
nant, DID remove the Goods."
2d Objection. The Kdi creates two Offences, viz, aflifting in
removing^ and aflifting in conceali}7g the Goods. Now it is not
fpecifically charged upon the Defendant Middlehurjl, that he willful-
ly and knowingly did either One of thefe two things : It is only al-
ledged that he willfully and knowingly did One or the Other. In
1 Salk. lyi. Rex v. Stacker , An Indiftment for forging or caufing to
be forged, was holden ill ; becaufe the Charge was in the disjuri£Iive.
2 Hawk. P.C. 225. § 60. An Indictment charging a Man disjunc-
tively, is VOID : For the Offences are diftinct; And it appears not,
of u-h/ch of them the Defendant is accufed. So here, it does not
appear, Which of the two Offences the Juftices have convicted
him of.
And 2 Ld. Raym. 1265. ^een v. Baines proves that the Court
will make no Intendment againft the Defendant.
Upon which Objedions, he obtained a Rule to shew Cause
*' why the Order ftiould not be quaftied."
And now Mr. Norton fhewed the following Caufe againft quaftn-
ing it.
As
400 Trinity Term 30 & 31 Geo. 2.
,(l_ As to the 111 Objedion — " That it is not defcribed fuifficiently.,
" What the Offence is," He anfwered That this is an Order:
And the' Court will not intend it to be ill. To prove which. He
• cited Rex v. BJ£ex^ Tr. 29 G. 2. B.R.
^dly- As to the 2d — The Charge being in the T>isjiw5live, " That
" he wilfully and knowingly aided and aflifted the Tenant in re-
*' moving the Goods, or in concealing the fame." He fuid, The
Crime and the Punifliment are the fatne upon /?ot/j : And the De-
fendant was heard.
Mr. Gould for the Defendant, replied
ift, It is not at all ftated " That the Tenant did remove the
" Goods."
2dly, The Aiding and Affifting in removing, is a different Of-
fence from aiding and affifting in concealing : And here it is only
charged in the Alternative.
Lord Mansfield — Upon Indictments, it has been fo deter-
mined, "That zn Alternative Charge is not good;" As "forged
*' or caufed to be forged :" Though Ow only need be proved , if
laid conjunBively , (as " forged and caufed to be forged.") But I
don't fee the Reafon of it : The Subftance is exaftly the fame ; the
Defendant muft come prepared againft both ; And it makes no Dif-
ference to him in any refpeft.
But this is an Order : And being good in Subjla7ice, needs not
be literally Jo JlriSl.
Mr. Juft. Denison thought alfo that the Cafes upon Indidlments
are very nice. But this is not an Indidlment, but an Order : And
tlierefore being good in SubjUince, needs not be fo ftrift in Fortn, as
an Indidlment muft be. And either Aiding or Affifting /;/ removing,
OR aiding or affifting in cojicealing, is equally an Offence : And thefe
are the very Words of the Adl. 'Tis only Form ; and does not at all
vary the Defence or Punifliment. I am not therefore inclined to
the fame Stridnefs as was obferved in the Cafe of ^he King v«
Stocker, in i Salk. 371.
I^'^'^ !,„f P'^^ * Cur. Rule discharged:
Fo/lcr was out
of Court, and And confequeutly Both Orders affirmed.
.Ld. Commif-
ifioner Wilmut
in Chancery.
The End of Trinity Term iys7' 30 ^31 Geo. 2.
40I
Michaelmas Term
31 Geo. 2. B. R. 1757.
M
Mailers verf. Manbv. flw«).7th
«7S7-
R. Norton moved that the Defendant might be difcharged
upon Common-Bail, as being a menial Servant to a Fub-
lie Mitiijler, {viz. Meflenger 'to Baron Hajlang,) on
7 Ann. c. 12.
But the Defendant was not able to make out a Cafe fufficient to
induce the Court even to grant Him a Rule to fhew Caufe. He
not only had been formerly a Trader, and a. Bankrupt; (upon
which indeed no Strefs was laid, as it appeared that he had not
traded at all, fmce he had obtained his Certificate under the Com-
miflion ;) But was confefledly a Land-Waiter at the Cuftom-Houfe
here in London, and officiated there as fuch : though He fwore to
the Hiring, and alfo to the ha.v[n^ fometimes executed this Service to
the Baron, as his Meffienger.
Yet, upon the whole. Lord Mansfield was clear that this Man
could never be efteemed a bond fide Domeftic of a foreign Minifter:
And the other Judges concurring, the Motion wa denied.
Bennett, qui tarn, ^c. verf. Smith. Monday 14th
1757-
THE Court refufed to fet afide a Non Prof, regularly ob-
tained by the Defendant, againft the Plaintiff who was only
a Common Informer, (who fued for a Penalty of loooo/. upon the
Statute of Ufury;) though the Defendant offered to pay the Cofls
of fetting it afide.
For, though Lord Mansfield feemed to think that the Cafe
might perhaps have born a different Confideration, in cafe the
5 K Plaintiff
40Z Michaelmas Term 31 Geo, 2.
Plaintiff had been the Party really injured, and had fued in
Order to come at Jvjlice and Reparation, for fuch real Injury; Yet
not only his Lordfliip Himfelf, but
*Mr. Juft. The whole Court (now * prefent) were clear and unanimous
f'^''^^^*^ "°' that where a mere Common Informer^ who ]'u>-d for Punishment
only, had been guilty of a Slip or Miftake uhich put him out of
Court and intitled the Defendant to enter a Non Prof, againft him ,
they would not exercife their difcretionary Tomer, in fetting afide this
NonProf. thus regularly obtained, and reftoring the mereCommonlnfor-
mer to an Opportunity of proceeding for the Sake ofPu7iiJJ:mc}it only.
And they diftinguifhed the prefent Cafe from Cafes of Amend-
ment: Which ifideed the Court would not fcruple to make, even
in Cafes of ^i tarn Adions, where there was any thing to amend
by; and which they bad frequently done, in fomc In fiances that
were mentioned or at leaft hinted at; as, in particular, the givintr
Leave to change the Country, in a ^li tafn Adlion, on Mr. Norton's
Motion, not many Terms ago.
7uefjay\-^\k Rcx. 1)67'/. Robcrt Chappel.
No-jember
«757-
A Motion was made by Mr. Burland, and fupported by Mr.
Norton, for an Information fovfendhig a Challenge, by Letter,
to Mr. Hamilton of Welh: But they only produced Copies, not
the Originals of the Letters wherein the Challenge was contained.
The Court made a Rule to fhew Caufe, upon reading the
Copies only of the Letters; (fuch Copies being fufficiently verified.)
vvcdmjday Rcx vcvf. Wllliams-
i6th Noijem-
ber 1757.
THIS was a Caufe in the Crown-Paper, upon a Writ of Er-
ror direcfted to the Juftices of the Great Seffion in the County
of Denbigh, upon a Judgment given there for the King againft
the Defendant after a Verdiift, upon an Information brought againft
^ Him in that Court by the Protonotary and Clerk of the Crown
there, at the Relation of John Mo/iyn, Efq; according to the Form of
//'f SiATUTE in that Cafe made and provided.
The Information fets forth the Incorporation of the Town of
Denbigh, by Loiters Patent dated 14th May 1 5 C. 2. Which gave
them Power to have and hold ivithin the Burrough a Court of Re-
cord on ever) Friday in every fecond Week throughout the Year,
to
Michaelmas Term 31 Geo. 2. 403
to be held before the Bailijj^ of the faid Burrcugh for the Time
being, or One of them.
Then it alledges the Acceptance of thefe Letters Patent by the
Corporation.
It further fhews tlv.it by virtue of thefe Letters Patent, the faid
Court of Record, from the Time of njaking the faid Letters Pa-
tent, to the Time of exhibiting the Information, ought to have
been held within the faid iiurrough on every Friday in every fe-
cond Week through the Year, bejore the Bailiffs of the faid Bur-
rough for the Time being, or One of them*
Then it charges that Friday the 13th Day oi Decefnber 25 G. 2.
was a Day on which the faid Court of Record ought to have been
fo held within the faid Burrough, by virtue of the fJd Letters Pa-
tent. That the Defendant (well knowing the PremifTes aforefaid)
on the faid I'^th Day of December 25 G. 2. at the Burrough oi De?i-
^|g-/j aforefaid in the County of Z)^«/7^i6 aforefaid, iti the Abfence oi
John Hofier Gentleman and David VVilUams Gentleman, who then
and long before and afterwards were the Bailiffs of the faid Burrough,
and of each of tiiem, did wrongfully and unjuflly presume to
HOLD and DID hold that Court of Record lioithin the faid Bur-
roughs WITHOUT a77y legal Warrant Right or Authority whatfo-
ever; and did then and there prcfide therein; He the faid T^homas
Williams (the Defendant) then not being one of the Bailiffs of the
faid Burrough.
Plka — That He did not hold the faid Court of Record in the
faid Information fuppofed to have been held by the faid Thomas
(the Defendant) nor did prefide therein, in Manner and Form as by
the Information is charged againfi: him. (Upon which, IfTue is joined.)
And the Defendant farther faith that at, the Time mentioned in
the Information, Hk had*not,^ nor hath any Warrant Right
Power or Authority; hut wholly disclatms to have any Warrant
Right Power or Authority whatroe\'er to hold the faid Court of Re-
cord, or to prefide therein: An' tiiis He is ready to verify. Where-
fore he prays Judgment, and that He of the PremifTes aforeiuid
may be difcharged and difmified by the Court, and fo forth. *
Upon the Iflue joined, the Jurors find that the Defendant, on
13th December 25 G. 2. at tj:!e faid Burrough of Denbigh.^ in the
Abfence of fohn Hofier Gentleman, and David Williams Gent,
who then and long before and afterwards were the Bailiffs of the
faid Burrough, and of each of th-^m, ^/(^ wrongfully and unjuflly pre-
fume to hold, and did hold the faid Court of Record in the faid In-
2 formation
404 Michaelmas Term 31 Geo. 2.
formation mentioned, within the faid Burrough, without any legal
Warrantor Right or Authority whatfoever; and ^//^ then and there
/>;v/v/(7 therein ; (He the faid Thomas Williams then not being One
of the BaiUffs of the faid Burrough j) as in the faid Information is
alledged.
The Judgment of the Court is " that the Defendant do not in
" afty Manner intermeddle with or concern Himfelf'm and about hold-
" ing of the faid Court of Record within the faid Burrough, in the
" faid Information fpecified; but that He be 'Eih{o\\Mc\y forejudged
*' and excluded Jrom holding the faid Court for the future j And that,
" in order to fatisfy our Sovereign Lord the King, for and on Ac-
" count of the Ufurpation aforefaid, He be taken, and fo forth;
" And that the faid John Mojtyn, the Relator above-mentioned in
" this Behalf, do recover againft the faid Thomas Williams the Sum
" of 141/. I 2 J. I id. for his Costs by him laid out and expended
in carrying on his Suit in this Behalf, according to the Form of
Oje Statute infuch Cafe made and provided."
1
th
The AfTignment of Errors is —
ift. General — viz. That Judgment is given for the King againfl
the Defendant: Whereas by the Law of this Kingdom, it ought to
have been given for the Defendant.
2dly. Special — viz. And alfo in this, that it appears by the faid
Record, that Judgment in the Plea aforefaid was given " that the faid
" John Moftyn, in the faid Plea named the Relator therein, recover
" againjl the faid Thomas Williams 141/. \2s. \\d. for hii Costs
" laid out in that Suit:" Whereas by the Law of this Realm, No
Judgment ought to have been given, in the Plea aforefaid, for those
or for any other Co.'.T'^ in that Suit. And therefore in that refpedl
alfo, there is manifefl; Error. |
To this Affignment of Errors there i? a Joinder in Error in the
Name of tlie King's Coroner and Attorney in this Court.
Mr. Madocks, for the Plaintiff in Error. —
Ohjed-ed that this was not a Cafe within 9 Ann. c. 20: And
that therefore there could not, nor ought to be any Judgment for
Costs.
That Acl takes in only two Cafes ; ifl. Where an OfHce is ufurped;
and 2diy. Where He has had a Title, but unlawfully holds and ex-
ercifes the Office: But the whole is confined to Offices in Corpo-
rations-, And the Words " faid Offices and Franchifes" are tied
up
Michaelmas Term 31 Geo. 2. 405
up to Offices in Corpordtiom, or to the Franchife of being a
Freeman. [See Sedlions 4 ^ 5.]
Whereas this Information is only for holding a Court in the Bur-
rough, in the Abfence of the two Bailiffs ; He not being One of
the BiuHffs of the Burrough. So that tliis is no direB Charge of
ufurping the Office of Bailiff. And an indireSl Charge is not
fufficient: 2 Hawk. P. C. 261. " Whatfoever Certainty is requi-
" fite in an Inditflment the fame, at leaf!:, is neceffary alfo in an
" Information." i Salk. ri^-j^. Rex v. K?iight ; and i Ld. Raym.
527. Rex V. Knight and Burton, S. C ; prove exprefly " That ar-
" giimentative Informations are naught."
This is only a Charge of doing a Jingle Ad; ; which Adl belonged
indeed to the Office of Bailiff: But it is no Charge of his claiming
the Office of Bailiff ; Nor could the Right to the Office of Bai-
liffhe tried upon this Information. And this, He faid, was a new
Cafe : For the Common Way is to charge the Defendant dire£lly
with ufurping an Office ; whereas this only charges him with Fads
that may indeed be Evidence of fuch Ufurpation of the Office of
Bailiff; but does not charge Him with a direct Ufurpation.
Secondly. It cannot properly be called an Information in Nature
of a ^0 Warranto at Common Law : For it does not charge Him
with exercifing the Office at the time of exhibiting the Information.
" Non lijurpavitf generally and alone, is not a fufficient Plea
to an Information in Nature of ^ W. at Common L;iw. Godbolt
91. ^'wfervis Clifton' % Cafe j and 3 Leon. 184. Sir Gervafe Clifton" %
Cafe, S. C. * [* This Cafe
was not deter-
This Information only charges Him with holding the Court upon Godholt 93.]
a particular Day. On the whole, therefore, this Inforination is
not good at Common Law, neither ; no more than it is upon the
Ad of Parliament.
Mr. Hall centra, pro Rege.
This St AT \sr-E- Judgment, " for the Co/ls," is good: And fo
alfo is the Common-Law Judgment, " of Ou/ler of the Franchife."
ifl. The Ad of 9 Ann. c. 20. ought to be liberally conftrued.
This Information is an Information for ufurping the Offi,ce of one of
the Bailiffs of the Burrough or Denbigh. The Fads charged upon the
■ Defendant amount to an Ufurpation of the Office : though the Word
■" ufurp" is not indeed made Ufe of. And it is not neceffary to
5 L u(e
4o6 Michaelmas Term 31 Geo. 2.
ufe this or any other technical Term. Therefore this Ufurpation of
the Office of Bailiff', is here fufiiciently alledged.
But, at leaft, it is a Charge of an Ufurpation of or intruding into
a Burroiigh-Franchife : Which is a Cafe within the A&. The Pre-
amble and Body of the Adl prove this.
This is for holding and prefiding at a Court i>2 a Corporation:
Which certainly is a Corporaticn-Franchife. And the Defendant,
hy his manner of Pleading, has confidered this as an Information on
the Adl, for a Burrough-Franchife : For He firrt: pleads to the par-
ticular Charge, and then difclaims.
But, at leaft, this Cafe Hiall be taken to be within the Equity of
the Statute : Which was made for the Benefit of the Common-
wealth. Which Point He endeavoured to prove, from fevcral In-
ftances of extenfive Cofiftni5fio)is of Statutes ; And particularly of
Statutes giving Cofts. For the Litter, He cited Cro. Eliz. 257. pi,
I* Aijounia. 36. * Hafelip V. Chaplen. And He fiid that the Court often Or-
■""'■■' dered Colls, even where the Statutes had not given them.
As to the Cafe of Ps.ex v. Knight, The Fads there charged were
not fufficient to fupport the Conclufion : It was an imperfedt de-
fedive Information. But here, it is pofitively alledged " That he
" held this Court without any legal Warrant Right or Authority
" whatfoever."
And this may be made good by Intendment. Raym. 34, 35.
The King v. Read. Sidnf. 91. Rex v. Cover. Cro. "jac. 473.
Secondly — As to the not charging the Defendant with exercifing
the Office at the Time of the Information ; One Jingle A51 is fuffi-
cient.
Upon the Whole, this Cafe is either within the Words, or at leafl
within the Intent of the Ad.
Mr. Madocks in Reply — There is no exprcfs, but only a circum-
Jiantial Charge, of exercifing the Office of Bailiff.
The Equity of every Statute ftands upon the Foundation of the
Statute itfelf. Now this Ad is certainly confined to Offices in Cor-
porations, affeding the Rights of Eledion of Members to Parlia-
ment : And was not intended to take in Rights of holding Courts
or Fairs in Corporations though the Words of the Title are indeed
general, " the Rights of Offices and Franchifes in Corporations and
" Burroughs." But the Body of the Ad confines the Word
4. " Fran-
Michaelmas Term 31 Geo. 2. 407
** Franchifes" to the Rights of being free : And the Body of the
Ad: is the Part to be regarded.
And here is no Charge of intruding into the vMe Office : Which
is an entire Thing. The Ufurpation of Part cannot be an Ui'urpa-
'tion of the JVhoIe of an Office.
Secondly — The Information ought to be good in it's felf and
upon it's own Strength, independent of the Plea. This is an In-
formation only for doing this /ingle Adt, ^x Tears ago.
Lord Mansfield —
I ft. The Adl is meant to extend to all Officers of Corporations^
as fuch ; and as far as relates to all the corporate Rights of the Bur-
geffes and Freemen, it is very legally, clearly, and corredly drawn :
But it is not within the Reafon or Meaning of the Act, that it
fhould extend generally to all Offices or Franchifes exercifed
WITHOUT Authority fro?n the Croivn, within a Corporation. It
was meant to be conjined to fuch Franchifes as were claimed in In-
ilances affecting thofe Rights between Party and Party.
The Title cannot control the Body of the Act.
And the Equity of an Act can be carried no further than to what
"was within the View and Intciition of the Legiflature, and the Mif-
ichief meant to be prevented. Whereas here is no fuch Equity, to
bring the prefent Cafe within the Act.
Here is no Charge of ufurping or exercifing or claiming the Of-
Jice of Bailijf. I do not fay that any particular technical Words are
neceffiry. But here are none that are at all tantamount : It is not
even faid that he held the Court, " as Bailiff." There is no Argu-
ment neither, or Inference, " that He did fo :" Rather indeed, the
contrary ; for it feems implied in^the very Charge, that if they had
been there, he could rM have held it.
No Fruit is obtained of this Trial, but as of an Ufurpation upon
~ the Crown and for an Offence or Mifdemeanour : Here is nothing re-
lating to the Intereft of any private Pcrfons. And the Manner
of Pleading proves nothing : For he was obliged to plead fo, in
'either Cafe.
Therefore, as a i'/^/w??- Judgment it is wrong.
2dly. But as to the Coumo'H-La'w Part of the Judgment — Mr.
Madoclis's Objedtlon will not hold. For He may certainly be punifli-
ed
4-oS Michaelmas Term 51 Geo. 2.
ed for One fmgle Offence ; though he goes no further. So that thii
Fart of the Judgment is right.
Mr. Juft. Denison concurred That the Statute-part of the
Judgment as to the Co/Is, is wrong: But the Co i/i mo fi-haw Part,
viz. the Judgment of " Exclufion from the future Exercife of the
" Franchife," is risjht.
As to the former — The Charge is not within the K&. of Par-
liament of 9 Aim. c. 20.
The Information fets out the Charter ; which gives Power to the
Baihffs to hold this Court in the Corporation : And it calls upon
the Defendant to know by what Authority he held it in the i^bfence
of the Bailiffs : But furely, this has no Relation in the Earth to the
Office of Bailiff ; nor will it be faid that he could, upon this In-
formation, have been ousted of the Office o/'Bailiff. It was not,
in the prefent Information, neceffary to fet out as Part of the Charge
upon the Defendant " That the Court ought properly and regularly
" to have been holden before the Bailiffs :" It had been enough, to
have afked the Defendant " By what Authority He claimed to hold
" this Court of Record;" (without mentioning the Prefence or Ab-
fence of the Bailiffs, at all.)
There are Numbers of Offices which a Man may ufurp, and he
liable to an Information for ufurping ; which are not Frajicbifes
in Corporations. But Fhefe " Franchifes" mentioned in the Adt,
mean corporate Rights or Rights to Freedom in Corporations. The
-Words of the Act are plain, that this is not a Cafe upon which the
Informer can recover Cqjls.
The Proceeding indeed may be, -iX Common-\j'\v^ , (ov PuniJJjment.
Therefore this latter Part is right. But the Judgment as to Costs
ought to be reverfed.
o
And the Mention of a Relator is no more than Surphifage, and
may be rejected ; and therefore iinll not hurt the Common-Law
Judgment.
Mr. Jufl. Foster was clear too —
ifl. That this Cafe was not within the Ad : Which never inten-
ded to give Cofls in Cafes of this Kind. The Word " Franchifes"
in the Ad:, means only Freedoms and Rights to be Members of the
Corporation.
4. This
Michaelmas l^erm 31 Geo. 2. 409
This Ad was drawn with great Care and Attention : (Judge
Powell was the Perfon who drew it.) And there is "no Reafon to
extend this Ad beyond it's Intention.
2dly. The Judgment at Common-Lmo may be very right.
Mr, Juft. WiLMOT declared Himfelf extremely clear in both
Points.
Per Cur. unanimoufly —
The Common-Laiv Judgment, viz. as to the
Ouster, was affirmed : But the Judgment for
Costs (which was founded upon the Statute,)
was reversed.
Bond verf. Ifaac. ^'"''"y, *'*
T
HE Exo?terefur which had been ordered to be entered [V,
ante 339, 340.) was fiot aBually entered on the Bail-piece, (by
the Omiffion of the proper Officer who ought to have entered it :)
But the Plaintiff Himfelf was apprifed of the Surrender; though
his Attorney fwore that He (the Attorney) had no Notice of it.
The Plaintiff's Attorney, not being apprifed of the Surrender of
the Principal, fued out Scire faciafes againft the Bail ; who paid
the Money : But they were fued out into London (where the Ori-
ginal Caufe of Adion was;) and Jzot into Middlesex, where the
• Surrender was made, and where the Bail-piece remained.
The Bail had applied, upon both thefe Irregularities, [viz. ift.
the Plaintiff's beifig apprifed of the Surrender and Order of the
Court; and 2dly the Scire faciafes not being fued out into Middle'-
fex ;) that the Scire faciafes might be fet afide for Irregularity,
with Cofls ; and the Money reflore-d.
Mr. Norton was Counfel for the BaH, and had moved as above.
Sr. Richard Lloyd, for the Plaintiff, now fhewed Caufe.
The Court was clear, on both Points, that the Scire faciafes
were irregidarly fued out ; and granted Mr. Norton's Motion, by
making the Rule abfolute, as prayed : Excepting only, that they
omitted the Cofts ; merely becaule it would have been to no Purpofe
t-o have ordered them, as the Plaintiff himfelf (who was apprifed
of the Surrender) was gone abroad ; and the Attorney, (not being
apprifed of it) had not aded with any ill Defign or Intention to
■opprefs.
5 M Shecpflianks
41 o Michaelmas Term 31 Geo. 1,
fJo'Vitnber
S757
fuffday 2id Shcepllianks et Uxor verf. Lucas.
p. 29 G. 2. Roflo 622.
ERROR from C. B. to reverfe a Common Recovery. The Wife
o^ SheepJIjanks claiming to be intitled (in Common with others)
to a Remainder in Fee (under the Will of one Broadbent) after the
Death of One Thomas PeirJo7t, Tenant in Tail, who was vouched
in this Recovery ; her Hulband and She bring this Writ of Error :
And the Error ufligned is " The Death of the Vouchee, before
*' Judgment ;" concluding with an Averment.
" In nulla eft erratum'' — is pleaded: (Which confejjes the Error
alTigned, to be true in Fa5i.)
Serjeant Poole for the Plaintiff in Error —
Without Doubt, a Perfon intitled to a Remainder after an Eftate-
Tail, may ha've a JVrit of Error to reverfe a Common Recovery
fuffered by the Tenant in Tail. 3 Co. 3. b. The Marquis of IVin-
chcjler'% Cafe, is exprefs to this Purpofe ; and gives the Reafon of it,
at large. Figott^ Of Common Recoveries \b^. " If the Vouchee die
" before Judgment, it is Error." i Ro. Abr. 742. Title Error ;
Letter A. //. 3- i Ro- Abr. 747. Title Error, Eetter K. pi. i.
I Ro. Rep. 301. Holland et al. v. Lee. Bridgman's Rep. yi. S. C.
Holland et al. v. fackfon, et al. Fahner 224. Darcy v. fackfoUy
S. C. Dyer 90. a. 40, 188.
We claim under a Devife by the Will of One Broadbent, in Re-
mainder after an Eftate-Tail given to Feirjon. H''ynne v. Wynne,
H. \yG.2. B. R. is in Point to this Cafe — It was a Writ of Error
by a Remainder-Man in Tail : And the very fmie Error was
affigned, as is here, There, indeed, the FaSi (of the Vouchee's
dying before Judgment) was dc?iicd: And it was, upon Trial of the
Iffue, found " that She was alive at the beginning of the Term;
" but died before the Return of the Summons ad nnarrantizandum."
And the Relation of Law, (which was in that Cafe infifted upon,)
was not permitted to prevail. And the Entry of her Appearance
at the faid Return (which was there entered on the Record) was
holden not to be contrary to the Allegation of her Death before fuch
Return : Bccaiife fuch her Appearance was only entered as by At-
torney ; whofe Authority ceafed by her Death. So that the
Error there afligned was not an Affignment contrary to the Record.
4. Mr.
Michaelmas Term 31 Geo. 2. 411
Mr. Luke Robin/on contra, for the Defendant in Error, Common
'Recoveries are ttow confidered as Common AfTurances ; and are
therefore to be favoured and fupported. Even another Warrant of
Attorney (liall be prefumed : Though One already appears upon the
.Record. * * r. Pigoit
16S.
ifl Objedion. No One can maintain a Writ of Error upon a
Judgment, but One who is either Party or Privy. But this Plain-
tiff in Error is neither Party or Privy to, nor injured by the 'Judg-
ment here complained of. It does not appear that Eroadbent, under
whofe Will She claims the Reverfion, was ever feifed in Fee of
the Eftate : And therefore it does not appear how he had a Right
TO DEVISE the Eftate, in the Manner he has done. They ought
to have jliewn in their Writ of Error, " That he was feifed in
" Fee :" Which the Defendant might have traverfed, if it had
been fo alledged.
cr
2d Objection. No Scire facias or Warning has been given to the
Heir : Who may be an Infant, or may have many Thint^s to
plead. Bernard Lucas, the Recoveror, is the only Defendant j
^ Who is only nominal, but has no real Intereft.
3d Objedion. It appears upon this Record, that Bernard Lucas
has Judgment to recover againft Thomas Cowper: But Thomas
Peirfon is no Party at all to the Writ. Therefore Thomas Pcirfon
(who only came in as Vouchee) had nothing to do with a Judg-
ment againft another Man. Confequently Peirjhn's Death be-
fore Judgment is no Error : It can be only an Irregularity. And
no Judgment is given at all, againft Thomas Peirfon : The Reco-
very is againft Thomas Coivfier ; who is indeed to have Recovery
over, in Value, againft Thomas Peirfon &c. But this Recovery
over in Value, againft Peirfon, is 72ot the Judgment upon -which this
Writ of Error is brought. This Writ of Error does mt tally with
the Judgment of which it complains.
4th Objeclion. This Error»is not ivell assigned : For it is an
Error in Fact ; and therefore ought to conclude to the Country ;
which this does not. Yelverton 58. Rex v. Goffer and Shire.
'- When a Man affigns Error in Fad:, he ought to put himfelf en
" paiis." And the Plea of " in nidlo eft erratum" confjfes nothing
but what is weil pleaded. And that Cafe is Word for Word the
fame with this, as to the Conclufion of the Affignment of Errors :
And there was a " Hoc paratus efi verifcare^" as well as here is.
Serj.
412 Michaelmas Term 31 Geo. 2.
Serj. Poole, in Reply —
1 ft. It is enough, if We fuggefl: Matter fufficient to jl:>eiv that
We are privy to and affeBed by the erroneous Judgment. It is fuf-
£cient for Us, to (liew the Devife of the Remainder to Us ; with-
out any Neceffity of fhewing that the Dcvifor was feij'ed in Fee,
And the Precedents are fo. — JVynn v. Wytin was fo. Sir yohn
Dinely Goodyere'i Cafe was fo. Darcy v. Jackfon, Palmer 224. is fo
determined, " That the Title needs not to be Jet out, as in a Pro-
" ceeding to reco'ver Lands." And all the Entries are fo.
2dly. The Scire facias is brought againft the proper Per/on :
Which is the Recoveror.
3dly. Peirfon appears by his Warrant and vouches : And there is
Judgment over, in Value, againjl him.
4thly. There never was, nor properly can be fuch a Concliifwn to
the Country. Here is a neia Matter of Fadl introduced : Which
the other Party perhaps will not controvert. We cannot conclude
to the Country, till the other Party denies it.
As to the Cafe in Teherton — Tf it be as cited, yet, it can never
be fupported. The Afllgnment of an Error in FaSi always con-
cludes with an Averment,
Lord Mansfield was clear for the Plaintiff in Error, on all
the Points.
I ft. The Writ of Error needs not to fet forth a complete Title :
It is only required of the Plaintiff in Error, to fliew the Connexion
■and Privity between the Perfon againft whom the Recovery is had,
and the Perfon who brings the Writ of Error. This is Jiot like a
Proceeding to try the Right of the Land, or to recover the Land
iffelf. The Precedents are fo : And None are produced to the
contrary.
2d Objection. No Authority or Reafon is produced, for a Scire
facias to the Heir.
3d Objection has no Weight in it : And the Cafe of IVynn v.
Wynn is in Point againft it.
4th Objection. The Conclufion with an Averment, is right ; and
gives an Opportunity to trv the Fact by the Country, if the Defen-
dant in Error chooles it : Which is all that is requilite.
So
Michaelmas Term 31 Geo. z. 413
So much as to the Form. And
As to the Mcriti — It is extremely clear that a Remainder-Man
mght to have this Chance to the Benefit of the Entail; vl-z. To lee
that all the proper and requifite Forms fhould be gone through,
before He is barred of it.
It is plain that Judgment ought not to be given again ft any Man,
after he is dead. And there could have been no Judgment againft
the Tenant to the Praecipe in a Common Recovery, v/ithout a
Judgment likewife over, in Value, againft the Vouchee: They are
all entered at one and the fame Time, and are Part of the fame
Y roc ceding.
Mr. Juft. Denison concurred —
ift. This General Allegation is fufficient, furely, in the Wr i t :
He needs not fliew a complete Title. Nay, even in a Formedon, I
do not know that the Title needs to be completely and fully
fet out in the Writ. And Wymn v. Wynn is an Authority, on
this Head.
2dly. A Scire facias to the Heir was not neceflary; nor any
Warning to Him: The Recoveror has the %rt/ Right; and muft be
taken by the Court, to have the real Intereft.
3dly. The Death of the Vouchee, before Judgment, is Error in a
Common Recovery; and maybe ajfigned iox fuch. Wynn \. Wynn
was in Point, to this.
4thly. The Cafe in Teh. 58. is fo far true, (and can mean no
more than) that it ought to be put in a Method of being tried by
a fury. And here the Plaintiff in Error has done fo: He fays
" He is READY to verify it.'\ So that the Defendant in Error
might have put it in IlTue, if he had pleafed. But lie has chofen
to plead " in niillo (ft crratuni" : Which confejfes the Fd7l, and puts
the Matter of Law upon the Judgment of the Court.
As to the Merits — Tlie Remainder-Mnn has a Right, both in
Lav%' and Juftice, to reverfc the Recovery, if it be erroneoufly fuffered.
Mr. Juft. Foster and Mr. Juft. Wilmot declared their clear
Concurrence in Opinion with Lord Mansfield and Mr. Juft.
Denison.
Per Cur. clearly and unanimoully
Judgment reversed.
5 N . Windham
414
Michaelmas Term 31 Geo. 2.
Friday Z^\\
»757-
i'JbVy^Jl.
Windham Efq. veff. Chetwynd Efq:
Pafch. 28 G. 2. Roflo 53.
A Special Verdidl upon a Will of Land, dated the uthofMry
1750; and a Codicil of the fame Date, made by Walter Chct-
'wynd late of Gretidon, Efq.
The Special Verdid — At which Day, before our Lord the King
at Wcftminllcr come as well the faid V/illiam Wyndham Malachi Lin-
don Catherine Undon Thomas Stevens alias Walter Paris alias Walter
Chetwvnd Sufannah Blacknell Henry Perrott George Huddle/Ion and
James Crofts by their Attorney, as the faid William Henry Chetwynd
'by his Attorney. And the Jurors &c. being fummoned &c. do
come &c. and being eleded &c. do find, As to the firfl: Iffue
pined between the faid Parties, that the faid Walter Chetwynd was,
at the Tiine of making the faid Writings importing to be his lafl
Will and Codicil, of found Mind. As to the third Iffue, they find
that the Teftator did nor, by the faid Writing importing to be his
laft Will, Devife to the aforefaid William Windham and his Heirs
any Lands or Tenements in the County of Warwick, In Truft or
for the Benefit of the faid Thomas Stevens alias Walter Paris alias
Walter Chetwynd. And as to the fourth Iffue, the Jury find that
the Teftator did not, by the faid Writuig importing to be his laft
Will, .Devife to the laid Catherine, now Catherine Lindon the Wife
of the faid Malachi Lindon, an Annuity of 200/. by the Year, for
the Term of her natural Life. And as to the fecond Iffue, the Jury
find that the Teftator was in his Life Time feifcd in Fee of certain
Lands Tenements G?c. in the feveral Counties o^ Warwick and Staf-
Jord, of the yearly Value of 3100/. and being fo thereof feifed, he
the faid IValter Chetwynd, in his Life Time, figned fealed and pub-
lifhed a certain Paper Writing bearing Date the I4tli Day oi May
1750. purporting to be his laft Will and Teftament, and likewife
another Paper Writing purporting to be a Codicil indorfed on the
faid firft-mentioned Paper Writing, and of the fame Date; (which
Will and Codicil it fets out in h.ic verba-,) And in the iormer,
there is a Charge upon the Refidue of his Real and perfonal Eftates,
for the Payment of all his juft Debts, Legacies, and Incumbrances:
And that the faid Paper Writings were fo figned iSc. by the faid
Walter Chetwynd in the Prefence of StajJord Squire, Robert Baxter,
and Jofiah Higden; who likewife atteftcd the fame at hib Mequeft,
in his Prefence, and in the Prefence of each other. And they
further find that the fiid Stafford Squire and Robert Baxter, being
Attornies at Law, were in or about the Year 1747, employed by
the
ichaelmas Term 31 Geo. 2. 41
the faid Walter Chetivynd to folicit a private Ad of Parliament "for
*' Sale of the Eftates late of He}iry Fleetivood Efq; deceafed, in the
" County of Lancajler, for raifmg Money to difcharge Incumbrances
" affedlino- the fame ©'<:." And that the faid Stajford Squire and
Robert Baxter charged tiie faid IValter Chetivynd Debtor in their
Books, for the Fees and Expences of paffing the faid Ad: And
which Charge co?itinued Jo, ufittl and after the Death of the fud
Walter Chetivynd. And that at the faid Time of the faid figning
fealino- and publishing of the faid feveral Paper Writings, and alfo
at the Time of the Death of the faid Walter Chetivynd, there was due
md Giving to the faid S. S. and R. B. for the faid Bufinefs done, the
Sum of 3 1 S /. and that fome Time after the Death of the faid Walter
Chetwynd, the faid S,, S. and R. B. delivered a 5/7/ for paffing the faid
h.Gi.to the Trujlees nominated and appointed in and by the faid Aft of
Parliament for the Purpofes therein mentioned : and afterwards, and
before the Examination of the faid S. S. and R. B. in this Caufe, the
faid S. S. and B. R. received from the /'aid Trujlees, at feveral different
Times, feveral Sums, amounting in the whole to 302/. 4^. 8(/. ;-
and that the faid Trujlees were willing to have paid the RematJidery
if it had not been for a Mifcalculation. And the Jury further find
that in the faid private Ad of Parliament there is contained a certain
Claufe for Payment of the £x/>c«fr^ attending the faid Bill: (which
Claufe they find in hctc verba.) They further find that at the
Time of the figning fealing publifhing and attefting the faid Paper
Writings, there was a current Account open and fubfifting between
the faid S. S. and R. B. and the faid Walter Chetwynd for other Bu-
finefs exclufive of the Expences of paffing the faid private Adt:
on the Balance of which Account, if ftated at that Time,, the faid
S. S. and R. B. were indebted to the faid fValter Chetwynd in the
Sum of 138/. J 4 J. 10^. They further find that at the faid Time
of the attefting of the faid Writings, and alfo at the Time of the
Death of the faid Walter Chetwynd, there was due and owing from
him to the faid Jofiah Higden, hfs Apothecary, the Sum of 18A S^- S^-
on fimple Contrad: Eleven Pounds whereof were fo due on 25th
December ij\g. and before the laji Siciknrfs of the faid Walter Chet-
wynd. They alfo find' that the faid Walter Chetwynd died on the
17th oi May 1750, without Iflue, and feifed &c: and that the fiiid
William Henry Chetwynd is the only Brother and Heir at Law of
the faid Walter Chetwynd. They further find that his real Eftate
at the Time of figning &c, and alfo at the Time of his Death, was
fubjeft to certain Mortgages made thereof, by the faid Walter Ckct-
wynd to the Amount of 19000/. And of 5000/. more, made by
the faid Walter Chetwynd's late Father. And that the faid Walter
Chetwynd owed zt the Timt of his Der.th, by Bonds, the Sum of
1600/. and by fimple Contrail 2874: and that his perfonal Eftate
then amounted to 13972/. and was fufficient to pay all the fimple
Contract
41 6 Michaelmas Term 31 Geo. 2.
Contradl Debts and Bond Debts ofthefaid Walter Chetivynd. And
that the feveral real Eftates fo in Mortgage were of Value more than
fufficient to fatisfy the feveral Incumbrances aftcd:ing the fame. The
Jury further find that on the 2d of Angitjl 1750, the fuid William
Hnirx Chetwytid filed his Bill in Chancery againft the faid William
Wi^tdbam &c, lor the obtaining a Decree and Recovery of the faid
Lands ^c ; and thereby contefled the Validity and due Execution
of the faid Paper Writings. That Anfwers were put in, and
Amendments made to the Bill; and other Anfwers put in: and the
faid Williain Henry Cheiicynd profecuted the faid Suit in Chancery
with all due Diligence. The Jury further find that the faid William
Windham, as Executor ot tlie fiid Walter Cbetiiynd, paid to the faid
Jofiah Higden the faid Sum of 18/. 5 s. ^d. after the Death of the
faid Walter Chet'wynd and before the Examination of the faid 'Jcfiah
Higden in this Caufe: And that the faid y. H. liad not, at tbe
Ttvic of his Examination in this Caufe, any Demand upon the faid
Walter Chetivynd. But whether upon the whole Matters aforefaid
by the Jurors in Form aforefaid found, the faid Paper Writings or
either of them were or was dui.\ kxe cut kb by the faid Walter
Chetwvnd, fo as to pafs Lands or Tenements, or not, the faid Ju-
rors are wholly ignorant : And therefore pray the Advice, &c. &c.
This Cafe was argued twice; ift. on Friday the fixth of May
laft, by Sir Richard Lloyd for the Plaintiff, and Mr. Clayton for the
Defendant; and again, on Friday the iSth Inftant by Mr. Serjeant
Pri}i7e for the Plaintiff, and Mr. Norton for the Defendant.
The principal bbjeftion infifted upon by the Counfel for the De-
fendant, was " That the fubfcribing Witntffcs to the Will were not,
" at the T/>7^ of their attestation, credible Witneffes:" And
confcquently, this was not a good Will o^ Lands, within the Sta-
tute of 29 C. 2. c. 3. for Prevention of Frauds and Perjuries; as
not being attefted by three credible Witneffes.
In proof of which, they urged many Arguments, and reafoned
from feveral Cafes: And, amongft others, they cited two Cafes as
in Point; I'iz. Hilliard v. Jennings, reported in i Ld. Raym. 505,
Comyns 92, Cartheiv 514, and Cafes in B.R. temp. W. 3. page 277;
And Hohifajl ex dim" Anllcy et Ux' v. Doiv/ing, in 2 Strange 1253.
But it would be unneceffary to prefix either the Arguments of
the Counfel, or the Authorities upon which they relied; As Lord
Mansfield entered into the Cafe fo very minutely, in delivering the
Opinion of the Court upon it.
After the Court had taken fome Time to confider of it, they
all ac^reed that the Will was duly attefted by three credible Witneffes.
And now
Lord
Michaelmas Term 31 Geo. 2. 417
Lord Mansfield delivered the Opinion of the Court, to the
following Eftedt.
o
The Doubt made by this Special Verdidl fprung, after the Caufe
of Anjly V. Do'wfiiig, out of the Getieral Queftion then much agi-
tated, " Whether a Benefit given to a fubfcribing Witnefs by the
*' Will, either under a general or particular Defcription, fliould
" annul his Atteftation, as at the Time of his subscribing ; and
" make the Will wholly and abfolutely void, for Want of Form,
" as much as if he had never attefted at all ; though at or after the
*' Tejlator's Death, He might be difnterejied, and competent to be
" examined in Support of the Will."
This getieral Point is the Bafis of the Objedlion to thefe fubfcri-
bing WitnefTes. Unlefs the Defendant can fupport it, He has no
Ground to ftand upon : But though He fhould fucceed in the
general Propofition, the Application to this Cafe may fiil, from the
f articular Circumfances, and the Kind of Benefit objedted.
The Queftion does ?iot depend upon the Conftrudlion of any
Words of tJie Statute. The Statute is lilent as to the Capacity of the
WitnefTes : It declares no Incapacity ; It requires no Qualification.
The Epithet " Credible'' has a clear precife Meaning. It is not
a Term of Art appropriated only to legal Notions j but has a Signi-
fication univerfally received. It is never ufed as Synonimous to
Competent. When applied to Teftimony, it prefuppofes the Evi-
dence given.
After the Competence of a Witnefs is allowed, the Confideration
of his Credibility arifcs : Kn6.?iot before. Perfons undoubtedly cre-
dible cannot be Witnefi"es, under particular Circitmftances : Perfons
manifeftly incredible may be, and cften are Witnefies.
In A(fts of Parliament which dire(fi: Convidions upon the Oaths
of Witnefi'es, the Epithet " Credible" is added ; but by no Means
intended to fignify "Competent:" That is implied in the Term
" Witnefs." But it is intended, (from abundant Caution,) to de-
clare, That though competent Witnefies fwear pofitively, their Cre-
dibility is to be weighed : And if the Magiftrate thinks the Evidence
720t credible, He ought not to convict.
In this Senfe, it was very unnecefliry to add the Epithet, here,
to fubfcribing WitneflTes. And yet, to make the efiential Solemnity
of the Will depend upon the Credibility of the fubfcribing Wit-
nefi^es, is fo abfurd ; that their Credibility has always been held to
make no Part of the neceffary Form.
c O If
41 8 Michaelmas Term 31 Geo 2.
If they all fwear that the Teftator did not execute; If they had,
at the Time, the worft Charadters, and had committed the moft
infamous A(5tions ; yet their Atteftation anfwers the neceflury Form :
Becaul'e the Teftator meant to comply with the Law, and might
not know them to be bad Men.
The 3d Rule or Caution in making Wills, given at the End of
''^^ jCi. 36. ^. Biifler and Baker's Cafe, * is — " At the Time of the Publication
" of the Will, Call credible Witnefles to fubfcribe their Names to
" it." Lord Coke certainly meant " Perfons of Credit and Cha-
" rader."
From hence, and from the Ufage in Penal Adl:s diredling Con-
vidions, I am perfuaded that the Epithet was inferted here, as a
Word of Courfe, and mifapplied. Had the Operation or Effed: of
the Word, in this particular Cafe, been attended to, it never could
have been inferted ; becaufe, in the natural and obvious Senfe, the
Meaning muft be rejedled, from the Confequenccs it would have:
A^nd in any other, it has no Meaning at all ; For, Suppofe it to fig-
ni fy competent. Competence is implied in the Term " Witnefles."
This icbole Claufe, which introduces a pofitive Solemnity, to be
obferved, not by the Learned only, but by the Unlearned ; at a
Time when they are fuppofed to be without legal Advice ; in a
Matter which greatly interefts every Proprietor of Land ; where the
Diredion fhould be plain to the meanejl Capacity ; is fo loofe, that
there is not a fingle Branch of the Solemnity defined or delcribed
with fufficient Certainty to convey the fame Idea to the greatejl
Capacities.
There have been Litigations, and contradidory Opinions, upon
almoji every Part of the Form ; as " What is Signing by the Tefla-
" tor ? Whether the Witnefles are to atteft iino Contextu, uno
" eodemq; Tempore ? Whether they are to fee the Teftator fign ?
" Whether they ought to know that He figns it as his Will? Whe-
" ther he ought to publifti it as his Will r" A very little Prccifion,
and a very few Words, might have prevented all thefe Queftiuns.
In a Claufe not the moft accurate, I can eafily believe that the
ufual Epithet " Credible'' flipped in, as of Courfe, without Atten-
tion to the Impropriety of ufing it on this Occafion.
It has been faid " that this Ad of 29 C 2. c. 3. was drawn by
" Ld. Ch. J. Hale ;" But this is fcarce probable, fince it was not
paflcd .ill after his Death: And it was brought in, in the Common
Way ; aijd ijoc upon any Reference to the Judges.
2 But
Michaelmas Term 31 Geo 2. 419
But what Senfe foever is put upon this Word " Credible," the
Statute leaves the Queftion juft as it was : For it does not declare
who are, or are not credible ; or, (if it is liippofed to mean compe-
tent,) who are competent, or who are incompetent.
Their Competence could not be referred to any Law then efta-
blidied : becaufe there was, there could be, none applicable through-
out to this New Cafe. The Neceffitv of labfcribing Witnllles to
any Inftrument, never had exifted before, in this Country. There
never could have arifen, in the Law oi England, a Queftion, " con-
" cerning the Competence of a Witnefs, at the Time of his know-
■** ing the FaSl, he came to teflify j" but only " whether he was
*' competent at the Time of his Examination."
The Time of Examination could not pofTibly be the Criterion
upon which the Validity of the Will was to dep;fnd. The Wit-
nelTcs might not live to be examined : Their Licompetence to be
examined, might arife long after their Atteftation.
" What Objedlion therefore to the fubfcribing Witnefles, fhould
" be fufficient to avoid a Will, as informal," was left to be iudged
of as Cafes fliould arife ; by general Principles, by Analogy to the
Law of WitnelTes in other Inftances, and by A.rgumen:s dr.i\vn
from the Nature and Fitnefs of the Thing, with regard to Jiiftice,
Convenience, and the Litent of the Statute.
When folemn Determinations, acquiefced under, had fettled pre-
cife Cafes, and become a Rule of Property; they ought, for the
Sake of Certainty, to be obferved, as if they had originally made
a Part of the Text of the Statute.
I will therefore confider the General ^ejlion, in two Views :
■ifl;. Suppofing there had been no fndiciol Determinations rela-
tive to the Capacity of fubfcribing Witnefles fince the Statute j
2dly. Upon the Eoot of the Judicial Determinations that have
been fince the Statute. And
3dly. In the laft Place, I will confider the particular Cafe now
in Judgment, under all it's own Circumftances. ,
Firft — Confidering the Matter at large; Let me obferve that the
Power of Devifing ought to be favoured.
It is a natural Confequence of Property, and the Right a Man
has over his own^ It was a Right by the Law of the Land, before
the
420 Michaelmas Term 31 Geo. 2.
the Conqueft, and down to about the Time of Hmry the 2d — It
ceafcd, conlequentially only, by the Introduflion of Feodal Te-
nures ; becaufe, originally, every Species of Alienation was con-
trary to that Syftem.
Afloon as the Power of Alienation inter Vivos was indulged, Tef-
taments followed, indireflly, as Declarations of Ufes.
The Statute of Ufes accidentally checked this Form of Deviling.
Therefore the Statute of Wills was made.
The 29 Car. 2. c. 3. (which gives Rife to the prefent Qneftion,)
did not mean to rejirain Teftamentary Difpofitions of Land : The
Reafons to encourage that Power were increafcd.
The Policy of Tenures, from whence arofe the Impediment to
Wills, was aboliflied ; but had left many Confequences remaining,
which made Teftamentary Difpofitions of Land, more reafonable
than they were among the Greeks and Ro?nans, or here before the
Conqueft.
The Eldeft Son only is Heir, ab luteflato. Among Collaterals,
not all the next of Kin, but One often is Heir ; to the Exclufion
of many in the fame, and many in a nearer Degree. Simple con-
tradl Creditors had no Right to be paid their Debts. Money invef-
ted in Land could not be traced. Much Land was in Trufl : Where
the Widow had no Right to Dower.
In perfonal Eftates, the Succeffion ah Jntejlato is fubjedl to all
Debts, and governed by natural Family Equity.
In real Eftates, the Succeffion is governed by political Confequen-
ces of a Pofitive Syftem : Which make the Teftamentary Power
often neceflliry, to enable a Man to do Juftice to his Family, and
his Creditors.
The Legiflature meant only to guard againft Fraud, by a Solemn
Atteftation ; which they thought would loon be univerfally known,
and might very eafily be complied with. In Theory, this Attefta-
tion might feem a ftrong Guard ; It may be fome Guard in Prac-
tice; But I am perfuaded many more fair Wills have been overtur-
ned for Want of the Form, than fraudulent have been prevented
by introducing it.
I have had a good deal of Experience at the Delegates ; and hardly
recolledt a Cafe of a forged or fraudulent Will, where it has not
been folemnly attefted. I have heard eminent Civilians who are
dead, and fome now living, make the fame Obfervation.
4 Suppofe
Michaelmas Term 31 Geo. 2. 421
Suppofe the fubfcribing Witnefles honeil ; how little need they
know? They do not know the Contents; they need not be to-
gether ; they need not fee the Teftator fign ; (if he Acknowledges
his Hand, it is fufficient;) They need not know it to be a Will;
(If He delivers it as a Deed, it is futficient.)
For thefe and many more Reafons, it is clear That Judges (hou\d
lean agahift Objecflions to the Formality. They have always done
fo, in every Conftrudion upon the Words of tlie Statute : a forti-
ori ought they to do fo, in railing a confequential Syfteni, not
pfefcribcd in Words. And ftill more ought they to do fo, if that
Syrtem would fpread a Snare, in which many honeft Wills maft:
unavoidably be intangled ; and be no Prefervative agamft Fraud.
At the Time this Aft was made, the Law rejcfted no Witnefs to
prove a Will ; Unlefs, at the Time of his Examnation, his Tefti*
mony tended to fupport his own Title, and enable hiaifeif to hold
or recover an Intereft under it.
In the Ecclefiaftical Court, the Probate is oonclufive to every
Body as to every Part. If a Legatee come to prove it, He Entitled
himfelf to his Legacy. But if the Legacy was contingent, and at
the Teftator's Death could uot take Effeft ; if He had the fame or
a greater Intereft, though the Will fhould be fet afide ; He was 4
Witnefs: A Releafe, Payment, or Tender, made him a Witnefit
In the Courts of Common Law, where the Witnefs had a Charge
upon Land devifed to another, He was juft in the Cafe of a perfonal
Legatee. If he had as great an Intereft the other Way ; if his In-
tereft at the Teftator's Death could never take Effeft ; if there was
a Releafe, (of which feveral Authorities were cited;) and I will
add, as by neceffaary Confequence, if there was Payment or Tender j
He was a Witnefs,
Nice Objeftions, of a remote Intereft, which codd not be paid
or releafed, though they held in other Cafes, were not allowed to
difqualify a Witnefs in the Cafe of a Will : As * Pariftiioners might [*r. 2 5,v.
prove a Devlfe to the Ufe or" the Poor of the Parifli for ever. 109.^.1658.
7tnx>nfcnd v.
Before the Statute, No Man could, in a Court of Juftice, intitle
himfelf by his own Examiration, to a Devife, So, after the Statute,
No Man ftiould intitle himfelf, in a Court of Juftice, to a Devife,
by Virtue of his own Subfcription, which at the Time of Subferi-
bing, He could not have proved by his Examination.
5 P 'J'hti
422 Michaelmas Term 31 Geo. 2.
The Difability of a Witnefs from Intereft, is very different from
a pofjtive Incapacity. If a Deed muft be acknowledged before a
Judge or Notary Public ; Every other Perfon is under a fofitive In-
capacity to authenticate it : But Objedlions of Intereft, are Deduc-
tions from natural Reafon, and proceed upon a Prefumption of too
great a Bias in the Mind of the Witnefs, and the public Utility of
rejeding partial Teftimony.
Prefumptions ftand no longer than till the contrary is proved.
The Prefumption of Bias may be taken off, by fhewing the
Witnefs has as great, or a greater Intereft the other Way j Or that
he has given it up.
The Prefumption of public Utility, may be anfwered, by fhewing
that it would be very inconvenient, under the particular Circumftan-
ces, not to receive fuch Teftimony.
Therefore from Neceffity, the Courfe of Bufinefs, and other
Reafons of Expedience, Numberlefs Exceptiot2s are allowed to the
getjeral^yAt.
The Prefumption of Bias arifes as at the Time of fubfcrihing.
But it may be anfwered. — If Part is devifed to a fubfcribing Wit-
nefs, The Prefumption is anfwered, by fhewing he was Heir at
Law ; or that the Devife is void ; or that he has renounced it.
Where is the Reafon to fay that a Witnefs who does not know
the Contents of a Will during the Teftator's Life, and at his Death
takes no Benefit, was biaffed at the Time he fubfcribed, or can
be biaffed at the Time of his Examination ?
During the Life of a Teftator, Devifes are mere Poffibilities : No
Intereft can veft till ])is Death. The Prefumption of Bias from the
Pojjiljility, is anfwered by the Facl when it becotnes an Intereft.
His Swearing when he is totally difiuterefled, is conclufive, that the
Poffibility is ?iot to be prefumed the corrupt Caufe of his fubfcribing.
For the Sake of third Perfons, It is wife and juft, to allow the
Objedlions thus to be purged: Otherwife, many Settlements by
Will muft be overturned, to the Ruin of Families.
It is natural and ufual to give Legacies to Servants, and Tokens to
Friends. — Perfons under thefe Defcriptions are moft likely to be
Witneffcs. Ought fuch Trifles to overturn unavoidably the moft
deliberate Difpofuions of the greateft Eftates ? Which may be at-
4 tended
Michaelmas Term 31 Geo. 2. 423
tended often with this Family Diftrefs, That a Man may have
given his Money to One Part of his Family, and his Land to
Another : In which Cafe, the Will would be good as to the Money j
and void, as to the Land.
If the Legiflature had faid Jo, That would have been a pofithe
Rule : But it is contended for, by ConJlruBion^ and to guard agahxjl
Fraud.
It is not a Guard, even in Theory, in the Cafe of Legatees : Be-
caufe, they may, in another Shape, atteft: the Devife which charges
the Land with their Legacies.
It is fettled, " That where the Land is once charged, (and it al-
ways is an auxiliary Fund,) with the Payment of Legacies, by a
folemn Devife, The Legacies may be given, altered, or revoked by
a fubfequent Will tmattejied." The fraudulent Legatee might at-
teft the Charge, and get his Legacy in a Codicil unattefted.
Let a Will be ever fo fair, a Slip in Form is fatal : Which is a
certain Mifchief. But, if a Will be fraudulent ; though it is al-
lowed to be formal. It may be fet afide upon Evidence and Circum-
ftances.
Neither Reafon, nor Policy requires the Objection to be carried
farther than I have laid it down ; agreeable to the Law before the
Statute, and the univerfal Maxim, " Tefliis in propria Caufa non
*' eft adhibendus."
But if Judicial Determinations, acquiefced under, and become a
Rule of Property, fince the Statute, have extended the Incapacity
further. They muft be adhered to. Which brings me
Secondly, To confider the 'judicial Determination!, fince the
Statute.
All the Determinations agree exaSlly with thefe Principles.
In many Inftances, the Prefumption of Bias from a Legacy, at
the Time of fubfcribing, has been allowed to be taken off by a
Releafe. Authorities in print have been cited, to fliew " this was
" confidered as a fettled Point :" And I verily believe it was fo,
from the Authority of the oldeft and moft eminent Pradifers in
Weftminfter-Hall ; and therefore I give Credit to the Diftum of * See r»Vr'/
T(njoys in Viner, * " That it had been folemnly agreed by the j^J^^^vi-
" Judges, That where a Perfon had a Legacy given, and did re/eafe deme, page
" it^ He was a good Witnefs to prove the Will." '4- N« 53.
I
42-4 Michaelmas Term 31 Geo. 2.
I know that before the Cafe of y^n^y v. Doiv/ing, a Will of a
very great Eftate was liable to the Objedion ; and the Heir at Law
would have contefted it : But as it was certain the Witnefles
would be paid, or releafe, No Opinion that he took, encouraged
Him to think it worth his while.
Mr. Fazakerley and Sir Thotnas Booth have told me, they took it
to be fettled : And indeed the Number of Wills where the Objec-
tion lay and never was taken, d/jmonftrated it.
There is not a fingle Determination which carries tlie Incapacity
farther than the Rule I have laid down ; viz. " That a Perfon
" ftiall not, in a Court of Juftice, intitle himfelf to a Devife, by
" Virtue of his own Subfcription, which at the Time of fubfcri-
"• bing He could not have proved by his Examination."
That is the Cafe of Hilliard v. Jennings. That is the Refolu-
tion and Judgment of the Court in the Cafe of An/iy v. Doiifmg.
There, the Defendant was Devifee ; fubjedl to an Annuity of 20 /.
a Year to EUz. the Wife of John Hailes, for her Life, for her fepa-
rate Ufe : And there did not appear to be any perfonal Eftate.
Her Intereft was a Charge, in the Nature of a Legacy, to be paid
by the Defendant, out of the Eftate devifed to him : And being
for her feparate Ufe, it was a Truft ; and the Defendant was her
Truftee. Upon the Validity of the Devife to the Defendant, Her
Annuity depended. If he fucceeded, her Title followed of Courfe ;
for He muft take the Land, as the Teftator gave it, fubjecfl to the
Charge and Truft : And upon the Dsvife to the Defendant being
found good at Law, a Court of Equity muft, of Courfe, have de-
creed the Truft. So that She was the Cejhiy que Truft of the Party
to the Cattje ; and either way, the Judgment would immediately
affedl her Intereft.
In matter of Evidence, Huft)afid and Wife are confidered as One ;
and cannot be Witnejfcs, the one for the other. The Huft)and cannot
be Witnefs Jor his Wife^ in a Queftion touching her feparate
Eftate.
There was no Releafe. There could be no Payment, or Tender,
without the Interpofition of a Court of Juftice ; becaufe the Value
depended upon incertain Eftimation : But no Attempt had been
there made towards paying, or tendering the Value of the Annuity.
This brought it precifcly to the Cafe of Hilliard v. Jennings :
The Witnefs, in a Court of Juftice, was to fupport a Devife to
himfelf, by Virtue of his owJt Subfcription. j (for the Cafe is the
3 fame.
Michaelmas Term 31 Geo. 2. 415
'fame, as if the Wife had been the Witnefs, or the Husband the
.Devifee of the Annuity.)
It is true that Ld. Ch. J. Lee, in * delivering his Opinion, ar- * That Opi-
■.gued as if the Obieftion of Benefit from the Will to the Witnefs, at ".'°" Z^'J^^'
o -^ ■' iivcrcd by
the Time of fubfcribing, could not be anfwered or taken off by any Ld. ch. J.
fubfequent Faft : Which He grounded upon the Authority of the ^^^y on Tucf-
Roman Law from the Digeft, and Code ; where it is faid " Condi-''"?^V-^p^''^l
1746
ttonem 1 eltium tunc inlpicere rtebemus, cum jignarent, non mor- (
'Confidered. f, ^ta.
ttonem Teftium tunc infpicere debemus, ciim Jignarent, non mor- G. 2.
tis Tempore." But the Senfe of this PafTage was not enough ^.^/y^/i^^^«*^^.'^•^./;*
" Conditio 'Tejlium" here means the pojitive Capacity of the Wit-
'nefles ; their Rank, or Quality, as Freemen, Citizens, Adult.
There tienjer was a Time, in the Roman Law, when Interejl
'.under the Will was any Objedlion to fubfcribing Witneffes.
To explain this a little farther —
The Effence of the Roman Teflament was the Appointment of
• an Heir, to reprefent the Teftator.
Before the 12 Tables, the Teftamentary Heir might be made
'Two Ways ; in ProcinBii, as Plutarch defcribes at the Seige of
•Corioli ; or in the Form of a Legiflative Atft, in Comitiis calatis.
The 12 Tables gave an abfolute Power to every Man, to make
■the Law of his own Succeflion ; But prefcribed no Form. ■
As a Teftament was an Alienation of the Teftator's Property and
Family after his Death, The Form of Mancipation per Als et Li-
iram, ufed in other Transfers of Property or Family, was followed
in this : The Heir was fuppofed to hiy, and the Teflator to fell his
Succelfion and Family, for and as reprefenting their Families. The
Ceremony was tranfad:ed with all the Symbols of a Sale ; in the
Prefence of the Officer who held the Balance, and of Five Free-
:men, Citizens o^ Rome, 14 Years of Age at lead, folemnly required
to bear Witnefs.
Thefe Ceremonies and Symbols were invented before Inftruments
in Writing : And this imaginary Sale, per Ms et Libram, was ufed
in Alienations, Adoptions, and almoft every Species of Change of
Dominion, or Property ftridly fo called, (" Proprium eft quod ^is
'" Libra mercatur et /Ere,'') and in many other Contracts.
Subfequent Laws and Ufages, efpecially after Teftaments came
to be in Writing, took away the Ceremony of the Symbolical Sale,
added two Witneffes more, and prefcribed Forms of Atteftation ;
5Q_ But
4^6 . Michaehras 1 erm 31 Geo. 2.
But left the Cotidifion of the Witneffes, the (iime : They mo ft bs
Freemen, Roman Cinzens, Adult, & Trjlabih's. Yet by an equita-
ble Conftrudlion, General Reputation was fufficient : As where the
Witnefs, whom Every Body confidered as a Freeman, really was a
Slave.
This was the Conditio Tcfliui}!, and muft exifl at the Time of
fubfcribing : As much as where there is a Cuftom to furrender into
the Hands of 2 Copyholders out of Court, they iiiufi: be Copy-
holders at the Time.
Though in other Cafes, the Objedion of Intereft, to a Witnefs,
was allowed ; it did not incapacitate Witneffes to a Will.
While the Teftament per Ms et Libram continued, neither the
Teft:ator, or Heir, or any of the Families of either, could be Wit-
neffes ; becaufe they were fuppofed the Parties to the Contrail.
When the Symbolical Sale ceafed, and Teftaments were in Wri~
ting and fccret. The Heir himfclf was a fufficient fubfcribing Wit-
nefs. Afterwards, though the Will was open, and He knew the
Contents, He was a fufficient fubfcribing Witnefs : As appears from
§ 48. Cicero for Miio, fpeaking of Cyrus * — " Una ftii ; TeftameJttum fimid
" obfignavi cum Clodio; Tcftamentimi autem palam ymr^/, G" il-
" lum Hasredem & Me fcripfcrat."
yujiinian Injl. Lib. 2. Tit. 10. § 10. recites the Heir having been
allowed to be a Witnefs; but forbids it, (not upon the Foot of his
being interefted, but) '''■ ad imitationem priftini familice Etttptoris ;
" quia hoc totiim Negotiiim, Tejlamenti ordinandi gratia, creditur
*' hodie inter Tcjiatorefn & Heredem agi." But in the next Seiftion
(§ II.) He exprefly allows the Ce/luy que Truft, and L'gatees, to be
fubfcribing Witneffes ; " ^ia non juris Succ(j[ores Jhnt." And
yet the Heir might be merely a Truftee for the whole Inheritance to
be delivered to the Cejluy que Trujl j and the Legatee might exhauft
the whole Eflate.
This abundantly fhews that the Paffage from the Code and Digefl
did not relate to Witneffes being interested.
And the Code and Digefl are confiflent with the Inflitute, on
this Head.
The Code, Digefl, and Inflitutes are all one connedled Work.
The Code was firfl publifhed in the third Year of Jujiinian :
The Digefl was compiled before the Inflitutes; but publifhed a
Month after, in the feventh Year of Jujiinian.
The
Michaelmas Term 31 Geo. 2. 427
The Propofidon " that any kind of Inffreft, at the I'ime of fuh-
** fcribing, could not afterwards be taken off;" and the Apphcation
•of this Paffage in Support of it, was much agitated in Wejhninjler-
Hall and the whole Kingdom.
A Gentleman at the Bar, purfuing the Propofition through all it's
Confequences, hit upon this Point — " That a Charge upon Land for
" Payment of Debts, would defeat the Will, if a fubfcribing Wit-
■*' nefs," was a Creditor at the 'Time of Subfcribing:' Affoon as it
occurred to him, He mentioned it to Me. There had been tnany
fuch Devifes : But the Queftion, " Whether the Witnefs was a Cre-
** ditor, 7icver had been ajked at Law ; nor by Interrogatories in
Chancery, framed to eftablifli or impeach a Will.
If the General Rule was right, the Dedudlion feemed very plau-
fible.
He put this Point in Iffue, in Chancery ; and examined to it, in
Behalf of the Heir, in feveral Cafes. Lord Hereford's Will was
one of the firfl : This was another.
A Cafe foon happened which brought the General Propofition
flung out by Ld. Ch. J. Lee, under Judicial Examination. On the
loth oi February ij^t. The Earl oi Ailejhury died; having made a
Will, 15th May 1746, of his whole Eftate real and perfonal, char-
ged with Debts and Legacies : The three fubfcribing Witnefles, as
being in his Service at his Death, had Legacies ; One, 30 /. a Year
for Life ; the other two, pecuniary Legacies. All three rekafed^
the 1 2th oi February 1746.
He had made a former Will, on the 20th of December 1744,
attefted by 3 difinterefted Perfons ; under which, the 3 fubfcribing
Witneffes to the laft Will would have had the fame Legacies.
A Bill was brought in Chancery, to have the latter Will efl:a-
blifhed, notwithftanding this Doubt ; and flating the whole Matter.
Notwithftanding the Will of 1744, which the Teftator had re-
voked, (as He thought, effedually,) and might probably have can-
celled ; It was a Benefit to the Witnefs, at the Time of Subfcribing^
to have a Legacy under the lajl Will.
The Caufe came on to be heard, the 5th of November 1748.
And I was of Counfel, in it,
I had taken the Liberty to alk Mr. Juftice Denifon, " Whether
" the Judgment of the Court, in the Cafe of Anjiy v. Doisfng
4 " went
428 Michaelmas Term 31 Geo. 2.
■"" went upon the General Propofition." He told me it did ?wt ; but
upon the particular Circumflances. As to himfelf, He was net of
Opinion, " that an Objedion of Benefit, at the Time of Subfcri-
" bing, might not be taken off, by being difinterefted, at, or after
" the Death."
I mentioned this to the Lord Chancellor, who had got from Ld.
Ch. J. Lee, a Copy of the Opinion He delivered : And He was
clear, " they were good Witneffes." At the Death of the Teftator,
it was indifferent to them, ivljich Will prevailed : Befides, they had
releafed: He declared the laft Will, of the 15th of May 1746, to
be well proved, ejlablijlxd it, and decreed the Trujls.
There is another Matter touched in that Opinion delivered by Ld.
Ch. Juft. Lee, which interferes with the Rule I have laid down, in
it's full Extent : viz. " That a fubfcribing Witnefs who is afeveral
" Devifee, which Devife as to him muft be void, fhall not by his
" Subfcription authenticate the Re/l of the Will." But, for this,
no Authority is cited. In the Cafe of Hilliard v. Jefinings, the
■whole Land was devifed to William Hilliard. And I am fatisfied
that Ld. Ch. J. Holt took the Diftindion, " That the Will might
" be only void, quoad the Devise to the Witnefs :" Becaufe Carthew,
[pa. 5 1 4.] who was Counfel in the Cafe, and has reported it the moft
correclly, hints an Expreffion of that kind, viz. " That it was void
" quoad the Devife of the Lands to the Plaintiff;" And Ld. Ray-
>* iPeereWms. mond, in the Cafe of * Baugh v. Holloway, fays exprefy, " That
^SS7. 558- " Ld. Ch. J. Holt fo determined.
The Validity of the Will, as to the Perfonal Eftate, was not
before the Court, and never could come before the Court, becaufe
that Queftion belonged to another Jurifdidion. The Cafe in Judg-
ment was of a Devilc to the Witnefs only. Ld. Ch. J. Holt might,
very properly, throw out fomething to guard againft Liferences
from their prefent Determination, to the Cafe of a Devife to a third
Perfon.
I have looked into the Regifter-Book, for that Cafe of Baugh
and Holloioay ; and find the State of it to be this — Richard Baugh
died, leaving Elizabeth his Wife, and two Sons, named John and
George ; having firft made his Will, dated i ith Jutie 1707, where-
by he devifed certain Premiffes to his youngeft Son George his Heirs
and Affigns, charged with the Payment of 200 /, which was due
on Bond to Lancelot Baugh, the Teftator's younger Brother. And
the faid Teftator alfo devifed certain other Lands to the fuid George,
with a Provifo, that on the faid George's attaining 2 1 and having
1000/. paid him, then all the faid Premiffes fliould return to his
£ldeft Son John. And in Cafe botli his faid Sons fhould die under
21
Michaelmas Term 31 Geo. 2. 429
21 and unmarried, then the faid Teftator devifed the faid firft men-
tioned Premiffes to his Wife Elizabeth her Heirs and Affigns, char-
ged with the Payment of the faid 200 /, to the faid Lancelot Baugh^
.and alfo with the Payment of 1 50 /, to the faid Lancelot Bauglfs
Children ; and devifed the faid laft: mentioned Premiffes to his
Brother Edward Baugh his Heirs and Affigns. Both the Teftators
faid Sons died without Iffue, under Age : And Elizabeth Baugh
poffeffed and enjoyed the faid Premiffes under the faid Will, and
afterwards died, zoih OStaber 1714; having firft made her Will,
and devifed the faid firft mentioned Premiffes to Catharine Rawlins^
charged with the Payment of her Debts, and alfo fubjedt to the
faid Charge made by her Hufband's Will, Catharine Rawlins en-
tered, and enjoyed the faid Premiffes, and died ; having made her
Will dated 26th May 1 7 1 6, and devifed the faid Premiffes to Anne
Oxenden and Elizabeth Holloway as Tenants in Common, charged
with the Payment of the Debts and Legacies appointed to be paid
thereout by the faid Richard Baugh, and alfo of the Debts, &c. of
the faid Elizabeth unfatisfied by the faid Catharine Rawlins. The
laid Aline Oxenden and EHz. Holloway claimed the faid Premiffes,
as only Children of 'John Holloway by Anne his Wife, and as Co-
heirs at Law of the faid El'iz. Baugh and Cath. Raivlins. Lancelot
Baugh filed his Bill, and claimed as Uncle and Heir at Law of
'John Baugh the furviving Son of his Brother Richard Baugh ; there-
by impeaching his faid Brother's Will.
The Order is ftated right in i Peere Wms. ^S^'. And on fearch-
sng the Regifter's Book, it could not be found to have come on
again. Therefore it is reafonable to think the Heir muft have been
advifed to drop it.
Devifis of Lands differ extremely from Wills. They are no Ap-
'i|)©intment of an Heir ; They create no Reprefentation j The De-
■vifee does not ftand in the Place of the Devifor, as to fimple- con-
trad Debts ; and till the * Statute of King Willia?n, the Devifee was * 3. 4 ^^'- ^'
•iDOt liable to Specialty Debts, (becaufe he was confidered as an ^^' '• '■*■•
•^Alienee, and not as the Heir.) They ace Conveyances or Difpofi-
tions Mortis Caiifd : And that is the Reafon why a Man cannot de-
vife Land which he fhall afterwards acquire.
One Devife may be void, (as in the Cafe of this very Will ;) and
tthe Devife of another Eftate, good. There is no Probate of the
whole Inftrument : Every feveral Devifee muft make out his Title,
in a diftindl Caufe, and de novo, againft every new Party. *
Upon legal PrincipleSj there is great Weight in the Diftindlion
'faid to have been made by Ld, Ch. J, Holt : And the Authors re-
iferred to by Swinburne are ftrong, upon the Reafon and Fitnefs of
the Thing.
5 R The
430 Michaelmas Term 31 Geo. 2.
The Danger of Fraud, from the Imagination " that four Wit-
• By contri- " ncffes might * divide the Eftate among them," feems very chi-
^'"g '° ^"^'^' merical. That very Contrivance would overturn the Will. If it
three others, would not ; they might as well execute their Scheme, by four De-
asto the Lands vifcs, in four Paragraphs, feverally attefted.
devifed to
though none' Thirdly— In the third and laft Place, I propofed to confider the
of them could pj-efent Cafe under it's oivn Circumftances.
be a good
Witnefs as to
the Devife to Thefe VVitneffes are in the Nature oi Legatees; not feveral Devifees.
Hirafdf,
The Prefumption of " Interefl: at the Time o? Subfcriptio?i" is
taken off, at the Death, by the principal Funds being more than
fufficient: It is taken off, before the Trial, by the Debts ht'm^ paid.
But the Benefit at the Time of fubfcribing was Nothing. It does
not appear the principal Funds then were deficient. The Legacy
is a bare PoJJibility, upon a Contingency} which Contingency never
happened.
But I will go farther, I think a Charge " to pay Debts" ought
not to incapacitate fubfcribing Witnefl*es; although they wanted and
claimed the Benefit of it. Every Honeft Man (liould make that
Charge in his Will: He who omits it, is faid to fin in his Grave.
Fraud can not be prefumed, from inferting a Claufe which it
would be iniquitous not to put in.
No Man would refort to wicked and fraudulent Praflices, to get
his Debt charged upon Land by the J^yill of his Debtor: If he
fufpedled the Debtor's Circumflances, He would not flay till his
Death or Truft to a revocable Security.
The Prefumption of Fraud in this Cafe would be againfl Ju-
ftice and Truth; and the public Inconvenience fo great, that hardly
a Will could ftand.
This Charge ought to be in every Will.
The Perfons attendant upon a dying Teftator, and therefore
moft common Witnefi!es, are generally in fo?ne Degree Creditors;
fuch as Servants, Parfon, Attorney, Apothecary, (3c: And the dif-
allowing fuch Perfons to be Witnefies can not anfwer any Ends of
public Utility.
4 Upon
ichaelmas Term 31 Geo. 2. 431
Upon the Whole We are all of Opinion that this Will is duly
attefted by three Witnefles.
Judgment for the Plaintiff.
Rex verf. Strong.
MR, Clayton had moved (on the 19th Inftant) That the Defen-
dant might be at Liberty (without paying any Cofts) to pay
into Court 40 i. being the Penalty for his exercifmg the Tirade of a
Grocer, for the Space of one Month, contrary to 5 Eliz. c. 4;
whereof he had been convidled upon an Indidlment found at the lafjt
Cumberland KG\zc%; (which Proceedings the Defendant had remo-
ved hither by Certiorari;) And that thereupon the Recogniza?ice
might be difcharged: And He founded his Motion upon the Au-
thority oi Rex V. French, Pafch. 24 G. 2. B. R. Rex v. FiJJier, Tr.
24 G. 2. B. R. (Both, on the Motion of Mr. Ford;) in which
Cafes, this was done; becaufe by 5, 6 IV. & M. c. 11. §. "X. No
Cofts are payable, but upon Indictments brought by the Party grieved^
or upon Profecutions by Juftices, ^c, or other civil Officers profe-
cuting as fuch. And fo it was alfo, in a former Cafe, of Rex v.
Mary Incledon, M. 20 G. 2. B. R. A Rule was made to fhew
Caufe. And now, Mr. Norton not objedting to this Motion, (being
fatisfied with the Cafes cited — )
The faid Rule was made absolute.
Jenkiii verf. Whltehoiife and Another.
MR. Madocks moved for iCProhibit'ion to the Confiftory Court
of the Bifhop of Coventry and Litchfield, to ftay Proceedings
in a Caufe there, relating to the Will of a married Woman,
who was a Midwife by Profeffion, and had, by her Marriage-Set-
tlement, a Power given Her to make a Will for the Difpofition of
her perfonal Gains in that Profeffion. He fiid this was not a Will,
properly fpeaking: A Fe?}ie-Covert can not make a JVill; And cited
I Mod. 211. Anonymous, as in Point. Alfo in a Cafe oi Rex v.
Dr. Bettefworth, upon the Application of Miles Barnes Efq; againft
Diana Robfon, Daughter of Diana Elwick, formerly Diana Rob-
fin and late Wife of Governor Elwick, on 27th November 1751.
M. 25 G. 2. B. R. this Court agreed "that the Spiritual Court
" could not treat it as a Will, by granting Probate of it;" though it
is true, in that Cafe, the Court did not even make a Rule " to
" fhew
432. Michaelmas Term 31 Geo. 2.
" fliew Caufe why a Prohibition fhould not go;" Bccaufe they
thought the Spiritual Court had taken the right Method, viz. an-
nexing the Paper or Inftrument purporting to be Mrs. Elwick's WilJ,
to an Adminiftration granted to her faid Daughter Mrs. Diana
Robfon^ upon the Renunciation of the Executors. And fo, i Salk.
313. Shardeloio v. Nay lor; and Farrejley 147. S. C. fhews "that
" this is not a Will, nor proveable by the Ordinary."
And the Cafe oi Burnet v. Holgrave in Equity Cafes Abr. pa. 296.
fhews that this is not in it's own Nature teflatnentary.
And He faid that the Adviinijlration granted to the Hufband,
had been brought into the Spiritual Court, pendente lite there:
Which He prayed might be re-delivered to himj and that this
laft Claufe might be added to the Rule.
XoRD Mansfield — -That is going too far: We will not add that.
* 5th 'July In a Caufe of Rofi v. Ewer, in Chancery, * there was a Power to
'744- a Feine Covert; "to appoint by Will." Lord Chancellor held
. clearly, " though fuch Will operates as an Appointment, it niuji be
" proved in the Spiritual Court:" And he would not proceed, ////
the Will was fo proved. It was not material for him to confider
of the precife Form in which it was to be proved; whether by a
JiriB Probate, or by granting Adminiftration with the Appointment
in nature of a Will annexed: And therefore that Point was not en-
tered into. But the FaB, " that the Paper li'as her Will, in Cafe
" flie had a Power to make one," muft be ejlablijl:ed by the Eccle-
fwftical Court: For fuch an Appointment is in the Nature of Will,
and attended with all the Co?2fequences of a Will.
As to the Determination in the Cafe of Burnet v. Holgrave, " that
" Money appointed, under the Execution of a Power, by fuch a
" Will, fliould not lapfe;" It was very fully confidered, and con-
tradidted in the Caufe of the Duke oi Marlborough againfl the Earl-
+/6th AW. of Carlijle, Earl Godolphin, and Others, in f Chancery.
17J0.
The Cafes cited or referred to by Mr. Madoch, fhew that Ad-
minijlration may be granted, with the Appointment <7WzfA,W; Which
proves it to be tejlamentary. For nothing can be annexed io an Ad-
miniftration, but a teftamentary Difpofition> Which is proved and
eftublifhcd by the Ecclcfiaftical Court in that Form.
But if the Queftion be, " Whether the Wife had a Tower to
" make an Appointment in the Nature of a Will, and thereby to
*' deprive the Hulband of any Benefit which by Law would He-
" volve upon hifti in Confequence of her Death," That is a Que-
J2. Aion
Michaelmas Term 31 Geo. 2. 433
Tftion proper to be confidered here : And if She had no fuch Power,
this Court will grant a Prohibition. hx\6.fofar, the Cafe in I Mod,
211. cited by Mr. Mj^(jf/('j, goes exprefsly.
It feems right, therefore, to grant a Rule " to fhew Caufe why
" there fhould not be a Prohibition:" And then the Cafe will be
better underflood, under all it's Circumftances.
The Court granted a Rule to (hew Cayfe:
But It never came on again.
Rex verf. Stephens. s^/w^^26th
No'vember
7S7-
MR. Coxe moved for an Information in Nature of a ^o war-
ranto againft the Defendant 'John Stephens Efq; to fh-w by
■what Authority He afted as one of the Aldermen of the Corporation
•of St. Ives in Cornwall.
The Faft upon which the Information was prayed, was the
•Defedt of the Defendant's Title: Which ftood as follows —
John Noall vfzs eledled Alderman in June 1728. without being
then a Burgefs or AJjijlant; which was a neceffary ^rt"u/ow Q.V- ^'"
fication:) And the faid yohn Noall was, the next Year, elcded
Mayor. And all the fucceeding Mayors and Aldermen were elec-
ted UNDER Nocill and his SucceJJ'ors in the Mayoralty, (Each, tpid^r
his refpedtive PredecefTor;) and likewife by Aldermen claiming un-
der Noall' s, faid defeHiv Eledion; till in September 1741. the Dh-
FENDANT was ekBcd Alderman^ by fuch defective EleBors as
aforefuid; and in November 1742, He was, by the like and no
better Authority, eleded Mayor. And it was fworn that by the
Conftitution of the faid Burrough, there can be no due EleTicn^
of a Mayor or Alderman, without a legal Mayor prefiding at fuch
Elcdion.
Note. — Noall died, a Year ago, in quiet Fojfejjion of his Office
of Alderman.
The Court were clear and unanimous in refusing to grant
this Informanon; by reafon of the Staleness of the Defedl of
Title, alfiTned as the Foundation for itj which was of no lefs than
29 Years ftanding. For they *^hought it would be of very ill Con-
itquence to Corporations, if the Court fhould, af rtR jo maiiy
' Years Acquiefcence, quieta movers, and call Corp waters to ac-
•CQuat for adting under fuch Eledions, depending upon the prior
i S Rigats
434 Michaelmas Term 31 Geo. 2.
Jlightsof Others, whofe Rights had never been before objeded to;
Which muft occafion infinite Confufion in Corporations.
And They faid that though there was indeed no Statute nor even
fixed Rule of Limitation, as to the Length of Time which fhould
fuffice to quiet the Poffeffors of thefe Offices, yet the Court, in
their Difcretion, ought to refufe granting thefe Motions, after a
great Length of Time.
And Lord Mansfield obferved that there was no direft and
exprefs Limitation of Time, when a Bond fhould be fuppofed to
have been fatisfied : The General Time indeed was commonly taken
to be about 20 Years ; but He had known Lord Raymond leave it
to a Jury upon 18 Years.
Mr. Juft. Foster mentioned a Cafe o^ Malmefiury, not fo ftrong
•inaCafeofas this Cafe: Where an Information was denied. *
Rex V. Mayor
of Bri3geivatcr, M. 6G.I. B. R. An Information was refufed, after 35 Years Acqiiiefcence under the
New Charter.
+ But the ^^^ ^^' J"^' Denison mentioned a like Cafe in -j- Leominjler :
Leominficr Li wliich Hc himfelf was Counfel. \
Cafe (which
was Rex V. Spencer, id June' \j^i. Tr. 14, 1 5 G. 2. 5. i?. was not determined upon this Point ; (far from
it, indeed :) but was refufed for the Infufficiency of the Jjfida'vit, and not properly proving the By-Lwui on
which the Motion was grounded.
Per Cur. unanimoufly
The MoTio^v was denied.
Rex verf. Inhabitants of Lower Swell.
MR. ^l/Ion ftiewed Caufe againfl: quafhing an Order of Sefllons,
which difcharged an Order of two Juftices made for remo-
ving One Hannah Duns from Lower Swell to 'Turk-Dean.
The Short of the Cafe was That a Cottage at Lonaer Swell had
llSeeSeaion been feveraL Years ago, and before || 9 G. i. c.y. purckafed for a
5th of that Term of 2000 Years, by one Ambrofe Du?2S for 15/. 10 s. Which
^^' ylmbroje Duns afterwards died Intejlate. Jobn Duns, his Son, en-
tered, and lived 17 Years in this Cottage; and then died intejlate
alfo. Then, after his Death, his Widow, Hannah Duns, the pre-
fent Pauper, lived in it above 40 Days, without taking out any
Adminijlratton : After which, She was removed. And then af-
terwards, (after fuch Removal,) She took out Adminijlratiotu
2 Mr.
Michaelmas Term 31 Geo. 2. 435
Mr. AJlon obferved that the Order of Seflions runs thus —
(" Which John Dum^ before He cmne to live in this Cottage, lived
" at Tiirk-Deaji."') And this is only in a Parenthejis : So that it is
7iot exprejly Jlated " That He was settled at Turk-Dean."
Whereas in the Cafe of Widwortby v. Farrifigdon, Tr. lo, 1 1 G. 2.
.B.R. It was exprelly ftated " that the Man was settled at Far-
" ringdon." And confequently that Perfon's derivative Settle-
ment under his Father, was gojie ; And therefore He ought to
have taken out Adminiftration. But the fame Conclufion will not
hold in the prefent Cafe : For here John Duns does not at all ap-
pear to have had any other Settlement, than the derivative Settle-
ment under his Father Ambrcfe ; upon which. He Himfelf, the
Son, had lived ly Years, before his Death; And if he had lived
there only 3 Years more, it had been a good Title even under an
EjeSimetit.
Mr. Vernon contra — He infifted on the Cafes of South Sidenham
V. Lamerton, Tr. 3 G. i. B.R. and JVidworthy v. Farringdon, to
prove " That the taking out Adminijlration was neceffary." For the
two Juftices have adjudged the Settlement of "John"^ Widow and
Children to be in Turk-Dean : And Turk-Dean muft be taken to
be fo, upon the whole of this Cafe. The Seffions give a bad
Reafon for difcharging this original Order. Therefore the Order of
Seffions is ill ; And the Original Order muft ftand.
Lord Mansfield — No: They do not give it as a Reason ;
but Jlate it as a Fact. And upon the Fadts ftated, it does not
appear that John was fettled at Turk-Dean : On the contrary, it
appears that Ambrofe's Son John Duns and all his Family, lived with
Anibrofe, at Lower Swell, and gained a derivative Settlement
there under him.
The Three other Judges were unanimoufly and clearly of the
iame Opinion.
Per Cur. unanimoufly —
Order of Sessions (difcharging the Order of
two Juftices) affirmed: And the Original
Order, quashed.
F. Po/i. Rex v. Inhabitants of Cold AfMn^ H. 3 1 G. ?.
S, P. as to taking out Adminiftration
Cockerill,
436 Michaelmas Term 31 Geo. 2.
Mo<,jay 28th Cockerill, AfTignee, verf. Ovvfton.
No'vember
•757-
TH E Queftion was Whether a Bankrupt's Certificate^ obtained
after Judgment in an Adion upon a Bail-Bond, againft the
Bankrupt himself, ^For the Bail were not at all concerned in
this Motion,) fhould difcharge the Bankrupt from thjs JuJgmetit
upon the Bail-Bond, as well as from the Original Debt : (Which
the Plaintiff's Counfel agreed that it did difcharge Him from.)
Note — The Defendant had paid the Money into the Sheriff's
Hands, upon being taken up by a Ca. Sa. in Order to procure
his Liberty. So that the Motion was " That the Money
" might be reftored to the Defendant, with Cofts." And the
Court had granted a Rule to fhew Caufc, upon Mr. Luke
'Robinfon''^ Motion : Againft which Rule, Mr. Clayton now
ihewed Caufe.
The Court held that the Certificate obtained fubfequent to the
bringing of this Adtion upon the Bail-Bond, (though fuch Certifi-
cate was founded upon an Ad: of Bankruptcy prior to the bringing
this Aftion upon the Bail-Bond,) did not difcharge the Bail-Bond ;
although it difcharged the Original Debt : For that this was a new
and dijiindi Caufe &f A5lion.
Indeed fuch Certificate fhall difcharge Proceedings depending
agai?ift Bail in an Adion upon the old Debt, loho are not already
FIXED : So it has been lately determined. V. ante, pa. 244. Wool-
ley V. Cobbe Gf al. (Which is the Cafe they hinted at.)
Rule discharged : And Ordered that the Sheriff
pay the Money to the Plaintiff,
The End of Michaelmas Term 1757. 31 Geo. 2.
Hilary
437
Hilary Term
3 I Geo. 2. B. R. 1758.
Rofe verf. Green. ihurfday ibiik
'January
1758.
■^HIS Cafe came before the Court upon a Refervation by-
Lord Mamjield at Nifi priiis at Ginldhall, for the Opinion
of the Court " Whether the Defendant became a Bank-
rupt, on the 31ft: of March, or on the 6th of May :"
Which particular Day was to be indorfed upon the Pojiea, agree-
ably to fuch Opinion.
This Mr. Green having been arrejled for Debt in Kent, on the
3 1 ft of March, was afterwards, on the 6th of May following,
brought up by an Habeas Corpus, in order to be turned over; And,
on the Road to the Judge's Chamber, was permitted (at the De-
fne of Himfelf and his Father,) to call at his Attorney's Houfe
(Mr. Pen/old's) upon Garlick Hill in the City of London, which
was OUT of the Co\]T^rY oj Kent; and was carried thence, (by a
Habeas Corpus,) diredly to a Judge's Chamber, to be bailed ; and
accordingly was bailed, but instantly there furrendcred by his
Bail, in difcharge of themfelves, who had juft before bailed Him ;
and thereupon committed, eo instante, to the King's Bench
Prifon, where he lay above two Months, viz. from the laid 6th of
May till the 1 5th of Jidy next following.
Sir Richard Lloyd, Mr. Caldecott, and Mr. Bainhafu argued that
this was an Acft: of Bankruptcy from the Time of the firft Arreft,
taking it either of thefe two Ways; viz. either ift. As a lying
IN PRISON two Months after having been arrefted for Debt; (un-
der 21 y. I. c. 19. § 2.) Or 2dly. As an Escape out of Prifon,
(under the funs Claufe) this Arreft being for above the Sum of
100/.
5 T ift. If
43 S Hilary Term 31 Geo. 2.
ift. If a Trader furrendcrs himfelf in difcharge of his Bail, and
ihc7t lies two Months, it is a Bankruptcy from the frft Arrefl:.
Smith V. Striicy\ 2 Aim. i Saik. no. at JSfiJi fritis at Guildhall —
Ld. Ch. J. Holt fo inclined, and gave his Reafon for it: Which
Cafe was fubfequent to the Cafe of Came v. Coleman in i 5a]k. 109.
(where indeed the Court held otherwife.) Tribe v. IVcbber, P.
1 7 G. 2. C. B. was a Diftance of more than Nine Months betiveen
the Putting in Bail, and the Surrender.
2dly. His being in London was an Escape : And the Debt being
above 100/. this Efcape is an Adl of Bankruptcy yrw;; the jirft
■Irreft.
^i
Mr. Norton and Mr, Biirrell^ contra. — The Queftion upon the
Cafe ftated at the Trial, and referved for the Opinion of the Court,
is, " Whether He rtiall be a Bankrupt, from the 31// of March ^
" when he was f.r/l arrejled ; or from the bth of May, when he
" wSiS fiir rendered and committed to the Marfhal ; (in whofe Cuflo-
" dy he lay from the 6th of May till the 15th of July.")
As to the 2d Point — This was not a wilful Efcape in the
Prifoner : But he was carried out of the County by the Sheriff.
And furely this yll^ of a third Per fon fliall not make a Man a Bank-
rupt. Nor indeed can a permifjive Efcape fuffered by the Sheriff",
or any AB of the Sheriff, make a Man a Bankrupt j who is, in
many refpedls, confidercd as a Criminal.
As to the I ft Point — When a Perfon is 072ce admitted to Bail, his
Lying in Prifon fulfcqucnt thereto, viz. the firft Day of his doing
so after being Surrendered, (hall be the Time to which his Bank-
ruptcy fhall relate: And not the Time of the firft Arreft, upon
which He put jn Bail.
The Cafe of Duncomb v. Walter in i Ventr. 370. is ill reported
there. So, in 3 Lev. ^j. it is ill reported. It is alfo reported in
Sir TLo. Raymond \']<^. and in Skinner, twice; viz. fo. 22 £? 87,
88. In which laft, it appears to be folemnly fettled, " that the
" Relation to make a Man a Bankrupt ought to be upon an a^ual
» A' B. None " lying in Prifon, and not upon putting in Bail only." *
of thefe Re-
Ca(e are wtil Came V. Colcmon, I Salk. 109. is S. P. viz. " that the Bankruptcy
drawn up, ex «' (hull Only be from the Time oi fuch firft Arreft, upon 'which He
cept Sir _/,. „ jj.g j^ p_-:j^^ j^ ^^ j^^ . ^yjg^j^,„j ^^,/_.. And in
And that is 17 G. 2. Tribe V, Webber, C. B. per tot. Cur. the fame Point was
onlyanArg.i refolved unanimoufly. The Cafe of Smith v. Stracy in i Salk. no,
Mjournailr.'^ 1 1 J. is Only an Opinion of Ld. Ch. J. Holt at Nifi prius.
3 And
Hilary Term 31 Geo. 2. 439
And it is admitted that the prefent Defendant was at large, at a
Time intervening between the Arreft and the Surrender. But even
allowing him to have remained in Cuftody of the SherifF of Kent,
Yet the two Months can only run from his firft lying in Prifon.
There mult he, fome Time (more or lefs) between his being bailed^
and his being committed to the Marflial. Therefore he was only
a Bankrupt from the 6th oi May.
Sir Richard Lloyd was beginning to Reply: But the Court thought
it unnecellary.
Lord Mansfield obferved, that where pofitivc Laws fixed and
defcribed what Oiould be looked upon as A6ls of Bankruptcy, they
ought to be conftrued according to their Intention, and fo as to an-
fwer the Ends of public Benefit, which the Legiflature had in view.
Point. In thus conflruing this Aft of Parliament, He held this Cafe not
to be SUCH an Efcape as that the Man fliould be thereby rendered a
Bankrupt and a Criminal. For the Ad: clearly intended such an
Efcape made by a Prifoner, as fliews that he means to run away,
and thereby defeat his Creditors. But this is tiot such an Efcape :
And certainly, a Man fhall not be made a Criminal, where he had
not the leaft Criminal Intention to difobey any Law whatfoever.
There is no EJcape at all, in the Sejfe of this Adl of Parliament :
He remained substantially in Cujtody, notwithftandlng his being
thus carried into another County.
Point. Where Bail is really put in, the Bankruptcy only relates to the
Time of the Surrender. The mo/l fubjlantial Trader is liable to
be arrefted ; And the mere being arrested, is ?to Prefumption of
Infolvency : The Prefumption from his lying in Prifon two Months,
without being able to get Bail, isa very ftrcng One. But This
^ort of Bailing is a ynere Form, to turn the Defendant over from
One Cuftody to another : The Bail never jujlify.
And upon Cafes of fuperfeding Adions by reafon of the Plaintiff's
not proceeding upon them within two Terms, being merely turned
ever from one Cuftody to another, is always confidered as a Cofiti-
nuance of the fame Imprifonment. And fo I think it is, in the pre-
fent Cafe, upon the prefent Circum/lances ; Notv/ithftanding what
I have declared as my Opinion, upon the general Principle, and
upon a. fair and fubjlantial Bailing. Therefore in the prefent Cafe,
I think, the Bankruptcy has a Relation to the firjl Jrreji.
Point. Mr. Juft. Denison concurred, clearly, in both Points. Can it
ever be called an Efcape within the Meaning of this A.(ft ; when the
Man
440 Hilary Term 31 Geo. 2.
Man by PermiJJion of the Sheriff pojfes through another County, in
being carried to a Judge or to the Court ? Can this be cfteemcd a
criminal AB of the Man himfelf? Mofl certainly not.
ill Point. J<lQr can this for/ml Bail put \n without Ji/fli/icaticn, and only in
ORDER to be jurrcnJercd, (which is a juere Matter oj Form,) be
confidered as being out of Cu/lody, within the Intent and Meaning
of this Act. No : It is a Continuation of the fame Imprifonment j
and has Relation to the frjl Arreft and Imprifonment.
Mr. Juft. Foster was clear on both Points ; and expreffed
Himfelf to the fame Effed, as Lord Mansfield and Mr. Juflice
Denison had done.
Mr. Juft. WiLMOT alfo moft clearly concurred. And He laid
it down, " That thefe Bankruptcy-ABs were to be conftrued ac-
*' cording to their real Intention,"
ift Point. The general Principle of the Cafes cited is right :
But the Reafon of them is ftrongly againft the prefent One, as it
flands circumftanced. Here is not a fwgle Moment, in which the
Man is out of Cuftody : It is a mere Form of changing his Prifon.
• The Words And the very * Adt itfelf diftinguiJJ:es between Common Bail (or
f/" ^'''' „ no Bail at all,) and fufdcient Bail. Now //;/'; Bail, in the prefent
" or procure \' J u ' r
his Enlarge- Cafe is, Jn Effe(5t, NO i^rf// at all.
ment by put-
ollvwXT" 2d Point. The Ads which render a Bankrupt a Criminal, muft
V. S ^- mean an Efcape against the Confent of the Sheriff; a running
away, and breaking his Prifon : Certainly 7iot fuch as this was,
UNDER the Confent of the Sheriff.
Cur. Ordered the Pcftea to be indorfed, " That Green
" became a Bankrupt on the T^ift of March."
Friday zyth Wai'ing verf. Griffiths, et al'.
January
1758.
^~1~*HIS was a Cafe referved upon a Trial at Nifi prius.
The Plaintiff's Adfion was founded upon a prefcriptive Right of
Burial of any Perfon dying in his Houfe at Ofwejlree, in the
Chancel of the Church of Ofwefree : In the Exercife of which,
the Defendants had difturbed him. And they themfelves acknow-
ledged that they had diflurbed him in it.
The
Hilary Term 31 Geo. 2. 441
The Cafe ftated was, in fhort, this : That the Plaintiff was feifed
of a Mefluage &c. in Ofweftree &c. and had fuch a prefcriptive
Right of Burial belonging to it ; And that the Defendants did dtjiurb
him in burying &c. and were Wrong-Doers : But (it was alfo
ftated) that 2 s. was due to the Parijh of Ofwejlree, for every Per-
fon buried in the Chancel of that Church.
Mr. /ifton^ on Behalf of the Plaintiff, argued that here were
two Crofs-Prefcriptions ; and that the two Prefcriptions were diftinB
and collateral ; One, for the Plaintiff to bury &c. the other for the
Parifh to receive a Payment of 2 s. &c. for it : And therefore it was
NOT necefary to alledge the latter, in the Declaration, it being only
a collateral Recompence. And he cited Cro. Eliz. 546 & 563.
Lovelace v. Reynolds, A Prefcription for Common ; And found that
he had Common, paying for it &c. So that that was part of the
Prefcription ; A Condition precedent : It was paying for it, every
Year, a Penny to the Plaintiff. But it was holden to be otherwife,
where there are Two Prefcriptions; One, for the Commoner; the
other, for the Lord : as in the Cafe in Cro. Eliz, 405. Gray v.
Fletcher, Where the Prefcription was found ; And " that he and
" all thofe &c. bad used to pay for it, every Year a Hen and five
" Eggs." 5 Co. 78. S. C. Grafs Cafe — And there, the Terre-
tenant was adjudged to have a Remedy for the Recompence. And
therefore this was holden to be 07ily Collateral, and as two Prefcrip-
tions; and therefore need not be alledged, the Prefcription being
perfect without it. So here, it need not be alledged : But they
may have their Collateral Remedy ; as, in the Ecclefiaftical Court,
they may have. In proof whereof, he cited 1 Ventr. 274. Atiotiy-
moiis. Where it is faid " That the Remedy for a Duty of this kind
" is in the Ecclefiaftical Court."
And this Fee is not to be paid till after the Burial : And therefore
the Non-payment of it cannot defend the Wrong-Doer, who is a
Stranger. So, in an Adlion againft a Stranger, for difturbing his
Seat, or Sepulture in a Church, it is Jiot neceffary to flaew any Title
in the PUwitiff. 3 Lev.jT,. jply v. Freckleton : Though, in fuch
an Adlion againft the Ordinary himfelf, it is neceffary to fliew fome
Caufc ; as building, repairing, ^c.
Kenrick v. Taylor, Pafch. 25 G. 2. B. R. It was folemnly deter-
mined " That in the Cafe of a Stranger and Wrong-Doer, it was
" not neceffary to alledge more than his own Right and a Diftur-
i' bance."
He mentioned the two following Cafes, viz. 2 Lutw. 15 17.
Bennington v. Taylor j and 3 Lev. 90. Chafin v. Bet/worth, Which,
5 U (a&
442. Hilary Term 31 Geo. 2.
(as he faid) are like this Cafe. They were Difturbances, by
Strangers, in ereding Stalls in a Market-Place: And no Title is
ifhewn. So, in Cafe of a free Firtiery.
And the Finding is quite immaterial. For this collateral Claim
•4th Point, is no Part of the Plaintiff's prefcriptive Right. Palmer '^2. * the
Cafe of the Corporation of Maidenhead^ in a Claim of a Market
fife. Mayor of Northampton v. Ward. Mich. igG. 2. B.R.
Mr. Hall contra for the Defendant argued- that it was Part of
the Prefcription; and that it ought to have Seen alledged, even agai?i/l
a WRONG-Doer, " that this 2s. was payable to the Parifh, for
" every Perfon fo buried." This is a Prefcription upon a Condition
precedent. It is an entire Prefcription : The Payment of the 2 s. is
Parcel of the Prefcription ; and it ought to have been fo laid and al-
ledged. Prefcriptions are againft Common Right; and ought to
be proved, as laid: And the Plaintiff muft prove it as laid; even
againfl a fFrong-Doer. And if the Evidence fall fliort of the Pre-
fcription pleaded ; it will be againft the Perfon who pleaded it. In
proof of which Pofition, He cited thefe Cafes — Carthew 241. Rex
V. the Inhabit a7its of Hermitage et al. The Prefcription was not
proved as laid, becaufe there was an Exception. Fahn. 362. Cowitee
de Devon v. Eyre. Which was a Prefciption pro Ovibus generally-,
(inftead of Ovibus fuis:) The Proof failed. Hobart 209. Michell
v. Mortimer. The Prefcription failed; becaufe it was laid too large.
Cro. Eliz. 415. Bornjion v. Hay; A Cuftom pleaded generally; but
found with an Exception: It is againft the Pleader. Cartheiv, 1 17.
Murgatroid v. Law. The Cafe of Potwater mentioned by Popham
in Gray'i Cafe 5 Co. 78. b. and Cro. Eliz. 405. laid generally-, found
" paying 6 d. by the Year" was ill laid. Lovelace v. Reynolds Cro.
Eliz, 546, 563, allows Grafs Cafe, and the Cafe of Potivater.
2 Ro. Abr. 720. Title Trial, pi. 30. in Prohibition — The Plaintiff'
declared upon a Prefcription about Lambs; And the Jury found
farther, (:Sc: It was holden that the Plaintiff o«^/6^ to have rehearfed
the WHOLE of it; and that for not doing fo, he had failed in his
Prefcription.
Now here, the Payment of 2 s. is Part of the Prefcription and
muft be as ancient as the Right; which is " to bury in the Chan-
• Note. He " eel, any Perfon dying in his Houfe; * p'^ying 2s. for each 1 er-
tZl\!t^"t " ^°"-" Which is a Condition precedent, and therefore ought
fent Prefcrip- to have been alledged. Forrefler, 166. Sir John Robinfon v.Co^
i\on truh, ac- „jyns, " There are no technical Words to diftingifh Conditions pre-
Cafe'"lated'. *" Cedent, and Conditions fubfequent." Acherlyv. Verno,i — per Ld.
y.ante^^i. Ch. J. /F/Z/fi. [See this Cafe In JLwctfi 5 18. Watfon yog.]
2 . Th^
Hilary Term 31 Geo. 2. 443
The Church-Wardens had no Remedy, but by Interruption.
And being ftated as a Fee for Burial, it ought" to be paid before
Burial.
The Court will not dired a Perfon to be turned over on Ha. Cor.
till the Gaoler's Fees be paid. 2 Hawk. P.C. 151. §.31. is fo.
So, in Cafes of the Fee of Gloves, on pleading Pardons, i Siderjin
452. Rex V. JVebfler, " The Pardon is not to be allowed, till the
Fees be paid, viz. the Gloves to the Court and Officers." Sir T.
Jones, 56. B. G. prefented Gloves to all the Judges, according to
Cuftom. Kely. 25. Gloves are a Fee due, on pleading a Pardon.
— We 2LVt not the Church- Wardens, I agree; but Wrong-Doers.
(And then he difclofed their Provocation: Which He faid was
in Defence of the Bones of one Mr. Griffiths, a former Poflef-
for of this Mefluage; which Mr. Waring was turning out, in
Order to make room for a Servant of his own.) But the Plain-
tiff had no Right to the Soil: And therefore he ought to have
fet out his Title. And here, he ought to have proved his Cafe, as
be has laid it. 3 Mod. 48. 52. Hebblethwaite v. Palmes; per Ch.
Juftice, (at the End of the Cafe,) " The Plaintiff ought to prove
" his Prefcription : Or elfe, he muff be Nonfuit." And. ih^ fame
Prefcription ought to be given in Evidetice, as is laid.
Graf?, Cafe is bejl reported by Lord Coke, in 5 Co. 78. b. yg.a.
And that Cafe turns upon the Remedy, which the Terre-tenant has
for the Recompence. And according to the Cafe of Potwater there
mentioned, (paying 6d. yearly,) here could have been no Re-
medy for the 2s. Fee, but by a fubfequent Difturbance upon a fu-
ture Burial.
Mr. Ajlon\ Cafes are not applicable to the prefent Cafe; becaufe
in them there was a collateral Remedy : Bat here We have none.
Therefore the Plaintiff ought to be in the prefent Cafe nonfuited;
and We are intitled to the Pojiea.
Mr. Afion was going to reply: But
The Court prevented him ; being extremely clear for the Plain-
tiff; And Lord Mansfield faid — that the Distinction is
between the Cafe of the Owner of the Soil, and the Cafe of a
Stranger, difturbing the Perfon who has a Right of this Sort.
Where a Perfon claims a Servitude upon another's Property, he
jniijl lay and prove the whole, againft the Owner of fuch Pro-
perty. There is a great Difference too between granting a Servi-
tude,
444 Hilary Term 31 Geo. 2.
tude, abfolutely\ and granting it, fub modo: The latter is a Condi-
tion precedent. And there are many Reafons why in Cafe of a
Condition precedent, where the Grantee brings his Adion againfl
the Owner, the ivhole ought to be fet out: (which Reafons He
fpecified.)
But in an Adion againfl: a Stranger and Wrong-Doer, it is not
neceflary to Jet out the ivhole. Here, (which is agreed to be in the
Cafe of a Wrong-Doer,) the Plaintiff hus Jlated enough, and has
proved it. He claims a Right to bury in the Chancel ; and is di-
fturbed by a Stranger and a JVrong-doer. What is the Defence?
" That IF he had buried the Corpfe in the Chancel, (which the
'' Defendants hindered him from doing,) the Church-Wardens
" WOULD HAVE /6tfi a Right to 2s. for a Burial-Fee." But he
was dijlurbed, by the Defendants, from buryiiig the Corpfe there :
And then the Church- Wardens had 7io Right to the 2 s. For their
Right arofe upon the Corpfe being buried there.
For this Purpofe, the Payment of the 2s. is ;w material and ejfen-
tialFavt of the Prefcription ; but collateral to it. It is not an en-
tire Prefcription, as in the Cafe of Lovelace v. Reynolds; whereof
the Payment of the Penny was Parcel.
Mr. Jufl:. Df.nison concurred entirely. And He difliinguiflied
this Cafe (as Ld. Mansfield had alfo done) from that of Lovelace
and Reynolds: which was "paying for it, every Year a Penny."
But whatever may be the Right that the Church-Wardens might
in the prefent Cafe have, the Plaintiff had no Need to fet out this
Right, in an Adion againfl: a Wrong-Doer, a Stranger. I do not
know that in this Cafe, he needed even to have fet out any Pre-
fcription, in this Adion againfl: a Stranger and Wrong-Doer. And
this Matter feems fettled in the Cafe of Kendrick v. Taylor.
Mr. Jufl:. Foster concurred for the fame general Reafons. And
He thought the Payment of the 2s. to be rather a Cufloinaiy Pay-
ment, than a Prefcription: being "for every Perfon buried in
the Ifle, or Chancel." To which Ld, Mrt;?,r/5>/i agreed.
Mr. Juft. WiLMOT was alfo clear in the general Pofition laid
down by the refl:, as before. And he obferved alfo, " that the
" Duty could 7iever arife till after the Sepulture'' And there-
fore He thought that if the Adion had even been brought againfl
the Church- Wardens, it had yet been within the Difl;indion of
Gray's Cafe, and to be come at by a collateral Remedy; and fiot
Parcel of the Prefcription, or a Qualification of it. But againfl: a
Wrong'
Hilary Term 31 Geo. 2. 445
Wrong-Doer, Possession aloiie is certainly fufficient. Therefore
He was clear, upon both Points.
Per Cur, unanimoufly
Let the Postea be delivered to the Plaintiff.
Rex ve7-f, Loxdale and Four Others.
MR. Mortoti had fometime ago, {viz. on Monday 17th No-
vember 1755.) moved to quafh an Order of two Juftices ap-
pointing Five Overfeers for the PariOi of St. Chad in Shreiijbiiry.
His Objedion was that the Juftices have no Power to exceed the
Number of Four. Which Objedion was founded upon the Words
of 43 Eliz. c. 2. §. I. " That the Church- Wardens of every PariOi;
" and Four, three, or /wo fubfluntial Houfcholders there, as /hall
" be thought meet, having refpecl to the Proportion and Great-
" nefs of the fame PariOi and Pariflies, to be nominated yearly in
" Eaficr Week or within one Month after Eafler, under the Hand
" and Seal of two or more Juftices of the Peace in the lame Coun-
" ty, (whereof one to be of the ^,ro;7//7/y> dwelling in or near the
" fame Parilh or Divifion where the fame Parilh dotli lie, fiiall be
" called Overfeers of the Poor of the lame Pariih: And they, or
" the greater Part of them, ^c." And He mentioned a former
Cafe of Rex v. Harmau, upon the very fame Point, which depended
in this Court from P. 12 G. 2. to M. 15 G. 2. and at lafl: was never
determined; and alfo Rex \.BeJland, Hil. 19 G. 2. B. R, which
was the Reverfe of an Excess of their Jnrifdidion, where the Or-
der, (being to appoint One Overfcer,) was confirmed.
A Rule was thereupon made, " to fiiew Caufe." And after the
Point had been feveral Times argued in Ld. Ch. J. Ryder's Time,
it came on to be argued once more, on the 27th of jfa/iuary 1757.
before Lord Majisficld, He having never heard the former Argu-
ments. When the fame Things which had been lb often faid, were
again repeated.
On the Side of the Extenfion of the Number of Overfeers, Ufage
was alledged, and greatly relied upon.
Note — The Court, milled by AlTertions " that there had been
" a Ufige to appoint more Overfeers than four;" for fear of
Inconvenience, had avoided determining the Queftion in the
Cafe of the King v. Harman, alter it had depended fix Years,
in hopes that the Legiflature would make fome Provifion for
what was paff, as well as for the Future. And upon the
5 X fame
44^ Hilary Term 31 Geo. 2.
f^ime Apprehenfion, the Court had hitherto poftponed the
Determination of this.
Lord Mansfield faid He had feen full Notes of the former
Arguments of the prefent Cafe; and alfo of the Cafe of Rex v. Har-
man. He obferved particularly what was faid as to the Ufage in
large Pariflies, And He therefore had directed Inquiry to be made
in many brge Pariflies, as to the Fadl " Whether there had been
" fuch Ufage, or not." And he ordered the Return which had
been made to Him upon fuch Inquiry, by the Agents on both Sides,
to be read. From which, it appeared that in St. Tfavies's Clerkcn-
ivell, 4. In St. Bridgetfs, 3. Li St. Dimjian's, 2. In St. Clement's
Danes, 4. In St. Paul's Ccvent-Gardeit, 2. In St, George's Hancxer
Square, 4. In St. 'James's Wejhmnfier, 4. In St. Margaret's Weft-
niinlter, 2. In St. Andrew's HoWourn, '6: (but that Parirti contains
3 feparate Divifions.) In St. Giles's in the Fields, 8; (though new
only 4 are appointed by the Juftices, and adt as AfTiftants, unlefs 8
voluntarily ferve: but there were never lefs than 8 before the Cafe
of Rex V. Harman.) In St. Martin s in the Fields, 5. (fince the Adt
of Parliament lately made, which impowers them to appoint 9,
if in the Difcretion of the Juftices it fhould be thought proper.) In
Shreicjlury, (which contains 5 PariHies;) In St. Aljemonds, 3. In
Holy-Crofs and St. Giles's, 4. In St. Mary's, 4. St. Julia?i's, 4. St.
Chad's, 5, for one Year only; And never exceeding 4, but once^ viz.
this prefent Year.
After reading the Report, Lord Mansjield ^xocetdtd. The Usage
is, as it were, out of the Cafe; or rather, it fuppofes " that they can
" not legally exceed 4."
Therefore, confequently, but little Inconvenience can arlfe
from determining the Conftrudlion of the Statute, according to it's
natural Import.
As to legal Conflrudions — The Cafe of Rex v. Harman was
• There was never determined, * ^i to the * Order for the Appointment of
another OxAtr, OvCrJecrS.
adjudging
./[[aveneg- In the Cafe of Rex v. Bcfland, where o?ily One Overfeer was ap-
" leaed the pointed, w Opinion was ^wcn judicially, upon the Point of Law;
"of'hl^o" "°^ ^^^ ^^^ Appointment -f- quaflied. So that the prefent Cafe is
"fice;"whicha NEW Origina], Cafe: And it mufl: be determined upon the
wfliquaihcd ^^ EHz. c. 2; which is the Foundation of the Syftem of Law con-
'^f^^- '5 cerning the Poor.
-j- It was con-
firmed, as not neceffarilj appearing to be a bad Order : For it mijit be, " that others were appointed by
" other OideiD."
There
Hilary Term 31 Geo. 2. 447
There is a known Diftinflion between Circumftances which
are of the EJ[e?ice of a Thing required to be done by an A(fl of
Parliament, and Claufes merely directory. The precife Time, in
many Cafes, is not of the EJfence.
In the Cafe of Rex v. Sparrow, 2 Strange 1 123. the Juftices had
been guilty of a NegleSi, in not appointing Overfeers within due
Time: And this Court iffued a Mandamus to compel them to do it
afterwards, for the Sake of the Poor. The Poor could not have had
a sv}LC\?\c Remedy, in that Cafe; iinlefs the Juftices might doit
after the precife Time, in Obedience to the Mandamus.
So, as to the Juftices " in or near the Parifh or Divifion" It is
only DireSlory.
Juftices of Peace have no other Power to appoint Overfeers but
under the Special Authority given them by hi\ of Parliament.
Therefore this Special Authority mufl: be ftridly purfued, and can
not be exceeded by them. The Queftion here is upon the Meaning
and Intent-ion of the Legiilature, ni this Power given the Jultices
to appoint Overfeers.
Where there are different Statutes in pari materia, though made
at different Times, or even expired, and not referring to each other,
they fhall be taken and conftrued together, as one Syftem, and as ex-
planatory of each other. So, in the Laws concerning Church Leafes;
and thofe concerning Bankrupts. And {o alfo I coniider All the
Statutes providing for the Poor, as one Syftem relative to that Subjeft.
Now 39 Eliz. f, 3. is the firfl: of thefe, and when firft mentioned
by my Brother Fofter, ftruck Me flrongly, with regard to the De-
termination of the prefent Queftion. That Aft lays, " That the
" Church-Wardens and F'ux fubftantial Houfeholders, &c."
{without any Latitude whatfoever, for a greater Number.) And
more than four could 7iot have been appointed under it: For the
Number the Legijlature had named, could not be altered.
That Ad of Parliament of the 39 Eliz. was continued by the
very Aft of 43 Eliz. c. 2. §. 18. till the following Eafter, when
that of 43 Eliz. c. 2, was to take Place: So that the Legiflature
had it before them, and even nnder particular Confideration. And
that Aft of 39 Eliz. is exprefsly fixed xo four. Pariflies were not
then, fo populous as they are now. And this Aft of 43 Eliz. c. 2.
gives Power to lefen the Number to Three or Two according to the
Size of the Parifh: But they had no Notion of extending it to a
greater Number. And there is fime Weight in the Circumftance
of the Numbers defccnding from 4 downwards, and not afcending
upwards. ,
As
44^ Hilary Term 31 Geo. 2.
As to the Argument which was drawn from 13, 14 C. 2. c. 12.
§.21. I think that Statute ciight to be taken into the Confideration,
in conftruing this of 43 EIrz. c. 2: But I do mt fee that this will
Iielp the Cafe. For it is begging the Queftion, to fuppofe " that
*' the Juftices ma^- appoint fiwre than 4 Overfeers of the Poor, in
" TownOiips and Villages in thofe large Pariflies." It is exprefsly
direded by that Statute of 1 3, 14 C 2. <:, 1 2. §. 2 i . that fuch Choice
and Appointment fliall be, (And the Conftrudion of it muft be
guided according to it's cvju Reference,) "according to the
" Rules and Diredions mentioned in the Statute of 43 £7/2." And
neither any judicial Determination, nor Ufage, fupporc this Conceit
" that they can appoint fnor-e than 4 in thcfe Townfliips and Vil-
" lages in the large Paridies."
That Adt of 13, 14 C. 2. was indeed rightly and reafonably ex-
tended to PFa!es. But no Argument can be drawn from that Lati-
tude of Conftrudion: As both the Words of it, (which name Wales,)
and alfo the general Intention of it, [viz. the Care of the Poor,) well
iuftified fuch an Extenfion.
Then the Ad of Parliament in 1740. relating to St. Margin's
and the Overfeers of that PariOi, and which extends their Number,
fliews the Conftrudion put i)y the Legijlatiire themfelves upon the
43 El'iz. on this Plead; and excepts this very large Parifti of St.
Martin out of it. And yet even this very Ad rejtraiiis the Num-
ber to Nine: Which fhews that the Juftices had no Power under
the 43 Eliia. to appoint ivhat Number they pleased. For it
would be a ftrange Thing, to limit the Number, in a very large
Parifli; and leave it at large, \w J'maller Ones.
There are two other Ads of Parliament, which have not been
mentioned; and both of them p.ificd after the Cafe of Rex v. Har-
man, and after the Cafe of St. Clement's Danes; viz. 17G. 2. f. 3.
and 17 G. 2. c. 38. both relating to Overfeers: And yet no Exten-
fion of Number^ nor any Variation therein.
The PRECISE Number is net an immaterial Thing; either to
the Officers of the Parifli, or to the Perfons for whom they are
Truftees. Upon themfelves, 'tis a Burden: Which, by this Prac-
tice, would come round the fooner. And in refped to the Parifli
for whom they are Truftees, a great Number may not do Bufinefs
better than a fmaller; and it would be attended with more Expence.
Alfo with regard to the Cburch-JVardefis who are joined in Au-
thority with them — They arc only 2. or (by Cuftom) 4. Church-
Wardens in each Parifti. Therefore a greater Number oi Overfeers
4 ♦ being
Hilary Term 31 Geo. 2. 449
being appointed, neceflarily alters the Balance of the Majority
aoiongft: them, and makes an eflential Difference in the Porportion
between one and the other. And there is no Number tojiop at,
if the Juftices exceed four: They may go on, without any Boun-
dary, linlefs the fpecified Number of Four be the Limit,
Therefore I think this Appointment of more than 4. is not war-
ranted by the 43 E/iz. upon the true Conftrudion of that Statute.
Mr. Juft. Denison concurred in Opinion, "that this Appoint-
" ment ought to be quaihed:" And He did not think that this
Court ever had bad any Doubt about the legal Determination of this
Queftion.
He then ftuted and expatiated upon the Cafe of Kex v. Harman-,
and faid the Reafon why the Court did not quafli that Appoint-
ment was merely for the Sake of the Foor; and not from any Doubt
of the Laiv.
Bejland'i Cafe was quite a different Cafe from that of appointing
a greater Number than four. The Point of the Validity of an
Order appointing more than Four, is a new Cafe; but not a dijicult
One, at alL
This Ad of 4"; Eliz. is, as one may call it, the Magna Charta
of the Foor. And it fan never be called direSlory as to the Num-
ber of the Over jeers appointed by it.
By I Ind. 13. b. it appears that there was only two Efcheators, in
England, in ancient Time: Though more were made indeed by Adl
of Parliament, [14 E. 3. f. 8.j So there can be but One Chief' Ju-
JiJce, or C/j/t/ Protonotary. Jenkins, 142. Cafe 93. So, in the Con-
ftitution of the Court of Wards; where 32 H. 8. c. 46. enafts " that
*' there fhall be two Auditors of the Court of Wards," the King
can not make Four. So is 11 Co. 4. a. Auditor Curie's Cafe.
Certainly, the Legillature had the Number which flood fixed by
39 Eliz. in their Fiew and under their Con/ideration, when ihey
made the 43 Eliz. And Can it be imagined that the Juflices have a
Jurifdidion to appoint more F Clearly, they have fiot.
In the Cafe of Rex v. Sparrow, (mentioned in 2 Strange 1 123.)
The Court took great Care in their Determination. And 13,
14 C. 2. was there confidered by Ld. Ch. Juft. Lee, as tied up to
the Rules and Diredions of 43 Eliz. And that Mandamus was iflued
for the Sake of the Foor : And the Court equitably and rightly held
*' That when the Juflices had elapfed the Time for appointing
5 Y " Ovcrfeers,
450 Hilary Term 31 Geo. 2.
" Overfeers, the Court might obhge them to do it afterwards, as to
" the Time ; that being difcretionary."
But No-Body every thought it difcretionary as to the Number,
And there is no Reafon in the Earth, for Us to break the Boundary,
which is fixed. Therefore He was clear, to quafli the prefent
Order for the Appointment of ^i;!?.
Mr. Juft. Foster declared the very fame Thing; and that He
never had any Doubt in Point of Law : His only Doubt was in
Point of Difcretion ; as He then fuppofed the UJhge to be otherwifc
than as it now appeared to be.
When the Statute of 43 Eliz. was made, there were very kw
large Parlflies in Towns and Cities : Therefore at that Time, the
Parliament thought Four Overfeers fufficient. Under 39 Eliz. I
take it, the Juftices could not have gone below Four. For, It be-
ing a Special Forcer given by Statute, muft he, JlriBly purfued. And
therefore, in the 43 Eliz. the Legiflature, though they took the Ad:
of the 39th for their Plan, and followed it in almort; every Inftance;
Yet, feeing the Inconvenience in fpjall Parifhes, departed from it
with regard to the Number of Overfeers : Which they reduced, at
the Difcretion of the Juftices ; but did not increafe, in any Event ;
Probably becaufe they thought Fou?- Overfeers, ivith the Church-
wardens, fufficient for the largeft Parifli (as they certainly are,)
though too many for the fmall Ones.
If it be 7101O become inconvenient, the Application muft be to
Farl'iamejit. However, He declared that He did not think that
Bufinefs is beft done by a Multitude of Hands : And in Faft, where
the Number that are to do it is large, they always delegate the ac-
tual Tranfadlion of it to a Fciv.
It is NOT true, (what fome People imagine) " That the Common
" Law of England made no Frcvifion for the Poor :" The Mirror
flaews the contrary. How, Indeed, it was done, does not appear.
As to the Cafe of Rex v. Sparrow, — 43 Eliz. fixes a Time to ap-
point Overfeers, with a Penalty : But did not mean that the Poor
Jl:ould lofe the Equity and Benefit of the A<fl, if the Juftices did not
appoint within that Time.
No Parifh ever applied for a Mandamus commanding the Juftices
to appoint more than Four. The general Senfe of Mankind was
againft it. This is an Authority founded upon a pojitive Law ; and
therefore niufi be purfued.
4 Mr.
Hilary Term 31 Geo. 2. 451
Mr. Juft. WiLMOT declared (as his Brethren Mr. Juft. Deni-
SON and Mr. Juft. Foster had done) that He never had had the
leaft Doubt, but upon the Apprehenfion of an Ufage of the large
Parifhes, for many Years back, to appoint more than Four : But
this Apprehenfion is now vaniflied : And therefore the Ufage (as it
.710W comes out) confirms the true Conftrudion of the Aft.
The Inftances of greater Numbers appear to be ojily three : And
One of them [St. Andrew's Holbourn,) is confidered as 3 Vills, un-
der 13, 14 C. 2. And St. Martin's (another of them) is under a
new Aft of Parliament made on Purpofe. I think this Order cati'-
■not be fupported.
There were Provifions for the Poor, as my Brother Foster has
■obferved, at Common Law : Though it does not fully appear what
they were. The firft regular Provifion however, is by 39 Eliz.
By this Statute, and by 43 Eliz. the Legiflature add Four Over-
seers to the former parochial Adminifiration. And no One can
doubt that the Number is efjential; and cannot^ by the Rule of Law
be exceeded. For Powers given by a pofitive Law, or even by
Deed, to certain Numbers of Perfons can never be exceeded, in
the Article of Number. On the other hand, If it had refted fingly
upon iq Eliz. the Number 4 could not have been leffened. But
then indeed the 43 Eliz. relaxes this precife Number oi' Four, as to
fnall Parifhes ; but ftill continues it, as to all greater. And where
the Makers of the Aft intend ^n indefinite Number, they expresly
fay fo. For the 19th Seftion relating to the Ifland of Fouhicfs con-
verts the whole Diftrift into one Parifli, for this Purpofe ; and di-
reSls an indefinite Number of Overfeers for that Place. Which
Claufe alone would fatisfy me, as to the Senfe of the Legiflature.
And they might as eafily have f.\id " So many as fhould feem necef-
" fary," as precifely fix it to Four -, if they had meant it fo.
And it is Tas has been obferved) an Office which is burdenfome
upon the Perfons appointed : And Bufinefs is not better done by
great Numbers of Men, than by a few. And the PariJJj have as
great Security from Four, as from more. Upon the whole. He in-
tirely concurred, " That the Order could not be fupported."
Mr. Norton moved that the Order might not be immediately
quaOied ; becaufe the Overfeers had laid out 500/. or 600/.
under it : And therefore He propofed that the Other Side
fhould confent to have one of the Overfeers left out of the
Order-.
The
45 z Hilary Term 31 Geo. 2.
The Court thought it might be reafonable ; And for this Rea-
fon ONLY, did not diredly and immediately pronounce the Rule
" To quafli the Order."
But now, at a Day fo long fubfequent, on Mr. Morton's Motion
for the Judgment of the Court ; and Mr. Norton, not urging any
further againfl: it, (and acknowledging that He had fpoken to his
Client,)
Lord Mansfield faid there muft be an End of it, fome Time
or other : Therefore let the Rule be made abfolute, to
QUASH the Appointment.
Order quashed
jlmary^'^ Millcr vcvf. Racc.
1758-
T was an A6tion of Trover againfl: the Defendant, upon a
Bank-Note, for the Payment of Twenty-one Pounds Ten
Shillings to One William Finney or Bearer^ on Demand.
I
The Caufe came on to be tried before Lord MansJiclJ, at the
Sittings in Trinity Term laft at Giilldhall, London : And upon the
Trial it appeared That William Finmy, being pqflefled of this Bank-
Note, on the I ith of December 1756, fent it by the General Port,
under Cover, direfted to One Berjuird Odenharty at Chipping Norton
in Oxfordfnre ; That on the fame Night, the Mail ivas robbed,
and the Bank-Note in Queftion (amongfl: other Notes) taken and
carried away by the Robber; That this Bank-Note, on the 12th
* of the fame December, came into the Hands and PolTcfllon of the
Plaintiff, for a full and valuable Con fi deration, and in the usual
Courfe and Way nf his Bufinefs, and ivithcut any Notice or Knowledge
of this Bank-Note being taken out of the Mail.
It was admitted and agreed, that in the common and known
Courfe of Trade, Bank-Notes are paid by and received of the
Holder or PoffcfTor of them, as Cap ; And that in the ufual way
of negotiating Bank- Notes, thev pafs from one Perfon to another as
Cafli, by Delivery only, and without any further Inquiry or Evidence
of Title, than what arifes from the Bojjejjion. It appeared that Mr.
^Finney, having Notice of this Robbery, on the 13th of December^
applied to the Bank oi England, " to [Icp the Faynunt of this Note;"
Which was Ordered accordingly, upon Mr. Finney % entering into
proper Security " to indemnify the Bank."
»
2 Some
Hilary Term 31 Geo. 2. 45
Some little Time after this, the Plaintiff applied to the Bank for
the Payment of this Note ; and, for that Purpofe, delivered the
Note to the Defendant, who is a Clerk in the Bank : But the De-
fendant refufed either to pay the Note, or to redeliver it to the
Plaintiff. Upon which, this Adion was brought againfl: the De-
fendant.
The Jury found a Verdidl for the Plaintiff, and the Sum of
21/. 105. Damages; fubjedt neverthelefs to the Opinion of this
Court upon this Queflion — " Whether, under the Circumftances of
" this Cafe, the Plaintiff had a fufficient Property in this Bank-
" Note, to intitle him to recover in the prejent ASlionV
Mr. Williami was beginning on Behalf of the Plaintiff.—
But Lord Mansfield faid " That as the Objedlion came from
the Side of the Defendant, it was rather more proper for the
Defendant's Counfel to flate and urge their Obje<aion.
Sir Richard Lloyd, for the Defendant.
The prefent Adion is brought, not for the Money due upon the
Note; but for the Note itfc'lf\ the Paper, the Evidence of the
Debt. So that the Right to the M >ney is not the prefent Qiieflion ;
The Note is only an Evidefice of the Money's being due to him as
Bearer.
The Note mufl either come to the Plaintiff by Jljfignment ; or
mufl be confidered as if the Bank gave a frejh, feparate, and diflinB
Note to each Bearer, Now the Plaintiff cnn have no Right by the
Ajjlgnmcnt of a Robber. And the Bank cannot be confidered as
giving a new Note to each Bearer : Though each Bearer may be
confidered as having obtained from the Bank a new Promise.
I do not fay Whether the Bank can, or cannot Jlop Payment :
That is another Queftlon. But the Note is only an Injlrument of
Recovery.
Now this Note, or thefe Goods (as I may call it,) was the Pro-
perty of Mr. finney, who paid in the Money : He is the real Own-
er. It is like a Medal, which might intitle a Man to Payment of
Money, or to any other Advantage. And it is by Mr. Finney's
Authority and Requefl, that Mr. Race detained it.
It may be objefled, " that this Note is to be confidered as Ca/b,
*' in the ufuai Courfe of Trade." But ftill, the Courfe of Trade is
5 a not
454 Hilary Term 31 Geo. 2.
not at all affefted by the prefent Queftion, about the Right to the
• Note. A different Species of ABioji muft be brougiit for the TVc^^,
from what muft be brought againft the Bank for the Money, And
this Man has eleded to bring Troveryor the Noti' itfelf, as Owner
of the Noti:; and not to bring his Adtion againft the Bunk, for
the Money. In which Adlion oi Trover, Property can not be proved
ill the PliiintifF; For a iS/mW Proprietor can have no Right againft
the T K u h Owner.
The Cafes that may affedl the prefent, are i Sa/k. i26. M. lo
7f^. 3. ylnonvmus, coram Holt, Ch. J. at Nifi prius at Guildhall.
There Ld. Ch. J. Holt held " that the right Owner of a Bank-Bill,
" who loft it, might have Trover againft a Stranger who iound it:
" But not againft the Perfon to whom the Finder transferred it for
" a valuable Confideration, by reafon of the Conrfe of Trade vjlnch
'* creates a Property in the Aftignee or Bearer." i Ld. Rayjn.y^'&.
• K. B. In * S. C. In which Cafe, the Note was paid aivay, in the Courfe of
T'amfer'ce''^'r*'^'^^= But this remains in the Man's Hands, and is not -|- come
went to the into the Courfe of Trade. H. \2 JV. 3. B.R. i Salk. 283, 284,
Bank; and Pordv. HopHns per Holt Ch. J. at Nifi- prius at Guildhall. " If
fn°hts"own ' ' " Bank-Not«s, Exchequer-Notes, or Million-Lottery Tickets, or
Name. How- " the like, are ftolen or Joft, the Owner has fuch an Intereft or
eier the Life cc Property in them, as to bring an Adion, into whatsoever
iiisraving°the " Ha?2ds they are come. Money or Cafli is not to be diftinguiflied:
Note for a " But thcfc Notes or Bills are diftinguiftiable, and can not i^e
valuable Con- .c reckoned as C ASH ; And they have diftind Marks and Numbers
fideration. r^, . "^ >-n r • i /- -nt
f TheFaft On them." Therefore the true Owner may leize thefe Notes
fcems to be wherever he finds them, if not pafl'ed away, in the Courfe of Trade.
quite oiher-
I Strange 505. H. 8 G. i. In Middlefex, coram Fratt Ch. J.
Armory v. Delamirie — A Chimney-Sweeper's Boy found a Jewel.
It was ruled " that the Finder has fuch a Property as will enable
" him to keep it againft all but the rightful Owner; and, con-
" fequently, may maintain Trover."
This N'jte h]\^(\. like ■ <7;/y o/Z)fr Piece of Property, itntii p^Jfd
away in the Cou>fe of Trade. And here the Defendant acied as
Agent to the tkue Owner.
Mr. Williams contra for the Plaintiff.
The Holder of this Bank-Note, upon a valuable Confideration,
bas a Right to it, even againft the true Owner.
I ft. The Circulation of thefe Notes vefts a Fropcrty in the Holder y
who comes to the PofTefTion of it, upon a valuable Confideration.
^ 2dly. This
wife.
Hilary i erm 31 Geo. 2. 455
2dly. This is of vaft Confequence to Trade and Conunerce: And
they would be greatly incommoded, if if were otherwiie.
3dly. This falls wifhiii the Reafon of a Sale in Market -Overt ;
and ou^ht to be determined upon the fame Principle.
Firft — He put feveral Cafes, where the Ufage, Courfe, and Con-
venience of Trade, made the Law: And, fometimes, even againft
an A£i of Parliament. 3 Krb. 444. Stanley v. ylyles. Per Hale
Ch. J. at Guildhall. 2 Strange 1000. Lumley v. Palmer: Where a
Parol-Acceptance of n Bill of Exchange was holden fufficient againft
the Acceptor, i Salk. 23.
Secondly. — This Paper Credit has been always, and with great
Reafon, favoured and encouraged. 2 Strange 946. Jeiiys v. Faiv~
ler et al.
. The Ufage of thefe Notes is, " that they pafs by Delivery only,
" and are confidcred as current Cafi; and the Possession always car^
" ries with it the Property." i Saik. 126. pi. 5. is in Point.
A particular Mifchief is rather to be permitted, than a general
Inconvenience incurred. And Mv. Finney who was robbed of this
Note, was guilty olfome Laches in not preventing it.
Upon Sir Richard Lloyd's Argument, a Holder of a Note might
fufFer the Lofs of it, for want of Title againft a true Owner; even
if there was a Chafm in the Transfer of it through one only out of
500 Hands.
Thirdly — This is to be confidered upon the faitie Foot as a Sale
in Market Overt.
2 Lift. 713. " A Sale in Market Overt binds thofe that had Right."
But it is objeded by Sir Richard, " that there is a fubftantial
" Difference between a Right to the Note, and a Right to the Mo-
" Hty." But I iay the Right to the Money will attraSi to it a
Right to the Paper. Our Right is not by AJjignmcnt; but by La-^.v,
by the Ufage and Cuftom of Trade. I do not contend that the
Robber, or even the Finder of a Note, has a Right to the Note: But
AFT PR Circulation, the Plolder upon a valuable Confideration has
a Right.
We have a Property in this Note : And have recovered the Value
againft the Wrr h-holder of it. It is not material, 'what A(}\on.
We could have brought againft the Bank.
3 Then
456 Hilary 1 erm 31 Geo 2.
Then He anfwered Sir Richard Lloyd's Cafes ; And ngreed that
the true Owner might purfue his Property, where it came into the
Hands of another, *vn hout a valuable Confideration, or f.o , in
the Courfe of Trade: Which is all that Ld. Ch. J. Holi faid in
I Salk. 284.
As to I Strange 505. He agreed that the Finder has the Property
againft all but the rightful Ownerj not ageinft him.
Sir Richard Lloyd in Reply —
I agree that the Holder of the Note has a Special "Property : But
it does not follow that he can maintain Trover for it, againft the
true Owner.
This is not only without, but against the Confent o^ \}nt Owner.
Suppofing this Note to be a Sort oi jnercantile CaOi; yet it has an
EarrMark, by which it may be diftinguifhed: Therefore Trover
will lie for it. And fo is the Cafe oiFord v. Hopkitis. .
And You may recover a Thing ftolen from a Merchant, as well
as a Thing ftolen from another Man. And this Note is a mere
Piece of Paper : It may be as well flopped, as any other Sort of
Mercantile Cafh, (as, for Inftance, a Policy which has been flolen.)
And this has not been pajfed away in Trade: but remains in the
Hands of the true Owner. And therefore it does not fignify in
ivhat Manner they are pajjed away, when they are pafled away:
For this was noi- paJJ'ed away. Here, the true Owner, or his
Serva?2t (which is the fame Thing,) detains it. And, furely. Rob-
bery does not deveft the Property.
This is not like Goods fold in Market Overt: Nor does it pafs
in the Way of a Market Overt; nor is within the Reafon of a Mar-
ket Overt. Suppofe it was a JVatch flolen: The Owner may feize
it, (though he rinds it in a Market Overt,) before it- is fold there.
But there is no Market Overt for Bank Notes.
I deny the Holder's (merely as Holder) having a Right to the .
Note, againfi the true Owner: And I deny that the Pofj'eJJion
gives a Right to the Note.
Upon this Argument on Friday la ft, Ld. Mansfield then faid that
Sir Richard Lloyd had argued it fo ing(rnioully, that (though he
had no Doubt about the Matter,' it might be proper to look into
the Cafes he had cited, in Order to give a properer Anfwer to
2 them:
Hilary Term 31 Geo. 2. 457
them : And therefore the Court deferred giving their Opinion, to
this Day. But at the fame Time, Ld. Mansfield faid He would not
wifli to have it underftood in the City, that the Court had any
Doubt about the Point.
Lord Mansfield now^ delivered the Refolution of the Court.
After ftatlng the Cafe at large, He declared that at the Trial, He
had no Sort of Doubt, but that this A(5lion was well brought, and
would lie againft the Defendant in the prefent Cafe; upon the gene-
ral Courfe of Bufmefs, and from the Conjequences to Trade and Com-
merce: which would be much incommoded by a contrary Deter-
mination.
It has been very ingenioufly argued by Sir Richard Lloyd, for tlic
Defendant. But the whole Fallacy of the Argument turns upon
comparing Bank-Notes to what they do }iot refemble, and what they
ought not to be compared to, viz. to Goods, or to Securities, or Do-
cuments for Debts.
Now they are 7iot Goods, not Securities, nor Documents for
Debts, nor are fo efleemed : But are treated as Money, as Cajh, in
the ordinary Courfe and Tranfadlion of Bufinefs, by the general
Confent of Mankind; which gives them the Credit and Currency
•of Money, to all Intents and Purpofes. They are as much Mo-
ney, as Guineas themfelves are; or any other current Coin, that is
•ufed in common Payments, as Money or Cafli.
They pafs by a Will, which bequeaths all the Teftator's Money
or Cafli; and zxt never confidered ^s Securities for Money, but as
Money itfrlf. Upon Ld. A lef bury' s * 'W'lW, goo I. in Bank-Notes « p,^^^;^^,
was confidered as Cajlj. On Payment of them, whenever a Receipt «/■ v. Sa/for/
is required, the Receipts are always given as for Monev, not as "'"'• '"^'^fj"
r c ■,■ AT-» ^ J t) ^> eery, cih A'o-
fur Securities ov.Aotei. ^^,^,^j^;^ ,.^g.
So, on Bankruptcies, they can not be followed as identical and
diftinguifluble from Money: But are always conlidered as il/c;?^^'
or Cajh.
'Tis pity that Reporters fometimes catch at quaint Expreflions
that may happen to be dropped at the Bar or Bench; and miftake
their Meaning. It has been quaintly faid, " that the Reajon why
" Money can not be followed is, because it has no Ear-Mark:^'
But this is NOT true. The true Reafon is, upon Account of the
Currency of it: It can not be recovered after it has paffed in Cur-
rency. So, in Cafe of Money /iolen, the true Owner can not recover
'it, after it has been paid away fairly and honellly upon a valuable
6 A ami
458 Hilary Term 31 Geo. 2.
and boiid fide Confideration : But before Money has pafled in Cur-
rency, an Adlion may be brought for the Money itfelf. There was
a Cafe in i G. i. at the Sittings, Thomas v. Whip, before Ld. Mac-
clesfield: Which was an Adion upon Jffumpfit, by an Adminiftra-
tor againft the Defendant, for Money had and received to his Ufe.
The^Defendant was Nurfe to the Inteftate during his Sicknefs; and,
being alone, conveyed away the Money. And Ld. Macclesfield
held that the Adlion lay. Now this muft be efteemed a /7W//?§-,
at leaft.
Apply this to the Cafe of a Bank-Note. An Adion may lie
againft the Finder, 'tis true; (and it is not at all denied:) But not
^/cr it has been paid auay inCurkh-ncy. And this Point
has been determined, even in the Infancy of Bank Notes: For
*V.ante>^<^\. j Salk. 1 26. M. \o W. 3. at Nifii'pritis, is in * Point, And Ld.
Ch. J. Holt there fays that it is " by rcafon of the Courfe of Trade;
" which creates a Property in the Affignee or Bearer." (And "the
" Bearer" is a 7nore proper Expreflion than Affignee.)
Here, an Inn- keeper took it, bond fide, in his Eufinefs, from a
Perfon who made the Appearance of a Gentleman, Here is no
Pretence or Sufpicion of Collusion ivith the Robber: For this
Matter was ftridtly inquired and examined into at the Trial; And is
fo ftated in the Cafe, " that he took it for ■i^ full and valuable Confi-
" deration, in the ufual Courfe of Bufinef:' Indeed if there had
been any Collufion, or any Circumftances of unfair Dealmg; the
Cafe had been much otherwife. If it had been a Note for looo/.
it might have been fufpicious: But this was ay/;W/ Note, for 2 1 /. loj.
only; and Money given in Exchange for it.
t ix relatione Another Cafe cited was a loofe Note f in i Ld. Raym. 738. ruled
of another by Ld. Ch. J. Holt at Guildhall, in 1698; which proves nothing
Perfon. £^^ ^y^^ Defendant's Side of the Queftion: But it is cxadly agreeable
to what is laid down by my Ld. Ch. J. Holt, in the Cafe I have
iuft mentioned. The Adtion did not lie againft the Aftignee of the
Bank-Bill; BECAUst he had it for valuable Confideration.
In that Cafe, he had it from the Perfon who found it: But the
Adlion did not lie againft him, becaufe he took it in the Courfe of
Currency; And therefore it could not be followed in his Hands, it
never ftiall be followed into the Plands of a Perfon who bond fide
took it in the Courfe cf Currency, and in the IVay oj his Bufinefs.
*V.antc\<i\^ The Cafe oi Ford v. Hophins, was alfo * cited: Which was in
Hil. 12 W. 3. coram Holt Ch. J. at Nifi prius, at Guildhall; and was
an Adion of Trover for Million-Lottery Tickets. But this muft be
a very incorreSl Report of that Cafe: It is impofjible that it can be
a true
Hilary Term 31 Geo. 2. 459
a true Reprefentation of what Ld. Ch. J. Hok faid. It reprefents
Him as fpeaking of Bank-Notes, Exchequer-Notes, and Million-
Lottery Tickets, as like to each other. Now no two Things can
be more unlike to each other, than ?l Lottery-Ticket, and a Bank-
Note. Lottery-Tickets are identical and fpfcijic : Specific Aclions
lie for them. They may prove extremely unequal in Value : One
may be a Prize ; another, a Blank. Land is not more fpecific,
thaiT Lottery-Tickets are. It is there faid, " That the Delivery of
" the Plaintiff's Tickets to the Defendant, as that Cafe was, was
" no Change of Property." And moil clearly it was no Change of
the Property : So far, the Cafe is right. But it is here urged as a
Proof " that the true Owner may follow a ^olen Bank-Note, into
" what Hands foever it fliall come."
Now the whole of that Cafe turns upon the throwing in Bank-
Not es, as being like to Lottery-Tickets.
But Lord Ch. J^ Holt could never fay " That an Action would
" lie againft the Perfon who, for a •valuable Conf deration, had re-
" ceived a Bank-Note which had been ftolen or loft, and bond fide
" paid to him ;" even though the Action was brought by the true
Owner : Becaufe he had before determined otherwife, but two Years
before ; and becaufe Bank-Notes are not like Lottery-Tickets, but
Money.
The Perfon who took down this Cafe, certainly mlfunderftood
Lord Ch. J. Holt, or miftook his Reafons. For this Reafoning
"would prove, (if it was true, as the Reporter reprefents it) that if
a Man paid to a Goldfmith 500/. in Bank-Notes, the Gold-
fmith could never pay them away.
A Bank-Note is conftantly and univerfally, both at Home and
Abroad, treated as Money, as Cap ; and paid and received, as
Caf:) : And it is neceffary, for the Purpofes of Commerce, that
their Currency ftiould be eJlabliJJjed and fecured.
There was a Cafe in the Court of Chancery, * on fome of Mr. * Waimejiey
Child's Notes, payable to the Perfon to whom they were given, or \^^^^j^^^f^'
Bearer. The Notes had been loft or deftroyed many Years. Mr. H^ ,749."""
Child was ready to pay them to the Widow and Adminiftratrix of the
Perfon to whom they were made payable ; upon her giving Bond,
with two refponfible Sureties, (as is the Cuftom in fuch Cafes,) to
indemnify Him againft the Bearer, if the Notes ftiould ever be de-
manded. The Adminiftratrix brought a Bill ; which was difmiffed,
becaufe (he either could not or would not give the Security required. ^
No Difpute ought to be made with the Bearer of a Cafi-Note ; in
regard to Commerce, and for the Sake of the Credit of thefc Notes :
3 Though
460 Hilary Term 31 Geo. 2.
Though it may be both reafonable and cuftomary, to ftay the Pay-
ment, till Inquiry can be made, Whether the Bearer of the Note
came by it fairly, or not.
Lord Mansfield declared that the Court were All of the fame
Opinion, for the Plaintiff} And that Mr. Juft. Wilmot concurred.
Rule— That the Pojlea be delivered to the Plaintiff.
Wtimflay ift Rcx vcvf, Df. Shcbbeare.
February
•758- _-^ j^^ Dodor was brought up to be bailed : But had not Bail
■I ready.
Note — He was now brought up by Virtue of a Habeas Corpus
ISSUED by the Ld. Ch. Juftice in the Vacation, returnable itn-
mediate, before Himfeif at his Chambers.
Upon Dr. Shebbeare's mentioning that He had been informed
" that, as the Term was begun, it was neceflary to take out a new
" Writ of Habeas Corpus, to bring Him into Court ;" And the
Officers on the Crown-Side having faid that their Notion of the
PraSiice was, " That, the "Term being begun, the old Writ was ex-
" pired, and it was neceflary to take out a new One ;
Lord Mansfield declared the Court to be unanimoully of
Opinion That fuch Notion was ill founded ; That a Perfon tnight
be brought into Court upon 2l Habeas Corpus ilfued in the Vacation;
and that to require a new Writ, would be attended with Delay and
Expence, without the leaft Reafon or Utility.
Lord Mansfield — If you have not Bail, We cannot commit
you to the fame Cuftody you come hither in, (which was that of
Mr. Carrington, One of the King's Meffengers;) but muft commit
you to our Marflial : And you will not then be obliged to fue out
your Habeas Corpus again ; but may be brought up from the Prifon
of this Court, by a Rule of Court, whenever you fhall be prepared
to give Bail.
Accordingly, the Dodor, being charged with two Warrants
• See the uj,,^^^ the Hand and Seal of the Secretary of State, * which ap-
fa. peared upon the Return to the Hapeas Corpus, was
Committed to the Cuftody of the Marjhal oi this-CouRX.
2 Rex
Hilary Term 31 Geo. 2. 461
Rex verf. Inhabitants of Flecknovv. s«waj, 4th
•/ rebruary
//. 30 G. 2. N°6.
THIS was a Caufe in the Crown-Paper, upon a fpecial Cafe
from the Affizes in War'wickjhire ; upon an Indiftment
againft the Inhabitants of the Hamlet of Flecknow, for not repairing
a Highway^ which the Indidlment lays, " that They ought to
" repair."
The Inhabitants pleaded " That One George Watfon ought to re-
" pair it, by reafon of his Tenure ; so long as the fame fhould
" remain inctofed, (^c" And traverfe that the Defendants, the In-
habitants, ought to repair it.
The Replication fets out an Ad of Parliament of 150. 2. c.
(a private Aft) " for incloiing and dividing the Common Fields
" called Flecknow, in the County of Warwick, into jufl Allotments
" and Proportions;" And alfo the feveral Proceedings under it;
and then traverfes " that the faid George Watfon by reafon of his
" inclofing the faid Highway, ought to repair and amend it, as
" often as there {hould be Occafion, whilft it ftiould remain fo in-
" clofed by him," modo & forma proiit is alledged by the Plea:
Et hoc par at us eji verijicare.
The Rejoinder admits the Ad:, and the Proceedings under it, and
George IVatfon'?, Acceptance ^sc. under them ; and alledges that
George Watfon by reafon of his inclofing, ought to repair &c. And
of this, they put themfelves upon their Country. — IlTue is taken
thereon ; And a Verdid pro Rege, fiibjed to the Opinion of this
Court.
The Cafe ftated, by Confent of Counfel was (in Subflance) thus
— The Lihabitiwts of the Hamlet of Flcckimv, before the making
the Inclofure by Virtue of the Ad of Parliament in the Record meu-
tioned, were bound to repair the Highway in Queftion.
The Road in the Pleadings mentioned, was, before the Making
the faid Ad of Parliament, an ancient open Road, lying iin-in-
clofed, without Hedge Ditch or Fence; and continued to lie fo
un-inciofed at the Time of making the faid Ad of Parliament, and
until the Inclofure thereof as hereafter mentioned.
The Commiffioners appointed by the fiid Ad of Parliament did,
in Furfuance of the faid ASl, by their Award in Writing, duly award,
6 B afar tain
462 Hilary Term 31 Geo. a.
afcertaif!, fet out, d'n-ecf, and appoint " That there Hiould be at
" all Times, for ever, after the new Inclofiire by the faid Adt
" diredted to be made, A Public Way or Road, leading from the
" Hamlet of Flecknoiv aforefaid, to Soittba??j in the faid County of
" Warit'ick, and alfo from Soutbam aforefaid to Flcchioiv aforefaid
" (being the Road in Queflion,) for Perfons to pafs, either on Foot
'^ Horfeback, or with Cattle and Carriages, into over and through
" the Allotment cf the faid George IVatfon ; And that the fame
" fliould be and remain at all Times for ever theTeafter, fuil forty
" Feet broad, as the fame was then admeafured and fet out." And
the Cafe ftates that within One Year after making the fiiid Award,
(that is to fay, in January 1745.) the faid George IVatfon inclofed
his Allotfuent, purfuant to the faid Aft of Parliament : And the
Highway in qucftion lay open and uninclofed on each Side thereof
as aforefaid over the Lands Part of the Allotment of the faid George
M'^'atfon, for the Space of Three Tears next after the Inclofure of
his faid Allotment fo by him made as aforefaid.
The faid George JVatfon, at the End of the faid three Tears,
INCLOSED with Hedges Ditches and Fences the fiid Highway, on
both Sides thereof, leaving the fame full forty Feet broad between
the Ditches : And the faid I^oad or highway remained fo inclofed by
the faid George IVatfon^ during the whole Time mentioned in the
Indictment,
The faid George W(itfon made 710 Inclofure of the faid Highway
in Queftion, other than as aforefaid.
A Verdidl by Confent was found by the Jury ; Whereby the De-
fendants were found guilty : But fuch Verdidt was to be fubjcdt
to the Opinion of this Court, upon the whole Cafe, as it appears
on the Pleadings and on what appeared to be and was the Cafe as
is before mentioned. And the
Question fubmitted is Whether tlie Inhabitants of the faid Ham-
let of Flee know continued bound to repair the Highway in the
faid Indiftment mentioned, notwithstanding the /aid Iti clo-
sure by the faid George JVatfon in mamicr before ftated : Or Whe-
ther, by reafon of svcn Inclosure, they were discharged there-
from, during the Time in the Indictment fpecified.
Serj. Hewitt pro Rege, argued That the Inhabitants remained stili,-
bound.
It is admitted that this Hamlet of Flecbiow was bound to repair,
before the A5i of Parliament. And it does not appear that George
IVatfon is bound by having inclofed, under this Adt of Parliament :
4 For
Hilary Term 31 Geo. 2. 463
For this is no Incroachment, no Injury to the Public, ;?o ^(^'done
'without Confent.
And the Cafes turn upon want o/" lairful Authority, i /?;?. ^/^r.
•:;90. Letter A. pi. i. Sir Edivard Duncombe^ Cafe: Outlets are
Parcel of the Highway, in an open Field. Ibid. Letter B. pi. \.
" The Subject may go out of the beaten Track, when the Way
" is founderous, in an open Field." Sbeppard's Epitome of the Law
1 1 16. " If a Man inclofe the Highway, and put it within his own
" Ground, the Parifh is not to repair it ; but He muft repair it
himfelf:" 2 Saund. i6o. Rex v. Sir Nicholas Stoiighton : An En-
croacher upon the Highway, is obliged to repair, fo long as the
Encroachment continues. Style 364. " Whoever inclofes &c. '
" takes upon him to repair."
Bat this Inclofure and Allotment is under an A^ of Parliament ;
to which Every Body confents. And this A61 direfts public and
private Highways to be laid out : And it provides " That No-Body
" fhall go upon any other Highway." Therefore, the old Right
to the old Way is at an End, is annihilated : And fo is the Way
itfelf, being exchanged for the new One. And this, of Courfc,
warrants the Inclofure.
But the Adl lays no Charge upon the Owner : Therefore George
Watfon cannot be faid to have inclofed any part of the Highway :
For this Land is allotted to him, as his private Property ; And He
is warranted in making this Inclofure.
This is juft like the Cafe of a Writ of Ad quod damnum. It
ts indeed a Parliamentary Ad quod damnum. It may be even worth
the Inheritance of the Land, to repair the adjoining Highway. So
that this is not ivi thin //jt' Principles which oblige Perfons inclo-
fing, to repair. And if George Watfon be not obliged to repair this
Highway, the Inhabitants of Fletknoiv are obliged.
Mr. Caldecott contra for the Defendants. This is an Indi(fl-
ment againft the Inhabitants for not repairing : And it only charges
" that they are bound."
The Plea fets out by Way of Inducement " That ont George
" Watfon, by reafon oj his Inclofure, ought to repair:" And then
tenders a Traverfe " that the Inhabitants ought not to repair."
The Replication (inftead of taking Iffue upon this Traverfe,) fets
out the Adl of Parliament, and then fets out all the Proceedings
under it, and the Allotment to George Watfon, and his Acceptance
thereof, and his Inclofing his Allotment, firft, and the Road af-
terwards ; and then takes quite another Traverfe, viz. " That He
" th«
464 Hilary Term 31 Geo. 2.
" the faid George Waffo/j, is not, by his inclofing the Road, bound
'• to repair it."
Qir' — We cannot meddle with the Pleadings, now : We are
upon the Special Cafe. If You have any Objection to the Plea-
dings, You mufl: move in Arrefl: of Judgment.
Mr. Caldecott then proceeded on the Cafe. This was a Road,
which was always an open and un-inclofed Road, and went over
George JFatfon's own Lands.
ifl:. This is no Inclofure, within this AB.
2d. If it was. Yet the Acl does not take away the legal Confeqiience
of Inclofure.
Firft — This was an old open un-inclofed Road, over this George
Watfon.s oion Lands. And the Act does not give any Authority to
inclofe it ; nor could intend any fuch Thing. And it is much bet-
ter for the Public, that it (hould be open and un-inclofed, tlian
that it fliould be inclofed. If He will inclofe it. He ought to re-
pair it.
It is here ftated that he did inclofe his Allotment within two Years
(the Time limited for fo doing:) But that he did not inclofe this
Road, till Threk Tears after the Commiflioner's Award. There-
fore it is not an Inclofure under this Act : Confequently, he is liable
to repair.
I agree that if a Man inclofes on both Sides of a Road, he Hiall
repair the Whole : And if Gff. And if Q?f. [See Haivki?n, as below,]
There is a great deal on this Subject in i Hawk P. C. 202. Lib.
1. c. 76. § 6, 7. And I agree that a Man is bound to repair, }io
longer than whilst he continues his Inclofure : So that if he opens
his Inclofure, he will be difchargcd.
As to an yld quod damnum — It makes the old Road to become
private Property : And there ought to be a Grant from the Crown.
But this Act of Parliament has not dircSled an Inclofure of the
Road in Queftion : Neither does the Award of the Conuniffioners di-
rect it. Therefore George Watfon is in this Cafe obliged to repair ^
And the Inhabitants are not obliged.
Lord Mansfield flopped Mr. Serjeant Hewitt from replying :
For this Cafe was too plain, He faid, to need a Reply.
2 An
Hilary Term 31 Geo. 2. 465
An Owner of Land over which there is an open Road, may in-
cloje it, by his own Authority ; or alter it, under a proper Autho-
rity, and by a legal Courfe. ift. He may inclofe it, by his own
Authority : But then it mud be^upon two Cojiditions — One, " that
" ht is obliged to repair it, till he throws up the Inclofure ;" the
Other " that he leave fufficient Space and Room for the Road."
2dly. The Other Act, viz. Altering or changing the Road by a
legal Courfe, is by a Writ of Ad quod Damnum : where the Appli-
cation is to be made by the Owner of the Lands ; and a Licence
given by the King, upon a Finding by a Jury. But in this latter
Cafe, the Owner of the Land, is not obliged to repair the new
Road ; unlifs the Jury impofe fuch a Condition upon him : For if
they do not, the Repair of the Road flands juft as it did before ;
even though it was at firfl: open, and fliould be directed by the Jury
to be inclofed.
And this Cafe is like a Writ of Ad quod damnum j and not only
fo, but even more than a Writ of Ad quod damnum. For here, the
Act vefls a Power in the Commiffioners, to fet out new Roads, by
their Award. Therefore there is an End of the old Road, as an
old Road. And the Commiffioners here made their Award : In
which they defcribe the future Road, and direct it to be 40 Feet
broad, as it was then admeafured.
And thefe Common Fields were not defigned to continue open
Fields, as they were before ; but the Intent of the Act of Parliament
■was that they might be inclofed. And the Act fays nothing about
the Expence of repairing the Road. Therefore the Repair clearly
Jiands as it did before ; and was certainly meant fo to do.
And every Man had a Right to inclofe, whofe Lands adjoin the
Road. But if the Perfon to whom the Allotment was made
near the Highway, was to be obliged to repair, it might have made
a vaft Difference in the Value of the Lands refpectively allotted to
each Perfon : For one Perfon's Allotment might perhaps run along
very far, by the Side of the Highway ; and another Perfon's Al-
lotment not lie at all near it. And yet there is no Provilion for any
fuch Cafe.
Therefore this George Watfon is not, upon the Facts here flated
to Us, obliged to repair, by Reafon of his having ijiclofed an open
Road : Nor indeed is it an open Road, under the Circumftances of
this Cafe.
The Parirti were bound to repair, before the Adl : And this Road
happens too to be the fame identical Road, that was the Road be-
6 C fore
4-66 Hilary Term 31 Geo. 2.
fore the Acl. And the Aft of Parliament never defigned to alter
the Charge and Obligation of repairing the Roads over thefe Fielus
which were intended to be inclofed by virtue of it : Nor is tins In-
clofure thus made under this Aft, fucb an Inclofure as comes within
the Meaning of the Law, which obliges the Perfon incloilng a
Road '■ooluntarily and of his own Head, to ropair the Road which
he has fo '■voluntarily inclofed.
Mr. Juft. Denison concurred: And He thought this Cafe was
very properly compared to the Cafe of an Ad qUod damnum ; and
that it might be very properly called a Parliame}itary Ad quod dam-
num.
And He was very clear that the Hamlet were bound to repair, juji
m they -were before: And that this Inclofure was not fuch an In-
clofure as the Cafes cited intend.
Mr. Juft. Foster like wife concurred. And He thought the
A6t intended to give the Perfon to whom an Allotment adjoining
to the Road, fliould be made, Power to inclofe : Or otherwife he
might be a very great Sufferer by fuch Allotment. And He was
extremely clear that the Hamlet remained bound to repair the Road,
iuft as much as they were bound to repair before the Adt.
Mr. Juft. WiLMOT concurred too, clearly. And the rather, for
that if it was not fo, the Allotment might prove what the Civil
Law terms a damnofa Hcereditas : And the Allotments to the dif-
ferent Perfons might be of extreme different Values, according as
they lay near to, or far from the Road.
Upon all the Circumftances of the Cafe, He was clear that the
Hamlet remained liable, in the fame Manner as they were before the
Adl.
Per Cur. unanimoufly
Rule for the Pojiea to be delivered to the Profecutor.
Turner verf. Turner.
THE Court (Mr. Juft. Foster being gone) were unani-
mous, that a Perfon voluntarily inlijling Himself, was
NOT privileged from Arrejls, within the A£i of laft Seffions
(30 G. 2. c. 8.) " for the fpeedy and effedual Recruiting of his
" Majefty's Land-Forces and Marines :" For that the Aft was only
meant to privilege such Perfons from Arrefts, as were, under
that Adi, * COMPELLED agaifijl their Wills, to ferve as Soldiers.
* V. Sedtion 20tb, pa.iij, 218.
4 Sir
Hilary Term 31 Geo. 2.' 467
Sir Edward Worfeley & al. A/liCTnees of Richard Slader, "^"^/^ 7th
J • 1"^ J ol 1 Tchrunry
a Bankrupt, verj. Demattos and Slader. 1758.
THE prefent Qiieflion came before this Court, after a Trial at
Law before Lord Mamfield, upon a feigned Iffue out of the
Court of Chancery, to try, Whether one Richard Stadcr, a Trader,
was a Bankrupt; And (zdly.) If ht was a Bankrupt, then Upoti
WHAT Particular Day he became fo : And that particular Day
on which he fliould be found to have become a Bankrupt, was to be
indorfed upon the Pcjlea.
It was foon ao;reed, as to the firfl: Point, " That he certainly did
" become a Bankrupt," by an undoubted clear A<51 of Bankruptcy
committed on the thirteenth of November ij^6.
But, upon the fecond Point, as to the Titne nvhen he first be-
came a Bankrupt, It was infifted, on Behalf of the Plaintiff, That
he became a Bankrupt anterior to that 13th q{ November, viz. upon
the 23d of O^lober, namely, by the very executing the Deed in
queflion, which bore the latter Date. For they alledged this Deed
to be fraudulent ; and the Executing it, to be ipfo faSIo an Act of
Bartkruptcy, within the Statute of i Jac. i. c. 15. * which Statute • ^. § 2. of
exprefly makes any fraudulent Grant or Conveyance of the Trader's ^'^^'^ ^^'
Lands or Goods, whereby his Creditors may be defeated or delayed
of their juft Debts,- a Jpecifc AB cf Bankruptcy.
If the Deed -vas fraudulent, within the true Intent and Meaning
of the Statute, He certainly committed an Ad: of Bankruptcy oh
the 23d oi OSiober : If it was not. He did not commit any h.Ct of
Bankruptcy till the 13th of November.
The Jury found Him a Bankrupt.
And, by Confent, the following Order was made at Nif prius ;
viz. That either Party be at Liberty to move the Court. And if
the Court fhall, upon fuch Motion, be of Opinion " That the
" Deed of 23d of OBober 1756, is, under All the Circumftances,
" jraudulent, and the Execution of it by Richard Slader, an Aci of
Bankruptcy:' — Then the Pclica fhall be marked on the Back there-
of, " That the fiid R. S. became a Bankrupt on the faid 23d of
" O^ober 1756:" But if the faid Court fliall be of Opinion
*' That the Execution of the faid Deed, under all the Circum-
" ftances, by the fiid R. S. be Jut an A61 of Bankruptcy,"
Tjhen the faid Po/?ea fhall he marked on the Back, " That the faid
" R. S. became a Bankrupt on the isth Day of November."
The
4-68 Hilary Term 31 Geo. 2.
The Form of the Rule, under which it came before the Court
was thus — " It is ordered that the Plaintiffs fliew Caufe why the
" Poftea in this Caufe fliould not be indorfed, that Richard Slader
" became a Bankrupt on the thirteenth Day oi November 1756."
Lord Mansfield firft repeated the whole Evidence very par-
ticularly and minutelv: Which, after the Counfel had done, was
refolved, by the Opinion of the whole Court, into the following
Cafe; viz.
yames Davis, an Agent of Ifaac de Mattos, knowing Slader to
be indebted, and that he could not carry on his Trade, unlefs fome
body in Lo?idon, in the Nature of a Banker, would pay his Draughts,
negotiated (in the Month of July 1756,) an Agreement between
the faid Ifciac de Mattos and Richard Slater, " that de Mattos fliould
'•' pay Slader's Draughts, upon having Security."
The Nature of the Security, and the Terms of the Agreement,
appear only by the Deed of the 23d oi OSlober; prepared, and pro-
cured to be executed, by James Davis and James Whitehead, Both
of them Agents of Ifaac de Mattos.
I'he Deed in Queftlon bears Date the 23d of OElober 1756;
and recites Slader' ^ Title to the Mill and PremifTes; and alfo his
being concerned in and carrying on divers Branches of Merchan-
dize and other Bufinefs; and his having frequent Occalion to draw
and remit Sums of Money from and to London; and his having
requefted Ifaac de Mattos to be his Agent or Banker there; And
that in order to indemnify him for fo doing, Slader had agreed to
transfer and afllgn All his Eflate and Intereft in the Premiffes afore-
mentioned in the faid Indentures, and alfo All his Stock ufed and
employed in the Trades of Brewing and Making Malt, and in the
Bufinefs of a Corn-Fador and Miller, to the faid Ifaac de Mattos
his Executors Adminiftrators and Affigns, for that Purpofe: And
then the Deed imports that for the Purpofes aforefaid, and in part
of Performance of the faid Agreement, and in Confideration of 5^.
He the faid Slader Grants Affigns, &c. his faid Meffuage, Corn
Water-Mill, and divers other Things (fubje<ft to a Mortgage then
fubfifting, on part thereof.) And further, in full Performance of the
faid Agreement, and for the Confiderations aforefaid," He grants &c.
All his Stock, Utenfils, and other Things, ufed in his Trades of
Brewing a'nd Malting, and of a Corn-fa<flor and Miller; confifting
of Coppers, Tuns, Backs, Coolers, Pumps, Cifterns, Skreens, and
other Implements; And aiso All his chatigeable Stock, confifting
of Debts, Horfes, Carts, Calks, Hops, Beer, Ale, Wheat, Barley,
-Malt, Coals, Wood, and All other Goods and Commodities be-
longing
Hilary Term 31 Geo. 2. 469
longing employed or made ufe of, in the faid fevcral Trades or any
of them; And all his Eftate, Right, Title, Intereft, Property,
Claim, and Demand whatfoever thereto, and to every or any Part
thereof; to the faid Ifaac de Maftos, his Executors &c. Defea^zanced
however, on his the faid Slader's paying and making good to the
faid Ifaac de Mattos All the Sums of Money which he ftoald ad-
vance and pay on any Note Draught Bill or other Writing of the
faid Slader; and on his indemnifying de Mattos againfi: the fame,
and all Matters any ways touching or concerning the faid Agency.
This Deed further contains the common Covenants: And there
Is a Receipt indorfed for the ^s. Confideration-Money.
In it is alfo a Covenant that in Cafe of Breach of or Failure in
the Conditions &c. or any Part thereof, thett and from thenceforth^
it fliould be lawful for the faid Ifaac de Mattos his Executors &c.
to ENTER, POSSESS ^7z^ ENjo\ the faid Land and PremifTes ZSc;
And ALSO to take to his and their own Ufe and Ufes, abfolufely.
All and fingular the PremifTes lajl before-mentioned, viz. tht
Stock, Gfr.
Upon the 8th of OSiober, Richard Slader drew a Bill upon Ifaac
de Mattos, by Authority from him, for 200/. But, to give it Cre-
dit, it was made payable to the faid James Davis, and indorfed
by him.
Upon the 23d of O^o^^r, Richard Slader drew another Bill upon
Ifaac de Mattos, by Authority from him: But, to give it Credit,
It was made payable to the faid James Whitehead, and indorfed
by him.
Ifaac de Mattos h\mk\{ perfonally knew that the Affairs oi Richard
Slader were in Confufion; and hired Samuel Sills, whom He fenf
down in the Month of OBober, .to be Book-keeper to this Richard
Slader. Sills accordingly went; and had examined all Slader'^ Ac-
counts and Affairs, by the 20th oiOSiober.
The Deed, (which had been a confiderable Time preparing,)
was executed on the 23d of Otlober-, and is witnefed by the faid
James Whitehead, James Davis and Samuel Sills.
The Bankrupt continued in Rcffcjfion of every Thing conveyed by
the fiid Deed. And James Davis took Occafion to tell the Cre-
ditors of Richard Slader, " that the faid Slader would do very well;'"
" that he had recommended him to two good Men;" and " that
" Slader had given a Mortgage of the Mill, and other Leafe-hold
" Premiffes:" But James Davis concealed and did not mention Sla-
der'^ having affigned his general Effeds.
6D Upon
470 Hilary Term 31 Geo. 2.
Upon the nth o( November, Slader told Davis and Sills, both
together, "that he could not /land;" and confulted them what to
do: The Refult of which Confultation was, — That Sills, by Or-
der of Slader, the fame Day, gave PoJJ'eJjion to Davis, as Agent of
de Mattos, who immediately let out for London. The next Day,
(the \2k\\ o'i Novetnber^ Slader ordeied Sills to deny him: On the
13th Sills did deny him accordingly; and told the Reafon, " that
" it was to commit an Adl of Bankruptcy."
Slader had nothing of Value, l)Ut what was comprized in the Deed
of the 23d of Ociober: And he traded as a Brewer, MaUiler, Corn-
fadler, and Miller; but carried on no other Trade.
After the 13th oi November, Ifaac de Mattos paid the faid two
Draughts indorfed by Davis and Whitehead.
After Ld. Mansfield had reported the Evidence, the Counfel for
the Plaintiffs proceeded to Hiew Caufe: And they urged the Deed
to be merely colourable, and fo fraudulent as to conftitute, in itfelf,
an Ad: of Bankruptcy; being to the Intent to defeat and delay his
Creditors, o'c lahereby they yiXCYn: be DEFt axed or delayed.
They cited 3 Co. 80. Tioine'^ Cafe, and the Rules and Refolu-
tions contained in it, and urged that the prefent Cafe was fully
within it.
They alfo cited 13 Eliz. c. 7. and r Jac. c. 15. §,2: which
goes further than 13 Eliz. Likewife 2 In/i. no. on the Statute of
Marlebridge. 6 Rep. 76. Curfon's Cafe S. P. Moore 193. Ld.
Paget' s Cafe, upon the Statute of Fugitives beyond Seas made ^nno
13 Eliz. (In which, they obferved that 13 Eliz. c. 3. is in Ra/lal,
and not elfewhere.) Style 288. Tucker v. Cojh. 2 Peere Wms. /^zj.
Small V. Oudley et ah Where a Goldfmith affigned I of his Stock in
the ^/«f Trade; And it was holden good: But contra, if it had
been of all his Goods, &c.
Alfo Lucas's Rep. 489. Dr. Goodfellow's Cafe; and Ryal v. Rowls
in Cafic. 27th "January 1749.
And they obferved that here was no PoffeJJion altered; no £/?/-
mate or Account taken of the Stock G?f ; nor any Confideration paid.
The Counfel for the Defendants infifted, that even if it was
granted that this Deed was fraudulent, as againji Creditors or Pur-
chafers, yet it would not be an Act of Bankruptcy: For
* y.xi Eliz. the * Ad has a Provifo to except Deeds made bond Jide and upon
t. 7. S. ult. ^^j Confideration.
. This
Hilary Term 31 Geo. 2. * 471
This Deed was made bond fide ^ and upon good Conjideration. It
was made by Mr. Slader^ a Trader in the Country, to fecure Mr.
De Mattos, who agreed to become his Banker or Agent in London ;
and to permit Slader from the Country, to draw upon him in
Town: And the only Intent of it was to indemnify De Mattoi
againft Slader'^ OvER-dmwing. Unu-in v. Oliver^ in Cane. Tr.
\z G. 2. was a like Cafe, determined by the Lord Chancellor. And
this TranGidion tended to enable the Country Trader the better to
carry on his Trade j and was far from being intended to deceive his
Creditors.
It muft be agreed, that this Deed of Afilgnment includei Gocdi
and Uten/ils, as well as the Houfe and Mill (3c ; And that there was
NO previous Appraifement. But that was quite unneceflary : Be-
caufe it could not be tljen known boiio much) Money was to be fe-
cured.
As to the Owner's coi:tiniiing in PoJpJJion. — The Cafe of Meggot
V. Mills, I Ld. Raym. 286. B. R. 1697. was fo ; and yet not frau-
dulent. Precedents in Chancery 285, Bucknall et al' v. Roifton was
the like. And in the Nature of the Thing, PofTeflion could not
be delivered in the prefent Cafe ; becaufe the Debt to be fecured
was future and uncertain. So that this Continuing in PoffeJJion was
.no mala Fides, no Badge or Evidence of Fraud : Becaufe it did not
give the Owner a falfe and fallacious Credit, Neither was it fecret ;
but notorious : And it was not with Intent to defeat and delay his
Creditors ; but to their Benefit, and calculated to fupport Slader\
Credit, and to enable him to pay his Creditors.
The Generality of a Deed is not always and neceffarily an
Evidence of Fraud : For unlefs there be a Tru/l, either exprefled or
implied, there is no Fraud : And here is no Truft, either exprefled
or implied : Nor could De Mattos recover more than was fairly
owing to him.
The Cafe of Ryal v. Rowls was rightly determined, " that a Sc-
.^' curity may be loft, by fufFering a Continuance in PolTeffion."
But it does not follow that our Continuance in PoiTeftion conflituted
an A5i of Bankruptcy. Here was neither Impofition nor Col-
lufion : It is only a Mortgage of his Perfonal Property, and for a
fair Confideration.
To prove it not to be an A61 of Bankruptcy, they cited feveral
Cafes. In the Cafe o{ De Gols v. Ward, in 1739. the quo animo
Was indeed clear and plain. The next Cafe where a Deed was con-
fidered as an Adt of Bankruptcy, was JJhlef% Cafe : But that was
alfo
472. • Hilary Term 31 Geo. 2.
alfo quite clear. So again, in Mach-elH Cafe, lately; Where it
was indeed given up. But there is nothing intentionally /'//,
in the prefent Cafe.
If this mere Giving Security to indemnify his Banker wrs an Ad
of Bankruptcy, It could never after'wards be purged: Which
would be a great Inconvenience to Trade ; becaufe it is a common
Cafe. And this Man gave it to his former Banker, as well as to
De Mattos.
It is no Ad of Bankruptcy, unlefs the Deed be fraudulent,
as well as intended to give imjuji Preference to One Creditor before
Another. And there is no Pretence, in the prefent Cafe, that any
bad Ufe has been made of this Deed.
The 5th Claufe in i Jac. i. c. 15. would be nugatory, if the
fecond was to be underftood to make the Executing fuch a Deed
as this, an ipfo fadlo Ad of Bankruptcy. It was only a contingent
and collateral Security, depending upon future Events and Circum-
flances : And therefore there could not, in the Nature of the Thing,
be either Delivery of immediate Pcjfejjwn, or a?iy particular Confidera-
tion-Money expreffed. And De Matto's, being liable to be damnified
was, of itfelf alone, a good Confideration.
The Cafe of Lhwin v.- Oliver, P. 1 2 G. 2. in Cane, was this :
TJnimn^ being appointed Receiver by that Court, and thereupon
obliged to give Security, afTigns his Debts, as a Security (amongft
other Things) to the Perfons who were bound for him in a Recog-
nizance upon that Occafion : And afterwards he became Bank-
rupt. Tbii AJJignment of his Debts v/as holden good.
Bankruptcy is confidered by the Ads of Parliament, as a Crime.'
The Defcription of an Ad of Bankruptcy, or of Perfon's becoming
Bankrupt, mufl be therefore taken friSfly : And the Ads that con-
ftitute Bankruptcy mufl be done ivith Intent to defraud or delay
Creditors.
Put the Cafe of an Officer in the Revenue appointing a Trader
\\\% Deputy ; And, for his Indemnity, taking from' fuch Deputy,
fuch a Deed as this is : Would the Executing it make the Trader a
Bankrupt?
The Ad of 21 Jac. i. c. 19. § 10, 11. takes Care of any In-
convenience to the Creditors, arifing from the Trader's continuing
in PofTefTion. But fuch AfTignmcnts have never been confidered
asconflitutingan Act of Bankruptcy. Small v. Oudley, 2 Peere M^'ms.
427. Jacob v. Shepherd, there cited. Ryal v. Rcwls, in Cgnc.
3 z-jfanU'
Hilary Term 31 Geo. z. 473
27 'January 1749 : Which was an Affignment by Harveftihc Bank-
rupt, of all his Goods Utenfils Gfc. and was made liable to future
Monies to be advanced.
The Counfel for the Plaintiffs in Reply, urged the Inconvenience
that muft arife to Trade, from fuch General Alignments of jill a
Trader's Effedls in Trade, «;2-valued and a«-appraifed ; in Order
to fecure evetitiial Debts, not exifting at the Time of executing the
Deed : And infifted that i fac. i. c. 15. § 2. expreJJy makes fuch
Conveyances Acis of Bankruptcy.
Here is 710 Co7}f deration of any Money paid, or any Debt really
contracted. Nor was any Money afterwards advanced upon this
Deed. And for what was then owing to Mr. De Mattos, he had at
that Time a Warrant of Attorney, to confefs and enter up a fudg-
ment : Though it was afterwards deftroyed, when he actually took
Poffeffion under the Deed now in Queftion.
And indeed, if there had been a real Debt fubfifting. Yet this
had been an undue Preference, within the Act. But as it was fwt
fo, nor any thing done in Confequence of this Deed, it is merely
fraudulent.
None of the Cafes, on either Side, are in Point.
In Unwin's Cafe, there was a Confideration : For an Indemnity is
a good Confideration. And the Cafe goes no further than to prove
" that it is fo."
But of moveable Chatties, PoJfcJJion ought to be inflantly and
aBually given : And of immoveable or remote Chattels, PofTeffion
of every Title to it, and every Thing that can in the nature of the
Thing, be done towards tt.
'&»
Whereas here was no Attempt to take Pofi'tlTion ; till the Man
was determinately going to become Bankrupt, by a plain indifpu-
table Act, on the 1 ith oi November.
Therefore this General Provifion for one particular Creditor, im-
plied a fecret Truji or conciliating Favour : Which is a Badge of
Fraud and Collufion. And no Argument can be drawn from Mort-
gages oi Land, (where it is the ufual Method for the Mortgagor
to remain in Pofleffion) to the keeping Pofleffion of Goods affigned
over. And if this had been an honeft Tranfaction, there would
have been an Appraifement and a Schedule ; and it would not have
•been left thus at large.
^ E As
474 Hilary Term 31 Geo. 2.
As to it's not being to be afterwards purged ;— That does not
alter the Cafe at all : For no Act of Bankruptcy can be purged,
but by obtaining a Certificate.
As to 21 Jac. I. c. 19. § II. Continuing in Pofleffion was always
looked upon as an Evidence of Fraud ; That Law is only declares-
five of what was the Law before.
The Cafes cited of Wiird, AJhley, and Macrell, prove Nothing
againfl: Us, at all.
Lord Mansfield faid The Court would confider it, both
upon the particular Circumftances, and upon the general Prin-
ciples : And it would be proper to confider the Subject, with
regard to Traders in getter al, under 13 Eliz. c. 7. as well as
to Traders becoming Bankrupts. And They would give No-
tice when they were ready to declare their Opinion.
Lord Mansfield now delivered the Opinion of the Court.
The Queftion is, Whether, upon all the above Circumjlances^
Slader became a Bankrupt on the 23d of OBcber, or on the 13th
of November. — And the Pojiea is to be indorfed, as to the Time
of S/ader's becoming Bankrupt, according to the Opinion of the
Court.
All the Acts concerning Bankrupts are to be taken together, as
making One Sy/lem of Law : They are All to be conftrued favoura-
bly for Creditors, and to fupprefs Fraud,
" Whether a Tranfadion be fair, or fraudulent," is often a
• ViJe ante Queflion of * Lanjo : It is the Judgment ofLaw^ upon Fads and In-
397. accord, tents.
The Indemnity, which is the Confideration of the Deed in Quef-
tion, I allow to be a good, valuable, and true Confideration : And
I allow this Deed to be a valid Tranfadlion, as between the Par-
ties.
But valid Tranfadion^, a« between the Pi^r^/Vj, may be fraudulent
by Reafon of Covin, Collufion, or Confederacy to injure a third
Perfon : For Inftance — A. buys an Eftate from B. and forgets to
rcgifter his Purchafe Deeds : If C. with exprefs or implied Notice
-of this, buys the Eftate for a full Price, and gets his Decd« regi-
flered ; This is fraudulent, becaufe he afTifts B. to injure A. Or,
If a Man knowing that a Creditor has obtained a Judgment againft:
his Debtor, buys the Debtor's GoQds, for a full Price, to enable
2 him
Hilary Term 31 Geo. 2. 475
him to defeat the Creditor's Execution : It is fraudulent. Again,
If a Man, knowing " that an Executor is wafting and turning the
" Teftator's Eftate into Money, the more eafiiy to run away with
" it," buys from the Executor, with that View, though for a full
Price ; It is fraudulent.
Marriage-Brocage Bonds, fecret Agreements, different from the
open Treaty of Marriage, and many other Cafes that might be put,
though for a true and valuable Confideration, as between the Par-
ties, are fraudulent, by Reafon of Deceit or Injury confequentia^y
brought upon t/jtrd Perfons.
* Twyne's Cafe, even in a Criminal Profecution was of this • 3 Co- 80. *•
Sort : The Confideration of the Sale was more than fufficient, and ^'•''*
undoubtedly true.
V
Whether this Deed be of that Sort, will depend upon the whole
Purpofe of it.
As to All, except the Leafehold, It could not have the Effeft
of a Conveyance, if De Mattos permitted Slader to continue in Pof-
fejfton.
By the exprefs Tenor of the Deed, Slader vwas to have the abfo-
lute Order and Difpofition as before. In Fadl, he was permitted
to continue in Poflcfiion, and aSi as Owner. They who dealt with
him, trufted to his vifible Trade and Stock. They trufted to the
Bankrupt-Law, that he could neither have fold or mortgaged ;
and, in Cafe of a Misfortune, that his Effedls muft be equally di-
llributed. They were impofed upon by falfe Appearances.
To deceive the more, under a fiditious Shew of Credit, the Bills
drawn upon De Mattos were made payable to and indorfed by his
mvn Agents. Davis, One of his Agents, exprefly told the Cre-
ditors, ^" That Slader would do very well ; That Two good Men,
*' upon Security of the Leakhold, would pay his Draughts:" But
concealed that he had mortgaged any Thing elfe.
A falfe fhew, by CoUufion, to deceive third Perfons, is generally
conneded with a fecret Confidence. So here, the Truft put in Sla-
der manifeftly was. That when he could ftand no longer, he fhould
give Notice to De Mattos or his Agents, deliver Poffeflion, and then
commit a pofitive Ad of Bankruptcy.
From the Nature of tlie Fund, Pofleffion never could be meant
to be taken, but as the in:imediate Fore-runner of a Commiflion of
Bankruptcy. He could not ftand a Moment, after his whole
Trade,
476 Hilary Term 31 Geo. 2.
Trade, fixed and fluduating Stock, and Credits were taken from
him.
To watch Slader, De Mattos put Sills about him, as his Book-
keeper; Agreeable to the Confidence put in him, when Slader law
he could ftand no longer. He acquainted Sills and Davis the
Agent of De Mattos, with it ; and by their Jdvice, fird gave an
Order to deliver Pofleffion, and then to be denied. This fhews, to
a Demonftration, that they were All aware that FofjcJJion was necef-
fary, and intended from the firft ; by a formal Delivery o^ PofllfTion,
k ,,. when he was determined to break, to evade the * Claufe in 21 jac.
I. c. 19. For the Meafure was inllantly taken, without any nevj
Advice.
I will confider this Tranfadion more particularly, in two great
Views :
I . In Refpefl of the End ;
2dly. In Refped of the Means.
Ae to the firfl — The End propofed by the fecret Truft was, that
in Cafe Slader fhould become Bankrupt, his whole Eftate fiiould
firft be vefted in De Mattos, for Payment of what was juftly due
to him. The Prefereiice ■silm.td at was fraudulent and unlaipf'ul.
Suppofe, after the Confultation on the nth oi November, this
Deed had been prepared and executed, accompanied with fuch for-
mal Delivery of Poffefiion : We are of Opinion, that it would have
been fraudulent, and an Aci of Bankruptcy.
Such Preference is a Fraud upon the whole Bankrupt Law, and
would defeat the two main Objects it has in View ; to wit, the
Management of the Bankrupt's Eftate j and an equal Dijlribution
among his Creditors.
The Law gives the Management, to Perfons chofen by the Cre-
ditors, under the Direction of Commiffioners, and the Controul of
the Great Seal.
But, if a Bankrupt may convey all to a favourite and friendly
Creditor, juft before he orders himfelr to be denied ; The whole
Power of felling his Effects, calling in his Debts, and fettling bis
Accounts, muft be m fuch Single and particular Creditor: He muft
have a Right even to the Cuftody of the Books and Papers.
-An
Hilary 1 erm 31 Geo. z. 477
An equal Dlfiribufion among Creditors, who equally gave a ge-
neral pcrfonal Credit to the Bankrupt, anxiouily provided for, ever
fince the AO: of 21 "Ja. i. c. ig.
It was thought mifchievous, to fufFer Priorities to be gained by
fecret Liens-, as * by Judgment, Statute, Recognizance, Bond, Spe- » j^.
cialties. Attachments by Cufiom in London or elfewhere, AlTign-
ment of Debt to the -f- King's Debtor. Unlefs they took out Ex- t § "'■
ecution, thefe All equally gave a perfonal Credit to the Bankrupt,
and trufted bim to manage his Effects.
Conveyances of perfonal Chattels by way of Security, where Pc/^
Jtjjion was left * with tbe Bankrupt, fell within the fcime Reafon. • § u.
Land is held, W/Ziot// Perception of the Profits, bv the Title.
But there is no Hold of Good', which the Mortgagor is allowed
to poffefs and difpofe of. Therefore, by a -f- Claufe in the fame f § «w
A(S, any Priority by fuch fecrei h\e.n is alfo taken awayj and,, as
fuch Mortgage equally gives a general Credit, He is levelled with
the other Creditors.
But, if a Bankrupt may, jufb before he orders himfelf to be de-
nied, convey j4U, to pay the Debts of Favourites ; the worfl and
the moft dangerous Priority would prevail, depending merely upon
the unjufh or corrupt Partiality of the Bankrupt.
A * Cafe lately happened, where a Conveyance calculated to * CnyMtr,
poftpone one Creditor to the reft, was held an Adl of Bankruptcy, bankrupt.
It came on before Ld. Hardcwicke, the late Ld. Chancellor, at PoorTand
Lincoln's-Lin Hall, -{- One Gayner, a Trader, had made an Affign- others.
ment on the jth o\ Jufie 1755, of all his Effeds, Goods, Stock ''^^J,*^ ^"'^
in Trade, and Book-Debts, (Except Houfehold Goods, Watches, '^^'
Plate, Bills of Exchange, Inlanli Bills, Promiftbry Notes, and Cartl
then by him,) to Truftees, in Trufl to pay themfelves and all the
reft of his Creditors, except Foord the Petitioner. But the Truftees
declined to adt under this Aftignment; He executed another, on the
9th of ^'^■'^f ^7SS'- Wherein the Truftees were to pay themfelves,
and all the Creditors mentioned in a Schedule-, (in which Schedule,
the Petitioner was not included:) And in this fecond Affignment,
a large Parcel of Ginger, as well as the Things above-mentioned,
were excepted.
The Petitioner infifted that he alone could choofe Aftigneesj fincc
the other Creditors claimed under the AJjignment.
Ld. Hardwicke was clear, " that the executing the Deed of the
" 9th oi June was an ^^ of Bankruptcy." And all that heard
6 F his
478 Hilary Term 31 Geo. 2.
his Determination, were of the fame Opinion: And every Body
concerned acquiefced in it. Whereupon the Creditors mentioned
in the Schedule, confented to wave all Benefit or Advantage under
that Affignment; and all proved their Debts, in order to receive an
equal Dividend with the Petitioner: And the Creditors proceeded
to a Choice of new Aflignees.
The Framers of this Deed executed by Gayner, took for granted,
" that if it had been a Conveyance of all his Effedts, it muft be
" bad;" and therefore they colour ably excepted Parts. But the
Contrivance did not prevail, even fo far as to bear an Argument;
or to be thought, by any Body, worthy of a Trial.
There is a great Difference between the Conveyance o{ All, and
of a Fart. A Conveyance of a Fart may be public, fair and honeft:
As a Trader may ///; fo he may openly transfer many Kinds of
Property, by way of Security. But a Conveyance of all, muft
either be fraudulently kept fecret; or produce an immediate abfolute
Bankruptcy.
It has been argued, " that after a Rfolution taken by a Trader,
' *' to commit an Adl of Bankruptcy, the Trader fo refolving to be-
*' come Bankrupt, might lawfully prefer a juft Creditor by convey-
" ing Fart of his Effeds, to fatisfy that Creditor's Debt."
It is not neceffary to determine that Queftion, in this Caufe; for
here the Conveyance is of all: And therefore I will only fay,
that no fuch Propofition is yet eflablifl?ed; much lefs, in the Extent
whereto it has been urged.
• r. Lucas The Cafes mentioned, were * Cock v. Good fellow ; -f Jacob v.
^^9- Sheppherd; X Small v. Dudley ; and Unwin v. Oliver.
2 Peert H'il-
linms, 430, In the Cafe o^ Cock v. Goodfelhiv, the Fadl did not give Rife to
t'z'peereWU-'^^Y Q^^^ou. An immediate Profpcfl: of a certain Bankruptcy
Hams, 427. was ?iot the Motive to what Mrs. Cock did. She was folvent at the
Time; and, that very Day, lent 40,000/. Eefides, her Children, to
whom She was Guardian and Truftee, were not upon the Foot of
Common Creditors: The Court of Chancery would have decreed Her
to place their Fortunes out upon Government or real Securities.
As to the Cafe of Jacob v. Shepperd, I have looked into the Re-
gifter's Book, upon this Occafion: And 1 have a Note of it, as ftated
by Ld. Hardwicke in the Caufe of Bourne v. Dodfon. And it
was this—
Mr. I'honws Leigh, (the Bankrupt,) who was a 7//r/^^_)'-Merchant,
by Deed dated the 8th oijune 1709, fold and coviVf^^^ particular
2 Goods
Hilary Term 31 Geo. 2. 479
Goods in the Hands of his Fadlors, to Mr. William Snelling; upon
Trufb to apply the Money arifing thereby, in Satisfadion, in the
firft Place, of a Debt of 1500/. due to SneUi?igh\miQ\i; and then
of a Debt of 155 1/. and Intereft, due to Geo. Morley; and out of
the Refidue, to pay fiich of the Bankrupt's Creditors, as He, with
Morky's Confent, Jljould direSl : And if there fliould be any Surplus
after the faid Snellitig'% and Morky's Debts were paid, and fuch
Sums for which they were Bail or Security for the faid Bankrupt,
the fame was to be paid to the faid Bankrupt his Executors, Admi-
niftrators and Affigns.
Afterwards, by Deed dated i6th December 1709, and by Deed
dated 2oi]:\ J atmary 1709, other Debts were appointed to be paid,
/Agreeable to the Power referved by the former Deed.
On the nth oi February 1709, Thomas Leigh failed, and com-
mitted an acknowledged Adl of Bankruptcy: And a Commiflion
was taken out, and his Eftate and Effeds afligned.
The Trufts of the Deed of the 8th o{ June 1709, were im-me-
diately, and openly carried into Execution : So that no Queftlon ever
did or could arife upon the * Claufe of 21 Ja. i. c. 19. But the Af- * § :t.
iignees brought a Bill againfl all the Parties claiming under the
Deed of the 8th of June 1709, and the fubfequent Deeds; "to
" have them fet afide; and to have an Account of the Money
" which they had received;" upon two Grounds; ift. That the
Deeds were obtained by Fraud and Impofition on Leigh the Bank-
rupt; 2dly. That they were an Impofition upon the other Creditors.
The Caufe came on to be heard at the Rolls, upon the 1 6th of
yu??e 1725. Sir Jo. Jekyll took time to confider of it; and ordered
all the Pleadings and Proofs to be left with Him: and upon the
17th of December, Sir jofeph gave Judgment. He thought thefe
Deeds could not he looked upon, or fet afide, upon the former
Ground, viz. as a Fraud upon the Bankrupt: But He declared the
faid Deeds to be fraudulent, and an Impofition upon the
Creditors of the Bankrupt; And decreed them to be Jet afde,
with Coils.
In making this Decree, He went upon right Principles; but
did not attend to it's being a Ba?tkrupcy, if it was really fraudulent ;
And that a Court of Equity could not decree it to be fraudulent,
unlefs it was fraudulent /?/ Z,(?w; in which Cafe, it would confli-
tute an A5i of Bankruptcy, of itfelf.
On the 6th o'i Aiiguji 1726, Ld. King, upon an Appeal, direded
an Iflfue at Law, to try, " Whether by the Execution of the Deed .
of
48o Hilary Term 31 Geo. 2.
" of the 8th of June 1709, Thomas Leighheczme a Bankrupt; or at
" any other, and what Time." The Jury found he became Bank-
rupt on I ith February iJo().
Upon the Equity referved, Ld. King ejlab)ifl:ed the Deeds; held
the Plaintiffs to be only intitled to the Surplus, after the Trufts in
the Deeds were performed; and decreed the proper Accounts againfl:
the Defendants, of the Money they had received, in Order to find
out that Surplus.
Many very obvious Obfervations occur upon this Cafe.
Sir Jofeph Jekylt was fo ftruck with the Objedlions of Fraud
from Preference, that He fet afide the Deeds, with Cofls.
Ld. King reverfed his Decree; becaufe no Deed made by a Tra-
der can be fraudulent in Chanc:ry, . which is not fraudulent in a
Court of LaiVj and an AB of Bankruptcy. Therefore He diredted
an Ifue.
There might be many Reafons, ivhy it was not fowid fraiuhdcnt^
upon the Trial. The Deed was executed the 8th of 'june, of fpc~
cific Goods; and was immediately carried into Execution. The Adt
of Bankruptcy was not till the iith of Februaty following: And I
fee np Suggeflion that in une, Leigh thought of committing an
Aft of Bankruptcy. Bcfides, one Ground upon which the Aflignee
brought his Bill, was " Fraud and Impofition upon the Bankrupt
" himfelj\ in obtaining the Deeds:" Tlierefore, moft probably, he
was frightened into giving this Security, by Threats of legal Dili-
gence againft him.
The Cafe of Small v. Oudley was determined very foon after; viz.
upon the 4th of December 1727. The beft Report of it, is in 2d.
P. Wms. 427: But it is no where fully ftated. I have a Copy of
the Decree from the Rcgifter's Book ; as follows —
On the 2\f\. of September 1720, Small^ (to accommodate Z)tf«/>/
and Jofeph Nercott^ Brothers, Goldlmiths and Partners, upon a
prtfling Occafion,) transferred to them 500/. S. S. Stock; upon
their engaging " to transfer to him the like Sum in the S. S. Stock
" in a Week or ten Days at fartheft," and giving a Note for that
Purpofe.
They fold the S. S. Stock for 1800/.
On the 29th of September 1720, they made the Afiignment of
their Share in a IVme-PartJierfiip with Oudley^ carried on folely iri
3 ^"
Hilary Term 31 Geo. 2. 481
Jms Name, (In which, they had Two Thirds, and Ouii/ey One
Third;) as a Security for transferring 500/. S. S. Stock; and re-
citing the Truth of the Cafe.
They, at the fame Time, afTigned two Leafe-hold Eftates to Small,
for the fame Purpofe.
Their Intereft in the Wine Trade was but 300/. And Oudley
had a Right to carry on the Trade till Chrijlmas 1723. The Bill
(which was againft Oudley, and againft the Affignee under a Com-
miflion iffued againft the Nercotts,) was not brought by Small, till
after that Time: But an IlTue had been direded in another Caufe,
to try " Whether the faid Nercotts were Bankrupts at the Time
" they executed an Affignment to Small, of a Leafe of certain Houfes,
" on the faid 29th of September 1720."
The above Fadts are admitted by the Anfwers ; no Fraud is fug-
gefted ; and they do not mention any Defire to have the Time of the
Bankruptcy tried over again.
Sir Jofeph Jekyll, in 2 Peere Wms. * gives ftrong Reafons againjl ♦ pa. 429. t«
the Decree He thought Himfelf bound to make, becaufe Ld. King^^^'
had juft eftabliflhed, " That a Deed by a Bankrupt could not be
" fet afide, as fraudulent in Chancery."
This Cafe too was wry particular. The Fraud was upon Small;
and not upon the Creditors: His Stock was to be replaced, in a
Week, or ten Days atfartheft, by the original Agreement. 1800/.
oi Small's Money, went to the Creditors: And this Security amounted
but to about 300/. So that the whole Tranfadion was beneficial X.o
the Bankrupt's Creditors, The S. S. Stock was got from Small,
with a View tofave the Nercotts from breaking. The Security wa& ■
o-lven, at the very time they were obliged to replace the 500/. S. 8,
Stock: and there was no Pretence xh^t Small afterwards permitted
them to continue one Moment in PoJJeJJion.
The Cafe of Unwin v. Oliver, * ^. 12 G. 2. is not entered in the * S/tpiti> and
Regifter's Book: But I have fcen a fuller Note of it, than was cited l^^^-";;
at the Bar. er «/, Affian-
ces of Mar-
It was an Aflignment of feveral Debts mentioned in a Schedule; gg^^'^rup;.
to indemnify his Sureties in a Recognizance. Martin 'U?iwin had Eojicr Term
been appointed Receiver of a Lunatic's Eftate: And the Plaintiffs '7 39-
became his Securities, by Recognizance, " that He (hould account
" for what He fhould receive under the Orders of the Court." Two
Years after, Martin Unwin, by Deed reciting " that 604/. was
i* due from Him to the Lunatic's Eftate," affigned to the Plaintiffs,
6 G feveral
482 Hilary Term 31 Geo. 2
«
feveral Debts mentioned in a Schedule annexed to the Afllgnment j
To difcharge the 604./. and to indemnify them againft this Security ^
which they had entered into for Him. x-^ Month after this Affign-
ment, Martin Unwin becam.e a Bankrupt.
The Aft of Bankruptcy was admitted to be a Month after the .
Affignment. No Queftion was made upon the Claufe in the "
21 Ja. I. c. 19. And .there was 710 Suggeftion, " tJiat tlie imn^e-
" diate Profpedt of a certain Bankruptcy was the Caufe of the Af- .
*' fignment."
'■ Lord Hardwicke held that it could not be fet afide as frau-
dulent, ij2 Chancery; unlefs it was fraudulent in a Cciirt of Laiv '
and an Adt of Bankruptcy. And He held " that Indemnity was a,!
■** good Confideration :" Of which, there can be no Doubt.
But 2dly. (to confider this Tranfaftlon, in refped of the, ilf^^w)
Sappofe a Bankrupt could, after a Rcfolution to commit an Adl of
Bankruptcy, prefer one of his Creditors, by an Affignment of All-, '
(which We think He cannot;) Yet in this Cafe, the Means to at-
tain fuch Preference were Jrmidulent. A falfe Credit is induftrioiiOy
" ' given the Bankrupt, upon a fecret Tniji " to deliver PoffefTion fo as
" to avoid the Claufe in tl^e 21 Ja.!. c. 19."
3 &. 8t. «. The fecond Argument of Fraud in Twyne^s Cafe, * is — " The
" Donor continued in Pojfeffion, and ufed them as his own ; and by
". Mems thereof, traded with othefs, and deceived and defrauded
"'them."
But, three Cafes have been cited to {hew, " That upon a Mort- '
gage of Goods by a Trader, the Leaving Poffeffion does }wt infer
Fraud ; though it may, upon an abfohtte Sale. Thefe are the Cafes '
of Meggott V, Mills et al\ i Ld. Rayni. 2H6 ; Bucknal et at v. Rot- '
Jlon, in Precede?2ts in Chancery 285 j and Ryal v. Rowls, in Chancery,
2jih ya7iuary 1749.
The firft is a diredl Authority to the cojitrary. For Ld. Ch. J.
Holt fays, " If thefe Goods of Wilfon's had been afllgned to any
"other Creditor, the Keeping of the PofTeffion of them had made
" the Bill of Sale fraudulent, as to the other Creditors." But He '
very juftly diftinguifhed that Cafe j and feems to have confidered
the Landlord (who lent his Tenant Money to buy the Good?, to .
- furnirti his Houfe,) as the original Owner of the Goods.
Bucknal et al' v. Roifton was net a Cafe of Bankruptcy, but upon
the Courfe oi' Adminijlration of Jljfets, (where fecret Liens give .-
4 Priority j) .
Hilary Term 31 Geo. 2. 483
Priority;) and is exprejly * dijiingmft)ed, by my Lord Chancellor, * ^- /''•«^-
ffom the Cafe of a Batikrupf. Befides, the Poffeffion was there a "''^, '" °g' •
Truft under an Authority to negotiate and fell j and could not be Where Lord ,
meant to give any fa/fe Credit. Chancellor
" J •^ -J admus, " that
in Cafe qf a
In the Cafe of Ryal v. Rowls, the Act of Bankruptcy upon which Bankrupt/ucR
the Commiffion proceeded, was long after the Mortgages ; the Af- ^l^^^^\^°uid
fignees did not ivijlj to carry it farther back ; and therefore ?iever make the Sale
cbjeSied " that the Bankrupt's keeping Po0effion made the Mort- ^o'"^' ag^'n^^
■*' gages fraudulent:" But if they had, in that Cafe.thp Prefump-
tion of Fraud would have been difproved. The fame Fund was
mortgaged fix Times over : They All trufted to their Conveyances,
(like Mortgages of Land,) as a Title, without Poffeffion ; though a
Bankruptcy Iliould happen. They mijlook the Law ; but did not
evade it.
Whereas here, the Parties manifeftly were aware " that Poflef-
" fioa vvas iiecejfary :" The folemn Determination in the Cafe of
Ryal V. Rowh had made that Point notorious. Poffeffion was here
left, upon a fecret Tru/i " to deliver it fo as to avoid the Claufe in
"21 Ja. 1. c. 19." Which, iji FaSl, was accordingly done.
■ Two General Objedions, from Inconvenience, have been urged : Objeaions—
Which deferve an Anlwer.
ift. That it will hurt Credit, if Traders may not raife Money ift Ohjection.
.by mortgaging their Goods without quitting PofTeflion,
The Policy of the Bankrupt Law introduced by 21 Ja. i. <r. 19. Anfwer,
and followed ever fince, is to level KW Creditors, who have not ac-.
tually recovered Satisfadion, or got hold of a Pledge which, the
Bankrupt could not defeat.
A Trader is trufted upon his Character, and vifible Commerce :
That Credit enables him to acquire Wealth. If by fecret Liens, a
few might fwallow up All ; It wou'd greatly damp that Credit.
If he mortgages and parts loith the 'Poffeffion of Goods, the World
has N:-tice : But, to give Priority from mortgaging Goods, of
which the Trader is allowed to ad: and appear as the Owner, would
be enabling him to impofe .upon Mankind ; and draw them in by
jfalfe Appearances,
No Injuflice is done to fuch Mortgagee ; becaufe he really trufts
'Only to the general Credit of the Trader : The Conveyance is not
.againft him^ but againft his other Creditors.
Mortgar.es
484 Hilary Term 31 Geo. 2.
Mortgages of Land are checked by the Title : But where Pof-
feflion is not delivered. Goods may be mortgaged a hundred Times
over, and open a plentiful Source of Deceit.
jd Objection. The Other General Objedion from Inconvenience was, " That
" a fraudulent Deed is an A 61 of Bankruptcy, upon the Face of it;
" and can never be purged"
I am forry the Phrafe has crept into Ufe : Becaufe it confounds
the Idea which ought to be annexed to it.
Every equivocal Fadl may be txplaincd by Circumjlances. If a
Trader orders himfelf to be denied^ Circum fiances may (hew, that
he did not do it to avoid Payment ; but on Account of Sicknefs, or
particular Bufinefs. So if he leaves his Houfe, Circumftances may
iliew it was not, to abfcond.
Of all the equivocal Fads which can amount to Ads of Bank-
ruptcy, Deeds are the moft open to be explained by a Variety of
Circumftances. Hardly any Deed is fraudulent upon the mere
Face of it. It is a good Sale, if the Confideration be true ; fraudu-
lent, if falfej Good, if Poffeffion immediately follows ; bad, if it do
not : Nay, the not Taking Foffefjion, being only Evidence of Fraud,
may be explained.
The Vfe to which a Deed is applied, (hews quo animo it was
made. Leaving Poffeffion till after the Ad of Bankruptcy, in the
Cafe of Ryal v. Rowis, (hewed there was }20 Fraud ; and tfiat they
trufted to the Conveyance.
In this Cafe, the Confultation and Delivery of Poffeffion upon
the nth of November, proves the fecret Trujl, in Confidence of
which, the falfe Credit was given the Bankrupt before : It (hews
that Evading the Claufe in 21 fa. i. c. 19. was in the View and
Contefnplation of the Parties. There was tio other Rcafon for deli-
vering Poffeffion on the i ith o{ November : Becaufe no Default had
happened, which gave De Mattos more Pretence to enter therk, than
bejore.
Under all the Circumftances, We are of Opinion That thFs Con-
veyance of the Bankrupt's iiohole Subftance to De Mattos, though by
way of Security, and for valuable Confideration, \% fraudulent and
an A£l of Bankruptcy.
The Determination here, is upon the Affignment of All.
Per Cur. The Pofea muff be indorfed, " That Richard
" Slader became Bankrupt on the z^d of October."
2 Rex
Hilary Term 31 Geo. 2. 485
Rex verf. Wakefield et al'. wedmfday stk
"^ February
1758.
Mi?. Harrifon had obtained a Rule, in Michaelmas Term 1755.
to (hew Caufe Why an Order of two Juftices, made upon
feveral ^takers, (for Payment of Tithes under the Value of Ten.
Pounds to the Curate of a Chapel) and confirmed at the Seffions,
upon an Appeal from it, fliould not be quaflied ; together with the
Order of Seffions confirming it. See 7, 8 ^^F! 3. c. 34. and 1 G. i.
St. 2. c. 6. § 2.
Mr. Norton, in Michaelmas Term laft {■viz. on 26th November
1757.) fliewed Caufe. He gave up the Order of Seffions, as not
maintainable : But defended the Original Order.
To this Original Order, Mr. Harrifon had taken 4 Exceptions :
Which were now fupported by Him and Mr. Clayton. Thefe Ex-
ceptions were as follow.
I. It is z joint Order made on different Perfons, for diftinEi
Non-Payments of different Tithes : Whereas there ought to have
been a dijlinSl Order on Each. In i Strange 471, Between the
Paripes of Chewton and ComptoJi-Martin, the Removal of two dif-
ferent Families of Paupers by One Order, was holden bad ; Though
the Parifhes were the fame.
2d. The Title is in ^eflipn : Therefore the Juftices have 729
Jurifdi^ion. The Exception in the Adt of i Geo. i. Stat. 2. c. 6.
§ 2. is " Ufilefs the laities of fuch Dues Tithes or Payments fiiall be
" in Queftion." And thefe Words " Unlefs ^c." extend to this
whole Claufe ; and are not confined to the granting a Certiorari only.
And this Fadt, of the Title being in queftion appeared, as Mr.
Harrifon alledged, upon the Granting the Certiorari, in the pre-
fent Cafe.
3d. Non conflat that the two Juftices who made this Original Or-
der, are " neither T atrons 7ior interested in the Tithes." But
1 G. 1. f. 6. § 2. requires that they fliall be neither One nor the Other.
Now they ought exprefly to aver onA-JJoew (negatively) " that they
" are not :"' Or elfe they have no Jurifdidlion, by the very Words
of the Aft ; The Jurifdiftion being given to " Any two or more
{[ Juftices ^c. Other than fuch as &c:\
6 H 4th.
486 Hilary Term 31 Geo. 2.
4th. It does not fiiffidently a/certain and (late what is due and
»r. 7, 8/^^.3. payable by the Defendants, or at leaft, * for what, the refpeftive
<■ ^^■ h 4- Sums are due, -|- One Sum is " i j. 6 d. being due to the Curate ;"
Aft does not not faying for ix)bat. Another is, " being the Value ol their an-
require the " cient cuftomury Payments". Another is — " 45. being anticnt
tThi'sObjec- " ciijlomary Payments."
tion is not
fupported by fhis Order was made on the Adt of i G. i. Stat. 2. c.b. § 2,
' ^ ' which extends the 7, 8 W. 3. ^r. 34. § 4. to all Payments to
Minifters or Curates officiating in Churches or Chapels. {V. that
Statute of 7, '^W. 3. c. 34. § 4 : which extends only to T^itbcs and
Mr. Norton contra anfwered thefe Objedions. The Subftance
of his Defence againft them was fully fufficicnt, if true : For He
denied the ill:, to be material; And denied the three lafi:, to be
well founded.
The Matter was adjourned to Monday 28th November.
Then, this Motion being mentioned again, —
The Court inquired " Whether the Return of the Certiorari
" was filed."
And Lord Mansfield fald He bad called for, and read the
Affidavits made for obtaining the Certierari, and upon the (hewing
Caufe.
Mr. Juft, Denison mentioned a Cafe of Rex v. Fumes, B. R.
H. 6 Geo. I. upon a Certiorari to remove an Order made upon the
Ad: of 7, S ir. 2- c. 6. for Payment of fmall Tithes : Where Ld.
Ch. J. Pratt thought that where the Right li-as in quefiion, fuch
Cafes were never intended to be the Subject of that Afl: of Parliament.
He faid, this was only fpoken from a Note, which He had feen :
» It is right But it fhould feem to be right * and true ; and the rather, from a
and true: At Q^fg o^ Rcx V. Fiimefs being mentioned in i Strange 264. where an
MS.' NmJ'of Order for Non-Payment of fmaJI Tithes made on 7, 8 /F. 3. c. 6.
the fame Cafe waS quafhed.
to the fame
ftrongeri(For Adjoumcd to the prcfeut Term.
mine fays
TheDern "'^^'^^ Mansfield now delivered the Opinion of the Court.
of (he Statute
was only to f^e begun with flating the two Ad:s of 7, 8 ^. 3. c. 34. (§ 4.)
Kenicdy^for^ ^"d I G. I. Stat. 2. c. 6. (§2.) The former relates only to great
fmall Tithes and fmall Tithes and Church-Kztss ; and is temporary. The latter
where the j-j^kcs it perpetual and extends it to " any Tithes or Rates, or any
greed."j 4 " Cultomary
Hilary Term 31 Geo. 2. 487
<<
Cuftomary or other Rights Dues or Payments belonging to any
*' Chutch or Chapel, which, of Right, by Law and Cuftom ought
" to be paid, for the Stipend or Muintenanance of any Minifter or
*' Curate officiating in any Church or Chapel." And Both Acts
direct " that the Proceedings fhall not be removed into any other
" Court, unhfs the 'Title fhall be in Queftion."
It is upon the laji Act, that the prefent Order was made.
A Certiorari has iffued, to remove the Order into this Court ;
And it came on, upon Exceptions to the Order. Both Sides made
very material Objections. — One Side, to the Order; for that the
Juftices had no Jurifdiction, becavje the Title loas in Queftion :
The Other, to the Certiorari ; for that no Certiorari could iflue,
by the exprefs Provifion of the Adl, to remove the Proceedings from
before the Juftices into any other Court, becaufe the Title was not
in queftion.
The A(ft was made in Favour to, and for the Eafe and Benefit
of Quakers j and to fave them from troublefome and expenfive
Profecutions : But it iiever tneant, that a mere Scruple of theirs, or
an OBSTINATE With-hoUing of the Tithes fhould be any Hinde-
rance to the Matter's being determined by the Juftices of Peace.
This would have fruftrated the very Intention of the Aft : Which
meant to give this Jurifdiftion to the Juftices in that very Cafe ;
where the real Right ami Title to them ftiould not be in Difpute
between the Parties.
Then His Lordftiip direfted the Affidavits on which the Certi-
orari was granted to be read.
It was therein fworn on the part of the Defendants, " That the
" Defendants controverted the Title to the Tithes, before the
*' Juftices ;" and alfo, " That the Title to the Tithes was then^
*' and at the Time of making the faid Affidavit, really in ^efiion."
The Juftices had Notice to fhew Caufe againft the Certiorari.
On ftiewing fuch Caufe, Five old Inhabitants of the Chapelry
fwear by their Affidavit " That fuch cuftomary Stipends or Pay-
" ments' have aliimys been paid to the Curate by the Land-Holders,
*' imthoid any Sort of Scruple or Objeftion except lately by the
fakers :" And no Other Perfons difpute it. And thefe 5 Perfons
alfo fwear " That they believe them to be due ; And that the former
" Owners of thefe very Lands (which had been purchafed about 4
** Years ago, by thefe Quakers,) did ^ ay for theniy as other Perfons
. " did,
488 Hilary Term 31 Geo. 2.
" did, in the faid Chapelry >" And thefe Quakers purchafed the
Lands as fubjeB to fuch Payments.
-Thefe are the Affidavits upon which the Certiorari was
granted.
Now if this General Allegation " of the Quakers Controverting
" the 'Title," and the confequential AJfertion " that the Title was
" in QUESTION," (without any further Particulars, or fhewing at
all upon what Foot they controverted the Payment) fhould be
efteemed a fufficient Ground for removing the Orders, It would
put a total End to thefe Adls of Parliament, and evade the very De-
fign and Intention of making them.
For the Quakers might pretend that they are obliged in Con-
fcience to refufe or controvert the Payment of thefe Demands ; and
confequently, to queftion and deny the Right to receive them. Now
that is the ve?y thing the Ads mean to provide a fummary Remedy
for. The Intention was, that mfiich Cafe, the Juftices fliould make
an Order to compel them to pay.
Their Affidavits are general, " That they controverted the Ti-
" tie J and that it was really in queftion."
Whereas by the Affidavits made by the 5 old Inhabitants, it is
very plain that the former Owners of thefe very Lands have always
paid; and that thefe Quakers, who are the fubjedl of this Order,
have no Pretence to difpute it, upon any other Foot than their own
getieral Scruple to pay any Demands of this Nature : Which thefe
Ads are, for their own Eafe and Advantage, calculated to compel
them to do, in a Method the moft getitle and convenient for them-
felves (who Icruple to pay without Compullion.)
We are All of Opinion, as to the Merits of the Cafe, that the
Title is }jot Jo controverted, or fo in Qiieftion, as that the Juftices
can be precluded from Jurifdidion, or their Order be regularly
and properly removed into any other Court.
And We are All of Opinion That the Rule for the Certiorari
having been made abfolute, and the Return thereto having been
filed, ought not now to ftand in the Way and prevent our Coming
at the Real Juftice and Merits of the Cafe. For if the Certiorari
iffued improvide. We can Order it to be fuperfeded ; and the Return
to be taken off the File.
There
Hilary Term 31 Geo. 2. 489
There have been * feveral Inftances of this — (^) One was where * ^ (""rpo'e
an Order of two Juftices was appealed from ; and before the Time Cafes^lTi^
when the Appeal fhould in Courfe have come on at the Seffions, a Rrx v. E/iz.
Certiorari was brought to remove the Order : And, bccaufe the ^''"f^""'' ^«/-
Certiorari was brought before the Time of hearing tJic Appeal was And f^i j?,v'
come, xhc Certiorari was quaflied, and the Return taken off the v. Co-jen,
File. K:'^--
The {!)) Other was a Certiorari to remove an Indidment from
the Old Bailey : And it appearing to this Court, that 'They could not
give Judgment, but that the Sefjions of Oyer and Terminer at the
Old Bailey ought to do it ; the like Method was taken, And it was
fent back to the Court below, for them to pronounce the Judgment.
Therefore, upon this Cafe, We are All of Opinion That the
Writ oi Certiorari be fuperfeded {^qnia improvide enianavit ;) the
Return taken off the File ; And the Order remanded.
His Lordfhip added this Hint, to be obferved in future Cafes of
this Sort ; viz. That upon All Orders of this Kind, the great
and material Point muft: be " Whether the Title to the
*' Tithes was really in qucftion, or not ;" and ought to be
" determined, before the Certiorari ifliies.
Note —
Upon a fubfequent Motion, on Behalf of the Quakers, to dif-
charge their Recognizance, for that the Order was not af-
firmed ; there was a great Litigation " Whether the Qua-
" kers fhould pay any Cojls, or not ; And if any, then to
" what Point of Time." The Difcuflion of which Que-
ftion, and it's Determination, vide poji. pa.
T
Godiii et al' verf. London AfTurance Company. 7hurfjay 9th
•^ '^ ■' February
HIS was a Point referved at Niji Prius, before Lord Mans-
field, ^X Guildhall.
1758.
The Queftion, ftrongly litigated there, was " Whether the
" Plaintiff" ought to recover his Whole Lofs, or only Half j" It
being objected " that there was a double Infurance."
A Verdidl was found for the Whole, fubject to the Opinion of the
Court : And if the Court fhould think, upon his Lordfhip's Re-
port, " that the Plaintiff, by Law, ought to recover for Half his
" Lofs ow/)'," then the Verdict to be entered up as for Half.
6 I It
_49o Hilary Term 31 Geo. a.
It was argued, Yeflerday, by feveral Counfel on each Side : And,
this Day,
Lord Mansfield delivered the Opinion of the Court.
He begun with ftating the Facts, as they appeared to Him at the
Trial : Which were Thefe —
Mr. Meybohm^ of St. Peterjburgh, had Dealings with Mr. Jmy-
and and Company, oi London-, Who often fent Ships from London^
to Mr. Meybohm at St. Peterjburgh.
Meybohm, as appeared by the Evidence, was indebted, on the
Balance of their Accounts, to Amyand and Company.
Amyand and Company fent a Ship, called the Galloway, Stephen
Baker Mafter, to Mr. Meybohm at St. Peterjburgh, to fetch certain
•Goods.
Meybohm fent the Goods; and promifed to fend the Bill of
Lading by the next Poft, but never did.
Afterwards, 'viz. in Augiijl 1756, Amyand and Company got a
Policy of Infurance from private Infurers, for 11 00/. on the Ship.^
"Jackie, and Goods, at and fro7n London to St. Peterjburgh, and at
and from thence back again to London ; which Policy was figned by
feveral private Underwriters, quite different Perfons from the prefent
Defendants: And of this Sum of 1100/. thus underwritten, 500/.
was declared to be on kI Parts of the Ship ; And the remaining
600 I. to be on Goods.
Between 26th Aiigufl and 28th September 1756, (Both included,)
Mr. Amyand infured 800 /. more, with other private Infurers :
And this latter Infurance was upon Goods only ; and was only at and
from St. Peterjburgh to London.
On 28th, 29th and 3cth of OBober 1756, Mr. Amyand infured
900 /. more, with other private Infurers '. Which laji Infurance was
on Goods only, at and from the Sound to London.
So that the whole Sum thus infured by Amyand and Company,
was 2800/. Of which 2800/. the Sum of 2300/. was on Goods;
the remaining 500 I. was on the Ship.
Several Letters being given in Evidence, It appeared that Meybohm
wrote from Peterfiurgh, on 7th September ly^b, (the Date of his
firfl: Letter on this Subiedt,) to Amyand and Company ; and men-
tioned what Goods He fliould fend to them, referring to the In-
4 voice
Hilary Term 31 Geo. 2. 491
voice for the Particvilars; and direfted the?7i to get Infurance thereon,
and to place the Goods and the Infurance to a particular Account
which he named in his Letter; in which, He alfo fpecified fome
•Iron, which was for Mr. Amyand'% own Account.
This Letter Mr. Amyand afterwards received, (probably, about
the 27th of Ociober :) And in Confequence of it, made the Infurance
accordingly, upon the 28th, 29th and 30th of the fame OSiober^
as before mentioned.
Meybohm, having fliipped the Goods, indorfed the Bills cf Lading
■to One Mr. John Tumefz in Mofcou>, (the Plaintiff, in Effecfl, in
the prefent Aftion :) Who, on the 7th OBober 1756, wrote to his
Correfpondent Mr. XJhthoff, here in Londoti, " to injure thefe Goods."
In this Letter, He defires Mr. Uhthoff to ittfure the whole, " that
" He {T'amefz) might be fafe in all Events ; For He fufpeded that
" thefe Goods were intended to be confign.ed by Meybohm to fome
" body elfe, and perhaps might be injured by fome other Perfonsi"
And He fays, They were transferred to Him, in Confideration of
his being in Advance to Meybohm more than their Amount. This
Letter from Mr. Tamejh, with thefe Diredions " to infure," was
received by Mr. Vhthof\ on the 15th of November 1756.
Mr. Uhthoff accordingly applied to the Defendants, the London
AfTurance Company ; and difclofed to them, at the fame Time, All
thefe Particulars : And they, upon the i6th oi November ij $6,
• AFTER beitig thus apprised " that there 7night be another In-
** furance," made the Infurance now in queftion, for 2316/. on
the Goods, at and from the Sound to London. The Goods were
lofl, in the Voyage.
Mr. Uhthof's Infurance was made by the Plaintiff's Godin Guion
and Company, who are Infurance Brokers : And they declare That
this Infurance (which is expreffed to be made by them, " as well
" in their own Names, as for and in the Name and Names of all
*' and every Other Perfon or Perfons to whom the fame doth may
"" or fliall appertain, m Part or in all,") was made by Order of
Henry Uhthoff Efq. This Declanition is indorfed upon the Policy ;
and is dated j8th November 1756.
There is no Doubt, as to the Value of the Goods, or as to the
Lofs of them. And it is admitted by the Defendants, " That the
" Plaintiff ought to recover Half the Lofs, from The??i :" But they
fay, they ought to pay only Half, not the Whole of the Lofs. So
that the only Queftion is
" Whether the Plaintiff is entitled, upon the Circumftances of
■" this Cafe, and upon the Fads I have been ftating, to recover the
" Whole
492- Hilary Term 31 Geo. 2.
" Whole hok from the prefcnt Defendants ; Or only the Half
" of his Lois from T^hcvi, and the Remainder from the Undcr-Wri-
" ters of Mr. Aiiiyand\ Policy."
The Verdict is found for the PlaintifF, for the Whole : But it is
agreed to be fubject to the Opinion of this Court, upon the Queftion
I have iull mentioned.
Firfl: — To confider it, as between the Tnfurer and Injured.
j4s betwetn them, and upon the Foot of Commutative Juflice
merely, there is no Colour why the Infurers fliould not pay the In-
fured the Whole : For ihey have received a Frcmium for the ivhole
Rifque.
Before the Introduction of Wagering Policies, It was, upon Prin-
ciples of Convenience, very wifely eflablifhed, "That a Man
" fhould not recover more than He had lofl." Infurance was con-
fidered as an Indemnity only, in Cafe of a Lofs : And therefore the
Satisfaction ought not to exceed the Lofs. This Rule was calculated
to prevent Fraud ; Left the Temptation of Gain fl:iould occafion
unfair and wilful Lolfes.
If the Infured is to receive hut One Satisfa<ftion, Natural Juflice
fixys that the feveral Infurers fliall All of them contribute pro rata,
to fatisfy that Lofs againft which they have All infured.
No particular Cafes are to be found, upon this Head : Or, at
leail. None have been cited by the Counfel on either Side.
Where a Man makes a double Infurance of the fa7ne Thing, in
fuch a Manner that He can clearly recover, againft feveral Infurers
in diftindl Policies, a double Satisfaction, The Law certainly fays,
" That He ought not to recover doubly for the fat}ie Lofs, but be
" content with One fingle Satisfi^icn for it." And if the fame
Man really and for his own proper Account, infures the lame Goods
doubly, though both Infurances be not made in his own Name,
but One or Both of them in the Natne of another Perfon, Yet that
is juft the fame Thing : For the f;?ne Prrfon is to have the Beneft of
both Policies. And if the Whole fliould be recovered from 0?ir, He
ought to ftand in the Place of the Infured, to receive Contribution
from the Other, who was equally liable to pay the Whole.
The A(ft of 19 G. 2. c. 37. (made to regulate Infurances, and
for Prevention of wagering Policies,) exprefsly prohibits the Re-
affuring, (after having already infured the fame Thing;) JJjtlefs the
former AfTurer fliall be infolvent, or become a Bankrupt, or /lie:
V. S 4. And it provide^ * that even in thofe Cafes, it fliall be exprejfed in the
3 Policy
Hilary Term 31 Geo. 2. 493
Policy " to be a Re-j^JJlirance." So that, here, \^Mr. Tamefz had
Himlelf made a fecond Afl'urance upon the farne Goods, and was
to have had the Benefit of both Alturances Kimfelf, it had been
within this Ad.
But ifT'amepz was not to have the Benefit of both Policies //; all
Events, then it can never be confidered as a dcuMe Policy.
It has been faid " That the Jndorfement of the Bills of Lading OLjeaion.
" tramf erred Meybohm's Intereji in all Policies by which the
" Cargo afTigned was inlured; And therefore Tamejzh^^ ^ Right
" to Mr.jlmaiid's Policy i" and " that T"^//7ry^;, being the Affignee
" of Meybohm, is the Cejluy qui Truji of it, and may recover the
" Money infured;" And even " that Me may bring Trcver^ or
" Detinue, for the very Policy itfelf:" And it is urged from hence,
" That He either will or may have a double Satisfaction for the
" fame Lofs."
But, allowing " that by the Indorfement of the Bills of Lading Anfwer—
*' and afligning the Cargo to Ta}7iefz, He flands in the Place of
" IVIeybohm in refped of i6/j Infurances;" Y^i Mr. Arnyand has
an Intereft of his own, and had adually infured the Ship and Goods,
and the Sum of 1900/. (upon both together,) prior to any Direc-
tions or Intimation received from Mr. Mcybohm, " to infure for
" Him." Various People may infure various Interests, on
the fame Bottom: (As one Perfon, for Goods; another, for Bot-
tomree, &c.) And here, Mr. Arnyand had an Intereft of his own,
diftindt from the Intereft of Meybohm: He had a Lien upon thefc
very Goods, as a Faftor to whom a Balance was due. And He
had the fole Intereft in the Ship: Which was a Part of the Things
infured by Him. It is far from appearing, " that even his lafi: In-
" furance (in OBober) was made on the Account of Meybohm, or
" as Agent for Him." So far from it, Mr. Arnyand infifts upon it
for his own Benefit, (as He exprefsly declared at the Trial,) and ab-
folutely refufes to give it up or to fuffer his Name to be ufed by the
Plaintiff; though He was a Witnefs for the Defendants, and was
produced by them, and inclined to ferve them. So that the Foun-
dation of this Argument, urged by the Defendant's Counfel, fails
them; And there is, in Reality, Nothing to fupport it.
But even fuppofing " that Mr. Arnyand had made his Infurance,
" not upon his own Account, but as Agent or Faclor for Mr. Mey-
" bohm, and upon the Account cf Meybohm" Yet, even then, Ta-
mefz can never come againft Amyand'i, Underwriters, or come at
Amyajid's Policy, to his own Ufe. For Mr. Arnyand, the Fador
for Meybohm, has PoJJ'efiion of the Policy, and appears to have been
a Creditor oi Meybohm' ^ upon the Balance of Accounts between them
6K at
494 Hilary Term 31 Geo, 2.
at the Time when He made^the Infurance: And I take it to be
now a fettled Point, " that a Factor, to whom a Balance is due,
" has a Lien ttpon alt Goods of his Principal, fo lo7ig as they re-
" main in his PoJj'eJJion." Kriizer et al, v. Wilcox et al. was a Cafe
• \zx\\Uaych in Chancery upon this Head. It came on firft, * before Sir 'John
'"^''^* Strame x\\t\\ Mafter of the Rolls: Who decreed an Account: and
direded Allowances to be made for what the Fadtor had expended
on Account of the Ship or Cargo j and referved All further Direc-
tions, till after the Mafter's Report. It came on again, afterwards,
for further Dircdtions, after the Mafter's Report, before the Lord
Chancellor; who was attended by four eminent Merchants, who
were interrogated by Him publickly. After which. He took Time
to confider of it; And on \^ February lysS^ decreed " that the
" Fador has a Lien on Goods configned to Him; not only for in-
" cident Charges, but as an Item of mutual Account for the general
" Balance due to Him, /o lo?7g as he retains the PoJJeJJion: But if
" he parts naith the BojJeJJlon of the Goods, He parts with his Lien-,
" becaufe it can not then be retained as an Item for the general Ac-
" count." And tliere was another Cafe, in the fame Court, ofGar-
+ 2d June diner v. Coleman, a few -f- Months after; in which, the former Cafe,
'755- determined as I have mentioned, was confidered as a Point fettled:
And this latter Cafe, of Gardiner v. Coleman, was decreed agreeably
to it. So that Mr. Amyajid, even confidered as Fa'^or or Jgent to
Meybohm, and as making the Infurance upon Meybohm's Account,
is yet intitled to retain the Policy; Meybohm being indebted to Him
upon the Balance of the Account between them: And He has a
Lien upon the Policy, mohiljl it continues in his Pojejjion. There-
fore, even in this View of the Cafe, Mr. Tainejz muil firft have
paid to Mr. Amyatid the Balance of his {Amy and' %) Account, before
he could have gotten that Policy out of Mr. Amyand's Hands: And
confequently, Mr. Tatnefx was very far from being intitled to the
Benefit of it, as a Cejhiy qui trujl, abfolutely and entirely.
But if the Queflion " Whether Tamefz could take Benefit of Mr.
" Amyani% Policy," were doubtful; Yet, here, 'tamefz infured the
Goods with the Defendants, exprejsly under the Declaration of his
Sufpicion " that there might have been a former Confignation, and
*' fome former Infurance made upon the Goods by fome other Per-
" fon;" But He defired to infure the Whole, for his oian Security:
And to this, the Defendants agreed; and took the whole Premium.
Mr. Amyand infifted upon his Right to the whole Benefit of his own
Policy, when He was examined as a Witnefs; and is now litigating
it in Chancery. It would neither be jufl nor reafonable, that Ta-
mefz (hould only recover Half of his Lofs from the Defendants,
and be turned round, for the other Half , to the uncertain Event of a
long and expenfive Litigation. I do not believe there ever will or
can be any Recovery by Tamefz or thofe who ihall fland in his Place,
^ againfl
Hilary Term 31 Geo. 2. 495
againft Amyand's Underwriters. However, if thofe Underwriters
are liable to contribute at all, the Contribution ought to be amongft
the feveral Infurers themfelves: But Tamefz, the Injured, has a Right
to recover his Whole "Lok from the Defendants, upon the Policy
now in Queftion, by which Tkey are bound to pay the IVhole. For
though here be tnsoo Infurances, yet it is not a double Infurance:
To call it fo, is only confounding Terms. If Tamefz could recover
againft both Sets of Infurers, Yet Fie certainly could not recover
againflthe Underwriters oi Amy and'?. Policy, iv'tthout fome Expe'nce;
nor without alfo firfl paying and reimburfing to Mr. Amyand the
'Premium He paid, and alfo his Charges. This is by no Means
within the Idea of a double Infurance. Two Perfons may infure
two different Interefts; Each, to the whole Value: As the Mafter,
for Wages; the Owner, for Freight Z^c. But a double Infu-
rance is where the fame Man is to receive tu'o Sums inflead of One,
or the f;\me Sum twice over, for the fame Lofs, by reafon of his
having made two Infurances upon the fune Goods or the fame
Ship. Mr. Tamefz is intitled to receive the whole from the De-
fendants, upon their Policy; whatever fhall become of Mr. Amy-
and's Policy: And Tbey\N\\\ have a Right, in cafe He can claimany
Thing under Mr. Amyand' % Policy, \.o fland in bis Place, for a
Contribution to be paid by the other Underwriters to Them. But
ftill They are certainly obliged to p:iy the Whole to Him.
Therefore, upon thefe Grounds and Principles, in every Light in
which the Cafe can be put. We are All of tls clearly of Opinion,
" That the Verdidt is right, as it now flands, for the Whole j
" And that the
*' PosTEA be delivered to the Plaintiff."
Rule accord.
Rex verf. Inhabitants of Bifliop's Hat field.
R. Wade fiiewed Caufe againft quafliing an Order of two Ju-
ftices made for the Removal of fames Arnold, Anne his Wife,
and £. M. and Anne their Daughters ^c. from Saundridgc, to Bi-
fliop's Hatfield; and an Order of Seffions confirming it: Both which
Orders Mr. Yates had moved to quafli, as being founded upon a
miflaken Judgment.
The State of the Cafe was this — fames Arnold was hired to one
Parfons, a Parifhioner of Saundridge at 5/. for one Year, to wit,
from Michaelmas 1752. to Michaelmas I753. nvith Liberty to let him-
felf for the Harvest-Month, to any other Perfon. That the
faid
49^ Hilary Term 31 Geo. 2.
faid 'James. Arnold ferved the fald Parfons until the h\A Harveft-
Month; And, a little before the faid Harvefl, wzV/)ca^' the Know-
ledge of the faid Ptrrfoiis, hired himfelfyor the fiid Harvest-
Month, to one Thra/e of the samk Parip: But li-ent, it-ith the
Knowledge of the faid Par fens; and xvorked naith the faid Thrale for
the faid Harvefl -Month; and received Wages for the fliid Harveft-
Month. That in the faid Harveil-Month, the fiiid Arnold brewed
for the faid Parfons: And after the faid Harveft-Month, Arnold
ferved the faid Parfcns for the Remainder of the Year. And the faid
Arnold i.oDGFD in the faid i^ arsons' s Hoife, in the faid Parifh
o{ Saundridge, during the whole Year: And at the End of the fame,,
the faid Arnold received the faid 5/. for his Year's Wages.
Whereupon the Seflions adjudge that tiie faid James Arnold, un-
der the faid Hiring and Service with the faid Parfons, in the faid
Parifh of Saundridge, did not gain any Settlement in the faid PariHi
of Saimdridge: And therefore they confirm the Order of the two
Juflices, and difallow the Appeal.
Mr. Wade argued That this was ?iot a complete Hiri?ig for a Year,
AND Service for a Year. To prove this, He cited i Strange 143.
Rex V. Inhabitans of JVeft-U'oodhay — [Between the Pariflicb of Coombe
and WeJi-JVoodhay:] Where a Hiring " from the ThwfJay after
" Michaelmas, till the next Michaelmas,'" was holden iiifufficient.
1 Strange 83. Rex v. Inhabitants of Haughton — Several Hirirjgs,
each for eleven Months, were holden infufficient: And the Court
faid " It would be d-ingerous to depart from the Words of the Sta-
" tute." 2 Strange 1022. Between the Pariflies o( Seaford and Caf-
tlechurch — " Going away 12 Days before the End of the Year, pre-
• " vents the Gainin^^ a Settlement."
He agreed, that where there is a regular Hiring for a Year, the
Court will not be over rigid as to the Service. 2 Strange 1232, —
Between the Parifhes of St. Peter in Sandwich and Goola/ion [Good-
ne/lone] in Kent was fo: There, the Servant went to the Herring-
Fifhery, with his Mafter's Leave, i Strange 423. Rex v. Inhabi-
tants of I/lip were fmall Abfences; and after a complete and perfeSi
Hiring for a whole Year. Now this is only a Hiring for 1 1 Months;
' and a Service for 1 1 Months.
Mr. Tates contra — The Mafler was bound ; though the Servant
was at Liberty. The Servant was not retnoveable. He ferved his
Mufter, inySwf'Refpeds, even during this Month.
Lord Mansfield — It is, in Effeft, only a Hiring for Eleven
Months; And the HarveH -Month is the principal Month of the
Year. 3
It
Hilary Term 31 Geo. 2. 497
It is fafeft, to keep to the Statute. If We allow thh. We fhall
■not know where to flop.
Mr. Juft. Den I SON concurred. And He obferved that though
the Conftrudion had been, in many Refpeds, favourable as to the
Service, yet they had been ftridier as to the Hiring: And if this
was allowed to be z good Hiring, it would tend to enervate the
Ad, and fet the Conftrudion quite loofe.
Mr. Juft. Foster agreed, in both, with Mr. Juft. Denison:
And he mentioned fome Inftances of the former; and particularly
the Cafe oi Weji-wood-hay, abovementioned. But this is only a Hi-
'Ki^cfor II Months.
Mr. Juft. WiLMOT concurred — It does not turn upon the Obli-
gation'the Mafter was under; but upon the Obligation the Servant was
under: And the Servant was tiot obliged to ferve the whole Year.
It is very clear that this is not a Hiring within the Ad,
Per Cur, unanimoufty,
Rule discharged, and Both Orders affirmed.
Roiiell qui tarn &c. vcrf. Kitchen. Sa/urj,>y i ui^
Feb. 1758.
ON 'Thurfilay 26th January laft, Mr. JVhi taker moved in Ar-
reft oif Judgment, after a Verdid for the Plaintiff in a qui
tarn Adion upon the Statute of 1 J. i.e. 22. (" the Duty of Tan-
■" ners, Curriers, Shoemakers, and of O rwEm cutti?ig of Leather.")
A Rule was then made "to bring in the Poftra." And th^t Poftea
'being now brought in, Mr. V/hitakcr and Mr. Narcs objeded —
ift. That the Defendant is not an Object of thi? Ad.
It is not alledged in the Declaration " that the Defendant loas a
" Tanner, Currier, Shoemaker or other Perfon occupied in the cut-
*' tin^; of Leather:" Which the Preamble ftiews that he ought to
be. Cro. Car. 587. Lodge v. Holloifell, is an Adion brought upon
another Claufe of this Ad: And there it is alledged "that the De-
" fendant was a Currier &c." * Brown's Entries., , on the * "^^^ ^°'''^*
Ad againft buying and felling live Cattle — The Defendant is there .. that the
alledged to be a Butcher. -j- " Defendant,
" /'iiKg a Cur-
" rier &c."
They relied upon the Preatnble of the Ad, rather than the enac- f But fi. B.
tins; Part; and argued that Both muft be taken together. ^^'^' ''l= „
/; T 1 /^u- £x- Wordsof^jS.
6L 2d. Objedion^,^^ ..(haV
49 8 Hilary Term 31 Geo. 2.
ad. Objedlion — This Aftion is brought upon a Suppofition, and
under an Allegation, " that a Third Part of the Penalty belongs to
the Dean and Chapter of Wejlminfier^ as Lords of the Liberty where
the Offence was committed." Whereas by the Adl of Parliament
this third Part of the Penahy muft belong to the City of London^
when the Offence is committed within three Miles of the
City: Although the Place where the Offence was committed, be
NOT, in any other Refpeds, fituated within the faid City or its
Liberties.
For the 50th Sedlion of this Adl gives to the Mayor of London,
*v. ante pa. ^ JuRisD[CTioN exte?iding to ALL Ploces * within 3 Miles of that
^!^'v.lsw- City: And at the fame time, excludes All others in general, and
dardmiliami. all the Other Jurifdidions thereby eftablifhed in particular, from
having anv JurifdiSlion at all, within three Miles of the faid City.
So that if the City oi London have not Jurifdidion in all Places
within three Miles of the City, they have Tio?ie at all given
them under this Ad of Parliament.
Now Drury Lane, appears and was proved to be the Place
WHERE the prefent Offence was committed: Which is clearly within
three Miles of the City oi London; and therefore is within the fu-
rifdiBion given to the City by this Claufe, although it is indeed atlii-
ally fituated within the Liberty of the Church of lVeftmi}iftcr. And
confequently, the Penalty belongs to the City of London; and 7iot
to the Church of Weftminjter.
[Vide § 46. which gives the Penalty; viz. t to the King; t to
the Profecutor; and t to the City, Borough, Town, or Lord or
Lords of Liberties where the Offence (hall be committed or done.]
They cited i Lutw. 138. under this fecondObjedion.
3d. Objedion. It follows, " that the Venue is wrong;" it being
laid iti Middlefex.
Mr. Norton contra for the Plaintiff, was going to anfwer the Ob-
jedions: But was prevented by
Lord Mansfield.
I ft. The Ad is not confined to particular Sorts of Leather, nor
to particular Perfons: \t extends to kll red l^&'iXht'C; and to every
Perfon. The Preamble indeed is general, and does not mean or
intend to fpecify and enumerate every particular Cafe. But what
the r^egiflature had in View, in the making this Ad, was " lofecure
" the Staple of Leather, by this Search ^c-,"
And
Hilary Term 31 Geo. 2. 499
And all the other Claufes of this Adl are general; and are not
confined to " Perft)!!;, occupied in the Trade or Bufincfs of cutting
" Leather" T^hh would not have remedied the Evilj or anfwered
the End of the Adl: For the Evil is juft the fame, if any other
Perfons commit this Offence.
adly. The Extension of the Jurisdiction of the City oi Lon-
don, undoubtedly, can not alter ?^^ Locality of the Place
where the Offence is committed. All that the Adl does, is enlarg-
ing the JurifdiHion of the City of London. Befides, the Adl gives
particular Penalties for particular Offences: And this Penalty, in the
46th Sedion, is given " 7 to the King; t to him or them that
" fliall firfl fue &f<7; And t to the City, Borough, Town, or Lord or
" Lords of Liberties, where the Offence fliall be committed or done.''
He concluded with faying that it was an excefTively plain Cafe.
In which Opinion
The Three Judges concurring, a Rule was made,
" That the Fojlea be delivered to the Plaintiff."
Rex verf. Inhabitants of Aujlrey. Monday 13th
•^ Feb. 1758.
TW O Juflices removed Francis Orton, Lucy his Wife, and
John their Son, from Aiiftrey to Grindon, (both in IVar-
'wickjliire:') Which Order was quafhed by an Order of SefTions,
upon an Appeal.
The Special Cafe flated was this — The Pauper Francis Orton be-
ing at that Time a Poor Child about Ten Tears of Age, w;is in
April 1744, legally bound Apprentice, by the Churchwardens and
Overfeers of the Poor of the Parifh of Grindon, to Samuel Lythall
OF the /aid PariJJj of Grinvon, until he JJxidd attain his Age of
24 Tears, purfua?2t to the Statute of the 43^ of Elizabeth: V/hich In-
denture was duely approved of by two Juflices of the Peace, pur-
fuant to the Diredions of the faid Statute.
The faid Pauper ferved and inhabited with his faid Mafcer,
in Grindon, under the faid Indenture, till Michaelmas 1754; at
which Time, the faid Lythall, the Mafter, in Conf deration of 40 s.
then paid him by the Pauper, agreed to discharge the faid Pauper
from his faid Apprenticefiip: Which Receipt and Difcharge was in-
d'orfed and written by the Mafter, on the Back of the faid Indcn-
turej which He then delivered up to his faid Apprentice. And the
2 ^^iii
500 Hilary Term 31 Geo. 2.
faid Pauper thc?i left his faid Mafter, and hired himfelf for a Tear^
and ferved for a Tear, at the Parish of Higham. Afterwards,
"Siz. at Michaelmas 1755, He hired himfeif for a Year to Lilly, in
the Parifli oi Auftrey aforefaid, and fer-ved the faid Tear in the faid
Parif ; and received his Year's Wages.
The Pauper is now [12th July J 757.] upwards of 23 Years
of Age : But hath not attained the Agi of 24 Tears.
Upon this Cafe, the Se[fions quash the Order of two Juftices.
And Mr. Wheeler had, (on 27th January lall:,) moved to quafli
this Order of Seffions.
Mr. Caldecctt and Mr. Gueft now fliewed Caufe againft quafhing
this Order of SeiTions.
i.ft. The Apprentice became fui Juris, by this Difcharge.
No Interejl at all remains in the Parifj Officers : Their Power is
only a limited Power. And a Parifli-Child tlius bound agreeable to
43 Etiz. is upon the fame Foot as if he had boimd himfclf : And
when of fill Age, is at Liberty to cofifent to his own Difcharge, and
thereby to put an End to the Apprenticefliip.
2dly. But if not, yet the Service being /ly his Majler's Leave and
Confent, it gains Him a Settlement in the Place where it was per-
formed: Which Was firft, \n Higham ; and afterwards, m Aujirey.
Firft — The Mafler alone has Power to difcharge the Apprentice.
I Strange 48. Rex v. Barnes is an Authority to prove that the
Mafter may assign the Apprentice, though bound out by the
Juftices ; (the Apprentice confenting to it.) And the fame Rcafon ,
holds for difcharging him, as for ajjigning.
Secondly — It is, at leaft, a Leave and Confent of the JVIafler to
the Apprentice's Serving in this Parifj: And therefore the last
40 Days Service makes the Settlement. This was the very Cafe,
between the Parifhes of St. George Hanover Square and St. James^
in 2, St range looi ; Where Alice Wheeler, a Parirti Giri,"beinCT
bound out, her Mafler let her out for Hire to a Perfon in Marybcne,
v/here She refided above 40 Days: And the Court held her to be
fettled in Mary bone,
Mr. Wheeler, Mr. Vernon, and Mr. Norton contra argued for
quafhing the Order of Seffions j and in Support and for Affirmance
of the Order of two Juftices.
The
Hilary Term 31 Geo. 2. 501
The Conftrudlion attempted by the other Side, they faid, would
invalidate the A<51 of 43 Eliz. c. 2. Which gives Power to bind
fuch poor Lads, till 24 Years of Age. [See SeSi. 5th.]
They alledged that the Parifh-Officers, and even the Public are
wtcrejled in this. And fuch an Apprentice cannot be dljcharged
without the Confent of the Parilh-Officers, who bound Him out.
In I Salk. 381. Domina Regina v. Gotdd, The Court allowed an
Indidment, for Difobedience, " in not receiving and providing for
*' fuch an Apprentice." And they alfo cited 20 G. 2. B. R. Rex
V. 'Trevelyan : [But that Point was not there determined.] The
Intereft of the Churchwardens and Overfeers is a remaining In-
tereft.
zdly. Here is no exprefs Confent by the Mafter to this Service.
And therefore the laft 40 Days Service rtiall itot gain a Settlement;
for want of fuch Confent. 2 Ld.Raym. 1352. and 2 Strange 582.
S. C. the Cafe of the Parifh of Buckingham : Which is in Point.
Lord Mansfield afked Whether the Apprentice was of ^e, or
UNDER ^ge, at the 'Time of his confentiiig to the Difcharge :
For the whole depends upon that.
Mr. Norton — He was under Age, at the Time of his confenting
to the Difcharge : As is evident, by comparing the Dates flated ;
(which (hew that He muft have been about half a Tear under.)
Lord Mansfield — The7i there is Nothing in it. If he was
under Age, his Confent is quite out of the Cafe ; and is exadlly
upon the fame Foot, as if he had given no Confent at all : For the
Confent of an i/z/^;?/- Apprentice can fignify nothing, nor be of any
Validity.
2d Point — Then if his Conjeiit is of no Validity, and as Nothing
at all, his fubfequent Services, under the Hirings ftated in the
Order, can never be confidered as performed by the Mafter' s * * ^'- 2 ^d-
Leave and Consent; and * fo, as being a Service of his '^^- ^Z^'istr'am
fter under the Indenture : Becaufe this is no exprefs and explicit 583. s. c.""
Leave and Confent given by the Mafter to the -f particular Ser- '^^ .^'^"^ °^
,1 1 • 1 1 • r II- riuckmgton
Vice ; but was intended to be quite general, and is even jounded in Parift.
a mistaken Apprehenfion "That the Apprentice could confent [^ which
" to his being difcharged ;" which he, being an Infant, was not ^_^"^'^*^^*{^;
capable of doing. habitants of
Ft emington,
aute 274.. (N"
6M And^^
•!ge
502 Hilary Term 31 Geo. 2.
abfent.
• Mr. juft. And The * two other Judges being of the fame Opinion,
Fojler was
Per Cur. Order of Sessions quashed :
Original Order affirmed.
Rex verf. Inhabitants of Cold Afhton.
TWO Juftices made an Order to remove Mary Harnfon,
Widow, and her 4 Children, {Charles, George, William, and
"Thomas Harrifon,) from Cold A flit on to Woodchejler : And the Sef-
fions, upon an Appeal from this Order, difcharged it.
The Special Cafe ftates — That in "July 1725, Baniel Harrifon
and Mary his Wife, and William Harrifon their Son, went from
Woodchejler to Cold AJhton with a Certificate from Woodchcflcr, di-
reded to Cold Afhton, acknowledging " That they the fiid D. H.
" and Mary his Wife, and William H. their Son, and fuch otlier
*' Children as they the faid Da7jiel H. and M. his Wife fliouid have
*' afterwards born in Cold Afkton, were Inhabitants legally fettled />/
" Woodchejler."
That the faid Daniel Harrifon and Ma}'y his Wife and William
H. their Son, lived in the faid PariHi of Cold AJhton under the faid
Certificate, from the faid Month of July 1725, till about Chri:'.mas
1728 : At which Time, William Fido, the Father of the fard Mary
the Wife of the (aid Da?iiel Harrijbn, died intestate, leaving
! the faid Mary his Daughter and five other Children-, And
' was at the Time of his Death pofTeffed of and intitled unto a
Tenement and 2 -i Acres of Land, of the Yearly Value of 6 /,
jys. fituate in Cold Afl^ton, for the Remainder of a Term cf 99
Years determinable on the Death of himlclf and of the faidy/lARV
his Daughter, the Wife of the faid Daniel Harrifon.
That upon the Death of the faid William Fido, tlie faid Daniel
Harrifon and Mary his Wife, and the fiid William Harrifon their
Son, (He being then about 5 Years old) entered upon and took
Possession of the faid Tenement and Land; And the fzid Daniel
Harrifon and Mary his Wife have lived in and occupied the
fame, ever fnce, until this Time.
That there being a Custom in the Hundred of Piickhchurch in
which the faid Pari{h of Cold Af.'tcn lies, " for tie Occupiers of
" fnall Tenonents within the faid Hundred to ferve the Office of
« TYTHiNGMANyor HALF a Year only at a Time-," the faid
3 Daniel
Hilary Term 31 Geo. 2. 503
lyaniel Harrifon, about 25 Tears ago, fcrvcd the Office of T\-
THiNGMAN for the faid Parifh of Cold AJJoton for half a Tear
ONLY; and &ho\iiJkie Tears ago, ferved the fame Office, for \hzfamc
FariJJo, for another half l^^r only.
But that NO Adminiftration of the Goods or perfonal Efreds of
tlie faid William Fido v/as ever granted to, or taken out by the faid
Daniel Harrifon and Mary his Wife, or either of them, or any other
Perfon.
That the faid William Harrifon lived with the faid Daniel H.
and Mary his Wife, in the laid Tenement till AB(iUT 8 or g Tears
■ago: When he married the abovenamed Mary (his now Widow;)
by whom he had the Iffue abovenamed, Charles, George, William,
and Thomas H. their faid Children.
That after the Marriage oj the faid William Harrifon, the Father
of the Pauper Children, with the faid Mary his Wife, they lived
in the faid Parifli of Cold Afton, feparate and apart from the faid
Daniel H. and Mary his Wife, until the Death of the faid William;
which happened about 1 1 Year ago.
And the faid Mary the Widow (f the fiid William H. the Fa-
ther, and her faid 4 Children, having after the Death of the faid
William H. the Father, become aBually chargeable to the faid Parifh
of Cold AJhton, they the faid Mary the Widow, and her faid 4 Chil-
dren were, by the faid Order of two Juftices, removed from Cold
AJhton to Woodchefter; They the faid William Harrifon the Father,
or his faid Widow or Children, not having gained any Settlement,
^.^-£■2.'^ the gi'Smg of the faid Certificate, except as aforefaid,
Mr. Hufj'ey and Mr. Norton had (on 27th January laft) moved
to quafh this Order of Reverfal, and to affirm the Original one.
Mr. Selivin, Mr. J. Morton and Mr. Nares, now fhewed Caufe
againft quafliing the Order of Seffions, which difcharged the Order
of two Juflices; and againft affirming that of the two Juftices.
They infifted that Daniel Harrifon gained a Settlement in Cold •*•
AflMn, by both the Methods direded by the Statute of 9, 10 /T. 3.
f . 1 1 ; 'VIZ.. By refiding upon a Tenement of his own; and alfb by
executing \.\ns public Office for one whole Tear; (for the two Halves
amount, they faid, to a whole Year;) And which is an Annual
Office in its Nature. In H. 9 G. i . B. R. i Strange 544. Between
the Pariffies of Burlefcome and Sampford Peverell; the Office of
Tythingman was adjudged to be " an annual Office within the Pa-
" rijh," within the Words and Meaning of the Aft. And the
eleding
504 Plilary Term 31 Geo. 2.
eledling him tivice into the Office, fliews their Approbation of
him the llronger, as a. ft and proper Perfon to execute fuch an
Office.
Lord Mansfield — By ibis Cuftom, as here ftated, It is 7iQt an
annual Office, but an Office for half a Year only.
Whereupon, the Counfcl for Wooicheficr proceeded as to the other
Method direded by the Statute; And argued that, as to the beneficial
Inter eft ariling upon the Death of V/ilUam Fido, though no Jldmini-
ftration was taken out, yet an equitable Right vefted in DanielH.
by the Statute of Diftrihution ; And that is fufficient, without Admini-
flration. The Truft of a fmall Part of a Cottage is enough to gain
a Settlement, i Strange 97. Between Murfey and Grandhoroiigh
Paridies. And in H. 1708. Grice v. Grice^ in Chancery, It was
« r. 3 ?eere determined by Ld. Cowper, " That the equitable Riglit * vefted by
SSoteo'. " *h^ Statute of Diftrihution." They accordingly entered upon it,
and have enjoyed it ever fince: Which will appear, on Computa-
tion, to be 29 Years and an Half. And 29 4- Tears Fofcfion upon
it, is fufficient to gain a Settlement. And no Adminiftration was in
the prefent Cafe, granted to any one elf; Nor any Objedlion made
to their Right. Therefore He had both the equitable Right, and
the undifputed Poffion for fo many Years; And there was no other
Perfon who had any legal Claim upon it. Which, furely, is enough:
For it is both the equitable and alfo the legal Intereft united.
There are indeed two Cafes, that may be urged againft us; ^iz.
Farringdon v. Widiuorthy, Tr. \']y/. 10 c? 1 1 G. 2. where a Pof-
feffion for five or fix Years only, without taking Adminiftration,
was holden not to gain a Settlement : And South Sydenham v. Laimr-
ton T. 2 G. 1. in i Strange ^y. which was a Refidence for only
two Years upon a Tenement that was the Mother in Law's; and
no Adminiftration taken out. But it appears by Strange's Reports
that it went off* upon another Point. And in Lucas 389. It appears
exprefsly that the Court gave no Opinion upon the Queftion about
the Right to an Adminiftration being fuch an equitable Intereft as
would amount to a Settlement, 'without aSually taking out Letters of
Adminiftration.
But fuppofe Daniel and Mary Harrifon to have at firft entered
WITHOUT a Title, yet after 20 Years Pofleirion, their Pofleffion
became lawful. Now here appears to be fuch a PofTeflion, oi twenty
Years : And they moreover remained Nine Years after that, with-
out Interruption. Now, the Cafe in 1 Strange 608, Between the
Parifiies of Jf brittle and JVyley, and 8 Mod. 287. S. C. is a full
Proof " that long Pofleffion (as thirty Years) will gain a 'title,
" agai7if all the World, but the Lord; and even againft Him, unlefs
4 " upon
Hilary Term 31 Geo. 2. 505
" upon Ejedlment. And in Ejeflment, 20 Years Poffeffion will
" either make or defend a Title."
The Pauper's Settlement is derivative under the Certificate; And
therefore if gained in Cold AP^ton^ muft be as by a Certificate-Vtx-
fon. There is no Doubt, but this would have gained a Settlement,
if the Title had been completed by Adminijlration: And the
Want of Adminijlration will not, in thii Cafe, prevent it.
Indeed, in the Cafe oi Farringdon v. Widieorthy where the Pof-
feffion was otily five or fix Tears, "it was deterrnined " that no Set-
" tiement could be gained, mfuch a Cafe, without taking out Ad-
" minifl:ration.'' However, perhaps, if it was Res integra, it would
not now be fo determined.
But certainly, that Principle if admitted, ought not to be ex-
TENDED. And the Authority of that Cafe ought not to interpofe
here: (ift.) Becaufe there the Poffeffion was only^w or fix Years,
after the Death of the Pauper's Father. Here there was a Poffef-
fion of 29 4- Years, (adly.) There the TdTOT was gone, was expired,
before the Removal of the Pauper; And the Adminiftration was not
taken out //// after the Expiration of the Term, and after the ma-
king of the Order. Here, the Term and Intereft, both exift: And
the Pofi'eJJion fubfijted at the Time of ma!ung the preicnt Order of
Removal.
The Right is fo vcfted in the next fi Kin, that if fnch next of Kin
is once in Pofeffion-, fuch Poffeffion (liall yjot be devefted, without
another Admini ft ration taken out by fome other Perfon. Nor could
even a rightful Adminiftrator evicfl, after a quiet Pofeffion of 29
Tears. And now, fliall an Order of two fuftices effedl what an
ASiton of Ejedment would not be able to effefl? Surely, not.
2d. Point — Suppofing a Settlement in Daniel the Father and 2d.
Afi/ry his Wife — %/. Whether that fliall communicate a Settlement
to William the ^on and his Family.
Now this derivative Settlement may be confidered as without re-
lation to the Certificate Laws. Here, William the Son co7itinued
liiith his Father, above 20 Tears after his Father and Mother came
into Poffeffion of this Tenement. Therefore this was his deriva-
tive Settlement at the Time when he feparated from his Father's
Family, and became emancipated: For his Father and Mother jjaJ
THEN a complete Title, even upon an Ejesftment, from their Length
of P off lion.
If the Son had married and thereby become emancipated, even
in the Midft of the Father's inchoate Title, and btfore it became
6 N completed
^o6 Hilary Term 31 Geo. 2.
completed by full 20 Years Poffeffion: Yet it fliould have Rehticn
to the Beginning of it, if it had afterwards become adually com-
pleted to full 20 Years by Elapfion of Time. But here, the Son
did not become emancipated, //// the Father's Title was become com-
pleted by a full 20 Years Poffeflion.
The un-emancipated Son's derivative Settlement Jliifti and var'tci
WITH the Father's, toties qiwties, fo often as the Father's Settle-
ment changes.
Mr. Norton and Mr. Hiifjcy, contra, for quafliing the Order of
SefTions.
ift. They denied that the Law iiefted any Intercft m 'Qaniel
Harrifon's Wife Mary, whofe Father, William Fido, had Five
OTHER Children, beJideshtrkW; as it is exprefsly flated: And they
denied thit any Length of Pojfeffion will give a Right, thougli it
may bar the particular Remedy of an Ejecflment. Nor is the Length
ofPolIeirion any Sort of Argument, in the prefent Cafe: becaufe
the FolTefTors were never fubjed: to Removal, No Certificate Per-
fo,n can be removed, till he adlually becomes chargeable. Now
here, Daniel Harrijon hever became aBually chargeable to the Pa-
rifh oi Cold Apton. Therefore they could not remove him, inhere-
ever he reiided. And confequently, his Length of PoJJ'eJJion ought
NOT to ajfc^ than.
As to the Right vefting in the next of Kin, by the Statute, —
If We were to admit their Principle, it would 7wt help them: For
Mary the Wife of Daniel, was not the next of Kin; She having
five other Perfons in equal Degree with Herfelf. And therefore
She was never irremoveabk; For She never had a Right,
either equitable or legal: Nor, confequently, any Perfons claiming
under Her. •
And as to \ht Length of PcfTeflion, it fliall not enure to do ivrcng
to the certificated Parifh, who (as has been obferved} had no Power
to remove the Pauper, let his Rcfidence he where it would, till
aSlually become chargeable: Which this Man never was.
Neither have they at all proved " that an equitable Intercft'
" w/// g.'.in a Settlement." But, however, here the certificated Per-
fon had neither an equitable nor a legal Intereftj as five other
Perfons were equally concerned, and the Certificate-Man had no
Adminiftration .
As to the Cafe of Farringdon and JVidivorthy — Five Years would
have gained a Settlement as well as Fifty j if the reft of the Fads
had been fufficient to fupport it.
% As
Hilary Term 31 Geo. 2. 507
As to the Time of the Son's taking the derivative Settlemen-;y}-o;«
the Father, they agreed that it muft be confiJered as ixfpeding the
Time when he left his Father's Family, and the Place of his Fa-
ther's Settlement at that Time. And they laid that they fliould
have argued, (if the Father's executing the OfKcc of Tythingmaii
had in the Judgment and Opinion of the Court, been thought ma-
terial,) " that, as he had only executed it for one half Year at the
" Millie of the Son's parting from him, it could net have gained a
" Settlement to the Father himfelf, at that 'Time." But that
Point is now out of the Qucftion ; as the Court do not efteem it an .
annual Office.
But admitting and agreeing that the Son's derivative Settlem.ent
from his Father can only relate to the then Settlement of the Fa-
ther, which the Father was intitled to, at the Time; Yet here, the
Father's Settlement was not then become even helped by the Pof-
feffion, in the Manner that they endeavour to reprefent It. For it
is Jiot expnfsly ftated " that he had then been 20 Years in Pollef-
" fion of the Tenement:" And the Court will not preiume the
Words " ABOUT Eight or nine Years," to mean nine Tears ab-
solutely. And if not, the Father's Poffefllon does not appear to
have been a Pofleflion of 20 Years complete, at the Time when the
Son parted from him. So that the Foundation of their Argument
from that Topic, fliils them in Point of Fadt.
Lord Mansfield — This Cafe feems to depend upon two
Queftions.
ift. Whether Daniel Harrifon the Father of JFilliam gained ^
Settlement, Himfelf , in Cold Jjhton; to which Place He is agreed
to have come originally, as a Certificate -Man.
2d. Whether William the Son of this D. H. gained a deriva-
tive Settlement there, from his Father.
Firft Qneftion — Dr7OTV/ had been 29 4: Years In PofTeffion at the
Date of the Order. The Quefllon Is Whether he Is within 9, 10 /^.
". c. II. which mentions only two Methods, whereby certificated
Perfons can gain Settlements in Parldies, to which they come with
Certificates ; T7Z. taking a Leafe of a Tenement of \oL per Annum,
or executing an annual Office.
But an Estate of a Man's own, from which he cannot be
removed, has been, by Confiniction, (and a very reafonahle one too,)
holden to be within this Ad: For it would be a very hard tiling,
to remove a Man from his own Eftate. And the Rule holds as
well
5o8 Hilary Term 31 Geo. 2.
well in the Cafe of a Certifica^e-Perfofi, as in any ether Cafe, " That
" no Man ought to be removed from his own Property and Eftate."
The Principle of this Determination is, becaufe a Property of a
Man's own, is ?i firmger Cafe than hiring another Perfon's, of
10/. per Annum Value.
The Qiieftion then is " Whether, here, Daniel Harrifon acqui-
red fuch a Right, as rendered him I'S.-retnovable. (For it does not
turn, at all, upon his becoming aBually chargeable, or not : The
true Queftion is, " Whether he became ir-removable or not.)
Now here he had acquired a positive Right, by 20 Years Pof-
feffion : Which is much more than a mere negative Right or a Bar.
This was fuch a pofitive Right as would have fufficed to fupport an
AElion : He might have brought an EjeSlment upon a 20 Years
Poffeflion. Therefore it is diftinguifhable from the Cafe of a Bar^
(a mere negative Right,) or a Limitation : For it does not merely
bar the Remedy ; but it gives a Right, upon which He may re-
cover in an Eje(flment.
And here is a Frcfiimption " That they had agreed with the
" other Children of William Fido, for their Shares." 'Tis like the
Prefumption of a Bond's being fatisfied ; when no Intereft has been
paid for twenty Years.
As to Mary Harrifon's Right to this Settlement, as being next of
Kin to William Fido, who died pofleffed of this Term — The
General Queftion " Whether it be fufficient for the next of Kin, to
" be in Fojfejjlon merely, without taking out Adminifl ration," is
very different from the particular Queftion in this Cafe : And We
have nothing to do with it, in the prefent Cafe : For there is great
Difference between a Sole next of Kin ; and where Several Per-
fons in equal Degree have All of them an eq^al Right; (Which
is the prefent Cafe.)
On the General Qup{\.\on, I fliould have defired to look into the
Cafes ; and to have well confidered them. But that is not now
neceffary ; becaufe I ground my prefent Opinion on the Cafe here
ftated to Us, upon what is particular in this Cafe.
Second Queftion. — As to the derivative Settlement of the Son,
(the Hufband and Father of the prefent Paupers) from his Father
Daniel Harrifon.
The Term Emancipation has been much made Ufe of. But
*' Emancipation,'" in the Cafe of Settlements of poor Perfons is a
vague Term j and not properly applicable to the Subjeil.
2 The
Hilary Term 31 Geo. 2. 509
The Children of all Parents muft have the Settlement of the
Father, till they acquire another for themfelves. Here, the Son
is not ftated to have acquired One of his Oian : Therefore he had
fuch as he derived from his Father. And his Father had gained
One in Cold AJhton. And there is no ground, here, to fay that the
Son muft necejj'cirily be taken to have left his Family, before the
Time that the Father acquired a full and complete Settlement in
Cold JJJjton, for Himfeff.
Therefore I think the Seffions Order, which fixes the Paupers
upon Cold ylptoHy ought to be confirmed.
Mr. Juft. Denison kept to the fame Points, and agreed in the
fame Opinion.
ifl: Point — The Father, Daniel Harrifon, was in Poffefllon of
an EJlate of his own, for above 20 Tears : And He was not re-
tnovable from it, on Account of his Property in it, which rendered
Him irr e movable . It is not material how he came into Foffijjion :
For 20 Years Poflefiion will, alone, give him a Settlement. Twenty
Years Poffeirion is fufficient either to defend, or even to make a
Title in Ejedment. The Cafe of JJl:brittle v. Wiley, 1 Sttrange
609. is fo, exprefly. /
And it does not turn upon his not being removable till a&iially
chargeable: It turns upon his being /r-removable /row his own.
And a Certificated Perfon may gain a Settlement by Title, as well
as an uncertificated Perfon may.
Second Point — As to the derivative Settlement of William Har-
rijhn, the Son oi Daniel, There can be no Doubt but that if Datiiel
gained a Settlement by fuch Title, his Son will do fo too : For the
Children derive their Settlement, from the Father. And We muft
not be fcanning Days and Hours, upon this Order, to endeavour to
make out that perhaps the 20 Years PofTefiion of the Father was
not become abfolutely completed, at the Time when his Son left him.
It appears probable that it was : And it does not at all appear that
it was not.
Therefore I am of the fame Opinion with my Ld. Ch. Juftice,
" That the Order of SefTions ought to be affirmed."
Mr. Jufl. Wilmot concurred : And exprefTed himfelf to the ;
following Effect.
I ft. I do not think it material to fay any Thing about the 'taking
out or not taking out Adminiftration, If that Point upon the •
6 O General
5IO Hilary Term 31 Geo. 2.
General Qneftion is fettled, I fhall not be at all inclined to over-
turn or contradid: it ; efpeciaHy in the Cafe of the Poor's Settlements,
which it is always beft to afcertain and reduce to Precifion : And it
is proper jlare decifis, in Cafes of this Nature.
It is obiefted that Daniel Harrifon had no legal Pofllfiion. But
this Pofieffion is either by Right, or by Wrong : And it was a Pof-
fefllon of 20 Years. If it was by Right, the Objedion is at an
End. And a 20 Years Enjoyment and Continuance, even upon a
Pofiefiion by Wrong, gives a legal Tii\e. upon an Ejedtment, even
againjl the rightful Owner. And after fuch a Length of Poflcirion,
One would be inclined to prefume as much as is poflible. Now
here it is poffihie that Daniel Harrifon and his Wife might have
fonie Grant or Affignment from Williavi Fido in his Life-time ; or
fome other regular and rightful Title to the PoffefTion which they
took of this Tenement : So that their PolTeflion might poflibly have
been a rightful One,
2d Point — The Word " Emancipation" is improperly applied to
Cafes of this Kind, and has been ufed in a vague Senfe upon thefe
Occafions. It is a Term taken from another Law ; and in that
Law has a determinate Meaning : But here it has been miflipplied.
It has been rrgued " That if the Son left his Father's Family
" defore the Father had been in PoffeiTion for full 20 Years, He
" could not derive a Settlement from his Father gained by a 20
" Years Poffeffion." But We are not .0 fland upon a Nicety of
Computation, in Order to endeavour to make out, that unrler the
general Exprtffion of the Son's "living with his Father and Mother,
" in the Tenement till ahut 8 or 9 Years ago," he might poflibly
have left his F'ather's Family iefore the Father had been quite 20
Years in Poflxiffion. — We have no Reafon to prefume this: And
here may, on the contrary, be a Prefumption or Poflibility at leaft,
of the Father's coming legally into the PoflTeflion ; viz. by Aflign-
ment from IFilliam Ftdo, before his Death, or by fome other legal
Method.
Per Cur. unanimoufly, (Mr. Juftice Foster only
being abfent,)
Order of Sessions affirmed : Original
Order quashed.
T
Rex verf. Martha Gray.
HE Defendant flood Indidled for a Nufance, in flopping up
a Foot- Way leading through Richmond-Park.
2 The
Hilary Term 31 Geo. z. 511
The prefent Queftion was only, Whether the Trial (for which
Notice had been regularly given by the Profecutors, " to try it at
" the next Surrey-AfCizes,") ihould be put off, or not.
The Caufe alledged for putting It ofF, by the Counfel for the De-
fendant, (who profeffed themfelves to be Counfel, in this particular
Cafe, for the Crown,) was That there had been a Libel publiped
relative to the Queftion in IfTue, witlj Intention to mjiuence the
Publick and the Jury who (hould try the Caufe.
The Fad was. That when the Caufe came on to be tried at the
lajl Summer Affizes, before Lord Ma?isfeld, this Libel (juft then
publiOied and diftributed,) was produced in Court, and complained
of in Court, as calculated to inflrudl the Witneffes and influence
the Jury.
'Two of the Principal Profecutors, then in Court, were by Affida-
vit charged with having procured the faid Libel to be written pub-
lifhed and diftributed. It purported, in the Title-Page, to be
printed for and publilhed by Shepheard, the Brother of a Principal
Profecutor : And an Affidavit was read, proving Him the Publiffier,
And that the C'opy produced was bought from Him in his Shop,
and that He faid, " Great Numbers had been fent to the Surrey-
♦' Affizes."
The next Day One of the faid Profecutors only made an Affidavit
to deny the Charge ; but in fuch a Manner that it rather £xed it,
as much as the Silence of the Other did.
The Counfel for the Profecution, as it did not appear to what
Witneffes or Jurors the Pamphlet had been conveyed, And appre-
hending that fuch Pradices were not only a Contempt of the Court
and high Mifdemeanor, but might invalidate any Verdidt obtained
before a proper Inquiry could be made into the Matter, defired that
the Trial might be poftponed.
V/hich was confented to, by the Counfel for the Defendant :
And an Order was accordingly made, upon the Motion of one Side,
confented to by the Other.
Informations were afterwards moved for, and granted, againft:
Some of the Perfons concerned in Printing and Publiffiing the faid
Pamphlet ; ^.nd were ready for Trial at the Sittings after this Term,
in Middlejex and London,
Mr.
512 Hilary Term 31 Geo. 2.
Mr. Attorney-General and the other Counfel for the Oown,
moved, a few Days ago, to put off the intended Trial of the /«-
diSimcnt againjl the Defendant Gray, till after the Trial of
this Information which had been filed againjl the Publifiers of this
Libel; or at leaft to the next following Affizes to thefe now ap-
proaching Z/f«/-Affizes ; To the End that the Publifliers of this Li-
bel might be tried in the Interim, and receive Judgment, (if con-
vided :) Which, they faid, would take off the improper Influence
which the Publication of it had occafioned.
Which Motion being ftrongly oppofed by the Counfel for the
Profecution ; The Court took Time, till this Day, to advife.
And now Lord Mansfield delivered his own and Mr. Juft.
Denison's and Mr. Juft. Wilmot's Opinions, (for He fiid He
did not know Mr. Juft. Foster's, who had juft fent Him a Letter
to inform Him " That He could not be here to Day ;") which
Opinion was, in fhort, (though He gave it very much at large,)
That the Trial of thefe Informations for publifliing the Libel, was
NOT 7^ con7ie5ied icith the Merits of the Queftion to be tried upon
the Indidlment, (which was a mere Queftion of Civil Right, though
in the Form of a Criminal Profecution,) as that the Trial of the
Civil Right ought to be ftayed till the Determination of the Infor-
mation asainft thefe Publifliers of the Libel.
"O
-j- Lcwii.
At the Affizcs, The Counfel for the Profecution defired the Trial
might be put off: Which was confented to, on the Part of the
Defendant. If they had not, I (liould have adjourned it Myfelf.
But there is not the fame Reafon now. For at that Time, it ap-
peared that One, if not Two of the principal Profecutors attending
the Affizes, had been induftrious in difperfing and fending it about,
to the Witneffes and Jury, for very unjuftifiable Purpofes. But now
» she^-htarJ. * One of thcfc principal Profecutors chiefly concerned in it, is
dead, and was fo even before the Motion for the Information ; the
•\- Other is not wcic under the Charge of being concerned, (what-
ever Siifpicion may remain upon him :) And the only Perfons fixed
upon by the Affidavits, now adlually under the Charge, are jnere
Pamphlet-Sellers and Publifiers, of whom they were bought. And
He could not, He iaid, upon the beft Confideration that he could
give it, at all difcover or conceive how the Convidion or Acquittal
of them of the mere Fact of Publication of this Libel, could any
WAY affe^ the Merits of the Queftion concerning the Civil Right ;
or how the Trial of the Point upon the Civil Right could be at
all altered, by being brought on before, or after the Event of the
Criminal Trial for publifl;iing the Libel.
Indeed,
Hilaiy Term 31 Geo. 2. 513
Indeed, if that had been the 0:i^(t, As fuppofe there had been an
Information againll the Principal Profecutors of this Indidmenr,
for the Nufance, for inftruding and faborning WitnefTes, or for
undue Endeavours to influence Jurors, That might be a Reafon for
pofl:poning the Caufe till thefe Charges relative to the Conduft of
the Parties were tried. But that is not this Cafe : And whether the
Defendants to the Informations were or were not guilty of publifliing
this Libel, can no way afFeft the Merits of the Caufe, nor' can any
how be given in Evidence.
Therefore the Rule muft be discharged.
M
Rex verf. Inhabitants or Mayheld.
R. Allon and Mr. Burrell fhewed Caufe againft quafliing an
Order of Sefiions.
Two Juflices had removed Robert Fumer and Mary his Wife,
from Mayfield to Horjledcamcs, (both, in Sujfex :) And the Seffions,
upon an Appeal, difcharged their Order.
Which Order of Seffions Mr. RnJJell and Mr. Norton had moved
to quafli.
The Order of Seffions ftates no Cafe at all. It is expreffed only
thus — " Upon the Appeal of ciff. from an Order &c. for removing
" of Robert Fumer and Mary his Wife, from sc. to G? <: ; And
" upon hearing of Counfel on both Sides ; It is ordered by this '
" Court, That the faid Order or Warrant of the faid two Juftices
" of the Peace be difcharged, as to the said Marv: And, by
" this Court, it is difcharged accordingly."
The Counfel who moved to quafh this Order of Seffions Ob-
jected " That this amounts to a Divorce of the Hulband and Wife."
Note — The Fadl was That it appeared to the Seffions, that
She had 2. former Hufand : Who did not appear to tl>em
to be dead, (And Lord Mafisfeld, upon the Original Motion,
fufpedted " that the Seffions might think Her not to be his Wife.)
The Counfel who fliewed Caufe againfl: quafhing the Order of
Seffions obf:rved. That eiien if She was really his Wife, yet She might
have hired herfelf to a Service, when Sole ; And if fo, her Marriage
would not diflblve the Contract:. However they propofed that it
6 P fliould
SH
Hilary Term ^i Geo.
fliould go back to be -more fully Jiated : Which the other 5iac were
ready to confcnt to. But
• Lord Ma„f. * Mr. Jiift. Denison did not think it neceflary : For the Scffions
■fbfenTrrnT ^^^ ''^^ Called her his Wife ; nor can We take it for granted, " that
alfoMr. ju- " She was fo." And We muft intaid them to have done right.
They only recite the Order of t-ivo Jiifticcs, which indeed c.dls her,
" his /aid IVife ": But when the Court of Selfions come to ufe their
own Words, they call her " the said Mary." So that upon the
Face of their Order, they plainly took Her not to he his Wife.
And I do not know that the Juftices are obliged to ftate the Cafe
fpecially.
flice Fojlcr.
Mr. Juft. WiLMOT concurred ; and declared that it was extreme-
.ly plain to Him, that the Juftices at Seffions did ?iot take her to be
his Wife : For though they recite the Original Order which removes
Her ^i the Man's V/tfe, they drop the Word " IVtfe," and only call
her " the fa} d Mary,'" in their cww Order (of SefTions,) And, as they
had Jurifdidion, We ought to intend that they did right.
Rule discharged : And the
Order of Sessions affirmed.
Fairlcy verf. M'^Connell.
R. A/lon fhewed Caufe " why a Procedendo H^ould not go, to
the Burroiigh-Court of Portfmoiith :" who infifted on a Right
to proceed there, after a Habeas Corpus cum Caufa.
He, on the contrary, infifted That by the Provifo in § 6. of the
21 Jac. I. c. 23. (" to prevent Suits commenced in inferior Courts,
" from being removed into fuperior, unlefs &c,") There ought to
have been an Utter-Barrifler of 3 Years ftanding, present at the
Trial of the Caufe : Whereas no fuch Pcrfon was prefcnt at this
Trial. For wafit of ivhich, the Trial, He faid, was void ; And
the Habeas Corpus to remove the Caufe, was well brought. In
Proof of this He cited Cro. Car. 79. Clapham's Cafe — (2d Refolu-
tion) in Point — " That it is effcntial that an Utter- Barrifter of 3 Years
" Standing, be prefent, either as Judge, or Deputy-Judge." 3 Mod.
85. Anonymms. A like Refolution proving the Neceffity of an
Utter-Barrifter's being prefent; Or elfe, that this Ad, by Virtue
of this Provifo, does not extend to the Cafe.
Mr. Yates contra for the Procedendo. This Qualification, of
being Utter-Barrifter of 3 Years ftanding Gfr, only extends to the
4 Cafe
Hilary Term 31 Geo. 2. 515
Cafe of the Judge or Steward Himfe/f ; not to his j1/li/ia7tt. And
Mr. Serj. Stannifcrd who is fuch a Barrifter as is deicribed in the
Provifo, is the Judge of the Court. So that the Provifo does not
extend to the prefent Cafe.
Mr. Afion in Reply — But He was not prefent : The Caufe was
tried by Mr. fVhite, an Attorney, who is his Deputy, and is not
a Barrifter at all. And the Defendant relied upon the Habeas Corpus,
to remove the Caufe out of this inferior Court ; and therefore did
not attempt to try the Merits, or make any Defence, there,
N. B. The Proviso is, " That this Adt (of 21 J. i. c. 23,)
" fliall extend only to such Courts of Record in Cities, Li-
" berties. Towns Corporate, and elfewhere, and for fo long
" Time only, as there is or fhall be an Utter-Barrifter of 3
" Years Standing at the Bar, of one of the Four Inns of Court,
" that is or Ihall be Steward, Under-Ste-ward or Deputy-Stew-
•• ard, 'Town-Clerk, ox 'Judge or Recorder of the fame inferior
" Court ; or that is, or (hall be from Time to Time AJJifiant
" to fuch Judge or Judges of fuch inferior Courts as Jl^all tiot
" be Utter-Barriflers of fuch Standing, as is aforefaid ; and
" THERE PRESENT; In which, fuch A6tions, Bill, Plaints,
" Suits or Caufes, is or fhall be brought, commenced, or de-
" pending; and not cj' Counfel in any Adion, Suit or Caufe
" then depending in the fame inferior Court."
Lord Mansfield — The Judge, though He be fuch a Barrifter,
can be of no Ufe to the Court, unlefs He Himself be there.
The Meaning of the Ad is. That fuch an Utter-Barrifter ought
in all Events, to be present at the Trial.
Mr. Juft. Denison and Mr. Juft. Wilmot — Certainly : That
was the Meaning of the Ad beyond Doubt. And for Want of
this, the Trial now in queftion is void.
The Rule (to fliew Caufe " Why there ftiould not iftue a
" Writ of Procedendo, to be direded to the Mayor Aldermen
" and Burgeftes of the Burrough o{ Fortfmouth ;" And " Why
" the Defendant ftiould not pay to the Plaintiff" the Cofts of
" this Application ;") was
discharged.
Rex
51 6 Hilary Term 31 Geo. 2.
Rex verf. Elizabeth Sarmon.
THE Court made no Sort of Difficulty to quaJJi an IndiSltnent,
(though attempted, by two or three Counfcl, to be fupport-
ed) " For that the Defendant for the Spncc of four Hours a?jd
■" MORE together, on every of the fevera! Days fpecified, fwhich
" were the firft Day of January 29 G. 2. and divers other Days
*' and Times between that Day and the Day of taking the Inquifi-
" tion,) tvith Force and Arws &c. at London, at the Parifli of St.
*' Martin within Ludgate, in tlie Ward of Farringdon PVitkciit, in
" London aforefaid, unlawfully injurioufly and wiHully did set
" PLACE and KEEP a certain Perfon, (whole Name w^s yet un-
" known to the Jurors,) in and upon the common and ancient Foot-
" Way on the North-Side of the Public Street there fituate, called
*' Ludgate-hill ; to deliver out certain printed Bills of her
" Occupation, to Perfons puffing that Way; in-hich [aid Perfon
** fo fet placed and kept there, by her the faid Elizabeth, did, on
" the faid Days and Times, remain in and upon the faid Com-
" vion Foot -Way during the feveral Spaces of Time aforefaid, de-
" LiVERiNG and DISTRIBUTING priiited Bills, as aforefaid;
" Whereby the fame Foot -Way, at thofe feveral Days and Times,
" was greatly impeded and obstucted; So that the Liege
" SuojeSls of our faid Lord the King, there pafjing and refding^
" coidd not so freely go pafs and repafs in by or through the
*' same Way, as they ought and ivere ujed to do: To the grert
" Damage and common Nusance of all the faid Subjeds, and
** againft the Peace of our faid Lord the King his Crown and
" Dignity."
The Court held this to be a Matter not indiSlable ; and
quafied the Indictment.
The End of Hilary Term 1758. 31 Geo, 2.
Eafler
5^7
Eafter Term
3 I Geo. 2. B. R. 1758.
Rex verf. Richardfon. Wednefiay
'' 12th April
1738.
^ H I S was a General Demurrer, by the King's Coroner
and Attorney, to the Defendant's Plea to an Information
in Nature of a ^o warranto exhibited againft T'homas Ri-
chardfon, to fhew by what Authority he claimed to be
one of the Portmen of the Town or Burrough oi Ipfwich.
T
The Plea (in Subftance) is, that Ipfwich is an ancient Burrough
by Prefcription, prior to the Charter: That at the Time of granting
it, there were, and long before had been 12 Burgeffes called Port-
men. Then it fets forth the Letters Patent of Incorporation, dated
1 1 Feb. ly Car. z. which, after reciting that this Town or Burrough
had been, for many Ages, a Corporation &C; firft confirms the faid
Incorporation and all their Liberties Free Cuftoms Franchifes &c.
Then the laid Letters Patent name conftitute and confirm the fe-
veral Officers, and (amongft the reft) twelve Portmen. Then they
go on to grant and confirm, " that All EleSliom of the Port?nen
" and of every of them, by the Death or Removal of any of
" them or otherwife in whatfoever Manner happening, (hould from.
" thenceforth for ever be made and ought to be made by the Others
" or Residue of the Portmen for the Time being, or the greater
" Part o/'them."
Then the Plea fets forth the Acceptance of the Letters Patent
by the Corporation, and their conforming thereto, to the Time of
the Plea.
The Plea goes on, and alledges a Cuftom then and ftill fubfif-
ting, " that the Bailiffs Burgeffes and Commonalty for the Time
" being, or Jb many of them as would be prefent, have met and af-
" fembled and of Right ought to meet and afTemble together in the
6 Ct. Moot-hall
5i8 Eafler Term 31 Geo. 2.
" Moot-hall yearly and every Year, at divers Times in the Year,
" mix. Once, on the %th of September in every Year, for the Elec-
" tion of Bailiffs, and for the confulting about and tranfadting of
" other lawful and neceffary Affairs concerning the Burrough and
" the good Rjule and Government thereof; and again at Michachms
" in every Yiear, for the tranfading of divers lawful and necelTary
" Bufineflcs cifc; And alfo at fuch other Time and Times in the
" Year as to the Bailiffs of the faid Town or Burrough for the
" Time being hath feemed meet and neceffary, i/fion due Notice
" being previouily given thereof, for the better ordering Regula-
" tion and Government of the faid Town or Burrough: At which
" faid AfTembly, from Time to Time had and held as aforefaid,
" the Bailiffs of the faid Town or Burrough for the Time being,
" during all the Time aforefaid, have of Right prcfided, and have
" ufed and been accuftomed and ought to prefide; and which faid
" Ajjhnhly, during all the Time lafl aforefaid, hath been and hath
" been called the Grkat Court of the faid Town or Burrough."
Then the Plea further fets forth another then and flill fubfifting
Cuftom and Method of Eleoling fwearing and admitting the Port-
men, lohcnevcr any Vacancy or Vacancies hath or have happened
by the Death Refjgnation Dijcharge or Removal of any Portman or
Portmen of the fame Town, or in any wife whatfoever; viz. " that
" the Rksiduf, of the Portmen, or the greater Part of thtm,
" bav^ within a kkasonable and convenifnt Time after the
" happening of fuch Vacancy or Vacancies, ajfembled in the Coun-
" cil-Chamber, for the EleBion of another lortman or other Port-
" men; And, in the faid Room there, have eleded and named,
" and of Right ought to eledt and name, out of the then Burgeffes
" of the faid Town or Burrough then relident and inhabiting
" within it, fuch other Perfon or Perfons as the faid then Residue
" of the Portmen aforefaid, or the greatejl Part of them, have
" thought fit and proper to be a Portman or Portmen of the faid
" Town, to fill up fuch Vacancy or Vacancies: And fuch Perfon
" or Perfons fo elecfled and named to be a Portman or Portmen of
" the faid Town or Borough, and being refident and inhabiting in
" the fame Town, hath and have, for all the Time aforefaid, been
" fworn and admitted, and during all that Time ought of Right
" to be fworn and admitted into the fame Office or Ofhces; And
" every Perl on jo eleded fworn and admitted &c^ and being refi-
# " dent and inhabiting ^c, during all the Time aforefaid, hath of
" Right enjoyed had ufed and exercifcd, and during all that Time
" ought of Right to have Ufe and Exercife, and flill of Right
" ought to enjoy ufe have and exercife the faid Office of a Port-
" man of the faid Town or Burrough, and all the Liberties Privi-
" leges Rights and Franchifes to that Office belonging and apper-
" taining, from the Time of his Admiffion thereto, until the Death
" Refignation Diflbarge or Removal of fuch Portman.''
2 The
Eafter Term 3 1 Geo. 2. 519
The Plea further fbews, That every Portman of the faid Town
or Burrough, during the Time of his being in that Office, ought,
according to the Cuftom of the faid Town or Burrough, to be re-
fident and inhabiting within the fame Town or Burrough or the
Liberties thereof; and according to the Cuftom of the faid Town
or Burrough and by the Duty (f his Office of Portjnan, ought to
ATTEND a7td be PRESENT at every Great Court of the faid
Town or Burrough held or to be held in the Moot-hall aforefaid
within the faid Town or Burrough, To advise and assist the
Bailiffis of the faid Town or Burrough for the Time being, in the
good Rule and Government of the fame ToWn or Burrough.
It then alledges that on the 8th of September iyss, and for fix
Months and more next preceding that Day, He the faid Thomas Ri-
chardfon and one John Gravenor were Bailiffs of the faid Town or
Burrough.
That on the fame Day and Year, and for the Space of one whole
Year then laft paft, and upwards. Sir Richard Lloyd Knight, John
Sparrowe, Samuel Kent, Humphrey Rant, Ellis Brand, Michael Thir-
kle the Younger, Goodchild Clarke, William Hammond, George Fofter
Tiffnell, and "^ames Wilder were the then Portmen of the faid Town
or Burrough.
That within the faid Space of that Year during which the faid
Sir Richard Lloyd &c. were Portmen as aforefaid, divers Great
Courts of the fame Town or Burrough, were holden &c; thnt is to fay.
One Great Court of the faid Town or Burrough, \yas duly holden at
the faid Moot-Hall of the faid Town, in and for the faid Burrough,
on the 13th of January 1755; One other Great Court of the faid
Town or Burrough was duly holden at the fiid Moot-Hall Cs'c. on
the 15th of Jpri I 1755; One other, on the gthof Jufie 1755; And
0?ie other, on the 19th of June 1 755: Before the Holding of
which faid feveral Courts refpedively, due Notice had been
given of the holding thereof refpeSlively.
That on the faid 8th oi September 1755, they the faid Thomas
Richardfon and John Gravenor, being then Bailiffs, and the above-
named Jajnes Wilder, then one of the Portmen of the faid Town
or Burrough as aforefaid, and a great Number of the then Buro-efies
and Commonalty of the faid Town or Burrough, in due Manner,
according to the Cuflom of the faid Burrough, met and affembled
'together in the Moot-Hall aforefaid within the faid Town or Bur-
rough; and then and there held a Great Court of the fame Town or
Burrough, {due Notice of the holding thereof having there been pre-
vioufly given,) for the EleBion of Bailiffs of the faid Town or Bur-
rough,
520 Eafler Term 31 Geo. 2.
rough, and for the Tranfadion of divers other lawful and neceffary
Matters and Bufineffes concerning the good Rule and Government
of the fame Town or Burrough.
That the faid Sir Richard Lloyd, Jolm Sparrowe, Samuel Kenf^
Humphry Rant, Ellis Brand, MichaelThirkle,Goodcbild Clarke, William
Hammond, and George Fojler Tuffnell, did 7iot, nor did any of them
ATTEND or APPEAR at the fame Great Court of the faid Town or
Burrough, /^z/^ wilfully absented themfelves therefrom; And that
They and Every and Each of them wilfully had abfetited themfelva
from the faid other Great Courts oi tht faid Town or Burrough which
had been fo duly holden in the fame Town or Burrough within the
faid Space of One Year then laft pafl as aforefaid, and from every
of thofj Great Courts ; And had 'voluntarily negleBed, and Every and
Each of them had voluntarily neglected to attend at the faid Great
Courts fo holden as aforefaid, or at any of them: And thereby. Each
of them the faid Sir Richard Lloyd &c. and G. jF. Tnjfhell tiegleSled
and omitted the Duty and Execution of his faid OJice of One of the
Portmen of the faid Town or Burrough, and thereby deprived the
then- Bailijfs Burgejfes and Commonalty of the faid Town or Bur-
rough, ajjcmblcd at the faid fcvcral Great Courts, of that Counfel
Aid Jljifiance and Advice which by the Duty of his Office of Port-
man of the faid Town or Burrough, and according to the Obliga-
tion of the Oath of Office by him taken in that Behalf, He ought
to have given ; 'To the great Hindrance afid Delay if the public
Bufincfs of the faid Burrough, To the great Damage Difappoint-
vient and Prejudice of the Bailiffs Burgeffes and Commonalty of the
faid Burrough, aiid to the great Flindrance and in open Subverfion
of the eood Rule Government and Conftitution of the faid Bur-
rough.
That thereupon, at the fame Great Court of the faid Town or
Burrough holden on the faid 'b^\Vid.^ o^ September 1755, for the
Puipofes aforefaid, (the faid Great Court having Notice of the Pre-
miffes,) It was in due Manner Ordered, by the faid then Bailiffs
Burgeffes and Commonalty of the faid Town or Burrough then met
and affembled at that Great Court as aforefaid, " That the fuid Sir
" Richard Lloyd, John Sparrowe, Samuel Kent, Humphry Rant,
" Ellis Brand, MichaelThirkle, Goodchild Clarke, IVtlliam Hammond ^
" and George Fojler Tuffnell, and each of them refpedively, fliould
" feverally and refpedtively have Notice of the NegleSl of Duty
" charged upon each of them, and be fummoned to appear at the then
" next Great Court of the faid Town or Burrough, that is to iliy,
" in the Moot-Hall aforefaid, on Monday the 29th Day of the fmie
" September; feverally and refpedively to Jhew Cauf, (if they or
" any of them could,) Why Each of them refpedively Jhould not
" Zic- discharged y>oOT his faid Office o/" Portman, for his
" refpeolivc Neglects aforefaid.'"
That
Eafler Term 31 Geo. 2. 521
■ That afterwards, and before the Holding of the faid then next
great Court of the fame Town or Burrough, to wit on the 20th
Day of the fame September 1755, Each of them the faid S\v Richard
Lloyd, y. S. S. K. H. R. E. B. M. T. G. C. W. H. and G. F. T.
HAD Notice of the /aid Order fo made by the fame Great Court,
and of the Charge aliedged againft Each of them refpedlivelv, of his
aforefaid Neglects ; and were then and there fever a i/y and r'efpe&he-
ly SUMMONED, and every and each of them was then and there in
due Manner fwnmoned to attend and appear at the faid then next
•Great Court of the fiid Town or Burrough to be holden in the Moot-
Hall aforefaid in the faid Town or Burrough on Monday the 29tli
Day of the fame September, by the Bailiffs Burgeffes and Commonal-
ty of the faid Town or Burrough, and to fhew Caufe (if any of
them could) why Each of them the faid Portman refpedively
flaould not be difcharged from his faid Office of Portman, for his
refpedtive Negled:s aforefaid.
That afterwards, that is to fay, on the fame Monday the 29th
Day o^ September in the faid Year of our Lord 1755, They the faid
Thomas Richardfin and John Gravenor, being then and there Bai-
liffs of the faid Town or Burrough, and the faid James Wilder being
then One of thePortmen of the fliid Town or Burrough, And a o^reat
Number of the then Burgeffes and Commonalty of the fame Town
or Burrough (due Notice having there been previoufly given in that
Behalf,), did, in due Manner according to the Cuflom of the faid
Burrough, meet and affemble in the Moot-Hall aforefaid within the
fiiid Town or Burrough, And then and there held a Great Court of
the fame Town or Burrough in and for the faid Town or Burrough j
And the faid Sir Richard Lloyd, J. S. S. K. H. R. E. B. M. T.
G. C. W. H. and G. F. T. although they were then and there fo-
lemnly and feverally called for that Purpofe, did not nor did any
of them APPEAR or attend at that Court, or shew any Cause
Why they and each of them fhould not be difcharged from the
faid Office of Portman of the fiid Town or Burrough : But they
and each of them did then and there 'wholly make Default therein.
That at the fame Great Court ^c. fo holden as aforefaid on the
faid Monday the 29th of September IJSS^ ^ further Day laas
given by the fame Great Court, to the fliid Sir Richard Llcyd&c, re-
fpeclively, until the then next Great Court of the faid Town or
Burrough to be holden in and for the faid Town or Burrough at the
Moot-Hall of the faid Town or Burrough on Tuefday the 14th
Day oiOdlober then next enfuing, To Hiew Caufe as aforefaid : And
it was then and there in due Manner Ordered by the fame Great
Court, " That the faid Sir Richard Lkyd &c, and every of them
" fiould have Notice and be feverally and refpeftively fum?noned to
" appear at the faid then next Great Court &c, to be holden &c^
6 R "en
522 Barter Term 31 Geo. 2.
" on the fiiid Tuefday the 14th Day of OBober then next enfuing;
" feverally and refpedlively to fhew Caufe, (if any of them could,)
** why they and Each of tliem refpedively ihould not, for the
" Cauj} (jforefaid alledged againft Each of them refpe^ively, be dif-
" charged from his Office of Portman of the faid Town or Bur-
" rough, /ir hit NeglcSis aforefaid."
That afterwards, and before the Holding of the faid then next
Great Court of the fame Town or Burrough, to wit, on the loth
Day of the fame OBober in the faid Year of our Lord 1755, They
the fiid Sir Richard Lloyd &c, and each of them refpedively, had
due Notice of that Order, and of the Charge alledged tgainft each of
them refpedlively, of his aforefaid Negledis ; and were then and
there feverally and refpedlively fummoned, and every and each of
them was then and there in due Manner fum77ioned to appear and
attend at the faid then next Great Court of the faid Town or Bur-
rough to be holden in and for the faid Town or Burrough, on T^uef-
day the 14th Day of OBober then next enfuing. To (hew Caufe, (if
they any of them could,) why they and each of them refpedively
fliould not, for the Caufe aforefaid alledged againft each of them
refpedively, be difcharged from his Office of a Portman of the faid
Town or Burrough, for his NegleBs aforefaid.
That on the faid Tuefday the 14th of OBober aforefaid, in the
faid Year of our Lord 1755, Lark Tarver and Thomas Bowell were
Bailiffs of the faid Town or Burrough ; And that the aforefaid Sir
Richard Lloyd &c. And James Wilder ^ were the then only Portmen
of the faid Town or Burrough.
o
That on the faid Tuefday the 14th Day o( OBober aforefiid, They
the faid Lark Tarver and Thomas Bowell, then being Bailiffs of the
faid Town or Burrough, and the faid James Wilder then One of
the Portmen of the fame Town or Burrough, and a great Number
of the then Burgeffes and Commonalty of the faid Town or Bur-
rough {due Notice in that Behalf having there been previoufly given,)
did, in due Manner according to the Cuftom of the faid Burrough,
meet and affemble in the Moot-Hall aforefaid in the faid Town
or Burrough, and then and there held a Great Court of the fame
Town or Burrough, for the Tranfadion of divers lawful Affairs
concerning the Good Rule and Goverment of the faid Town or
Burrough.
That at the fame Great Court, &c. (o holden as aforefaid on Tuef-
'day the 14th of OBober 1755, The aforefaid Sir Richard Lloyd &c^
were feverally and folemnly called, and every and each of them was
feverally and folemnly called to appear and fhew Caufe at that
Court, (if any of them could,) why each of them refpedively
fliould
Barter Term 31 Geo. 2. 523
fliould not, for his Negledt of Duty aforefaid charged and alledged
againfl each of them refpedlvely, be difcharged and removed from
his faid Office of Portman of the faid Town or Burrough. That
they the faid Sir Richard Lloyd &c, being fo refpedively and fo-
lemny called as laft aforefaid, did not nor did any of them then
ATTEND or appear orfiew any Caufe v/hatfoever, at that Court, why
they or any of them fliould not be difcharged and removed from
his faid Office of Portman of the faid Town or Burrough : But they
Every and Each of them did then and there iiholly make Default
therein ; and neither they nor any of them, nor any Perfon on the
Behalf of them or any of them, did then require any future Day
or Time to be allowed to them or any of them, to fhew Caufe as
aforefaid. Whereupon, the faid Lark Tarver and Thomas Bowel/,
then being Bailiffs of the faid Town or Burrough, And the Refl of
the faid BurgelTes and Commonalty of the faid Town or Burrough,
then fo met and affembled, and holding the faid Great Court of the
faid Town or Burrough as aforefaid on the faid 14th Day of OBobcr
in the Year lafl mentioned, having taken the Premiffes into their Con-
fideration, and having fully and deliberately weighed the fame; The
faid Court did then and there Order " That Each of them the faii
" S\v Richard Lloyd, J.S. S.K. H. R. E. B. M.T. G.C. W.IL
" z.Vid.G.F.T. Jliould be dismissed discharged «W removed
" from his Office of a Portman of the faid Town or Burrough: And
" Each of them refpe<3:ively was then and there, by the faid Court,
*' FOR his faid NegleSl of Duty, duly difcharged and removsd from
" his Place and Office of Portman of the faid Town or Burrough ;
" and Each of them hath ever fince remained and been, and yet is
" difcharged and removed therefrom."
That the aforefaid Sir R. L. J. S. S. K. H. R. E. B. M. T.
G. C. VV. H. and G. F. T. being fo refped;ively difcharged and re-
moved from their faid refpedive Offices as aforpfaid, He the faid
James Wilder, afterwards on the fame Day and Yi-^v, ^.lA. from the
Time of their faid refpedive Difcharges and Removal until and
-AT the -Time of the EleSlion of other Fort men of the faid Town
or Burrough herein after mentioned, remained and was a Portman
of faid Town or Burrough ; and then, and during all that Time,
was the only Portman of the fame Town or Burrough.
That afterwards, on the faid Tiiefday the 14th Day of 0£loher
aforefaid in the Year lafl mentioned, the faid James Wilder, being
THEN the ONLY Portman of the faid Town or Burrough, retired
and went into the Room called the Council-Chamber, in the Moot-
Hall aforefaid in the faid Town or Burrough, in Order to eleSi
Other BurgefTes of the fame Town or Burrough, refident and in-
habiting within the faid Town or Burrough, to be Portmen of the
faid Town or Burrough in the Places of Portmen of the faid Towa
or Burrough vacant as aforefaid; And did then, in the faid Rocni
there
524 Eafter Term 31 Geo. 2.
there, in due Manner elect Him the faid Thomas Richardsoi*
(being then and there a Burgefs of the fame Town or Burrough,
inhabiting and refident within the fame Town or Burrough, and a
fit and proper Perfon to be a Portman thereof,) to be One of the
Portnien of the faid Town or Burrough, in the Place of One of the
Portmen of the faid Town or Burrough then vacant as afore~
faid.
That he the faid Thomas Richardfon^ being fo eleSled to be a
Portman of the faid Town or Burrough, afterwards and before he
•was admitted to or took upon him the Execution of that Office,
that is to Hiy, at the fame Great Court of the faid Town or Bur-
rough, in the Moot-Hall aforefaid, on the fame Ttiefday the 14th
Day of OBober in the Year laft aforefaid, at the fame Great Court
of the faid Town or Burrough, in the Town-Hall aforefaid, did
then and there, before the faid Lark Tarver and Thomas Bcivell
then Bailiffs of the faid Town or Burrough, in due Manner
and according to the Ufage and Ctijiom of the faid Burrough, take his
Corporal Oath for the faithfid and due Execution of the faid OJice
of a Portman of the faid Town or Burrough in all Things concerning
the fame, and all other Oaths then required bv Laiv in that Be-
half: And thereupon. He the faid Thomas Richardfon was then and
there, at the fame Great Court, in due Manner admitted into the
faid Office of a Portman of the faid Town or Burrough. And there-
upon, and by Virtue thereof. He the fiiid Thomas Richardfon, after-
wards, that is to iliy, on the faid 14th Day of Ociobcr 1755, and
continually from thence until and at the Time of exhibiting the In-
formation, was and fWl is a Portman of the faid Town or Burrough.
And by that Warrant ^c. &c.
The King's Coroner and Attorney demurs generally : And the
Defendant joins in Demurrer.
This Cafe was three Times argued.
The Gt'wr^/ Queftion was, " Whether the Defendant has Hiewn
^ fiificient Title to the Office:" Which general QiJcftion was di-
vided into two fubordinate Ones j i::iz.
ift. Whether the Nine Portmen had been well -and duly remo-
'■VED ; And (admitting that they were fo,)
2dly. Whether the Defendant was ivell chosen.
to the^Re"" ^'""^ — TheCounfei for the Crown urged. That the Perfcns amo-
movai. ving had 710 Power to amove. For a Corporation have no fuch
2 Power
Eafter Term 31 Geo. 2. 525
Power inherently or incidentally : And none is, in the prefent Cafe,
either given to this Corporation by Charter, or claimed by Prefcription.
They cited Magna Chart a, c.2(). " Nidlus liber homo diffeifietur
'*' de libera tenemento fuo, niji per legale judicium parium fuorum^
" W per legem terree." James Bagg's Cafe, ii Co. 93 to 99.
1 Ro. Rep. 224, 225. S, C. and S. P. The Crown may, by Writ,
difcharge fome Officers, after Convidlion. See Sir Robert Sawyer's
Argument on the ^io Warra?ito againft London, fo. 2Z. State
'Trials Vol. 4. fo. 810. S. C. Where Sir Robert mentions the
Cafe of a Coroner: F. N. B. New Edit. 381. Old Edit. 163.
IVrit de Coronatore eligendo vel excnerando. Rcgifter 177, 178. Writ
■ de Coronatore eligendo ; & de Viridario eligendo. F. N. B. New
Edit. 383. Old Edit. 164. J'Frit de elc5lione Viridarioriini Fore/la.
JOycr 333. Pafch. 16 Eliz. pi. 28. which was a Reftoration by Writ
of a Citizen of London, who had been disfranchized.
Thefe Authorities they cited, to illuftrate and deduce the Pofition
" That, in Confequence of a Conviction, Writs (hall iifue out of
" the King'i Courts, where the Convidion is ;" and to fhew " that
■" the Power is originally in the Crown."
In Tates's Cafe, Style 477, 480. it is faid " There mufl be a
" Cuftom or a Statute to warrant a Disfranchifement." i Ld.
Raym. 391. Rx v. Mayor of Coventry, M. loW. 3. (2d Point,)
The Court held that the Corporation ought to (hew a Power,
either by Cuftom or under their. Letters Patent. 2 Ld. Raym.
1564, 1565, 1566. M. 3 G. 2. Rex V. Mayor &c. Oi Donca/ier,
recognizes the Authority of Bagg's Cafe, and Tates' Cafe, " That
" a Freeman (liall not be removed, but by Charter or Pre(cription :"
That Return was quadied ; and a peremptory Mandamus ifllied.
And M. 29 G. 2. B. R. Rex v. Pcnfonby was agreeable to this.
The only DiButn to the contrary of this Doflrine, is in 2 Strange
819,820. Lord Bruce' ^c d^c: where it is faid "that iViZ Modern
" Opinion has been, that a Power of Amotion is incident to the Cor-
" poration." But this Report ought to carry but little Weight:
For other Accounts oF that Cafe differ from it; And no fuch mo-
dern Opinio}! as is there hinted at, does any where appear.
Second Objedion (under the firft Point.) 2(1 Objectioa
to the Re-
Here was no fufficieJit Cause of Removal of thefe 9 Portmen. '"°^^-
Their Non-Attf.ndance was ;w i>/T(?c/:' of their Duty, fo as
to occ2.(ion ^ Forfeiture, i Havk. P.C. 168. fays that the Notion
-of Forfeiture by bare Non-Ufer is not well warranted by the Au-
thority cited in Maintenance of it. '■'
6 S This
526
Eailer i erm ^i Geo. 2.
J
This Duty, " of attending to advife and afPift the P.ailiffs at the
*' Great Courts," is not conjlmit and continual; but t>C( ashinal
only, and when they receive Notice to do fo: They are not obliged
to attend the ordinary and common Bufinefs of thefe Great Courts.
And it is not here allcdged, " that any Counfel, Aid, AfTiftance, or
" Advice was wanting." Indeed, the Plea concludes that this was
" to the Damage and Prejudice of the Corporation, and their Hin-
" dcrance &c."
But there is no fpccial Damage laid: And the flating a General
Damage to the Corporation is not enough ; without (hewing a par^
»Asto?/;- ticuiar Prejudice to them, i Lift. 233. Z-. is exprefsly fo.*
'itate Offices :
/^l^ whic°/" ' ^ Burgefs's Non-Attendance at Seflions, is no Caufe fufficient for
concern the a Removal of him. Regina v. Mayer and Burgejfes cf Fomfret,
Adminiftrati- ^,^^ j j A^jnc. in Lucas's Report 107. is exprefsly fo refolved.
on of Julhce t / r J
or the Com-
mon-Wealth. But even admitting they had this Power of Removal ; Yet, it
ought to be for fuch an Offence as was againji their Oath cf Office : and
confequently, this Oath of Office ought to be fet forth. Style /^yj, 478.
2 Ld. Raym. 1233. in Serjeant IVhitaker-i Cafe — Regina v. Balli-vos,
Biirgenjes &c. de Gippo : There the Oath is fet forth. Here, it is not.
3d. Objeflion Third Objedion (under the firft Point) — " This is not a Removal
to the Re- by the WHO IK Body, at a Corporate Affembly-, but by a particular
Court. In Carthew 172. Sk Peter Rich v. Pilkington, the Court of
Mayor and Aldermen was holden not to be a Corporate AfL-mbly;
but a Court. So here, this Great Court was only a mixt Affembly j
and not the Mayor Burgeffes and Commonalty.
moval.
4th. Objec- Fourth Objeflion (under the firft Point.) the Removal is not
tion to the wuicr their Common Seal, i Salk. 192. The Mayor of "Thctford'%
eroova . Q;^{,^^ jg in Point, " That a Corporation can not do an Aft in Pais,
" without their Common Seal." i^ H.S. 12. P/aicd. gi.h. gz.a.
* fOn the id 2 Saund. 305.* 3 Lev. Manly v. Long ct al.-\ i Vcntr. 47. Horn
fhrHerr" ^•^'H)'- ^^^°d- iB. S.C.J In I Ventr. 355. Haddocks Cafe, The
•|-(2d. Excep Words are, " If the Power to remove be at their Will and Plea-
aTowV*")^ " ^^''^' ^'^'^ ^'^''^ '""^ ^^ expreffed under their Common Seal: But in
X All thefe laft " a Rctum to a Mandamus, Dchito niodo amotus may fuffice." There
Cafes do not is a Note, at tlie Bottom of the Colchefter Cafe in i Pecre JVms.
rJroie the' 59^' " That the Method of disfranchifing a Corporator, (in order
Pofition; mt " to examine Him as a Witnefs,) is by an Information in the Na-
being the cc j^j.^ ^f ^^ c^^ laarranto againft the Member; who confcffes the
omt rcja ve . „ Information : On which, there is a fudgment to disfranchife Him."
The prefent Cafe is not like to a Return to a Mandainus; where
the mere Return of his being " dchito modo amotus" is fufficient:
Here
Eader Term 31 Geo. 2. 527
Here, it ought to he. fo pleaded; this being a Plea to an Information :
which Plea ought to be taicen againfl the Pleader.
Fifth Objecflion (under the firft Point) was to the Want of per- i;th. Objec-
soNAL Notice being given to the 9. removed Portmen, " to attend 'j)°^'Jj^'p°^'|'^
" the five Great Courts firft mentioned in the Plea;" (for the Non-
Attending whereof, they were afterwards removed.)
This Objeftion was firft flarted by Lord Mansfield; who »b-
ferved that for the Meetings affembled for doing Corporate Adls,
K Summons [oi fome Sort or othet-) is neceffary; And that /j^t^', the
Offence itfelf turns upon Abfences from feveral Courts, 7iot holden
(except one of them) upon stated Days, during the Period of
about a Year; Yet no personal Notice to thefe Portmen is alledged
by the Plea; but only, in general, "that due Notice was given of
" the holding thereof rcfpedtivcly:" So that it does not appear that
they had any Re af on to think of any particular or special
Bufiuefs. And if Jo, die particular Notice afterwards given them,
" to (hew Caufe why they fhould not be disfranchifed," will not
affed them : For that is quite a fubfequent diflindt Tranladlion.
Therefore He offered to hear a further Argument on this fingle
Head if the Parties defired it. Which they did: And this Objec-
tion was argued by itfelf.
The Counfel for the Crown alfo objefted to the Notice given to
thefe Portmen, of the Courts at which they were to have attended
to JJjew Caufe why they fhould not be disfranchifed.
I ft. They argued that it was not their Duty to have attended at
ALL Great Courts, upon general Notice of them, without
particular ^Wpe'^sonal Summons. For without fuch per-
fonal 'Notice, they could not be guilty of fuch a Laches as would be
a Ground for a Forfeiture of their Office.
2dly. They infifted alfo that particular and personal
Notice ought to have been given them, of the Charge, and of the
Intention to disfranchife. I Salk. 214.. Nurfe v. Frampton. 8 Rep.
93. Fraunces's Cafe, (3d. Refolution.) And although it is alledged,
" that EACH of them refpeBively had Notice;" * yet this was not* ^■y"'^'^-'^^-
enough: But a particular and fpec fie Summons ought to be fet forth. l^b'easpanU
And they cited Style 446, 452. The Protedlor and the Town of cular and per-
Colchefier, Bernardifton the Recorder's Cafe. 4 Mod. 37. G/zVf's ^°"'^''^°\'''
Cafe. Cafes temp. W. 3. fo. 29. S. C. Bagg'% Cafe 1 1 Rep. 99. a. "" "^^ ^^
And it is likewife fo in Actions. Fletcher v. Ingrain, laft cited
Book, /o. 87, 88. (v. Cafes temp. IV. 3.) was a Replevin: And
" Notitiam habuit" was holden too general, i Ld. Rayin. 225, 226.
Rex
Eader Term qi Geo. a.
Rex V. Chalie upon a Mandatnus to reftore an Alderman, per Holt
" A Summons is neceflai y, that the Perlbn charged may be pre-
" pared to make his Defence." And this ought to be perfonal.
And it muft be given by the proper Perfon. 6 Rep. 29. a.b. Green's
The ill Point. Cafe: * Where no Lapfe incurred for want of it's being given in
Certainty and explicit Particularity, and by the proper Perfon too.
Now the Words in the preje?;t AllcgatioJi " that each of them
haei " Notice," may be true; though they had no proper, regular,
and perfojial Notice.
, Second Point (viz. Second fubordinate Queftion.)
The Defendant has liOT been duly elected, and y^-orn,
5 ft. Objeflion ifl. For the Eleflion ought to be by the Refidue; And " Refidue'*^
^^,^^^^^^"'^^"'■^5 a /A^;W Term, and imports " //v others':" Wjiereas here was
only One single Portman left, And He alotie eleded the Defen-
dant into this Office.
The Cuftom requires " the Portiven to offemhlc:" Which Expref-
fion neceilluily imports fome Number of them, at Icafl more than
One; For One alone can never be faid to affemble. And all Char-
ters ought to be taken according to the Cuflom fubfifling at the
Time of granting them. 2 Jnft. 282. And here, they have been
reduced to One, not by the Adt of Providence, but by the voluntary
Adl of the Corporation themfeves.
zd. Objeftion 2dly. The Cuftom alfo requires a reafonable and convenient Time,
Eiea'io ".'*'"'' " between the Happening of the Vacancy, and the Eledion of a
" new Portman." Whereas this Eledion AdmilTion and Swearing
of the Defendant to be One of the Portmen in the Place of One of
thofe removed, v/ere all immediate. .
3d. Objeftion jdlv. Bcfides, He ought to have been eleded into the Rlace of
to Defendant's fome particular VoxX.mzw; not in general, "into the Place of Ow
Eiea.on. » of them then vacant."
4th. Objec- 4thly. The Plea does not fufHciently particularize the Oath of
ftndamSlec- ^^^^' ^^'^^ "^^'^^ 47^;) "or alledge that the Perfons who admini-
tion and fiered the Oaths to the Defendant, {viz. the Bailiffs,) " had fuch
Swearing. " PowER to admini(ier them. It is only averred " That He took
" them before them in due Manner and according to the Cuflom."
I Strange 539. Rex v, Deean. et Capitul. Dublin. Per Eyre Juflicc,
" In the Cafe of Corporations, where the Charter doth not impoicer
" any Body to give the Oath, they are. forced to get a Dedimus out
" of Chancery," M. 8 G. 2. B.R. Rex v. Gibbon, a Freeman of
4 Ntw
Eailer Term 31 Geo. 2. 529
New Romney; on a Motion for a new Trial; per Ld. Hardwicke
" Tiie Defendant, when He comes to make a Title againft the
" Crown, upon an Information in nature of a ^w warrnnto, muft
" make a complete Title to the Office; and muft ftiew a Right of
"Swearing:" And his Lordftiip exprefly added, "Shewing that
'" he was fworn in due Manner and Form, alone is not fufficient."
Now here, he has not fhewn " That the Bailiffs had a Right to
■" adminifter the Oath."
The Counfel for the Defendant Firft obferved that a Plea is ExpamD.f.
to be taken to a common Intent: 'Tis 7iot like a Mandamus to rejlore;
which muft be taken more JlriSlly.
It appears, they faid, upon this Plea, that there wa«/Vz FaB a Retno-
i;tf/ of former Portmen ; a Vacancy occafioned thereby; and an EleSiion
of the Defendant into the Office, upon that Vacancy. The Power
■ to renio^je, is to be tried in another Method; at leaft, more properly
than by this Method: However, the Defendant is content to have
■ the Merits determined in this or ^ny Method.
Having premifed thus much in general —
I ft. They urged that this Power of Removal is itjiplied and i?i- Anfwer to
■herent and incidental to the Conflitution of a Corporation. 'i Objeaion
•^ ^ to the Re-
The Lai!) gives whatever is necejfary to the Enjoyrnent of a Grant.
Upon this Principle, is founded the Power of making By-Laws by
Corporations: Much more, muft they have Power inherent in them
to exercife ASls essential to their Exijlence and Prefervation.
The Power oi Amotion is One of thefe; and is not limited to
Cafes where the Party has been previoiijly convicted. Their
Power of Amotion is the y??/«^, after Convid:ion, "z.^ before ; neither
greater, nor lefs: The ConviSlion working no Change, either upon
the Charter or Prefcription.
Conviftion is not a true Criterion of Guilt. For atrocious Crimes
are not purged, with refpedt to the Corporation, by a Pardon before
ConviBion; (which the Crown may grant, if they pleafe:) Or the
Offender may run away; and thereby avoid being conviBed at all. ^'
Such Amotion can not be contrary to Magna Chart a. For a Man
may certainly be removed from his Freehold; if he can be fo by
the Law of the Land. So that there is no Argument to be drawn
from Magna Charta, as to this Queftion.
If a Corporation have no inherent Power to disfranchife, How
xan they do it even upon Requejl of the Corporator himfelf? Yet
•that was Tidderlefs, * Cafe. '^ ^- '« ^''^'^f-
6 T But'^'^-
J>
o Eader 1 erm ai Geo. 2.
But this ir. n'ot a Dhfranch'ifanent of a Freeman -y but only a
Difplacing an O^r^T from an Officf, leaving him still a Free-
man. And furely, this mere Displacing from an Office can
mvcr demand a previous Convi^iou.
Suppofe an Officer becomes, by the Vifitation of Providence,
infane, blind, or otherwife incapable to execute his Office; tnay not
He be removed from fuch Office? Ours is not an arbitrary Removal
ad libitum; but a Removal for good Caufe.
The Cafe of the Corporation o^ Doncafler, in 2 Ld. Rayjn. 1564.
,, ion a Mandamus to reftore Scott to be a Capital Burgefs.) makes the
indeed the Difiiuction between ■•'• turning out from an Opce, and dajrcncbipig.
Court obferve'
•'Charl'^did ^^''^ Bruce" s Cafe in 2 Strange 819, is an Authority for us: For
" not affeft it fays cxprefslv, " that the Modern Opinion has been that a Power
"him AS a <c of Amotiou is incidcDt to a Corporation: thouoh ii^fp-'s Cafe
" Blrg'fjiibnt^^ feems contrary." So in the Cafe of i?cx v. Plimpton temp. Ld.
"only ns 'Hard'wicke.\ And from the nature of the Thing, it vniji be inhe-
" p|>an|ber- ^.„^,^ jj^ ^v^^ Corporation.
" lain. ^
-j- ^i. What
Cafe.orwhcn: Befidcs, here /i an implif. d Power to remove, by the Cuflom.
^v. foft III- Pqj. jj. jg <c (.Q gQ ^Q Eledlion Gfr. whenever any Vacancy happens by
*"■ S3+- cc Jigfj2oval &c. of any Portman or Portmen:" Which implies
that the Corporation mull have a Pozccr to amove.
In the Cafe of Mr. Fetherfton-haiigh, Rex v. Mayor of Neurajlle
upon Tyne, Mich. 1747. 21 G. 2. B.R. the Court would not grant
a peremptory Mandamus to reftore Him; thcugli the CcmmonCouncil
who removed him, had no Power in them to remove, but that
Power rauft have been in the Body at large, if it exifted at all.
However, here, the Removal is by the Body at large.
In the Cafe oi Rex v. Tidderlcy, i Siderf. 14. It appears that the
Ld. Ch. Baron Flak thought that Corporations had this Power, " to
" remove for good Caufe;" as Corporations, 'iix^di incidcntaUy.
It has been faid, " that, after Conviiftion, the Corporation may
have a JVrit from the Crown to remove the Offender." But this is a
dangerous Doctrine, " that Corporators may be removed by Writ
from the Crown.'"
As to the Cafes cited — Some of them relate to Coroners, Ver-
derors ^c. which are not applicable to Corporators.
Bang's Cafe was upon a. Mandamus to reflore: And there was
^0 fufficicnt Caufe of Removing him from his Francbife. All the
A. reft
Eader Term 31 Geo. z.
reft of the Cafe is extrajudicial : And the latter Part of it does not
appear in Ld. Ro/Is's Report of it. So that, probably, it was c?2iy
the Reporter's own Opinion ; and fiot faid by the Court.
And if a Corporation has inherent Power to remove, the Cita-
tion from Magna Cbarta does not oppugn it : Becaufe, in fuch Cafe,
it is " per legem terra."
Style 478. was the Cafe of a Freeman disfranchifed; net an Officer
only removed from his particular Office.
As to I Ld. Raym. 391. Rex v. Mayor of Coventry, It was a
Mandamus to re/lore : And the Caufe returned was holden * infuf- * "^'^' '^'" '^
r . ieems to be an
nCient. Authority:
For the Court held " that they ought to have pfjuji either Cujlom or Grant to remove."
As to 2 Ld. Tlaym. 1564. the Diftindion abovementioned is ex-
prefly taken : And the Caufe returned was holden -|- infufficient. f Yet it is an
Authority in
Point, inexprefs Tcrrn% " that a Freeman fhall not be removed by a Corporation, K/v/<y} by virtue of aChar-
" ter or Prefcription."
As to the 2d Objedion (under the firfi: Point,) concerning the Anfwer iq 2ci
Cause of Amotion of the 9 Portmen — the^Removri
It appears to be a Caufe fully fufficient : For they had negkBed
the Duty of their Office, even after Notice, i Lift. 233. a. proves
this to be a Forfeiture of Office : For Lord Coke there exprefly fays
" that Non Ufcr of Public Ofiices is, of it |j felf a Caufe of Forfei- i| r. ante, pa.
" ture." And in the Nature cf the Thing, it was fo in the prefent 52^- '«-^i«'--
Cafe. The Corporation have a Right to their Attendance : And ^"'"'
the Right and the Oiligaiion ought to be reciprocal.
And how is it poffible to affign a fpecial Damage, where feveral
Officers are equally obliged and equally negligent? However it ii
•charged to be " to the Damage and Prejudice of the Corporation."
It is a tacit Condition, that Ncgleci of Duty is a Jufficiint Caufe
of Disfranchifemcnt. Bagg's Cale 98. a. In 2 Ld. Raym. 1275.
Rrgina v. Truebody, Who left the Barrough and lived out of it fe-
veral Years, and neglecled Attendance at the public Afiemblies Zsc.
This was holden a good Caufe of Disfranchifemcnt. In 4 Mod.
33. Glide's Cafe, The whole Court agreed in this Opinion, " that
" an Alderman's deferting his Office was a good Caufe of Disfran-
" chifement." And Holt faid " So was abfenting himfclf from
*' the Council, in the very Nature of the Thing." In Cartheip
227. Vaughan v. Lewis Ld. Ch. J. Holt was of Opinion, " That
" the not inhabiting infra the Burrougli &c. was a good Caufe to
" remove a Member.
Ira
532 Ealler Term 31 Geo. 2.
In the Cafe of Rex v. Ponfonby, it did not appear " That there
" was any A^o«-Attendance :" It only appeared " That they Hved
" out of the Burrough."
And this wilful Abfence and Neglect of the 9 removed Portmen
could not but be contrary to their Oath of Office too ; though their
Oath of Office is only mentioned confequentially, in fetting forth their
Offence in the Plea.
Anfwer to jd As to the 3d Objciflion under the firfl Point — It is objecfed,
^^R"'°"val* " ^"^^^ this was ?iot a Corporate Metimg." But it clearly was fo:
The Meeting confided of all the integral Parts of the Corporation,;
And the Portmen rnuft be Freemen, It was not neceflury to fpe-
cijy the Names of the Corporators who were prefent. Thefe Port-
men were removed at a Corporate Affembly, met to do Corporate
Adls J And upon a Contumacious Refuful 'to attend arid fi:cw Caufe
why they Iliould not be amoved,
Anfwer to 4th 4thly, It is Objeded, " that it was not wider the Common Seal.
Objection to
the Removal. ^^ to which, ifl. That was not necejfary : And 2dly, Itis done
upon Record ; which is of as high a Nature,
And Members are, in every Day's Experience, amoved without
•any 'Judgment.
Anfwer to 5th As to the Want of Perjonal Notice, viz. " Whether the Abfence
'Objection to cc ^f jj^gf^ Portmen, whofe Prrfence was not farticidarly necefjary^
" ' " and who had no particular Notice of any _^^aWBufinefs, or any
" Reafon to fufpe£l any particular and fpecial Bufinefs to be done
" at thefe Courts, made a Forfeiture, or was a fufficient Ground of
'" Amotion," —
They cited 9 Co. 50, a. in the Earl of Sahp''% Cafe. Non-Ufer
or Non-Attendance is a Forfeiture of fuch Offices as ought to be
attended without Demand or Requefl,
2 Ld. Raym. 1237. Serj. Whitaker'% Cafe. It was holden " that
" Non-Attendance was a Caufe of Forfeiture : And he was bound
" to attend, at his Peril, being a public Office concerning the Ad-
■" miniftration of Juftice."
It is their Duty, as much as if they had adually covenanted to
do it. And it appears by Palmer 332. Bijhop of Roche ft er v. Toiwg
*' That a Covenantor fhall take Notice; and there is no Need of
" perfonal Notice." ^nd this Notice is equivalent to perjonal
Js[ctice.
For
Eafler Term 31 Geo. 2. 533
For it is reafonable to prefume that they were refident in the Cor-
poration. Carthew 227, 229. Vaiighan v. Lewis, (the iaft Point)
Ld. Ch. J. Holt held " That the not inhabiting within the Bur-
" rough, ought to have been returned as Special Matter." 5 Mod.
438, 442. Vanacker'% Cak*— Per Holt, Ch. J. " Every Member * 4th Objec-
" of a Corporation, though abfent, is fuppofed in Law to be there."
" 2R0. 136. Title Notice — Commoners are obliged to take No-
tice of Ordinances made by the Homage under a Cuftom. Cro.
Car. 497. S, C. James v. Tutney. There, it was, by the Cuftom,
the Duty of all the Commoners, to appear at the Court. So here,
it is ftated to be the Duty of thefe Portmen, to be refident. And
Non-Refidence alone is a Caufe of Forfeiture.
And the Frequency of Corruption of the original Inftitution is a
good Reafon for reforming.
Their contumacious Difobedience to the Summons to fhew Caufe
why they fhould not be disfranchiled, fliews their former Negledts
to be wilful. They abfented themfelves 5 fucceffive Courts ; though
only One other Portman was left.
An Officer refufing to come when demanded^ forfeits his Office,
"Bro. Vorfeiture de terre, /»/. 6r, 115.
And " due Notice'' is alledged : Which is conjcffed hy the De-
murrer.
Second Point — The Defendant was duly and legally elected,
and fworn.
Indeed, // he was not, the Corporation is gone-: And therefore
the Coui t will endeavour to fave it, rather than let it be deftroyed.
And fo they did, in the late Cafe of the Corporation of Carmar-
then. P.iysS' 29 G. 2, B.R.
ift. The Word " Re/idue" only imports what is left; and does not Anfwcr to ift
neceffarily imply Plurality. Wilder was " the Residue." Confe- cbjfciion to
quently, he could continue the Corporation. Election.""'
The Court will conftrue thefe Words f ivourably, Regina v. 7. S.
Burgcfs of the Devifes, 7 Ann. in Hilary Term, was fuch a Con-
ftriidion. And fo here, Death or Amotion might reduce the
N'iinber to Two or even to One : In either of which Cafes, there
k-iTi-.^iit He a Want of Majority amongft them. So that the Court
•^lii iiuke fuch a Conflrudion as to fupport the Charter.
6 U 4dly.
534 Eafter Term 31 Geo. 2.
Anfvver to zd 2dly. As to the Time. — The fooner it was done, the better :
^''j'^'j°" }° And efpecially as there was only One Portman left. If he had died.
Election. the Corporation had been diflblved. They had a Right to fill up
the Vacancy immediately.
Anfwer to 3d 3dly. The Eledlion into One of the Vacancies is enough : It was
SSnSnc-r not neceffary to fpecify ..^hich.
Election.
Anfwer to 4th 4thiy. As to the Swearing in of Richard/on — It is alledged "that
Objection to " he was fworn in before L. T. and T. B. then Bailiffs of the Bur-"
Defendants n rough, in DUE Manner, and according to the Ufage and Cu/iom
" of the faid Burrough ;" And " that he had taken All the requi-
" lite Oaths:" And they might have traverfed this, and taken Iffue
ijpon it. But they have demurred generally : And this is good on
General Demurrer. However, thefe Slips may be amended, on
Motion.
t
Reply. Tht Counfel for the Crown repHed That Powers do not always
id Objection arife to Corporations, upon f-u^ry Cafe of Neceffity.
to Removal.
A Pardon will have the fame Effedl in this Cafe, as in all Others.
Where the Corporation is 7iot poffefled of the Power, the Amo-
tion is NOT per legem terra.
An Acceptance of a Corporator' s Surrender does not operate as
a Disfranchizement.
As to the IMPLIED Power given by the Charter — Such a Power
is NOT ALLEDGED : And the Court will not prefume fuch a Power
againft the Crown.
As to the Cafe of the Corporation of Newcaftle — Nothing was
done in it : Mr. Fetherjlon had for very many Years deferted the
Corporation ; and therefore the Court fufpended granting the pe-
remptory Mandamus.
As to Lord Bruce's Cafe in 2 Strange 819. It is only a loofe and
miflaken Report of it.
As to the Cafe of Rex v. Plimpton — It is not flated, nor can the
•Counfel on the other Side give any Account of it.
Vv''e do not contend " That the Crown can disfranchife a Cor-
" porator by Writ:" But We fay that the Crown may give Notice of
;the Determinations of the Law ; which it's Minifters are to execute.
Lord
Eafler Term 31 Geo. 2. 535
Lord Coke reports what We have cited out of Bagg's Cafe, as
the Determination of the Court j not as his own extrajudicial Opinion.
: As to the Doncafler Cafe — We have cited it from Lord Raymojid:
We do not knovi^ what the Man was. \y. 2. Ld. Raym. 1564.]
As to the Caufe of Removal, We do not fay " That a Portman 2d Objeflion
*-* wzs not obliged to attend the great Court ;" But " Tliat it was ""l^^ ^"»'>-
" not neceflary to the Exifience of that Court ;" Nor is itjleiv?! to ^
"be contrary to the Obligation of their Oath of Office. Non- Atten-
dance might indeed be a Mifdemeajwur, but is not a Caufe o/Forfei-
TURE ; efpecially, without spe^cial Damage fhewn. And it \%fuch
a Mifdemeanour, that an Indidlment or Information will lie againft
a Corporator for it : So that there might have been z previous Con-
'siSiion, in the prefent Cafe.
And though this is an Information, not a Mandamus ; yet this Man
has here fet out his own Title ; which appears upon his own Plea
to be a bad One : And therefore the Court mujl give Judgment
AGAINST hiw. And this feems a very adequate Remedy. If a
perfon be improperly eleifted, He is to be removed by a Judgment
of Oujler. Afterwards, indeed, Thofe who have Right may be
admitted, upon a Mandamus.
It does not appear that this Court was a Corporate Affembly of jd oijeaion
the Mayor Bailiffs and Burgejfes. And, as to a contumacious '° 'he Remo-
Refufal to attend — There is no Pretence to fuppofe it : They are "^ '
only faid " Not to have attended upon due Notice given of the
" Great Courts." There was no particular Siunmons to attend
them ; nor any particular Call, for their Advice and Affiftance,
A Corporation can do no important Aift without their Seal. And 4tli Objeaion
this Great Court was no Court of Record. '^^^"^^ ^^*'■"'-
As to the want of Ptr/o;?^?/ Notice — This is not like the Cafe of grh Objcaion
a Bond: which obliges the Obligor to take Notice. Palm. 532. is ''^ '"^^ ^^''"^"'
fimilar to the Cafe of a Bond : There, Toung covenanted to find
Provifions for the Steward ^c.
Vanacker's Cafe too is quite of another Tendency and Confidera-
tion : There, the Notice was proper Notice to the whole Body ; and
was taken to include every Member.
The " DUE Notice given" is * 775^' allcdgcd to be given Perfonally * v. ante pe.
TO them : And therefore is not confeffed by the Demurrer. '^^l: "^"'^.
' '• Notice had
2 As " oftheho'd-
in^, tSf.'
536 Eafter Term 31 Geo. 2.
As to Lord Shreivjhury's Cafe — The Clerk of the Market is cer-
tainly an Office that niuft of neceffity be conftantly attended : And
the other Offices there fpecified and hinted at, are fuch as are of
Neceffity, for the Adminiftration of Juftice ; and where thePublic
muft fuffer by the Officers not attending.
Non-hihahitancy is no part of the Charge again ft thefe Port-men :
'Tis Non- Attendance at 5 fucceffive Courts. But there was no
Reafon for them to think of any special Occafion for their Atten-
dance ; nor any particular Notice to any fuch Purport.
2d Point — The Court will not fupport an Ufurpation againil
Law.
illObjeaion The Words are " Refidue o/them ;" "Major part c/" them :"
Fi^'f*"'^^"''^ And they are to " assemble, &c." All which Expreffions import
a Number of perfons ; at leaft, more than One Individual.
The Cafe of the Burgefs of the Devizes was confidered as the Adl
of the nineteen : And that Corporation was a flu<fluating Body ; and
any. Majority of their Number yir the time being, might do. the cor-
porate A(fts.
Two may eledV, in the prefent Cafe ; provided they agree : And
Two are certainly the Major part of two. And thefe Words are
not merely direSlory. No Power of Eledion is given to One only.
And this can't be prefumed. They ought to have alledged and
P:ewn fuch a Power.
4th objeftion The Bailiffs had no Power to adminijler the Oaths. So that the
to Defendant's Defendant did not take them duly and effedually.
Eleftion.
It was impoffible for us to traverfe what tl^.ey never alledged.
Refolution of LoRD Mansfield now delivered the Refolution of the Court.
the Lourt.
The General Queftion upon the Plea is, " Whether the Defen-
" dant has fet out a good Title to the Office of a Portman of the
*' Town or Burrough of Ipfwich.
The Title he fets out is, That upon a Vacancy made by Remo-
val, He was duly elected, fworn, and admitted into the faid Office,
; to fill up fuch Vacancy.
Plis Right therefore muft depend upon two general Points j
ift. Whether the Vacancy was duly made ;
gdly. .If
Eafler Term 31 Geo. 2. 537
2dly. If it was, Whether the Defendant was duly eleSied admitted
and fwor7t.
Upon the firft Point, the principal and material Objections are
Two ;
I ft. That the Corporation olJpfwich has no Poiver to amome:
zdiy. Suppofe they have Power, the' Caufe of Amotion is not
fufficient.
Upon the fecond Point; one Objeftion is chiefly relied upon;
'Viiz. That, after the Amotion, "Janjes Wilder being the only re-
maining Port?7ian^ the Elefiion under which the Defendant claims,
was SINGLY by him : But One can not eledl:.
Then his Lorddiip ftated the Record ; which fee before pa.
Upon the firft Point,
I'ft Obiedion— That they had ?io Poii-er to amove. \^ Obieflion
-' •' As to the
Pother of Re-
This Objedion depends upon the Authority of the fecond Refdlu- moval.
■tion in Bagg's Cafe, 1 1 Co. 99 : Where it was refolved, " That
*' no Freeman of any Corporation can be disfranchifed by the Cor-
" poration ; Ufjlefs they have Authority to do it either by the ex-
" prefs Words of the Charter, or by Prefcription : But if they have
" 72ot Authority either by Charter or Prefcription, then he ought
■=' to be conviSled by Courfe of Law, before he can be removed.
" And this appears by Magna Charta, c. 29 : Nullus liber homo
■" capiatur, vel imprifonetur, aut dijfeifetur de libera tenanento fua,
■" vel libertatibus, vel Hberis confuetudinibus fuis &c ; nifi ^ev legale
" judicium pariiim fuonim, vel per legem t:rrce. And it the Corpo-
"*' ration have Power by Charter or Prefcription to remove him for a
" reafonable Caufe, that ivillht per legem terrcc : but if they have no
" fuch Power, he ought to be conviSled per judicium parium j'uorum
" &c. As if a Citizen or Freeman, be attainted of Forgery, or
" Perjury, or Confpiracy, at the King's Suit Gf<:.; or of any other
" Crime whereby he is become infamous ; upon fuch Attainder,
" they may remove him : So if he be convidled of any fuch Of-
** fence which is againft the Duty and T^ruft of his Freedom, and to
"" the public Prejudice of the City or Burrough whereof he is free,
■" and againft his Oath; (as if he burnt or defaced the Charters or
" Evidences of the City or Burrough, or erafed or corrupted them,
" and is thereof conviifed and attainted;) Thefe and the like are
6 X " good
r-8 Eafcer Term 51 Geo. 2.
:5J
" good Caufes to remove him. And although they hav: lawful Au-
" thority either by Charter or Prejcription, to remove any one iVoin
" the Freedom, and that they have jtiji Caufe to remove hini ; yet
*■ if it appears by the Return, that they have proceeded ai:;.iinft him,
" icithciit hearing him anfwer to what was objeded, or tiiat he was
" not reafonably •warned, fuch Removal is void and ihall not bind
" the Party ; quia quicunqiie aliquid ftatuerit parte in audit a altera
" aquiim licet Jlatuerit, baud cequus fuerit ; and fuch Removal is
" againft Juftice and Right."
Previous Conviction was not a Circumftance at all neceflary
to the Judgment in that Caufe : For there was no fufficictit Caufe of
Amoval at all. There too, the adual Removal was by the J'eleil
Body,, (the Mayor and 9 of the Mailers ;) which can not be, ex-
cept by Charter, By-Law, or Prefcription.
There are three Sorts of Offences for v/hich an OfHcer or Corpo-
rator may be difcharged :
ifl:. Such as have 7io immediate Relation to his Office ; but are in
themfelves of (o infamous a Nature, as to render the Offender unfit
to execute any public Franchile.
2d. Such as are only againfl his Oath, and the Duty of his Ojfce
as a Corporator ; and amount to Breaches ot the tacit Condition an-
nexed to his Franchile or Office.
3d. The third Sort of Offence for which an Officer or Cor-
porator may be difplaced, is of a mixed Nature ; as being an Of-
fence ^?c/ only againll the Duty of his Office, but alfo a Matter ?«-
diSlable at Convnon Law,
The Diftinftion here taken, by my Lord Copy's Report of this fe-
cond Pvefolution, feems to go to the Power of Trial, and not the
Power oi Amotion : And he feems to lay down, " that where the
" Corporation has Power by Charter or Prefcription, they may try,
"as well as remove; But where they have no fuch Power, there
" mufl be a previous Convicfion upon an IndiSiment." So that
after an Indidlment and Convidion at Common Law, this Autho-
rity admits, " That the Power of Amotion is incident to every
" Corporation."
But it is now eftablifhed, " that though a Corporation has exprefs
*' Power of Amotion, Yet, for the firll Sort of Offences, there muji
" be a previous IndiSlment andCo7ivi5lion." And there is no Autho-
rity fince Bagg's Cafe, which fays that the Power of Trial as
well as Amotion, for the fecond Sort of Offences, is not incident to
every Corporation.
In
Eader Term 31 Geo. 2. 539
In Lord Bruce' % Cafe — 2 Strange 819, The Court lays, " The
*' Modern Opinion has been, that a Power of Amotion is incident
" to the Corporation."
We All think this Modern Opinion is rigJot. It is necejfary to
the good Order and Government of Corporate Bodies, that there
fnould he fiich a Power, as much as the Power to make By-Laws.
Lord Coke fiys, * " There is a tacit Condition annexed to the * nCo. 98.
" Franchife, which if he breaks, he may be disfranchifed." "■
But where the Offence is merely againjl his Duty as a Corporator^
He can only be tried for it by the Corporation. Unlefs the Power is
incident, Franchifes or Offices might be forfeited for Offences ; and
yet there would be no Means to carry the Law into Execution.
Suppofe a By-Law made " to give Power of Amotion for jufi
" Caufe," fuch 5y-Z/c?ieJ would be ^W. Iffo, a Corporation, by
Virtue oj an incidmt Power, may raife to themfelves Authority to
remove for jufl Caufe, though not exprefy given by Charter or Pre-
fcription.
The Law of Corporations was not (o well underflood, and
fettled, at the time of Bagg's Cafe, as it has been f?!ce. And
" Whether a Power of Amotion was incident to the Corporation,"
could be no part of the Queflion in Jud2;ment in that Cafe, or ne-
ceffary to the Determination of it. The Power of Amotion was
there exercifed by the fek^ Body; and the Caufe was infuficient ;
the Offence not being any of the three Kinds for which a Corporator
could be disfranchifed. And the DijlinSlion * there taken, as to the * " ^"^ 99-
Mode of Trial, is certainly }20t Law. For though the Corporation
has a Power of Amotion by Charter or Prefcription, Yet, as to the
^r/? Kind of Mifnehaviours, which have no immediate Relation to
the Duty of an Office, but o7tly make the Party infamous and unlit
to execute any public Franchife ; These ought to be eftablifiied
by a previous CojiviBion by a Jury, according to the Law of the
Land ; (as in Cafes of general Perjury, Forgery, or Libelling, ^c.)
We therefore think the Court was well warranted in Lord Bruce's
Cafe, to co?:trove!'t the Authority of the Propofition, colleBed from
what is faid in Bagg's Cafe, " That there can be no Power of
" Amotion, unitfs given by Ciiarter or Prefcription :" And We
think that from the Reafon of the Thing, from the Nature of
Corporations, and for the Sake of Order and Government, This
Power IS INCIDENT, as much as the Power of making By-Laws.
The fecond Objedion upon this Point was. That the Cause is ^d Objection
r rr • as to che Cni/fe
not fufficient. . of Removal.
The
540 Ealier Term 31 Geo. 2.
The Plea fets forth two Jlated Days in the Year, viz. the 8th Day
of September and Michaelmas Day for holding Great Courts at the
Moot-Hall; and " that the Bailiffs may call a Great Court at " any
" other Time." Great Courts were called on the 13th of 'January^
the 15th oi April, the 9th o{ June, and the 19th ai '^une 1755,
Before the Holding of the [aid fever al Courts refpeclively, due No-
tice had been given of the Holding thereof refpeSJively. The Plea
fliates like wife another Great Court on the 8th o( September 1755;
due Notice of the Holding thereof having there been previoufly
given. And the Portmen removed did not attend thefe Courts;
but wilfully abfented themfelves.
It is not ftated "that the removed Portmen had personal
" Notice;" And the Faifl certainly is "that they had tiot:" For,
where perfonal Notice was given to anfwer the Charge, the Plea
alledges it precifely, and in a different Manner; Befides, if Truth
* '^^^ ^^- would have warranted them, they might have * amended.
fendant's
Counfel had
once propofed The Notice then of Holding thefe Great Courts ;nufl have
'°'"'d-^b' ^^^"^ by fome cuftomary Signal, (as Sounding a Horn, or Tol-
gave it'up, on ling a Bell;) whicli the removed Portmen, in Faft, might know
finding their nothing of.
Faasinfuffi- °
cien: to fup- i i t« r rr
j3ort it. It is not alledgcd that the Portmen's Prefence was neceffary to the
Holding the Great Court: On the contraiy, the Prefcription is al-
ledged to be, " that the Bailiffs, Burgeffes and Commonalty, or fo
many of "them as would be prefent, have met, or affembled in
" the Moot-Hall:'
It is 72ot allcdged particularly, that any particular Bufinefs was
obftrufted or defeated by the Portmen's Abfence. The PIca al-
Jedges, " that they wilfully abfented:" But that is a Confequence of
Law. In pleading, they muft alledge Fa^s, from which the Court
may judge " Whether the Ahfence was wilful:" Upon which
Fafts, Jfues may be taken, and tried by a Jury.
It is clear from the Plea, that the Portmen hadyj/// ATb/zV^of the
Charge againft them, and full Opportunity to have been heard:
And therefore I lay all the Ohjeftions upon that Head, out of the
Cafe. But, if the Charge was infufficient, they had no Occafion
to defend themfelves.
This brings the whole to the Qucftion, ** Whether an Abfence
** from /oz/r cff^o;ztf/ Great Courts, and One upon a Jlated Day, fo
" circumftanced, is ^ fujicicnt Cause oi Amotion,"
A There
Barter Term 31 Geo. 2. 541
There is 7io Authority which fays it is. Though the JJfual Signal
is given for holding a Great Court, a Mcinb^r may net know of it :
Though he fhould know of it, he may be innocently ableiit, where
he thinks his Prefence not at all neceflary, and where he does not
imagine that any Bufinefs of Confequence is to be propofed.
In the Cafe of Rex v. Mayor and Aldermen of Cai-lijle, * The * '^'•'''- '72o."
Court argued in this Manner, That where an Alderman receives a ^y_ \ \„ange
Summons to appear at the Common Council, he might confider that 385, 386.]
bis Prefence was of no Confequence, and fo flay away; And becaufe
He might innocendy flay away from the Common Council, It was
holden, that he (Lould have had a particular Summons to meet the
Mayor and Aldermen: And for want oifuch Summons, an Amotion
by the Mayor and Aldermen, at that Common Cou?icilj was holden to
be void.
There is not an Officer or Freeman in the Kingdom, (who is a
Member of an Aflembly,) that might not be removed or disfran-
chifed, if this Dodrine was given Way to. At Times, Every Al-
derman, Every Common Council Man, not neceflary to the Con-
ilitution of the AfTembly, knowingly omits attetidifig.
It is not necefTary, and would be highly improper at prefent, to
fay what kind of Abfence, or under what Circumjlances, Non-Atten-
dance may be a Caufe of Forfeiture. It is fufficient that the
Abfence, with all the Circumflances alledged by this Plea, is mt
a Caufe.
And We are All of Opinion that it is 7tof.
The fecond General Point is, " Whether the Defendant was 2d. Point;
*' duly ele^ed, hy the One remaining Portman." But that is now Jj^'J'^J'J*'
become unnecefTary. If it had been material, We are inclined to Dekudant's
fupport the Eleftion. Ekaion.)
However, It is not ?20w necefTary to enter into that Point; becaufe
We are, upon the for?ner Point very clear " that the Caufe of .
Amotion alledged and relied upon in the Plea, is not a fufficient
Caufe of Amotion.
f Judgment for the King.
I
6 Y Rex
542. Eafter Term 31 Geo. 2.
Rex 'verf, Mary Mead.
A Habeas Corf us having iflued in the laft Vacation, at the Inftance
of Job/? Menkes, Elq; to bring up the Body of Mary Wilkes,
Wife of the faid John Wilkes, and Daughter of the faid Mary Mead,
before Mr. Jufl. Denifin; Mrs. Mead now brought Her iT2to Court.
The Subftance of the Return was, That her Hufband, (having
ufed her very ill,) in Confideration of a great Sum which She gave
him out of her leparate Eftate, confented to her living alone, exe-
cuted Articles of Separation, and coijenanted (under a large Penalty)
never to difturb Her or any Perfon with whom She (hould live.
That (lie lived with Her Mother, at her own earneft DefirCj and
that this Writ of Habeas Corpus was taken out with a View of feifmg
Her by Force, or fome other bad Purpofe.
The Cou RT held this to be a formal Renunciation by the Huf-
band, of his Marital Right to feize Her or force Her back to live
with Him.
And they faid that any Atte7npt of the Hulband to fcize Her by
Force and Violence, would be a Breach of the Peace. They alfo
declared that any Attempt made by the Hufband, to inoleft Her in
her prefent Return from Weftmitifter-Hall, would be a Contempt of
the Court. And they told the Lady, She was at full Liberty to go
where, and to Whom, She pleafed.
V. Rex V. Clarkfon et al. 2 Strange 444, 445: Where the Court
only took Care that the young Lady flaould be under no illegal
Reftraint; and ordered a Tip-Staff to fee Her fafe Home, to her
Guardian's, as had been formerly done in Lady Harriot Berk-
ley's Cafe.
Rex v. Captain Lifter, Hiijhand of Lady Rawlinfon. 1 Strange 478.
Lady Vane'i Cafe M. & H. 17 G. 2. B. R.
Rex V. John/on, i Strange 579. H. 19 G. I. 2 Ld. Raym.
1334. S.C. A Child was delivered to it's proper Guardian, by
the Court.
Rex V. Smith, 2 Strafige 982; Where indeed the Boy was only
fet at Liberty; And John/on' s Cafe was faid to be carried too far.
Rex v. Griftb. H. 8 /F. 3. B.R. And
Lady Catherine Anneflcfs Cafe.
2
Rex
Eafter Term 31 Geo. 2. 543
Rex verj. Wright, Clerk.
R. De Grey fliewed Caufe againfl quafhing the Indidment.
M
Mr. Serjeant Hewitt had moved to quafli this Indidlment charg-
ing the Defendant, That He, being a Spiritual Perfon, did take
to Farm leveral Lands &c; againft the Statute of the zi H.^.
f. 13. §. I. For that 710 Indictment will lie, where a Statute creates
a new Offence, and gives 2i particular Remedy. On Monday 13th
February 1758 (upon Mr. DeGrefs then coming to fhew Caufe)
the Serjeant propofed 'Three Objedlions : viz.
I ft. An Indictment will not lie: It ought to be a proceeding by
Action, or by Information; (which are the two particular Methods
of proceeding, fpecified and prefcribed by this Statute.)
2d. No Offence is here charged. For Occupation is the Of-
fence for which the Adl gives the Forfeiture: And here, no Occu-
pation is charged; 'Tis only " That He did take to Farm."
3d. It can not be profecuted at the Sessions: For the Words
of the Adt are "in any of the KingV Courts.'^
Firft — An hidictment will not lie: Becaufe the Statute creates
the Offence, and has prefcnhed a particular Method of proceeding;
and has no General Words. It enads " that no Spiritual Perfon (hall
" take to Ferm&c; Upon Fain to forfeit 10/. for every Month
*' that He &c: The One Half of which Forfeiture to be tie the
" King; the other Half, to every fuch Perfon that will fue for the
" fame by Original Writ, Bill, or Plaint of Debt, or by any Infor-
" mation in any of the King',j Courts." 2 Hawkins, P.C. c. 25.
§. 4. /». 211. is in Point " That where a Statute makes a iiew Of-
" fence, and appoints a particidar Manner of proceeding, an In-
*' didment will 7iot lie." Cro. Jac. 643, 644. Caftle"^ Cafe (ift Ex-
ception) is alfo moft exprefs in Point. 4 Mod. 144. Rex& Regina
v. Marriott. S.P. Rex v. Glu£, Cafes tejnp. Will. ^tij. B.R. 104.
S. P. * * But this was
only quafhed
Lord Mansfield — Let us hear an Anfwer to this Objedion Ruie to fhew
firfl: For it feems a ftrong One; this being no Offence ^?/ Caufe,) on a
<- ,,.^ , 7- Motion heard
CoMMOn-LaW. c:cpa,n,on\y.
Mr. De Grey^ cojifra^ proceeded to (hew Caufe on Behalf of the
Profecutor.
As
544 Eafler Term 31 Geo. 2.
''^- As to the I ft Objedion —
2 Hale's Hift. P.C.fo. lyi. is exprefs, that if the Adl does alfo
contain a prohibitory Claufe, the Offender may be indidted upon
the prohibitory Claufe, notwithftanding the Penalty.
C^y?/f's Cafe Cro. lac. 643. M. 20 °J. 1. is incorredly reported:'
as appe. rs by 2 Ro. Rep. 247, S. C. Which fays " That the Indid-
" ment was quafhed ioi fame of the Exceptions." Therefore Gt/z/^'s
Cafe is not an Authority in the prefent One: As it is only a partial
Report, upon Memory; and has Miftakes in it, (as 40/. inftead of
20/, for one Infrance.) i Mod. 34. Crof ton's Cafe on 17C. 2. c. 2.
" To reftrain Non-Conformift Minifters from inhabiting in Corpo-
" rations," is moft full and clear in Point to the contrary, i p'entr.
63. S. C. this very Objedion was difallowed. 3 Keb, 7c. Rex v
Notes; and adjourned.
2d. As to the 2d Objedion. The Occupation is only to afcertain the
Quantum of the Penalty; viz. 10/. for every Month that he fhali
occupy: But the Taking to Farm, is the Offence prohibited.
3d. As to the 3d Objedion. The Indidment may be brought at
the Seffions, and profecuted there.
In anfwer to the Cafe cited in Support of the ift Objedion, of
Rex et Regi?za V. Marriott according to /\. Mod. 144. lA.Ci\.].Holt
held againjl the other two Judges, Dolben& Eyreyxnd chought an In-
didment the proper and reafonable Method. Cartheia 263.8,0.
Rex V, Marriott, refers to 4 Mod. 1 44. and obferves that it was
again/l the Opinion of Ld. Ch. J. Holt, i Shourr 398 is S. C, Do-
minus Rex V. Marriott; And the Reporter, (who Himfelf took the
Objedion,) fays "That the Rule was pronounced by Ld. Ch. J.
tBatf)ir« Holt, confentientibus aliis, thus — ^^ Let it flay."-{-
added "It -^ J J \
" cannot be maintained, f doubt." Note alfo, that ShoiL-a\ Report of what pafled in this Cafe, is of
Tr. + I'V. (J M. (as likewife indeed is 4 Mod. 144:) But Cartk'wh is of HU. 4 IV. b' M. which is two
Terms later.
Lord Mansfield — I always took it that where new-created
Offences are only prohibited by the general prohibitory Claufe of
an Ad of Parliament, an Indidment will lie: But where there is
a prohibitory particular Claufe fpeci Tying only particular. Remedies,
there fuch particular Rejnedy muft be purfued. For otherwife the
Defendant would be liable to a doable Profecution; One upon the
general Prohibition, and the other upon the particular fpecific
Remedy.
Therefore,
Eafter Term 31 Geo. 2. 545
Therefore, if there be any Doubt or Difficulty about this Matter,
it will be better to enlarge the Rule, till next Term.
Mr. Juft. Den I SON laid down the Diftindion thus; to'z. That
where an Offence is not fo at Common Law, but made an Offence by
KQi of Parliament; yet an Indidlment will lie, where there is i.Jub-
flantive prohibitory Claufe in fuch Adt of Parliament; (though there
be afterwards a particular Provifion, and a particular Remedy given:)
But it is * otherwife, where the A6t is not Prohibitory-j but only in- * v. 2 H. H,
Aids the Forfeiture, and fpecifies the Remedy. P- C i7>-
Mr. Juft. WiLMOT alfo took it fo; and that this Point had been
fettled, later than any of the Cafes cited. [In Hil. 2 G. 2. B.R. Rex
V. Penfacks, and alfo in Rex v. Malard, the fame Term, It was fet-
tled "that an Indidment will not lie, where an Ad of Parliament
'*' makes a new Offence, and prefcribes a particular Method of Pro-
" ceeding."]
He faid He had always underftood it to be a fettled Dif^indion,
between a fubftantive independent Claufe, and a Prohibition 7«i5 modo.
And, it would be hard to punifh a Man twice for the fame
new Offence.
Mr. Juft. Den I SON — This Act does not feem to me, to give the
King ALONE, a Power to profecute at all, for this new Offence.
However I fhall give no Opinion now, as the Rule is enlarged.
On this Day, Serjeant Hewitt informed the Court that Mr. Be
Grey gave up this Matter.
Lord Mansfield — I do not at ail wonder at it: I thought he
would do fo. I have looked into it: And there is Nothing in it.
That Cafe of Crofton has been denied many Times. Beiides, Mr.
Clayton has informed me of a Cafe that was determined upon the
3d Objedion, "of it's being at SeJJions."
Rule " To quafli the Indidment," made absolute.
M
Rex verf. Inhabitants of Bank-Newton. nu>/j<jy
•^ 13th y^pril
1758.
R. Afton (hewed Caufe againfl quafliing the two following
Orders.
6 Z Two
54<^ Eafter Term 31 Geo. 2.
Two Juftices removed Gecrge Ayrton^ Ellen his Wife, Anne, Eliza-
beth, Ifiibel, 'Jane, zndGeorge their Children from theParifh oi Mar ton
in the Weft-Riding of Torkpire, to Bank-Newton : And the Sef-
lions, upon an Appeal, confirm their Order.
The State of the Cafe was this — George Ayrton, the Pauper, and
HIS Wife, being legally at Bank-Newton, on the i6th oi February
1738, 'John Wilcock, a Son oi Henry JVilcock of Marten, by Order
oF his Father, on iha /aid \bth of February 1738, agreed, on the
Behalf of his faid Father, with the faid George Ayrton the Pauper,
who was THEN a married Man, to ferve the faid Henry JVilcock
his Father, for a Year, h-om the 24th of the fame Month of Fe-
bruary (when his Father's then Servant was to go away,) at 5
Guineas Wages ; in cafe the faid Henry JVilcock fhould approve the
faid Terms.
That afterwards, the Wife of the faid George Ayrton died, on
the 1 8th of the fame Month oi February without IJfue. And on
the 24th of the fame Month of February, the faid George Ayrton,
then having neither Wife nor Child, went to the faid Henry
JVilcock the Father, who then lived in Marton aforefaid. And the
laid H. JV. then afked him the faid G. A. " Upon what 'Terms and
" Conditions, he the laid G. A. and his Son fohn Wilcock had agreed:"
And the faid G. A. then told the faid H W. " That the Terms
*' agreed upon between him the faid G. A. and the faid y. fV. were,
" that He the faid G. A. fhould ferve the faid H IV. for a Year,
" from the 24th Day of the fame Month oi February, for 5/. 55. od.
" Wages, in cafe He the fiid H. JV. fhould approve the faid Terms."
And thereupon the faid H JV. faid " That ^t- did agree to the fame
" Terms." And accordingly, the Pauper G. A. did, on the faid
24th of February 1738. then having neither Wife ?7or Child,
enter into the Service of the faid H JV. and did ferve the faid H, JV.
^^f , ■■ in Marton aforefaid /or One whole Tear from the faid 24th Day of
February 1738; and received 5/. 55. od. of the faid H. ^. for a
Year's Wages.
The SefTions were of Opinion " The Pauper ferved the faid
" Year, under the faid Contract made with the faid John Ji^il-
" cock, as aforefaid j And that at the Time of the said ContraB
" and Hiring, He was not an unmarried P^r/5« without a
" JVife; and that therefore He did not, by 7«f^ Hiring and Ser-
*' vice, gain a Settlement in Marton :" And therefore they confirm
the faid Order of Removal.
Mr. Norton having moved to quafh both the original Order and
the Order of Seflions —
Mr.
Eafter Term 31 Geo. 2. 547
Mr. AJlon now (hewed caufe why thefe Orders fhould not be
quafhed.
By 3, \W.^ M. c.\\.%.'j. He mu ft be unmarried at the Time
of the Hiring. The Words are, " That if any unmarried Perfon,
" not having Child or Children, fhall be lawfully hired into any
** Parifli or Town for i Year, fuch Service fhall be adjudged
" and deemed a good Settlement therein ; though no fuch Notice
" in Writing be delivered and publifhed, as is therein before re-
" quired." Here, the Hiring, He faid, was on the i6th and the
Wife did not die till the i8th. So that he was not an unmarried
Perfon, when he was hired.
The Agreement might perhaps be made with a married Perfon
on purpofe, by way of Caution, to prevent a Charge upon the Pa-
rifli. And in Jo Mod. 393. Ranton v. Horton Parifli — per Pratt
Ch. J. The Intent of fuch a Caution is lawful. [See Lucas 393.]
To prove that the Time of the Contract, muft be referred to the
Inception of it — He cited Bro. Contract, pi. 15. The Retainer is
the proper Inchoation of the Service. So is Bro. Labourers^ pL
g (^ 11.
Mr. Norton, contra — for quafliing the Orders —
The Intent of the Rellridion of this Law to unmarried Perfons
without Children, was to prevent the confequential Damage that
might accrue to Parifhes from hiring Servants incumbered with
Wives or with unfettled Children. But this Man is within both
the Wordi and Meaning of the Qualifications admitted by the Ad.
He could bring no confequential Charge upon the Parifh.
If a Perfon hired unmarried, fhall marry * during the Service, *V.z Sa/i.
Yet He fhall gain a Settlement, both to himfelf and his Wife. So ;*9- a"d Sef-
if a Female Servant happening to be then with Child, be hired j Edition 1750.
She and her Child fhall both gain a Settlement, if She fervcs out Vol. i E/jiy
her Year. ^^"/^ "■
It is enough, that when he begun his Service, there was no danger
■of a confequential Charge to the Parilh. And this is all that the
Court have their Eye upon.
And though this fhould, as between the Parties, be a Contraft be-
tween them, from the i6th, Yet that will not affedl the Parijb.
But, however, the Contradt was not complete, but a meer Nullity,
TILL the Ajent of the Principal, (the Father:) For he had it in
3 his
54^ Eailer Term 31 Geo. 2.
his Power to difhpprove. It was 7iot binding, till his Affent was
given : For the Agent only adled under a limited Authority. And
•when the Principal did affent, the Servant was unmarried.
As to Bro. ContraB, 15. It certainly was binding upon both
the Parties, when J. N. fet the Price : But had not been fo, if J.
N. had refufed to fet a Price. So Bro. Labourers, pi. g & pi. 11.
But ftill this affedts only the contrading Parties ; and not the
Parilh.
Lord Mansfield ftopt Mr. Norton from proceeding; It be-
ing clear that the Hiring was on the 24//^. For the Father might
have diffcnted from the conditional Agreement made by his Son
on the 1 6th. But the Man was unmarried on the 24th when
the Father made the complete Agreement with him.
And the Three other Judces declaring themfelves moft: clearly
to be of the fame Opinion —
Both Orders were quashed.
Bcturdayx^^ "Rex vctJ. Peach et al'.
Jiril 1758.
C"^ A U S E was now fhewn againft an Information which had
^ been moved for, at the Application of fome Perfons who now
appeared to be a Parcel of infamous Cheats and Gamblers, againft
feveral others of the same Profeffion and CharaBer ; for a Confpi-
racy to cheat them out of about 900 1, at a Foot Race, by a moft
fhameful Tranfaftion of Fraud, CoUufion, and Bribery, to induce
the Racers to run Booty.
But it appearing moft clearly to the Court, and it being too
plain to be difputed by the Counfel for the Profecutors them-
felves, That the Parties complaining and thofe complained of, were
[all of them alike) a Parcel of infamous Cheats ; —
The Court unanimoufly refufed to give the Complainants the
EXTRAORDINARY Afijlance of this Court, to enable them to at-
tack their Bretheren in Iniquity, (who had probably, as the Court
.not without Reafon fufpeded, quarrelled with them about the
Divifion of their ill-gotten Spoils :) But they referred tlie Complain-
ants to the ordinary Remedy of Adion or Indidlment; efpecially as
ihe Fads alledged feemed to be within the Ads of Parliament made
^o prevent exceffive Gaming. And, accordingly.
The Rule to fliew Caufe " Why there fliould not be an In-
" formation againft them," was discharged.
2 Carleton
Eafter Term 31 Geo. 2. 549
Carleton ex dimiff. Griiiin verf. Griffin. Tucflay ,8th
April 1758,
T
'HIS was a Special Cafe in Ejedlment, brought upon the De-
_ mife of John Griffin, the Teftator's Heir at Law. A Ver-
djdl had been given for the Plaintiff, fubjedl to the Opinion of this
Court, on the following Cafe. John Griffin (the Teftator) being
feifed &c, and being &c, on the 2d of May iy52. wrote upon a
Sheet of Paper with his own Hand as follows ; viz. " Know all
" Men, by thefe Prefents, that I John Griffin ^c make the after-
" mentioned, my laft Will and Teftament : And when it pleafe
" God to call me, I pray God diredlmy Relid. I make my pre-
" ;fent Wife, my whole and fole Executrix of what it hath pleafed
^' God to blefs me with. I order my Son John Griffin, my Son by
" my firft Wife, 600/. I have 600/. in the three per Ce?it. An-
" nuities : Which I order, not to be fold ; but I order my Wife to
" leave the Intereft thereof to help to bring up my Daughter La~
" viner. I likewife have two Freehold Houfes in &c : [Which
'" are the Premiffes in queftion:] Which are to be for the fame
" Ufe, to help to bring up my Daughter Lavincr, and her Heirs
" J'or ever. My Daughter to take Poffeflion of the Annuities at
" her Age of 25. And if it pleafe God my Daughter die before
", her Mother, and unmarried and without a lawful Heir, then the.
" faid two Houfes to go to my Son John and his Heirs for ever."
It concludes — " I pray God to blefs and diredl my Wife and
" Daughter and Son. And I die in Peace with all Mankind : And
" I hope the Lord Jefus Chrift will receive my Soul. And this
•" is my laft Will j and not any other. 2d Day of May 1752."
And he fuhfcribed it, at the fame Time when he wrote it : But
there was no Seal, nor IVitnefs to it.
And it was further ftated, that on the 5th of January 1754.
He wrote on ihe fame Sheet of Paper, the following Words, viz.
" Memorandum — Blackman-Street, 5th January 1754: Whereas I
*' have laid out ^c, on a Lighter called &c, and the Barge called
" the Letnon &c ; All thefe, and alfo all &c. at my Death, All
" fhall be at my prefent Wife Mary's Difpofal. And this not to
" difannul any of the former Part made by me, the 2d of May
" 1752: Except that my Wife fliall not be liable to pay to my
•** Son John &c. Witnefs my Hand, J. Griffin, Sen."
JV. B. The Will was written on the firft and fecond Sides of a
Sheet of Paper : And the Codicil was beguq either upon the '
7 A End
550 Barter Term 31 Geo. a.
End of the Second or the Beginning of the Third, and writ-
ten upon the 3,^ Side. (Which Circumftance Lord Mansfield
thought material, though not decifive,)
And all this Codicil (or whatever it may be called,) related only
to the Personal Eftate j and not at ally to the reax..
The Teftator fubfcribed this in the Prefence of Three WitnefTes.
And then he took the faid Sheet of Paper in his Hand, and de-
clared 1 T to be his laft Will and Teftament, in the Prefence of the
faid 3 W^itnelTes ; and then delivered it to them, and defired they
would attefi and fubfcribe it in his Prefence, and in the Prefence of
each other : Which they accordingly did.
Upon this Special Cafe, Two Queftions are referved for the Opi-
nion of this Court : viz.
I ft. Whether the Republication of the faid firft Will (made in
1752',) upon the 5th of January 1754, be a Publication or Repub-
lication of his firft Will, within the Statute of Frauds.
2d Queftion. Whether any Eftate palTed by the firft Will, either
to the Daughter, or to the Mother.
Mr. Barnard argued on Behalf of the Plaintiff, John Griffin^
Heir at Law to the Teftator.
This was no good Will, to pafs Lands, beyond all Doubt, ////
the 5th oi January 1754. And what happened then was neither a
Publication nor a Republication fufficient to make it a good Will
within the Statute of Frauds. Here are two difiindi Inftriments, at
two differe?it Times : The firft, unattested, relating to the ^^^Z
Eftate J The fecond, fgned, publifed, and attefted according to the
Statute of Frauds, relating to the Perfonal. But the firft was ori-
ginally bad ; and could not be made good, by the fubfequent Tranf-
aftion. In Support of which AfTertion, He mentioned the Cafe
upon Serjeant Maynard'% Will, cited \\xComym 384. in the Cafe of
Acherley v. Vernon et al' .
He likewife cited Penphrafe v. Ld. l-,anfdcwn et al" . H. 11 Ann.
Roflo 62c. (on the Earl of Bath'^ Will,) which is alfo cited in
the Cafe of Acherley v. Vernon, in Ccmyns 384 j Where the firft
Will was only executed, not attefted ; And on making a Codi-
cil to it, the Teftator took the Codicil in one Hand, and the Will
in the other. And faid " This is my Will &c; And I publifti this
" Codicil as Part thereof;" and figned the Codicil in the Prefence
of the WitnefTes who fubfcribed it in his Prefence : It was holden
2 to
Eafler Term 31 Geo. 2,. 551
to be no Republication of the Will. And this Cafe alfo proves that
there can be no Republication by Implication, as it was there ex-
prefly determined : But the Will ought to be re-executed j or other-
wife a Devife of Lands fhall not be good.
Second Queftion. No Eftate paffes by this Will, either to the
Mother or to the Daughter : But it defcends to the Plaintiff John
■Griffin, as Heir at Law to the Teftator.
And the Statute of Ufes does not operate ; becaufe there is no
Tranfmutation of Eftate : Without which, no Ufe can arife. Now
here the Eftate never paffed out of the Heir at Law.
He made 3 Sub-divifions, under thfs fecond Queftion.
I ft Subdivifion. No Eftate paffes to the Mother. The Words
of the Will maft fquare with the Intent of the Teftator. And here
the Words do not extend to the Real Eftate ; becaufe they are ac-
companied with the Word " Executor." Precedents in Chancery ^yi.
Piggot V. Penrice. " I make my Niece Gore, Executrix of all
*' my Goods, Lands, and Chattels." Her Lands of Inheritance
did not pafs : 'Though She had no Term, or Intereft for Years, in
any Lands whatfoever.
2d Subdivifion (of the 2d Qyeftion.) Nor does any Eftate pais
'by this Will to the Daughter. The Heir at Law fliall not be difin-
herited by a ftrained Conftrudion.
3d Subdivifton (of the 2d Queftion.) The Statute of Ufes can-
not operate for want of a Tranfmutation of Eil.cc ; For here, it
never paffed out of the Heir at Law 3 and therefore no Ufe could
arife. For no Ufe can arife v/ithout a Tranfmutation of FofTjflion,
To prove which Pofition he cited i Life. 2'ji. b. 6 Rep. ly. b.
\%. a. Sir Edward Cleve's. 1 Rep. 176. a. b. i Leon. — Moore
569. So that no Ufe could here arife. And no Eftate or Intereft
paffed either to the Mother or Daughter under this Will.
Therefore He prayed Judgment for the Plaintiff.
Mr. Burrell contra for the Defendant.
ift Queftion. Whether the Publication of the fecond Inftrument
in the Manner as ftated, is a Publication or Republication of the
former, within the Statute.
2d Queftion. Whether any EJlatt fajfes^ either to the Mother,
or Daughter.
Firft.
552 Ealkr Term 31 Geo. 2.
Firft. The firft Will indeed has not the Requifites appointed
and required by the Statute of Frauds (29 C 2. c. 3.) as elTential
to a Will of Lands. But that Statute has been always liberally
conjhued, in Favour of Wills. 3 Peere Wtns. fo. 2^1, 254. Stone-
houfe etUx' V. Sir JoJm Evelyn, (the lafl Point,) is a Proof of this :
Where it was holden " That the Teflatrix's owning her Hand, was
" fufficient ; though the Witnefs did not actually fee her fign,"
This was a liberal Conftruftion, as to the Per/on Signing. So has
been the Conftrudlion alfo as to the Witncjfes Attefting. 2 Chancery
Cafes 109. Anonytmts : A Will attefted by 3 Witneffes, who were
not prefent together, but fubfcribeda/ fever al Times, was decreed to
be good. 2 Salk. 688. Shires v. Glafccck : The Atteflation was ad-
judged good, bccaufe the Teftator might have feen the WitnefTes
fubfcribe, through a broken Window. So, 3 Lev. I . Lemayiie v.
Stanley : As to the Tejlator's Signing his Name.
The Will was dated the 2d of May 1752, and was fubfcribed by
the Teftator ; but was not then indeed, either witnefTed or fealed.
But it may be confidered as intended to be afterwards executed.
Then in January 1754, He added a Codicil, on the fame Sheet
of Paper ; took the faid Sheet of Paper in his Hand ; declared it
to be his Will ; and defired the WitnefTes to atteft //. This muft
be either a Publication, or a Republication. The very Cafe re-
ported in Comyns 381. oi Acherley v. Vernon, M. loG. i. in Chan-
cery, was a Determination " That what Mr. Vernon there did wae
" a Republication ; And that the Will and Codicil made hut One
" Will:'' And this Determination was affirmed in the Houfe of
Lords.
2d Queftion, Whether any Eflate faffed to either the Mother or
the Daughter by this Will : (For if any Eftate palled to either, the
Plaintiff in Ejeftment cannot recover.) 2 Siderf. 75. Marret v..
Sly, is a Proof of great Allowances and Indulgence to the Teftator's
Manner of Expreffion. [See the 3d Point of that Cafe ; where
the Words were very falfe Englijl:).]
In the prefent Cafe, they took, a Chattcl-Jntertd to the W/Je -,
and an Eftate in Fee to the Daughter : Or, at leaft, they took Jhih
an Eftate as is fufficient to preclude the Plaintiff j (whatever th^ir
Eftate may, in Nicety of Law, be.)
As to the Words of the Will — Tlie firft Claufe relates only to
the Wife, as Executrix. " I order John Grifjin 600 /. I bavp
'*' 600 /. in (Sc. I leave the Inter fi &-c, to help- to bring up my
" Daughter
Eafter Term 31 Geo. 2. 553
*' Daughter &c. I have 2 Hcufes &c : Which are to be to the
** fa/m Ufa, viz. to help to bring up my Daughter &c." — He
meant a C/Mitei-lMcred to the Another, for the Benefit of the
Daughter, till She came to 25 Years of Age ; and to the Daughter,
from her Age of 25.
The Remainder is devifed to the Heir at Law, qfter the Death
of the Daughter, unmarried and without lawful Heir, in the Life-
time of her Mother. Therefore he fiiall not have it before that
Event, Carter lb, 27. ^ Rep. ig. 6 i?r/). 95. Cro.yac.y^.
Equity Cafes abridged J 79. Title Devifes, pi. 6. 2 Peere Wms, 194.
Newland v. Shephard, (a ftrong Cafe j) Where a Devife of the Pro-
duce and Intereft, in Truii for the Grand-Children, till 21, was
decreed to pafs the abfolutc Right and Property of both Real and
Perfonal Eftate, to the Grand-Children after that Age: For the
Heir at Law was to have no Concern in it. So here, yolm the
Son of the Teftator, was to have no Concern in this Eftate, till
the Death of the Daughter.
Boreajlon'z Cafe, 3 Rep. 1 9. was holden to be a ve/ied Remain-
der. So here, it is a 've/ied Remainder in the Daughter. There-
fore the Plaintiff can have no Demand. Wherefore he prayed that
the Pojlea might be delivered to the Defendant.
Mr. Barnard in Reply —
ifl. The Teftator taking up the Paper in his Hand, faid, " This
« is my lafl: Will and Teftament," or " It is my laft Will and
*' Teftament." Which Adt and Manner of Expreffion can only
mean the Infirument that he had thai figned in tlieir Prefence.
The prefent Codicil has no Words of Confirmation : Nor does it
at all relate to Land ; but ofily to perfonal Eftate.
2d Point. Neither the Mother or Daughter took any Eftate.
The Words are, " I likewife have two Freehold Houfes, which are
" to be &c, to help to bring up my Daughter Laviner, and her
" Heirs for ever (Sc. And if my Daughter dies unmarried and
" without lawful Heir, in the Life-time of her Mother, then to go
" to my Son John and his Heirs for ever." As to the Mother, the
Words are, " I make my Wife Mary Griffin Sole Executrix of all
" that it hath plcafed God to blefs me with." And there is no-
Other Difpofition, to the Mother.
An Eftate ftiall never be taken by Implication, but from Necefiity.
And. here is no Neceffity.
7 B Lord
554 Eafler Term 31 Geo. 2.
Lord Mansfield. The Cafe is accuratelyftated : For it is not
ftated to be either a JVilly or a Codicil; but a Sheet of Paper
written Gfr.
Firft, This is a Will of an illiterate Man, drawn by himfelf.
At firft, in 1752, the Teftator did not know that any Witnefles
were neceffary. In 1754 he had found that they were neceflary.
Then he makes a fubfequent Dilpofition : Which is a Memorandum
to be added to it. But he does not call this a Codicil ; Nor does the
Cafe Jlate it to be fo. He plainly confiders the whole as one intire
Difpolition : And he exprefly declares in the latter, " That he does
" not thereby mean to difannul any Part of his former Devife or
" Difpofitions."
There is not a Tittle in the latter, that relates to the Real Eftate.
Therefore the only Intent of having the 3 Witnejfes, was and muft
h^ IQ authenticate the former.
Tht Signi7ig the former, does no Harm: It makes it more fo-
lemn ; but does not hurt it.
Then the Publication of it is as of a Will — He takes up the
Sheet of Paper, and holding up the Jdid Sheet of Paper, fays " It
" is my Will." And certainly. He did not mean a Part of it,
only ; but the Wibole of it. And he defires them to atteft it. All
this muft relate to the Whole that was written on this Paper.
The Second Point is as plain upon the bare reading, as any Argu-
ment can make it.
There can be no Doubt of the Devife to the Daughter j what-
ever may be the Doubt of the Intereft bequeathed to the Mother,
till tlie Daughter comes of Age, for her Maintenance. But it is
fufficient to bar the Plaintiff, that an Intereft is given to One of
them.
Therefore it Is cleat for the Defendant on both Points,
Mr. Juft. Denison concurred. — A Man may make his Will at
different Times : And the Witneffes may atteft at different Times.
Here an illiterate Man makes and figns his Will ; In which there is
a Devife of Lands. To be fure, if He had died before Atteftatibn,
the Devife of the Land had not been valid. But afterwards, he
adds more to it, on the fame Sheet of Paper, and declares " That
** iie does not thereby mean to difannul any Part of his former
2 " Devife
Barter Term 31 Geo. 1. 555
** Devife and Difpofition ;" and figns it; and then takes the Sheet
of Paper in his Hand, and declares it to be his laft Will and Tefta-
ment, in the Prefence of 3 Witnefles i and defires the Witnefles to
atteft it : Which they do in his Prefence, £?f.
This mufl be confidered as One entire fFill, made at different
Times ; and attefted agreeable to the Statute of Frauds.
As to the Second Point — It is not at all material, fVhai Sort
of Intereft the Wife and Daughter, or either of them take un-
der this Will: It is fufficient, that they Xakt fome Sort of Intereft
iufficient to preclude the Plaintiff's Demand. And this they cer-
tainly do.
Mr. Juft. WiLMOT concurred witii Lord Mamjielcl and Mr. Juft,
Denifon. He alfo confidered this as an aitire Inftrument, and as a
Co?itmuation of the former Ad,
The Teftator himfelf calls it a " Memorandum,'' [not a Codicil ;)
and declares " that he did not mean thereby to difannul any Part of
" his forfner Devife or Difpofitions." He only takes up the Confi-
deration of fomething further that had occurred to him, fince his
writing the former : And it is not material, whether he does this, at
two Days^ or at two Years Diftance from writing the former Part.
A Man is not obliged to make his whole Will, all at the fame Time.
And the Teftator's having originally figned the former Part*, is
out of the Cafe, and makes no Difference : For it was not at all tie-
ceffary or material to it, as a Will ofperfonalER^ic • and the Signing
a/oney unattended with the other Requifites, was not fufficient to ren-
der it effedual as a Will o( Land : Therefore it was tota/iy immate-
rial. And in January 1754, having written the Memorandum with
his own Hand, on the yawf Sheet of Paper, He takes the faid Sheet
of Paper in his Hand, and declares " It is his laft Will and Tefta-
" mentj" and defires them to attcfl it as fuch, in his Prefence and
in the Prefence of each other : — Which they do. So that there can
be no Sort of Doubt that this was a good Publication of this as his
Will, within the Statute of Frauds.
As to the Second Point — It is not at all material, what Species of
Intereft the Teftator's Wife and Daughter or .either of them may
have in thefe Houfes ; provided that they or either of them have
fitch an Intereft as is fufficient to intitle them to the Poffeffion of the
Eftate : For ij" they havefuch an Intereft in them or in either of them,
the Plaintiff cannot recover in Ejedment agalnft them.
Now I ftiould think that there is a CHATTEi-IntereJi in the
Mother. But be that as it may, here is a Devife " to the Daugh-
" ter
556 Eailer Term 31 Geo. 2.
" ter and her Heirs" exprefly ; (however inaccurately this illiterate
Teftator has worded what accompanies it :) and therefore She feems
to have a Fee ; (though liable to be controlled by certain Events that
may happen.) But thus much at leaft, is clear ; 'viz. that his Son
[John Griffin, the Plaintiff'."^ Leffor,) was not to take, till the
Teftator's Daughter Ihould be dead without Jjjite.
So that it is extremely clear and plain, that either the Mother ir
the Daughter have Juch an Intereft as intitles them to the Pojp-Jioii
of the Eftate.
• Mr.Juftice Pir * Cur. unanimoufly,
fo/zer happen- Let the PosTi.A bc delivered to the Defendant.
ed to be ab-
fent.
Thur/j^^y Rex verf. Young and Pitts, Efquires.
20th April
I "'8
A Motion .was (on loth May 1757) made for an Information
againft thefe two Juftices of the Peace, for arbitrarily., ok-
Jlinately, and unreafonably refusing to grant a Licence to
One Henry Day, to keep an Inn at EverJJey ; where it was alledged
and fworn to be fit and proper and even neceflary that there fliould
be din additional Onz, (there being Onq there already ;) and for which
Occupation of keeping an Inn, this Man was (as thefe two Juftices
themfelves had allowed on a former Occafion) z proper Perfon, they
having before Kcenfed Him to do fo at another Place.
Upon this Original Motion being made at the Bar —
Lord Mansfield and Mr. Juft. Denison held, that notwith-
flanding this was a Matter left in a great Meafure to the Difcre-
tion of the Juftices, Yet if it appeared to the Court, from fuf-
ficient Circumftances laid before them, that their Condiid was in-
fluenced by partial, opprcjjive, corrupt, or arbitrary Views, in-
ftead of exer'cifing a fair and candid Difcretion, The Court migl;t
call upon them toJl:ew the Reasons whereby they guided their Di;~
cretion : And therefore they were for granting the Rule to fbev/-,
Caufe, as p'ayed. But
Mr. Juft. Foster (who happened to know the Place, and fiiid
there was another Houfe of good Entertainment there already,)
thought it fufficient to make a Rule upon the two Juftices " io
" fhew Caufe why they fliould not grant this Licence." And
Lord Mansfield and Mr. Juft. Denison concurred with Ilim,
to exprefs the Rule in that Manner, though the Subftance was the
-2 » lume:
Eafler Term 3 1 Geo. 2. 557
fame ; becaufe, if they did not fhew fufficient Caufe, the Confe-
quence muft be granting an Information.
Per Cur. unanimoufly — (Mr, Juft. Wihnot being abfent in
Chancery.)
Rule upon thefe two Juftices to fliew Caufe " "why they
did NOT GRANT thh Licence to this Henry Day "
On Monday 27th of 'June 1757. upon fhewing Caufe — The Ju-
ftices, by their Affidavits, made no Perfonal Objedlions to Day ; but
thought the Certificate injlifficiefit, becaufe not figned by the Parfon,
Vicar or Curate.
The Court was of Opinion " that the Certificate, being fign-
" ed by 3 or 4 reputable and fubftantial Houfe- keepers, &c, ivas
" fufficient." But though the Juftices had miftaken the Adt, The
Court cleared them from any wrong Motive.
But it being fuggefted " that the prefent Parfon and Churchwar-
" dens were ready to fign a Certificate in his Favour," The Court
enlarged the Rule to the firft Day of next Term j with a View that
He might be licenfed at Michaelmas^ if there ffiould be no other Ob-
jedion than what arofe from the Certificate's not being figned by
the Parfon and Churchwardens j and the Matter (which feemed to
have raifed great Heats, and was ftrongly fupported by Sir John
Aftley, on the Part oi Day,) be accommodated
The Rule was accordingly enlarged in thefe Terms, viz. " That
" the firft Day of the next Term be farther given them, to fliew
" Caufe ichy they have not granted, &c."
N.B. By 26 G. 2. f. 31. §. I. It is enabled. That upon grant-
ing Licences by Juftices of Peace, to any Pcrfon, to keep an Ale-
houfe. Inn, &c. Every fuch Perfon 7ZW/ e7iter into a Recogni-
zance in 10/. with two fufficient Sureties, Each in 5/; or One
fufficient Surety in 10/; under the ufual Condition, " for maintain^
" ing of GOOD Order and Rule within the fame."
By §. 2. It is enafted, That ?20 Licence to keep the fame fliall be
granted to any Perfon not licensed the Tear preceding ; unless
fuch Perfon produce, at the General Meeting of the Juftices
in September, a Certificate under the Hands of the Parfon,
Vicar or Curate and the Major Part of the Churchwardeits and Over-
feers, or else of t^ or 4 reputable and fubftantial Houfekeepers and
Inhabitants of the Parifti or Place where fuch Ale-hot: fe is to be;
felting forth " That fuch Perfon is of good Fame, and of fober Life
7 C " and
558 Eafler Term 31 Geo. 2.
" and Converfation." And it fliall be mentioned in fuch Licence^
" That fuch Certijicate ivas produced :" Otherwife fuch Licence fhall
be null and void.
By §. 3. No Licence fhall intitle any Perfon to keep an Alehoufe
in any other Place, than that in 'which it was first kept, by Virtue
of fuch Licence: And fuch Licence, ivith regard to all other
,Placcs, (liall be null and void.
On Friday i8th of Novemb-sr 1757. Mr. Norton again moved
(and moved it as a new original M.oi\qu) for an Information
againft thefe two Juftices of Peace ; who, he faid, had at their
lart general September Meeting for granting Licences, ftill persisted
in refufmg to grant this Licence, notvvithftanding what had already
paffed in this Court upon the fame Subjedl and Occafion. Of this
Fad: He had Affidavits : and he alfo producedyrf/Z) and circumjlan-
tial Affidavits, as to the Merits ; viz. the Neceffity of luch a Licence,
and the Conduft of the Juftices in their Oppofition to it.
Lord Mansfifle — -What paffed before was, " That the Court
" did not think any thing criminally imputable to thefe
" Juftices." The Court then gave no Opinion as to obliging
them to grant the Licence: But, on the contrary, expredy ad-
journed the Confideration of the Reafons of their Refufal.
This former Rule was only kept on Foot, in order to obtain the
MATERIAL End of it : But as to the Behaviour of the Juftices,
with regard to the criminal Complaint againft them, the Court
difcharged them from any Imputation oi Crime or arbitrary
Intention to opprefs the Man.
The Court therefore nowmade the like Rule, upon thefe fresh
Affidavits, as they had made upon the former, and Ordered that
both Rules fliould come on together.
Six Richard Lloyd {on Saturday nth o( February 1758.) accord-
ingly fliewed Caufe upon both Rules.
He obferved that it was a Sort of Rule never before granted j
and which He had known refufed 25 Years ago. He faid he never
knew a Rule made upon Juftices, to fliew Caufe *' Why they did
T20t grant a Licence," or to enforce them to do fo ; Unlefs there
was fome Charge of Corruption, Partiality, Bias, or other Imputa-
. tion upon the Juftices.
Lord Mansfield anfwered That the Affidavits upon which the
Originaiyioixovi was made did import fuch a Charge ; — And the Mo-
2. tion
Eafler Term 31 Geo. 2. 559
tion was originally made upon that Foot : And that the Rule was put
into it's prefent Form, &?// c/ Tenderness to thefe Gentlemen, and
Regard to the Fairnefs of their Charadler.
And they did indeed, upon the former Caufe fhewn, appear to
he free from Blame, as to any Criminal Imputation.
But yet {/"they have no reafonable ObjeSiion to the Man, they ought
to licenfe him ; And y/'they have any Reafon, they ought to give
it. For though they have, it is true, a Difcretion in thefe Cafes,
yet it muft not be permitted to them to exercife an areit'ary
and UNCONTROLED Power over the Rights of other People, and
in Cafes where their Livelihoods are fo effcntially concerned.
Sir Richard Lloyd argued and infilled that the Legiflature has
made them the sole Judges, as being fuch who, from their Refi-
dence on the Spot, muft beji know the Perfons and their Charadlers,
and alio the Circumllances of Time and Place. And the Legifla-
ture has even excluded Juftices of Peace of other Divifions. And
the Juftices thus intrujled have a Right to judge for themselves:
No Man can judge for another. And this Power is trufted to them, ,
by the Conjlitution, hy the LegiJIature.
It may be very dangerous to them, to he obliged to give their Rea-
fons publicly: Though they may have very fufjicient Ones to fatisfy
their own Minds and to diredl their own Judgment.
And if they are thus intrufted, Why are they liable to be called
to an Account by any other Jurifdiftion ; unlefs they ad faultily and
wilfully wrong? Indeed, if they do wilfully wrongs let them be pu-
niftied : But where they ad quite confcientioufly, they are not ac-
countable to any Body.
Now thefe Gentlemen fay, and they swear too, " that they
" really judge this Houfe to be an improper House ; and this Per-
" fan to be an improper Person ; And that this is their real and
" jincere Opinion.''
This Queftion affeBs all the Juftices in England: (I mean,
fetting afide the Imputation oi wilful Mifbehaviour.)
Lord Mansfield — Moft certainly. No body doubts of the
Thing ; fetting afide every Degree of Imputation : It will not
bear an Argument.
Sir Richard repeated the Ju/lices Reafons for their Refufal ; and
concluded with insisting on their Right io judge Jor them-
. selves.
Mr.
560 Barter Term 31 Geo. 2.
Mr. Toieng, being in Court, fpoke (very handfomly) in Exculpa-
tion of himfelf from any ill Intention ; and declared very fo-
lemnly, " that He had afted according to his real Sentiments^
" and the l>ejl of' bis Judgmefit."
Lord Mansfield — It is a Matter of too much Confequence,
and too much Length too (as I am obliged to go away,) to
be determined now immediately : And it may as well ftand
over till next term, as fo little Time of this Term is left.
Adjourned.
On Thurfday 13th oi April 1758. This Cafe being mentioned
again — Lord Mansfield propofed altering the Rule, by making
it " To ftiew Caufe why there (hould not be an Information
" againft them:" For fo He faid, it was originally moved, and this
was the true and proper Foot to argue it upon ; (And Mr. Norton
declared that he propofed to argue it upon that Foot ;) — Though in
Tenderncfs to the Juftices, and left: the Country ftiould run away
with a Notion of their being under a Criminal Charge, it had been
put into the Form that it at prefent ft:ands in. [V. ante p. SS7') •^"^
Mr. Nares, Counfel for the two Juftices, not oppofing or objefting
te this Alteration — The Rule was altered accordingly.
And now this Affair coming on again, (for the laft: Time ;)
Lord Mansfield again declared that the Argument ought to be
taken up upon the Foot of Crimijiality in the Juftices: For it was
{o originally ?noved ; it was \ht proper Nature oftheQueftion ; it was
fo underft:ood by every Body j and fo meant by the Court. For, (as
He again explicitly declared,) there was no Pretence, upon any
other Foot, to make a Rule upon the Juftices, who have a Difcre-
* f^.pojl./,.f/otionary Jurifdidlion given them by the Law. But though * Dis-
jjg(^^^j.g"'J'' crf.tion does mean (and can mean nothing elfe but) Exercifmg
Diurttion. the bell of their Judg7nent upon the Occafion that calls for it; Yet if
this Difcretion be lanlfully abufed, it is criminal, and ought to be un-
der the Control of this Court.
Mr. Nares and Mr. Thurlow, for the Defendants thereupon argued
ftrongly and very largely, that the Juftices had been fo far from ac-
ting criminally, that they had aded rightly, properly and honejlly :
And they hinted that the Court had already exculpated them from
any Criminality of Behaviour.
And the Legiflature have left this Jurifdi£tion /o abfolutely to the
Juftices oi iht particular Divifion, that no Appeal will lie from their
Determination ; as appears by i Salk. 45 : which is exprefly fo, and
is cited in 2 Strange 881, as a Proof of this Pofition»
Neither
Eafler Term 31 Geo. 2. 561
Neither will any Mandamus lie to the Juftices, to oblige them
to grant the Licence ; even though they fhould appear to have re-
fufed it upon Realbns which may be looked upon as very fufpicious
at leafl-, if not very improper. 2 Strange 88 1. {Rex v. Jujlices of
Worcejier) Giles's Cafe.
Nor will the Court grant an Information^ for refufing to grant a
Licence. Rex v. 'jujlices of Nottingham, where, they faid, an In-
formation was denied.
But Per Cur. That Cafe was an Abufe, a grofs Abufe, of their
Difcretion : And the Information was therefore granted. And
fo it was in the Cafe of Bridgewater, upon the fame Foot, of
Abufe of the Difcretion intruded to them.
The Counfel for the two Juftices next obferved that Day's ha-
ving for many Years had a Licence to keep a public Houfe in a7io-
^/&^r Parish, was quite an /ww^j/fm^/ Circum fiance : For, by 26 G.
2- ^. 3 !• § 3- fuch Licence was abfohitely null mid void, with regard
to all OTHER Places. [V. ante SS'^-]
The Affidavits on both Sides being then All diftinflly read. It
appeared (upon the whole Matter) that thefe two Juftices had
aded in this Affair, with Fairnefs, Impartiality, Candor, and
Juflice J that they really and fmcerely thought both the Man
and the Houfe improper to be licenfcd ; and that they had
very good and fiifficient Reafom for fo thinking and determining.
Whereupon, their Counfel concluded with praying that the
Rules made upon them might be difcharged with full Co/Is.
Contra for the Profecutors.
The main Tendency of the Arguments of the Counfi.! in Sup-
port of thefe Rules, was, to fliew that the Rctufai to grant this
Licence to Day, arofe from Partialitv to Mr. Barker the Lord
of the Manor, who was the Proprietor (the Landlord) of the dhcr
publick Houfe already eftabliflied in the Parifh.
Lord Mansfield once more declared " That this Court had no
" Power or Claim, to review the Rcafins of Juftices of Peace, upon
" which they form their Judgments in granting Licences ; by way of
" Appeal frotn their Judgments, or over-ruling the Discre-
" TION intriifted to them."
But if it CLEARLY appears that the Juftices have been partially,
malicioufy, or corruptly influenced in the Exercise of this Difcre-
7 D tion,
562 Eader Term 31 Geo. 2.
tion, and have (confequently) abused thcTruJivt^okdi in them, they
arc liable to Profecution by IndiSlment or Information ; or even,
pofTibly, by ASlion^ if the Malice be very grofs and injurious.
If their Judgment is wrong, yet their Heart <7W Intention
pure, God forbid that they fhould be punifhed ! And He declared
that He fliould always lean towards fa'^oiiring them ; unlefs Par-
tiality, Corruption, or Malice fliall clearly appear.
The prefcnt Queftion therefore only is, " Whether thefe Gtw-
" tlemeii have been guilty of any Partiality or Malice, (for Corrup-
" tion is not pretended,) in the Rcfufal of this Licence."
Then He went minutely and accurately through All the Particu-
lars both of the Charge and oFthe Defence. And He thought that
upon the firft and original Motion, the Juftices appeared to have
been ?m/laken in the Groimds of their Refufal ; in that they fixed it
upon the want of the Minifter's and Church- Wardens Signing ;
which thry judged io be requifite by the 26 G. 2. c. 51. (when it
was mt.) Plowever, in this, they were iiot criminal ; though they
were mijlakcn. And at that Time, they had no Perfonal Objedion
to Day. And therefore it was (from all that then appeared) reafo-
nable to expetft that, upon enlarging the Rule, they ivMid at their
next Meeting grant the Licence ; which they had before refufed,
upon a Mijlake, of which" they were fubfequently informed.
But SINCE this, and antecedent to fuch next Meeting, there are
come out feveral Jlrong personal ObjeEliom to Day himfelf:
(Which thefe Juftices were the proper Judges of:) Namely, His
keeping and having long kept a Houfe for publickly retailing Ale
Wine and Spirituous Liquors without being licenfed thereto ; His
having been twice convidted of felling Spirituous Liquors, without
a Licence ; His fufifcring a Day-Labourer to drink a whole Day in
his Houfe, in Harvefl-time, and afterwards vindicating it ; His
having been charged with a Fraud, upon Oath ; Befides an Alle-
gation in One of the Aflidavits, " That two notorious Highway-
" men and Robbers appeared at leaft to have ufed his Houfe as a
" Public Houfe, if they enjoyed no other and more particular kind
" of Harbour and Protedlion in it."
And in refpecl to the Houfe, the Juftices now fwear that they are
clearly of Opifiion " That One Houfe is fufficient," And they
likcwife clear themfelves, by the moft folemn Aflertions in their
Affidavits, of all Cr/W/z^/ Imputation.
Therefore
Eader Term 31 Geo. 2. 56
/I
Therefore He concluded with declaring it as his Opinion, that
there was no fi^cicnt Foundation for a Criminal Charge againil:
thefe Juftices.
Mr. Juft. Denison concurred.
He aUo exprefly allcivcd the 'Difcretionary Power of the Juftices '
in granting Licences ; without Appeal from their Judgments, or ha-
ving their juji and honefl Reafons rerjieiird by any Body. But yet
an improper and unjrift Exercife of their Difcrction, He faid, ought
to be under Controul.
But it muft be a clear atid apparent Partiality, or nzilful Mif-
bchaviour, to induce the Court to grant an Information : Not a
mere Error in Judgment. And here is certainly no c/ear and appa-
rent Partiality, or wilful Miftehaviour, in thefe Juftices.
Therefore the Rules ought to be difcharged.
Mr. Juft. Foster concurred in the general Principles before
laid down : And He thought that there was no Evidence of Par-
tiality, Malice or Corruption, in the prefent Cafe.
He declared againft increajing the Number of public Houfes;
and gave feveral ftrong Reafons againft it : And therefore He thought
the Juftices far from being to blame, in having come to a Refo-
lution " not to increafe them." And He was fatisfied that the
Juftices had Reafon fufficient to refufe this particular Licence ;
both with regard to the Houfe^ and alfo with regard to the Man re-
fufed.
Mr. Juft. WiLMOT concurred.
He was very explicit, that the Sole Difcretion of granting Li-
cences, is in the Justices of the Divifion : And He moreover gave
very good Reafons why it ftiould be {o.
And this Point (he obferved,) is admitted at the Bar.
Then the Sole Difcretion being in them, the Rule is invariable,
" That this Court will never interpofe to punifh a Juftice of Peace
" for a mere Error in Judgment."
Therefore, even fuppofing them to have been mijlaken from Be-
ginning to End, yet there is no Ground from any of the Affidavits,
to infer any Partiality^ Malice, or Corruption : There is not the
leaft
564 Eafler Term 31 Geo. 2.
leafi: Fa^, whereupon fnfficiently to found any fuch Apprehenfion
and Belief even in the Complainants ; And the Juflices themfelves
do moft Jokmnly deny it in their Affidavits.
Per Cur. Both Rules discharged, with Cojls.
Lord Mansfield — There are two diftindl Reafons why We
fliould give Costs : One, with regard to the Perfon complain-
ing ; The Other, with regard to the Perfons complained of.
For it appears, upon the Affidavits, that Day (the Perfon
complaining) has perfevered in keeping this Houfe without
a Licence : And it notv appears that the Juftices who are
complained of, have adted both honejlly and legally in rcfufing
to grant it, in a Place where there was already a Sufficiency.
V. poft, pa. Rex v. At hay Efqj M. 1.758. 32 G. 2. B. R.
a like Point.
Sniuyjay 22d Rex verf. Inhabitants of Macclesfield.
T\ /f R. Tates ihewed Caufe againft quadiing an Order of Seffions.
Two Juftices removed Jofeph Bower, an Infant of Eleven Years
of Age, from Macclesfield to Sutton : But the Seffions, upon an Ap-
peal from this Order, difcharged it.
The Special Cafe ftated was this — The faid Pauper Jrfepb Bower
was a Baftard-Child, Ijorn in Sutton, and maintained by the Over-
feers of Sutton.
When he was about the Age of 8 Years, he was, witlxiit the
Knowledge or Confent of the Overfeers of Sutton, hired to One
John Swain of Macclesfield, to work in his Silk-Mill there, for the
Term of 3 Tears ; at 6 </. a Week for the firft Year, 9 d'. a Week
for the fecond Year, and 13 d'. a Week for the third Year: And
that the faid Contrad was made (as well with the Confent and Di-
rection of the Mother of the faid Pauper, as with his own free
Will,) by a Perfon whom the Mother employed for that Purpofe ;
She not being able to ftir about herfelf, or to do any Thing towards
maintaining the faid Pauper. That the Mufter, 'fohn Swain, was
NOT to find the faid Pi-.uper either Diet or Lodging: And the faid
Service was to be only Eleven Hours in the Six Working-Days \
And all the Refl of the Time, as well as on Sundays, the faid
Pauper was at his ov/n Liberty and his own Master.
2 The
Eafter Term 31 Geo. z. 565
The Pauper conthiued 3 Years in the faid Service ; But within that
lixmt, frequently absented himfelf from his Work; fometimes, for
a whole Day or loiiger ; and at other Times, for feveral Hours in the
Day ; For all which Defaults, DeduSlions were made out of his
Wages, in Proportion to the Time loft : But there was never any-
new or other Agreement made, fave as aforefaid.
That during the faid whole 3 Tears, the faid Pauper lodged
with his Mother in Macclesfield \ Who received his IVages : And the
fame not being fuff,cient to maintain him, and the Mother being
unable to work, the Overseers of Sutton contributed bd.a
Week, during the whole 'Time, towards his Maintenance.
That about, or foon after the Expiration of the faid 3 Vears, the
Mother died: And the faid Pauper (being ill) required Relief from
the Overfeers of the Poor of Macclesfield ; Who, thereupon, ap-
plied for the Order to remove him from their Townfliip of Macclef-
field to that of Sutton.
The Seflions declare their Opinion, " That this Settlement is in
" the faid Borough and Townfliip oi Macclesfield :" And therefore
they repeal and make void the faid Original Order ; and give 15;. 6d.
Cofls, to the Overfeers of Sutton.
Mr. Norton, who was for quafliing this Order of Seflions, argued
that the Settlement was in Sutton, and not i?i Macclesfield : For
that the Fads ftated could not be conftrued to amount to a Hiring
for a Tear and Serving for a Tear, within the Meaning or Intention
of the Adt of Parliament.
Mr. Tates, contra, argued that it was. See the Statutes of 3, 4 W.
^ M. c. \i. ^ y ; And 8, 9 W. 3. c. 30. § 4: Which give a
Settlement by being hired and ferving for a Year.
He cited the Cafe o? Rex v. White-Chapel, P. ii G. i. 1725;
and Rex v. Inhabitants of King's Norton and Camden, B. R. P. &
Tr. 1740 ; and Rex v. Inhabitants of Wrinton alias Wrington, M,
22 G. 2. B. R.
The Court held clearly with Mr. Norton.
Lord Mansfield premifed that there was 7io Foundation, on this
State of the Cafe, to imagine that it could be a Settlement upon
the Ground of an Apprenticejhip : The only Queftion is " Whether
" thefe Fads ftated, amount to a Settlement in Macclesfield, as
" a Hiring for a Tear and Service for a lair."
7 E The
566 Eafier Term 31 Geo. 2.
The Pauper was an hifant of only Eight Tears .of Age, at the
Time of the hiring : Therefore he "was not boimdhy the Agreement."
Indeed he might have affirmed it ; (For the Contrad of an Infant
[♦ This Doc- is 7iot ahfolutely void, but only voidable, at his * own Election ;)
trine was fet- g^,[ ^^^ Maftcr could NOT obHq-c him to ftand to it.
tied and ella- "
b!i(hed in the
Cafe of Holt Then as to the Contrail itfelf—lt was only " To ferve i r Hoi/rs
^ jf "m.^ " i" the Day, of the Six Working-Days : but during All the Re/i
1732.60. z]" of thofe Days, and the whole Sunday, the Servant was to be
" at his OWN Liberty and liis own Master." It is in the
Nature of a Contradl J'rom Week to Week ; And it cannot, in this
Cafe, be conftrued to gain a Settlement, unlefs it had been intended
that it ftiould : Whereas it is plain that the Parifli of Sutton have
not underftood it in that Light, as a-Contra<fl to change the Child's
Settlement ; becaufe they have contributed toioards it's Maintenance
during the nvhole 3 1 Years.
Upon the whole, therefore, this Pauper's Settlement is clearly in
Sutton.
Mr. Juft. Foster concurred. He faid He could not diftinguiHi
[f M. 1748. this Cafe from that of Chew -Stoke, -f
2 2 G. 2. Cited
M°rl7f/by > ^ Service fufficient to gain a Settlement, muft be fuch a State,
the Name of during the WHOLE 'Time. Whereas this was not rt Servitude du-
R.x V. ],,h.t- j-i^rr ALL the Time : For he was to be at his own Liberty and his
bitants of -.,, n ^ • i r> r -r^ i
Wrviton alias ^'^'^''^ Ma/ter dunug the greater Part or every Day, and every whole
iVrhgtsi:. Sunday. Confequently, this Perfon was not at all in a State of
Servitude, at those excepted Times. And therefore this is not
fuch a Service as is intended by the Acfl.
Mr. Jiift. WiLMOT alfo concurred. The Servant's Lodging in
liis MoiIkt's Houfe, would have made no Difference, He ftid ;
Provided the Hiring and Service had been in all other Kt(^tGi% good.
But here, the Infant was not bcund. For an Infant has Power,
either to avoid, cr to confirm his Contradl : And fo it was deter-'
mined in the Cafe qi Holt v. Ward, Trin. 1732. B. R.
Then, As to the ContraB itfelf — This is not fuch a Hiring and
Service as will g.'.in a Settlement within the Ad of 3, 4 W. & M.
r. f I. § 7. For that Ad intends only fuch fervices, where the Ser-
vant is under the Command and Control of the Mafter, during the
WHOLE Tear: Which this Servant was not to be; but feems only
to have been hired for the particular Purpofe of working in thefe
5ilk-Mills, at certain Hours. PJe was not in a continued and abiding
I State
Eafler Term 31 Geo. 2. 567
State of Servitude, during i\\t' whole Year: And therefore He did
not gain a Settlement in the Burrough and Tovvnfhip o^ Macclesfield.
Gonfequently, the Seffions have determined Wrong.
Per Cur. unanimoufly, * * Mr. judke
Order of Sessions quashed : ' ^^^^-^^^ "^'^
Original Order affirmed.
Rex verf. Epifcopum Dunelmenfem. Monjy 2j^th
J i- i: jpril 1758.
MR Willes, on Behalf of Dr. Sterne, Prebendary of the fecond
Stall in the Cathedral Church of Durham, moved for a
Mandamus to the Bifhop, commanding Him to exercife his Visi-
tatorial Power over the ^emporalties of that Church, in the
Inftance hereinafter mentioned : (In which Dr. Sterne had applied
to the BiHiop to exercife it ; Who refufed to do (o, unlefs under
the Authority of this Court.)
And He alledged that fuch Vifitatorial Power is given to the Bifii-
op, by the 40th of their Statutes.
And there is no other Method of trying this Queflionj but before
the Bifliop as Vifitor.
Mr. Norton, for the Bifhop, fiid that the Bifliop vs^as not fttisfied
that He had fuch a Power : And therefore He propofed that the
Dean and Chapter (hould be called in, to litigate it.
N. B. The Merits of the Queftion were " Whether the Succef-
" y^jr-Prebendary (Dr. Sterne) had a Right to 2 I. Years Profits
" accruing during tlie Vacancy of the Stall, from the Death of
" Dr. Benfon, Bifliop of Glouccjler, (the la:ft preceding Pre-
" bendary:) Which intermediate Profits the Other Preben-
" daries had received, and ^mVr^ amongft them."
Lord Ma.nsfield thought that an ABion at Lav/ was the pro-
ber Method ; and inftanced the Cafe of Dr. Towjg v. Dr. Lynch,
P. 26 G. 2. 1753. B. R ; and mentioned likewife Canon Seager's
Cafe (who was a Canon of the Church oi Sal/Jbury) in Chancery.
" Whether the Bljhop can have a Jurifdiclion to determine this
" Point • Or Whether Matters of Property in Cathedrals can be
" determined otherwlfe than acccrdins; to the Courfe of the Law
"*' of the Land," is a great Queftion. And certainly, the Dean and
Chapter mufl have an Opportunity to Hievv Caufe againft a Manda-
-nms being iilued to the Eifhop, to exe.-cife fuch a Jurifdidion,
But
568 Eafter Term 31 Geo. 2.
But in this particular Cafe, the Queflion muft be Htigated, not
only with Members of the Body ; but with Executors and ^dmini-
jlraton of deceafed Prebendaries : Over Whom, the BiOiop [fuppo-
fmg Him Vifitor, and as Vifitor to have Conuzance of fuch a Cafe,)
can have no Power. Which alone is decifive againft: his Jurifdidtion
in this Queflion.
Mr. Willes, perceiving the Court fo fir ongiy againft him, agreed ta
take nothing by his Motion.
Rex verf. Peters et al' :
0 R
Cavil verf. Burnaford ct al'.
R. Hujfey fhewed Caufe againft the ifTuing of a Mandamus.
M
A Motion had been made by Mr. Wliitaker (on 13th February
1758) for a Mandamus to be direcfted to the Defendant John Pe-
ters, the County-Clerk, (who was the Steward of the Court,) and
alfo to the free Suitors of the County-Court of the County of Cornixally
commanding them Xo proceed to final Judgment in a certain Caufe by
Plaint in Replevin, commenced in the faid County-Court, between
John Cavil Plaintiff, and John Burnaford, Anthony Pomery, and
Nicholas Pelyne, Defendants j in which Caufe the faid John Cavil
obtained an Interlocutory Judgment in the faid County-Court.
The Cafe, in fliort was, — That Burnaford diftrained Cavil, for
Rent; Cavil brought a Replevin, in the County-Court oiCornwal;
An Intf.klocutcrv Judgment was regularly entered; And a
Writ of Inquiry of Damages executed thereupon; and 2d. afTeffed
for Damages, and 55 for Cofts, and fo mucli more Cofts as the
Court fhould allow. This Inquifition was fet afide for Irregularity^
{viz. Want of Notice of executing the Writ of Inquiry.)
The Defendant's Advocate there then moved " To fet afide
" the faid (regular) interlocutory Judgment itfelf; upon
" the Dejendant's paying the Cofis of entering it, (to be taxed by
" the Steward,) and on avowing ijfuably : And afterwards, on a fub-
fequent Motion " to make fuch Rule abfolute," it being urged by
the other Side, " that that Court had no Power to fet afide a re-
gular Judgment," the Judge took time to advife. At a future
Court, after Inquiiy from ancient Pradlifers in the faid Court, and
being in foraged that it had been the confiant Cujlom and Ufage of it
3 *! TO
Eader Term 31 Geo. 2. 569
" TO SET ASIDE interlocutcry 'judgments, any time before executing
" Writs of Inquiry therein^ on the Defendant's paying the Cofs of enter-
" ing the fame fudgmcjits, and plcadii7g ifjuabk to fuch ASiions in-
*■' ftanter ;" and after having fully confidered the Affair in all it's
Circumftances ; and apprehending it to be agreeable to the Pradice"
of this Court ; He declared his Opinion " That it ought to be fet a/ide,
and " the Defendant's Avowry received, they having paid the Cofts,
" at the Time of filing it de bene ef'e," (which had been done in,
the Interim: And accordingly. He made a Rule, thus — " Cavil v.
" Burnaford et al'. It is Ordered, &Cy That the interlocutory
" Judgment entered in this Caufe be set aside, on Payment of
" Cofts taxed ; And that the Avowry filed in this Caufe de bene ejj'e,.
*' laft Court-Day, be now, on Confideration of the Court, made
" abfolute : And therefore Rule for the Plaintiff in Replevin to
" Plead in Bar to the Avowry."
And the Judge of this inferior Court fvvears " That He aded
" with the utmoft Impartiality in the Affair, and according to the
*' beft of his Judgment and Underftanding ; And, He apprchejnds
" and believes, according to the constant Usage and Prac-
*' T I c E efabljfied and obferved in thefaid Court. '"
Mr. Whitaker'% Motion was grounded upon the hferior Judge^s.
having exceeded his Authority. And He had cited 2 Strange 823. Fox
V. Glafs, H. 1728. 2 G. 2. as the fr/i Time that even this Court had,
fet afide kegu l ar Judgments ; and i Strange 392. Bayly v. Boorne,
M. 7. G. 2 where they doubted of an Inferior Judge's having fuch
a Power.
On Friday laft, {z\{t April 1758,) Mr. Hujey fliewed Caufe Why
this Mandamus fliould not iffue. And He made the two following
Queftions. '
ift. Whether the Judge or Steward of an inferior Court has a
Right to SET aside interlocutory Judgments regularly ob-
tained :
2d. Whether in this particular Cafe, the Steward of this inferior
Court had a Right to do as he had done, and as is the.Pradlice
of that inferior Court.
As to the I ft Queftion — He agreed they cannot grant ?2ew Trials.
I Salk. 201. Regina v. Hill et al', and 2 Salk. 65O. the Cafe of Bri-
Jlol (which is S. Q) Brooke v. Ewers, et al', i Strange 113. S. P.
A Mandamus iffued to a Judge of an inferior Court, " to give Judg-
" ment:" though he had granted anew Trial. Therefore He would
not contend that an inferior Court has a Right to fet afide a regular
Judgment, unless it be to let in the Merits.
7 F But
570 Eafler Term 31 Geo 2.
But they may do it in order to r k v the IVl kr its. 2 lS^//^ 650.
In the Cafe of the Mayor and Aldermen of Brijiol, It was holden,
" That an inferior Court could not grant a tieio Trial." However,
it was long fince done by this Court : And they would ^io fortnerly
fet afide regular 'Judgments^ on putting the Plaintiff in as good Con-
dition as before. And it does not appear how the Court came to leave
it off; as Sir "'John Strange fays (in the Cafe of Fox v. GlaJ'i) that they
had done.
And it feems right in itfelf, and agreeable to natural Juftice, to
permit inferior Courts to fct afide regular interlocutory Judgments,
in Order to let in a Trial of the Mekit . Indeed it is rcafonable,
not to permit them to fet afide xh^ VerdiSis of '\\:\<\-es.: Which is
an exceedingly different Cafe from a Judgment by Default.
As to the 2d Queflion — In the prefent Cafe, the Steward aded
rightly and reafonably, upon the Circumllances attending it.
Ml". Whitaker, contra, for the Mandamus.
The Letting in the Trial of the Mfrits, makes no Difference.
I fay that an Inferior Court can not fet afide a regular Judgment after
they have once exercifed their Authority. In i Strange 392. Baily v.
Boorne, M. jG. 2. B. R. The Court thought it a C^eftion that
deferved Confideration, " Whether the Judge of an Inferior Court
" could do it." And there is no more Reafon Why they fliould
have this Power, than that of fetting afide VerdiSls. They have
no fuch Difcretion. " Difcretion" is another Word for " Arbitrary
« WilL"
Lord Mansfjeld denied this Interpretation of the Term Dif-
cretion ; and referred to what was faid (a few Days ago) in
the Cafe of Rex v. Jliaig and Pits (V. ante p. 560. and 561,
562.) And he laid that Discretio is, as Lord Co/'v fays,
■•11 «» difcernere per Legem quid fit juftum."
To which Obfervation, Mr. Juft. Wilmot dcfired to add ano-
ther, from 5 Co. ioo.a. Rooke's Cafe: " Discretion is aSci-
*' ence and Underftanding of diftinguifliing and difcerning
between Falfehood and Truth, &c &c j and not to do ac-
" cording to arbitrary Will and private AffeSlion."
Mr. Wh I TAKER — But thefe Inferior Judges have no Sort of dif-
cretionary Power of any Kind.
Lord Mansfield — That Cafe of Baily v. Boorne, in i Strange
392. only fays " That it was a Queflion that deferved Confideration."
But
Eafler Term 31 Geo. 2. 571
But there is no Precedent or Authority to the contrary of their having
fuch a Power.
And it feems a Power necejfary to the Exercife of Judicature ; And
is very different from the Cafe of fetting afide Verdicts. —
'This Power to fet afide interlocutory Judgments, feems iiicident to
Jujlice.
However, both Lord Mamfidd and the other * two Judges, * ■^'■- )""•
thought it might not be amifs to look into it. And — ^£1*"*'
Mr. Juft. Denison intimated as if there was fomething of this
Sort before the Court, in \ P. 28 G. 2. B. R. [f itwasia
Cur' advifare vult. 28G. 'z.'ir^/?-
ivi/iv. Liver-
And DOW Lord Mansfield delivered the Opinion of the Court ; '"°''^' ^'^''■^'
having firft defired Mr. HuJJey to ftate the Cafe, for the Sake of the
' Students : (For He took this Opportunity of obferving and declaring
" that Nothing mijleads fo much as reporting the Determination of
" Courts of Juftice, without having a fufficient and correSi State of
" the Cafe ;" which, He faid, was only an ignis fatuus, leading People
into an Error and Mijlake.)
Here^ the ^leflion, upon the true State of the Cafe, (which V.
ante, p. 568.) appears to be " Whether an Inferior Court has
" Power /o SET aside ^-regular interlocutory y«^^-
*' menty in Order to let in the Trial of the Merits."
And We are All of Us of Opinion, " That they have fuch a '
" Power." There is no Authority nor even DiSlum, to the contrary :
Nor is there any Reafon why they fliould not have fuch a Power;
which is incident to the Doing of Jujlice.
Indeed there are Authorities which fay, " That an Inferior Court
" can 7iot grant a new Trial, ox Jet afide the Verdict of a Jury,
" but for Irregularity."
But there may be many Reafons Why they may be permitted to
fet afide an imerlociitory Judgment, in order to let in the Merits-^
which Reafons will not hold fo far as to make it allowable for them. •
to fet afide the VerdiB of a Jury : (One of which Reafons may be,<^Xl u^ 'j'^^f*^^'*^^ "^^^
" that «o ^/to/;^ lies upon a Verdift given in an //j/^;7or Court." )1 r>va*.«^a^««ifl^«*^*5t*:^
And indeed the Setting afide a FerdiB of a Jury, is too great z'^au^^ V/. 3^3-
Power to be intrufted to an inferior Jurifdidlion. Yet ^p ^ ^^»«a^<»>,.
We are. All of Us, clearly of Opinion " That they may fet afide / ' ■ ■ ~/^- ~j>
" regular interlocutory Judgments, in order to let in the M^- /^ '^ '^^**^^ yA****^
2 " ritS -y^^tUMiAi*^ a.l^y'i-»'r<^ '^'*^
572' Eafter Term 31 Geo. 2.
" rifs;" both upon the Reajon of the Thing, and for the Conve-^
nience attending it.
That Cafe in i Strange 392. ol Baily v. Boarne (V. ante p. 570.)
proves nothing at all againft this. And in i Strange 499. je'well v.
Hill, H. S G. I. An inferior Judge fet afide even a P^erdicl, for.
Irregularity, (or rather for Surprize :) Which this Court allowed
he might do.
Mr. Juft. Denison added, that in the Cafe oi Eajiwell v. Liver-'
more, {V. ante p. 571. in Margine) It feemed to be underftood and
agreed at the Bar, " That an inferior Court could not fet afide a
* It is true " Verdicft, * AT all:" But He finds that He has written a Note
that there was at the Bottom of that Cafe, importing that He Himfclf thought
no Diilinftion jj^^j j^ ought not to be taken for granted, fo generally as this is laid
theoifaiffion down, " That they cannot do it * at all" For that He thought
of that Cafe. " that an inferior Court may fet afide even a VerdiSl, for Irregu-
But ;w iiregu- LARiTY ; though thcv are not to be trufted with a Power of Settinsr
iarily was - > ; • ; n /T
there pretend- afide VerdiSls, Upon the Merits.
ed ; nor any
other Reajon attempted to be given for fetting afide, that Verdiftj hut becaufe it was a hard One, and fucl» I
Bs ought to be fet alide.
And this. He faid, was certainly the right Di/linSfion ; viz:\
That they fnay fet afide even Verdids, for Irregidarity ; but tiot
upon the Merits.
Wherefore Per Cur. unanimoufly.
Let the Rule made " That John Peters the County-Clerk^
" and the Free Suitors of the County-Court, fliould fliew
" Caufe Why a Mandamus fliould not ilfue, diredted to them,
" commanding them to proceed to final Judgment in a cer-
" tain Caufe by Plaint in Replevin commenced in the faid
" County-Court, between "john Cavil, Plaintifl^, and "John
" Burnaford, Anthony Pomcry, and Nicholas Pelyne, Defen-
" dants, in which faid Caufe the faid John Cavil obtained an
" interlocutory Judgment in the faid County-Court, on the
" 12th Day of OElober lafl: ;" — be discharged.
I Rule discharged.
Rex
Eafler Term 31 Geo. 2. • 573
Rex verf. Collingwood Fofter, Edward Gallon, George
Selby, and Thomas Mills.
FOUR Rules having been made abfolute, (lafl: Tuejday,) for
four Informations in Nature of ^w Warranto^ againft thefe 4
Defendants, refpedlively, " to fliew by what Authority they claimed
" to be Chamberlains of Alnwick in the County of Norihiimber-
« land"—
Sir Richard Lloyd, on Behalf of the Defendants, moved [ow
Saturday laft,) That there fhould be only One Information againft
All the four Defendants, inftead of four diJlinSl and feparate In-
formations.
Which The Court thought very reafonable, upon the 4th Sec-
tion of 9 Ann. c. 20. which runs thus — " And if it fhall appear
*' to the faid refpedive Courts, That the ftveral Rights of divers
" Perfons, to the faid Offices or Franchifes, may properly be deter-
" mined on One Information, It fhall and may be lawful for the
" faid refpedive Courts to give Leave to exhibit One fuch Infor-
" mation againft several Perfons, in order to try their refpeSiive
" Rights to fuch Offices or Franchifes."
Mr. Norton contra, for the Profecution, urged that though the
Court fjiight indeed give Leave for this joining feveral Perfons
■Rights in One Information, yet they would not do fo, if the Profe-
cutor judged that it might.be inconvejiient to him.
Sir Richard replied that the Court would diredl it, unlefs It was
Jhewn to be attended with Incconvenience.
It ended in Mr. Norton's taking Time to confult his Client.
Which having done. He (this Day) faid his Client had no Ob-
jedion to it ; provided no Exception ftiould be afterwards taken to
fuch Union of the feveral Caufes.
Cur. The Defendants cannot objedl to it, when the Court judge
it to be proper.
7
Challoner
574 Eafter Term 31 Geo. 2.
Tmfia^ z;th Challoner verf. WaJker.
jprii 1758. ■ ''
AN A<ftion of Debt on a Bond, Conditioned as follows ; after
firfl: reciting That Whereas G. Ncedl.iam being feifed in Fee &C
died inteftate &c, leaving a Son 'James Off and An?ie Needham his
tVidow, then living ; And whereas James &c were about to fell the
Eftate ; And alfo reciting the faid Aimc's being married to a fecond
Hufband David Kinneir ; And reciting a Doubt having arifen con-
cerning her Right to Doiver ; And whereas it was agreed that 30/.
Part of the Purchafe-Money of the Eftate, (hould be left in the
Defendant's Hands, in order to indemnify (Sc from the faid Claim
, &c. And all Cofts Charges &c : Then the Condition is, that if the
Defendant and one Coulfon or their Heirs Executors and Adminiftra-
tors fhould indemnify the Plaintiff from all and all Manner of
Claim of Dower that might be made by the faid Anne Needham, as
Widow of the faid G. Needham, out of the faid Premifles ; and of
and from all Cofts Charges Damages Demands ©"t", that may ariie
or happen by or from fuch Claim ^c; then ^c.
Plea, That he has indemnified the Plaintiff.
Replication — That David Kinneir married the Widow ; and
exhibited a Bill in Chancery for Arrears of Dower — He anfwered
the Bill ; and expended 8 /. \o s. for Cofts in the faid Suit.
To this Replication, the Defendant demurs fpecially ; and fliews
feveral Caufes of Demurrer ; viz.
I ft. The Replication is not a direB Anfiver to the Plea.
2d. No IJJ'ue can be taken upon this Replication.
3d. No Breach of Condition is Jufficiently alledged in this Repli-
cation.
Mr. Altham for the Defendant, made two Points :
I ft Point. The Condition only extends to a Claim of Dower to
be made by Anne Needham in her LiF'E-time.
2d. The Plaintiff has brought his ABion too fobn-: He ought to
have ftayed till the Suit in Chancery had been determined.
Firft Point — Conditions ftiall be conftrued favourably for Obli-
gors. I Saund. 66. Butler v. JVigge — It is fo declared by the Court,
a Cro.
Eader Term 31 Geo. 2. 575
Cro. Eliz. 396. Greningham V. Ewer — There the fame Rule was laid
down. 2 Saufid. 411. Ld. Arlington v. Merricke.
And a Condition fhall not be extended further than the Words of
it. I Ro. Abr. 489. I Ro. Abr. 426. pi. 6. i Strange 227. Stibbs.
V. dough, I Lutw. 536. Wilfon v. Conftable.
Second Point — His Expence will ht repaid him, if the Bill fhould
be difmifled with Cofts. It is not like the Payment of a Debt
admitted to be due : This Condition is only to indemnify againft a
■ Claim.
Mr. A/hurJi for the Plaintiff.
I ft Point, ift. This Breach is within the Words and Letter of
;the Condition.
2d. It is clearly within the Meaning of if.
Firft — AJInirft and Walker purchafed the Eftate. The Widow
had claimed Dower. The Indemnification is againft any Claim of
Dower that fliould be made by her. And the Suit is brought upon
that Claim.
Secondly — But it is clearly within the Tnteitt of the Condition.
And Mr. Althani% Cafes will not hold now : Becaufe Courts of
Elquity will now relieve againft the Penalty. And Courts of Law
therefore are lefs ftrict than formerly. M. 29 G. 2. B.R. Drum-
mond et Ux' Adminijlratrix oj Ajh Efq; v. Duke of Bolton.
In the prefent Cafe, there was a Treaty for the Sale of the
Eftate : And a Bond' (inftead of incumbering the Deed with a
Covenant) to indemnify againft all Claim of Dower, and all Ex-
pences Cojts and Damages arifing from any fiich Claim. Mr. Al~
tham's Cafes of i Ro. Abr. 426., &c. are not applicable to the pre-
fent Cafe.
2d Point — The Plaintiff is ctviz\n\y already damnified: And he
is not obliged to wait for Reimburfement, till a Chancery-Suit fhall
be determined. Nor can he have Intcrejl for his Money, if he was
to wait till then, i VeJttr. 35, 36 & 78. King v. Atkins.
Mr. Altham in Reply—
ift Point. The Condition is " To fave him harmlefs from the
" Dower or Thirds that are or fliall be claimed by Anne Nfedhamy
" and from all Cofts Charges Damages ^c arifing &c therefrom :"
That is, from her Claim.
ad Point — -
S7^ Eafler Term 31 Geo. 2.
2d Point — In i I'enfr. 35, 36, 7S. The Shilling was an abfolute
DamnilicLition : For there no Cofts were recoverable, upon the
Scire facias \^\itd againft King, to which He was obliged to appear.
Lord Mansfield — This is the plained Cafe that can come before
a Court. He ftatcd the Pleadings. And He treated the Objcdions,
and the Cafes cited in Support of them, (and thus applied to them,)
as quite frivolous and nugatory; And, vi-iriiout the leaft Doubt or
Difficulty, over-ruled them. For the Cafe is moft clearly within
the Words and Meaning of the Condition : And the Obligee has
been already damnified, and therefore has a Right to be immediately
reimburfed.
Mr. Juft. Denison concurred in both. And He added that
here was 30 /. left in the Purchafer's Hands to indemnify the Plain-
tiff*. And the Indemnification Is againft the Claim, and all Confe-
quences of it. The Obligee has nothing to do with the Claimajit's
Right : It is enough, that he is damnified by the Claim. And he is
not to ftay till the Determination of the Suit : He has an immediate
Right to be reimburfed.
Mr. Juft. Foster and Mr. Juft. Wilmot were clearly of the
fame Opinion : And Both of them explicitly declared themfelves to
the above EfFed,
Judgment for the Plaintiff.
Rex ve7'f. Inhabitants of the Tything of Milland.
ON fhewing Caufe againft quafliing two Orders, 'u'z. An Ori-
ginal Order of tvi'o Juftices, made for taxirg rating and af-
pjjing the Inhabitants of the Tything oi Milland, in Aid of the
Parifh of &. Peter's Chcefchi II in the fame County j and the Order of
Seffions confirming it ; •
The Queftion was. Whether it was fufficiently ftatcd " That Both
" thefe Places {viz. Milland znA St. Petir's) lie V\ ithin the sajvte
Hundred :" Which is a Circumftance efllntially neceflary to be
afcertained, in order to give the Two Juftices any JurifdiBion in the
Cafe.
For, by ^t, Eliz. c. 2. § 3. Power is given to Two Juftices, in
Cafes where they perceive a Parifti not to be able to maintain it's
own Poor, " to tax any other Parifti within the Hundred where
■" the Parilh is." [Vv^hich is all the Authority givsn to Two Juf-
2 ticee.J
Eafler Term 31 Geo. 2. ^^^^
tices.] - Then the Ad goes on, further, " And if the fiid Hundred
" is not able, then the Sessions fl:)allafrefs any other Parifh within
" the County."
Now it is here only ftated " That the Tything of Milland and
" the Parifh of 5'/. Peter's Checfehill Both lie in the favie Liberty
" of the Soke, where the faid Parifli lies."
It was therefore Objedled That non conftat that they are within the
fame Hundred : For " Liberty" and " Soke" are Words of vague,
indeterminate Meaning, not equivalent to the known legal Term
" Hundred," nor co-extenfive with it; And perhaps the Liberty
may extend into feveral Hundreds. However, it is plain that the
"Two Juflices have not fieivti that they have Jurifdidion : And the
Court can't iiitend that they have any.
In Support of the Objedion, were cited the following Cafes ; viz.
Foley's Laivs relating to the Poor 31. (or 42 in 3d Edition,) St. Be-
nediSi PariJIj v. St. Stephefi's and St. Mary Magdalen's in Norwich.
Reports temp. %<f. Ann, 269. S, C. Finer, Title Poor, pa. 41 5.
S. C. with Foley 31.
The Court thought It beft, to fend it back to the Sefiions, in
order to have the Matter better explained and more particularly
ftated.
But they did not think themfelves bound down by the particular
Word " Hundred," which is the Term ufed in the Ad, fo as
to be confined to this fingle Species of Divijion of Counties. For
if fuch Divifion be called by any other Term or Name fynoni-
mous or equivalent to that of" Hundred", it mufl: be equally within
the Intention of the Ad, and the Court may adjudge according to
fuch Intention.
And now, the Cafe having been newly and particularly flated,
Mr. Gould, who was for the Orders, prayed the Opinion of the
Court.
And Mr. Norton, who was againfl them, candidly owning That
as the Fads are now flated. He could not contend but that it does
appear (fubft ant i ally) to be a Hundred, though the Divifion was
called by another Name ;
The Court difcharged the Rule, and affirmed the Orders.
Both Orders affirmed.
7 H John fan
578 Eafler Term 31 Geo. 2.
iveimfiaf Tohiifon ve^'f. Houlditch.
26th April J •'
IN an Adrian upon the Cafe for the Ufe and Occupation of a
Houfe, the Defendant had, in Hilary Term laft, obtained the r
Common Rule, for Liberty " To pay 2/. ^s. into Court, and to
" have it ftruck out of the Declaration, on Payment of Cojls." The '
Plaintiff's Attorney applied to get thele Cofts taxed, and take the
Money out of Court. Upon and after which Application^
Mr. Whitaker, far the Defendant, had moved (in the Beginning
of this Term) to difcharge this Rule fo far as related to the Cojis -,
and alfo that the Plaintiff (hould pay the Cofts of the Suit it-
felf, aud alfo the Cofts of that Application : For that the Plaintiff
had the very fame Offer of the very fame Sum, before the Judge.
The Cafe he went upon, (and from whence he argued the Plain-
tiff's Condud: to be opprefTive) was as follows — A Quarter's Rent
(amounting to 2/. 5;.) and Nothing more, was due from the De-
fendant to the Plaintiff. The Defendant was always ready to have
paid it : But the Plaintiff kept out of the Way in order to prevent
a Tender ; and yet brought his Adlion as above ftated, by Bill re-
turnable lafl Term, The Defendant fummoned the Plaintiff before
a Judge, to fhew Caufe " Why, upon Payment of the Debt and
" Coftsy Proceedings fliould not be ftayed." The Plaintiff's Attorney
pretended that the Plaintiff had other Demands, and therefore refu-
fed to take the 2/. ^s. and Cofts. And fo the Judge was precluded
by this Allegation, from interfering ; and could make no Order.
This obliged the Defendant to apply to the Court, for the Common
Rule, " To pay the 2/. 55. into Court, with the Cofts then in-
curred :" {After njohich, if the Plaintiff proceeds, it is at his Peril.)
But as this Common Rule is always made upon the Terms of
the Defendant's paying Costs to the Plaintiff; Mr. Whitaker'z Mo-
tion made as aboveniLUtioned, was " To fet afide fo much of the
" fild Rule as put upon the Defendant thofe Terms of paying
" Cofs to the Plaintiff:" And he had even added to this Motion,
" That, on the contrary, the Plaintiff fhould pay the Cofts of the
" Suit itfelf, and alfo of that Application, to the Defendant j"
It being moft manifcft that the Plaintiff was determined to opprefs
the Defendant, as it now appeared that only this 2 /. 55. was really
due to him.
Mr. Norton, on Behalf of the Plaintiff, now (hewed Caufe againfl
Mr. Whitaker'^ Rule. And
1 He
Eafler Term 31 Geo. 2. 579
He infifted, that however opprejjive this A6lion might appear,
Yet the Plaintiff" had, by Law, A Right to bring it: And confe-
quently, he was intitled /o Z)/^ Cojh of Suit, to be taxed and paid
to him, upon the Defendant's obtaining this Rule, under the * Sta- * I take thefe
tute, which gives Liberty to pay " the Rent due into the Court:" ^.J!'".^'' ^^
For thofe arc the Terms prescribed by that Ad. and fou'S
upon tlie
But 1;°"''"^ =",^
Ir let ICG Or
The Court, upon full Confideration of the Matter, looked upon the Court;
thefe Proceedings thus carried on by the Plaintiff, to be cpprejjive : ""' ."P°" any
And therefore they did discharge fo much of the abovementioned ^^"'J," "
Rule as direded the Payment of Co/is by the Defendant to the Plain-
tiff.
The Rule now made was this j viz.
" It is Ordered that the faid Rule [made in this Caufe on IVed-
" 7jefday next after three Weeks from Eajler-Diy in this fame
" Term] be discharged : And alfo thatyo tnucb of the Rule
" made in this Caufe in the laft Hilary Term, for the Pay-
" ment of 2 /. 5 s. into Court, as relates to the Payment of
" Costs to be taxed by Mr. Clarke, be discharged.
T
Hutchlns verf. Chambers et al'. ^•■'''''y «''''»
•^ j^jiril 1758.
HIS was a Special Cafe from Surrey Aflizes, before Ld. Ch.
J. IVilles.
It was an Adion of Trefpafs againft the fuftices of Peace, the
Parif:) Officers, the Conftables, and their AJjijlants ; for executing a
Warrant 0/^ Distress made by thefe two Juftices, upon a Poor-Rate
amounting to 13/. 2 s. And a Verdid was found for the Plaintiff,
againft all the Defendants, fubjed to the Opinion of the Court,
upon the whole Matter.
The Diftrefs at firft taken, was 5 Geldings, flated to be Beajls of
the Plow and Cart ; with their Halters. Which firft Diftrefs not
being fufficient, they diftrained ^ifcondTime, under the same IVar-
rant ; and took 3 other Geldings, which were and are ftated to
have been alfo Beajls of the Plow and Cart, of the Value of 36 /. ij s.
with their Halters. It is exprefly ftated, " That upon the former
Diftrefs, there were other Goods &c, more than fufHcient to
anfwer the Value of the Demand, befides thefe Beafts of the Plow
and Cart.
This
8o Eaiier lerm 31 Geo. 2.
Tiiis Cafe was firft argued on Tuefday the 31ft; of January 1758,
by Mr. Kticwkr for the PlaintifFj and Mr. Gou/d fov the Defendants ;
And again, on Friday the 14th of April 1758, by Mr. Stoive for
the Plaintiff, and Mr. Williams for the Defendants.
There were 5 Queftions ftated for the Opinion of the Court,
I ft. Whether the Rate and Jjfcjfment was a good and fiifficient
Rate and JJfeJfment, in Point of Law : And if not, then Whether
the Plaintiff" can avail Himjelf oi 2iny Objedllon to it.
2d Queftion. Whether the Warrant ought to have fixed and
*r. 27G. z. ^^^^TED the Time * within which the Geldings and Goods
c. zo. and diftrained were to be fold : And whether y^r ivattf thereof, the War-
j7G.2.<r. 38. j.^j^( j^ VOID, and the Defendants, or a?iy, and which of them, are
Trefpafcrs.
3d Queftion. Whether the second Diftrefs is at all jufiifiable.
4th Queftion. Whether the Geldings, being Beajls of the Plow,
and ufed by the Plaintiff, both for the Plow and Cart, were
LI ABL K to be taken and dijlrained for the faid Rate and Assess-
ment.
5th Queftion. Whether, upon the whole State of the Cafe, the
' Plaintiff's ABion is maintainable againft the Defcnda7its, or any, and
which of them.
And a 6th Queftion, " Whether the 2d Diftrefs was not ex-
" cej/ive," arofe upon the Argument.
After the firft Argument, (in which, the Diftrefs was treated as
a Common-Loi.v Diftrefs ; and Mr. Knowler exprefly denied it to
be an Execution, becaufc it was repieviable ; and infifted that the
Statute de diJlriSlione Scaccarij is general, is declaratory of the Com-
mon Law, and extends to all Diftreft"es for any Caufe whatfoever j)
Lord Mansfield, finding that the Parties propofed fpeaking
to it again, took Notice That All about the Rates is clearly out
of the prefent Cafe : For if r h e y are bad the Parties who thought
themfelves aggrieved, Jhoiild have appealed.
So All about the MWrants may be laid out of the Cafe. For
the warrant is not void, fo as to make it a Trefpafs ab initio.
I Therefore
Eafter Term 31 Geo. 2. 581
Therefore the future Argument may be confined to the other
Objedions.
Ulterius Concilium.
Mr. Stowe, who argued for the Plaintiff, on Friday the 14th of
^pril 1758. paffed over iftand 2d Qocftions, upon what the Court
had intimated after the former Argument ; and proceeded diredly
to the 3d Queftion.
%A. Queftion. It is ftated that here was fufficient Diftrefs, the 3d Queftioa.
firft Time : And therefore the Second was ^~.T jii/iifiable. Co Lit. 272.
b. Cro.Eliz. 13. Moore J. 2 Lutw. J 532. IVallis v. Savill. Fitz.
H. N. B. Title Recaption. 8 Co. 50. Jehu Webb\ Cafe. And this
is a Duty of a Icfl Nature than Rent: And yet even in that Cafe, a
double Diftrefs is unlawful.
A fecond Reafon why the second Dijirefs was not good nor ju-
flifiable, is, becaufe the Warrant is not an Authority to take
it: For, the Warrant having been ■ nce exeaited, had performed
it's Office; and confequently was no more than a Piece of vvafte Pa-
per, at the "Finie of Taking the fecond Diftrefs.
4th Queftion. Beafts of the Plough (though ufed both for Plough 4th Queftion.
and Cart) cannot be diftrained for a Rate, when there are other
Goods fufficient. 51 H. 3. Stat. 4. de diftridlionc Scaccarij.
" None fhall be diftrained by his Bea/is that gaigne his Land, nor
" by his Sheep &c." 2 Liji. 133. is large and cxprefs, " That this
*' was fo by the Common and Civil Law ; and that this Statute
" extends to all Sorts of Diftreffes whatfoever; alfo to all Manner
" of Executio?2s, as well at the Suit of the King, as of the Subjed."
Dyer 312.
The Words " levy the Debt" can not be applicable merely to
Lord and Tenant ; but are gefteral, and extend to all Diftreffes
whatfoever. 1 Fiji. 289. b. 2 Ftjl. 133.
6th Queftion. " Whether the fecond Diftrefs is not exce?- cth Qiicftion.
■" FIVE."
He argued that this Diftrefs was fxce<59ive ; being a Diftrefs
taken of 3 Geldings, of triple the Value: For the Value was 36/.
ijs. od. and the Sum diftrained for, only ■- (or very little more)
of that Sum, viz. 13/. 2s. which is exceilive upon the Face of it.
And He cited i Roll. Abr. 674: Where Inftr.nces are given of Di-
ftreffes exceflive upon the Face of them, i Infi. 107.
And this Diftrefs is not an entire Diftrefs : but a Diftrefs of 3
'diJlinUi Things. And an exceffive Diftrefs oi feveral difinSi TKm^^
7 I is
582 Eailer Term 31 Geo. 2.
is not maintainable: And an Adion oiTrcfpafs ivill lie for it. H.
28 G. 2. Moir V. Munday et al' which was a Diflrefs of a Great
Quantity of Pedlar's Goods (of the Value of loo/.) which might
have been fevered \ for only 6^. 8^. Therefore both the firft and
the fecond Diftrefs are illegal.
Wherefore He prayed Judgment for the Plaintiff.
Mr. WiUiams — contra, for the Defendants.
He confined Himfelf to thefe 3 Queftions, "viz. Firft. Whether,
under the Statute of 43 Eliz. Averia Carucce can be diftrained for
the Poors Rate, where there is other fufficient Diftrefs. 2dly. Whe-
ther under the Warrant for levying the Sum affeffed, a Second Di-
ilrefs can be made, where the Firft is deficient, and a fufficient
Diftrefs might have been taken in the firft Inftance. 3dly. If a Se-
cond Diftrefs can be made ; Whether the Second Diftrefs is not ex-
cejjive, and whether, on that Account, this Aftion can be main-
tained.
And he obferved. That the two "Jujlices are not coiKcrned in thefe
prefent Queftions, now remaining befcjre the Court. He obferved
likewife, That the Firft Diftrefs's being a Trefpafs or not, depended
entirely upon the Firft of his three Queftions ; and the fecond Di-
ftrefs's being a Trefpafs or not, dei ended entirely upon the two
laft of them : and all the three Queftions depended principally
upon the Statute of 43 £//2r.
4th Original He bcgun with his own firft Queflion, (which was tijc 4th Ori-
Queftion; ginal Queftion :) And He Firft confidercd the Nature of the Dt/ty
Lwj'/iii ) created by the 43d of Elizabeth, and then the Nature of the Remedy
thereby given for the Recovery of that Duty,
The Duty is 7iot a Tax upon the Land, nor payable out of it ;
but a Charge upon the Per/on : And it is a Tax tliroughout the
Kinf^dom, and for public Benefit. This is not to be confidered up-
on the Foot of a Common I av/ Dijlrcfs : The Nature, Defign, and
End of this public Duty required the moft effcdual and fpeedy Re-
medy that could be devifed.
The Reafon why Beafts of the Plough could not be diftrained at
Com7non haw, will not hold in the prefent Cafe.
This is fimilar to an Execution, and eflentially different from a
Diftrefs at Common Law.
At Common Law the Diftrefs could tiot be fold : It was only taken
mmine pcence j not as a SatisfaSfion, (which this is,) for the Duty.
3 The
Eafler Term 31 Geo. 2. 58^
j>
I
The Reasons of the Privilege do not now b:ld. Agriculture then
' wanted and required Encouragement, and mufl have been impeded
by a Common-Law Diftrefs. Now, it does not. 77v;/, the Thing
diftrained could not be fold ; and remained ulelefs : No-ii\ it may be
fold. The Debt, there, was of a prhate Nature ; This here, is of
a public Nature.
'This Diftrefs is not taken as a Pledge, or as a Mean to compel;
but for a SatisJaSlion for the Duty itfeif, a perfonal Duty, and of a
public Nature.
I Lord Raym. 386. Vinkenflerm v. Ebden. Sir T. Raym. 232.
Trideaux v, Warne. 2 Le'u. 96. S. C. Cro. Eliz. 710. Sf/iith v.
Shepheard, proves that the Rule is not applicable to DiftrefTes for fiich
Duties. They are Prefcriptioss for Toll-through : And the firft and
lafl are Inftances of Sheep &c, taken for Tolls.
As to the Statute de Diftridione Scaccarij — Comparing that Sta-
tute with the Statute of Articuli fuper Chartas, 28 Ed. i. c. \z,
(which refers to the Stat, de Diftridione Scaccarij,) and attending to
the Words of it. It can never be taken to extend to fuch Cafes as the
prefent ; to Parliamentary Remedies ; at that Time unknown. It is
confined to fuch Diftreffes as could he fold; to Cafes of the Grantees
of the Crown, or where the Prerogative of the Crown was concern-
ed. * The Mifchief, at that Time, was the unbounded Power of*FiJe^t H:
the Prerogative in Diftrefles, and the great Abufe and Oppreftion 3- ^'"''f.
exercifed by the King's Bailiffs and by Lords of Liberties.
The King, by his Prerogative at the Common Law, might take
the Land, as well as the Goods and Chattels, in Execution ; (Sir
f^Vm. Harbert's Cafe. 3 Co. 12 :) Confequentlv, the Beafts of the
Plough.
And though Sheep are exprefly mentioned in that Ad, yet Sheep
may be diftrained for Toll. Which proves " that this Ad does
** not extend to all Diftrefles." Cro. Eliz. 710, is fo : Smith v.
Shepheard — Where Sheep were taken for a Toll of 2^. for every 20
Sheep ; And no Sort of Objedion, " that Sheep were not diftraln-
" able."
Befides the Ad of 43 Eliz. c. 2. is an implied Repeal of the Stat,
de diftridione Scaccarij.
Another Anfwer to this Ad is — That if they would have availed
themfelves of it, a Special Adion ought to have been brought iipofi
this particular Statute. Regifter 97. b. & F. N. B. 89. & F. N. B.
90. are particular Forms of Writs upon it.
So
5^4
Eafler Term 3 r Geo. 2.
So, upon the Stat, of Marlbridge, c. 4. (which prohibits unrea-
foHcible DiftrelTes,) Trefpafs will not lie for an unreafonable Di-
ftrefs : But the Remedy nuift be by a Special AdVion founded on
the Stacute. In 2 Strange 851. Lynne v. Moody, It was adjudged
" that Trefpafs will not lie for taking an exccflive Diftrefs : But
" the Remedy ought to be by Special Adion founded on the Sta-
" h\t.e of Marll;ridge." And on the fame Statute, " that DiftrelTes
" taken in one County, fhall not be driven into another," there
are Writs formed. Regi/ler 97. F. N. B. 82. But Trefpafs will
not lie: It mufh be a Special Adtion. 3 Lev. 48. Woodcroft v .
Thompfon — The three Judges held, fagainfl North,) " that he that
" would take Advantage of the Statute of Marlbridge, c. 4, and
" I, 2 P. & M. c. 12. ought to do it by way of Adtion, &c."
Their Argument would prove too much. For Sheep were privi-
leged by the Common Lav/; and by the Stat, de Diftridione Scaccarij,
exprefly " No Man fliall be dlftrained by &c — nor by his Sheep."
But Sheep are fioiv allowed to be diftrainable for 2i Poor's Rate. So
are the other Things mentioned by Lord Coke (from the Mirrour)
* r. Comment jj^ his 2d /;;/?. 133. * as not diftrainable at Common Law, if there
fnem, which wcrc Other Goods futTicient. All thefe are furely diftrainable for
mentions this Rate. I Ld. RayjiJ. 386. . Rayni. 232. & 2 Lev. 96. S. C.
Beaftsandli- QrO. Eliz. J \0.
ving T ning"; ; /
and alio mort
Goods, as Ar- Therefore the 43 oi Eliz. is not confined to Common Law
mour, Appa- Y)-n n
rel, VciTel, Uutrelles.
Jewels ts'r,
and even Sad- g^j ^^^^^ g^^^g ^^^ ^^j^j ^^ ^^ cc g^^f^g ^f (J^^ PloUgh AND
" Cart." Therefore they are diftrainable : For Beafts of the Cart
are not privileged, i Sid. 422. 440. Welch, v. Bell. 2 Kel\ 595,
S. C. Bracl. Lib. 4. 217. b. fpeaks of Oxen, as Beafts of the
Plough.
die Horfes.
o
However, This is an F-xecution: And therefore none of the
Arguments relative to the Diftrefles can be applied to this Cafe.
When Goods are feifed in Execution on a fieri facias, the Debt
is difcharged. So is 2 Ld. Raym. 1072. Clerk v. Withers.
This is a Diftrefs for a SatisfaBion of the Demand ; not for a
Pain, or Penalty, or Pledge. Confcquently, it is an Execution. This
is the EJfcntial Difference between un Execution and a Diftrefs at
.Common Law.
In the Cafe oi Rex v. Speed — Cafes temp. W. 3. 328. A Levari
^facias out of B. R. after Affirmance of a Convidion for Deer-Stcal-
ing
Eafter Term 31 Geo. 2. 585
ing, was holden regular : And It was confidered as an Execution ;
For per Holt, " When a Statute fays Money (hall be levied by Di-
" Jlrefs, this is an Execution." Therefore, it being an Execution,
Beafls of the Plough might have been taken.
And fo they may here, 'This being an Execution,
What has been urged on the other Side, from 2 Injl. 133. " That
" the Statute de Diftridione Scaccarij extends to all Diftrefles what-
*' foever, and likewife to Executions," is one of the very few
Miftakes of that excellent Writer. And this Opinion of Lord Coke
is not only contrary to common Experience ; but aifo to the Opi-
nion of Ld. Ch. J. Holt, in Comherb. 356. Hardiftey v. Barney —
where Holt faid, " that upon a Fieri facias the fheriffmay take any
" Thing but wearing Clothes ; Nay, if the Party has two Gowns,
" He may take One of them."
And Sheep are notorioufly diftrainable now : and yet they are ex-
prefly and by Name, within the Stat, de Diltridtione Scaccarij.
The Stat. o^WeJlm. 2. c. 18. which gives the Elegit, exprefly
excepts Beafts of the Plough. At that Time the Legiflature thought
fuch Exception neceffary. And Dyer 7, b. pi. 10. fiys That a
Man ftiall not have Execution of the Profits of a Filazer's Office ;
becaufe he cannot grant and affign it. So that the Rule feems, from
that Cafe, to be, " that whatever may be affigned by the Party,
" may be taken in Execution, et e contra."
The Doftrine on which thefe Gentlemen build tlieir Arguments,
is now ohjokte, and unknown to the Generality of Mankind : And
it would be very inconvenient to re-eftablifli it. And this Diftrefs
is for the Benefit of the Debtor, as thefe Things are mcfl faieable ;
and of no Prejudice to any Body. And no Cafe is cited on the Part
of the Plaintiff.
In 3 Salk. 136. it is laid to have been adjudged " that the Rule
" of Common Law, to exempt ^c. extends to Cafes where a Di-
" ftrefs is given in the Nature of an Execution, by any particular
" Statute, as for Poor Rates Gfr." But perhaps this is no Autho-
rity to be relied on.
As to the next Q^ieftion. I agree to 2 Liitiv. 1532. •" That ^^J Original
" a fecond Diftrefs can not be taken for the Remainder of the fame [n^.^"'^")
" Rent, where the firft Diftrefs was only for Parcel of the whole /,«ot/s 2d)
" Rent due." But in this prefent Cafe, if the Officer is deceived in
the Value of the firft Diftrefs, he may take a Second : So, if the firft
dies in the Pound, {Dyer 280. b. pi. 14,) or is by Accident become
7 K ineff'eSlual ;
586
Eafter Term 31 Geo. a.
6th Original
Queftion ;
(Mr. Wil-
iiams's 3d.)
Reply.
iucffcSiual ; Or if the Officer did not know that there were fuch orher
Goods; (which laft might be the prelent Cafe.) Thefe c.n noi be
looked upon as two diflinft Diflrcfles for one entire Dtmand.
But if this be confidered as an Execution; Then there can
be no doubt ubout it. For the Sheriff may, in fuch Cafe, re-enter
before the Return of his Writ, to complete his E.'..cution. And
this laft Reafon equally anfwers the Objedion to the H'arrant : For
that is not completed zx\A Jinified, till the JVbole Demand is levied.
6th Queftion. As to the Exc(J/ivenefs of the 2d Diftrefs—
He did not much contend that it was not fo. But He infifted
that an Aftion of Trejpafs nvill iiot lie for taking an cxcelfive Di-
ftrefs. For Proof of which, He relied on ihe C.;fe of hynne v.
Moody, 2 Strange 851. and the Cafe in 3 Lev. 4^. H''oodcroft v.
Thomffon.
The Declaration contains two Counts.; One for each Trefpafs :
And the Damages are given jointly for Both. Therefore it is in-
cumbent, upon the Plaintiff, to ihew that both thefe DiftrefTes are
illegal.
Mr. Sto'we in Reply —
4th Queftion. The Cafes of Tolls are not applicable to the prefent Cafe.
Agriculture deferves Encouragement now, as well as formerly.
I fuppofe the King's Diftrefs might be fold at Common Law,
Therefore the Adl de DiflriSiione Scaccarij does extend to Execu^
tions. And the 43 of Eliz. has not repealed it.
Thefe Beafts are privileged, if there be fufficient befides : And
here was fufficient befides. Beafts of Cart are within the fame
Reafon, as Beafts of Plough : They gaignont Jon Tcrre, as the Sta-
tute of 51 H. 3. fiiys.
3d Queftion. The Arguments of Obfoletenefs and Ignorance will not hold : For
the former is not true ; and the latter will not excufe. 'Tis no part
of the Cafe, " That they did ?iot atfirft knoic the Value." And it
is begging the Queftion to fay " That he may tuke a fecond Dif-
" trefs, when the firft was not fufficient." That is the very thing
that wants to be proved.
6th Queftion. As to the Cafe oi Lynne v. Moody — The Entry there was at firfl
lawful-^ and there was N oth'mg fu^fegucnt to make that lawful En-
2 try
Eafler Term 31 Geo. 2. 587
try a Trefpafs, But here, the fecond Entry to take the fecond
Diftrefs, was tortious : And therefore they are Hable to an A(3:ion,
So that that Determination does not afFed the prefent Cafe.
Cur' advis'.
This Caufe now ftanding in the Paper, for the Refolution of the
Court,
Lord Mansfield delivered their Opinion.
The Rule of Ni/i prim is fo conceived 'as to fubmit the Cafe
to the Opinion of the Court, be that whatever it may ; ^nd fo as to
obviate all Objedlions to the Form of the Pleadings and Finding of
the Verdi<ft.
In flating the Cafe, He obferved that there were other Things
which might have been taken upon the Jirji Diftrefs, befides thofe
which were adluaiiy diftrained : But not upon the Second, (from
any Thing that appears.)
Upon the firft Argument^ tlie two firft Objcdions were laid
out of the Queftion : Efpecially fince the 17 G. 2. c. 38. So that the
yujltces were out of the Cafe. For a Defedt in the Rate (imgppea-
led from) could not avoid the Warrant ; Nor is the Warrant void^
fo as to make it a Trefp.ifs ab initio : And the JujUcci could not
be Trefpallc-rs, by what the Officers afterwards did.
So that it was reduced to 3 Queftions : viz.
ift. Whether (upon the firfl Diftrefs) Averia Caruc^ could
be taken and diftrained for a Poors Rate and A(]c[f!nent ; when there
were other 'Things that might have been diftrained, and which were
more than fuficient to anfwer the Value of the Demand.
The 2d Qiieftion turned upon two Objedions to the fecond Di-
ftrefs: Fiz. I ft. 'Wh(;th^r the fecond Di/irefs, under the y^/w? War-
rant was at all juftifiable, when there was enough that might have
been taken upon the frf ; an J adly. Whether tl,is fecond Diftrefs,
being excej/ive, that Circumftance alone was not a fufiicient Ground
to maintain this ASiion of Trespass, independent of any other
Confideration.
On the fecond Argument, Mr. Williams not only argued very
well as Counfel for his Client ; but he explained the whole Learning
of Diftrejfes at Common Laiv ; which were a Nomine Pcena:, not
a SatisfaSion: And as I adopt the Reafoning of his Argument
throughout,
588
Eafler Term ^i Geo. 2.
throughout, to avoid Repetition now, I will in a great Meafure re-
fer to it for the Grounds of the Opinion which the Court is of.
The I ft Qiieftion is " Whether Averia Carucee may be taken
" for a Diftrefs upon the Poors Rate, where there are other diftrain-
" able Goods fufficient."
As to this — The foli^ DiflinBion is, " That the Seifing under
the 43 of Eliz. and fuch like Adls of Parliament, is but partly
analogous to the Common Lata Distress, (as being replevifable
Cs'c ;) but is much more analogous to the Common Law Execu-
tion j (like a Fieri facias, where the Surplus, after Sale, fhall be
returned.)
In the Old Common Law Diftrefles, which were in nature of a
Nomine Poejice to compel Payment, It would have been abfurd to
have fufFered the Implements by which a Man gained his Liveli-
hood to be holden as a Pledge : Becaufe that would have been
taking from the Man, the only Means he had, of being able to pay
the Debt. But this Reafon don't hold, where the Things di-
ftrained may immediately he fold by way of Satisfadiion : Which,
though called a Diftrefs, yet really is, in this Refpedt, an Execution.
The Adjudication faid to have been made in M. 8 W. 3. C. B.
in 3 Salk. 136. was very properly cited by Mr. Williams, as no fuf-
ficient Authority, and not (of itfelf ) to be relied upon : But I take
it that the fame Reafon was gone upon, in the Cafe in i Ld. Ra\m.
386. Vinkenflerne v. Ebden, M. loW.T,. B.R. Where Ld. Ch. J.
Holt fays, " It is true, a Horfe cannot be diftrained in a Smith's
Shop &c : But there is no fuch Reftridtion, Vv'here the Diftrefs is
for a PERSONAL Duty." And He obferved that the Duty, in that
Cafe, arofe out of the Goods laden to be exported : So that by their
being laden, the Duty commenced, and the Ship became charge-
able ; and, a fortiori^ any Part of her. I take the Meaning of
what He there fays of ferfonal Duties, to be applicable to the Cafe
of Parliame?itary Duties alluded to in 3 Salkeld, and confequently
to be agreeable to 3 Salk. 136. which fays. It was adjudged " That
' this Common Law Exemption of Utenfils, Tools, Inftruments
' of Hufbandry (Sc from Diftreis, holds only in Diftreftes for Rent-
' Arrear, Amerciaments &c ; but doth not extend to Cafes where
' a Diftrefs is given in the nature of an Execution, by any particular
' Statute ; (as for Poor Rates ©"(-•.")
Therefore it is more analosious to an Execution, than to a Diftrefs
at Common Law: And there, (in Cafes of Execution,) Averia
Carucee tnay be diftrained 3 although there be other futiicient Diftrefs.
I
And
Eailer Term 3 1 Geo. 2. 5 89
And on this Ground, We are All of Opinion, that there is no
Objedion to the Jirft Diftrefs, from the Averia Caruc^ being taken :
For that they are dijlrainable under the 43 Eliz. and Juch like Adis
of Parliament.
Thus far, You fee, relates only to the Jirjl Diftrefs.
As to the Second Diftrefs —
The I ft Queftion relating to that, is " Whether this fecond
" Diftrefs can be at all juftified : As it was a second Diftrefs
" taken under the fame Warrant; when enough mrght have been
" taken at firjl, if the Diftrainer had then thought proper.
Now a Man who has an entire Duty, fhall not split the
entire Sum ; and diftrain for Fart of it at one Time, and for other
Fart of it at another Time ; and fo toties quoties, for feveral Times :
For that is great OppreiTion. And that is the Cafe of Wallis v.
Savill et al' in 2 Lutw. 1532 : Where the fecond Diftrefs was hol-
den unjuftifiable ; becaufe Both Diftreflls were taken for One and
the fame Rent ; And it was the Leflbr's Folly, that He had not
taken a fufticient Diftrefs at firft.
But if a Man feifes for the Whole Sum that is due to him, and
only miftakes the Value of the Goods feifed, (which may be of very
uncertain, or even imaginary Value, as Piftures, Jewels, Race-
Horfes &c ;) there is no Reafon why he ftiould not afterwards com-
plete his Execution by making a further Seifure, And how can the
Officer who feifes, judge of the real or perhaps imaginary Value of
the Horfes or Goods feifed ? The Value of them may be quite un-
known to him, or may even depend upon Whim and Fancy.
It is to the Advantage of the Defendant that this ftiould be fo :
It is better for him that the Officer fliould be at Liberty to feife
a fecond Time, in cafe he makes an infufficient Seifure the iirft
Time. Or elfe, it might induce him to a Neceffity of taking Ef-
feds of a very great Value, at firft : For if he is to be precluded from
thus making up the Deficiency, He will certainly take care not to
take too little at firft.
Now Pictures, Horfes, Jewels, Books, and fome other fuch
Effects, may be of fo uncertain and even imaginary or fancied Va-
lue, that it may be exceedingly uncertain how much Money they
may fetch, when they come to be fold : So that the Perfon fel-
ling may not be at all able to judge how much they may produce,
-.upon Sale.
7 L And
590 Eafler Term 31 Geo. 2.
And if he does not take the Value of the whole at firft, (out of
Tendernefs and Moderation perhaps,) there is no Reafon why he
fliould not complete it by a fecond Seifure ; Provided it be for the
SAME Sum due.
Therefore this Jirjl Objedlion to the Second Diftrefs, fails.
3d Qoeftion. The fecond Objedion to this fecond Diftrefs, is
the third remaining Queftion; viz. It's being excejji'ue, and as fuch
being a fufficient Ground for an Adion of Trefpafs.
Now as to this third Queftion, " Whether the taking an exceffive
" Diftrefs, is a fufficient Ground to maintain an Adlion of Tref-
* ^'''' '"''' " pafs;" feveral Authorities have been cited, * to fhew " that an
■i Fide' ante " Adlion oi'Trefpofs will not lie for taking an -{- exceftive Diftrefs;"
/«. 5 8 1, where but " that it Ought to be a particular Adion grounded upon the
was°gefby"" Statute:" And particularly. One Cafe, which is in 2 Strange
the Counfei 85 1. Lymie V. Moody, M. 3 G. 2. B. R. where it had been fo
for the Plain- adjudged in C. B. But the Judgment of C. B. was there reverfed ;
And it was faid " That the Remedy ought to be by Special Adion
" founded on the Statute of Marlbridge."
So that it has been fufficiently eftablifhed " That a General
" Adion of Trefpafs can not be maintained for taking an exceflive
" Diftrefs."
One Cafe indeed was cited to the contrary : Which was the Cafe
of Moir v. Miinday, H. 28 G. 2. B. R. And that was an Adion
oi Trefpafs ; where 6 Ounces oi Gold, and 100 Ounces of Silver
were taken for 6 s. 8 d. which was holden to be an exccftive Dif-
trefs; And Judgment was given for the Plaintiff.
But that appeared upon the Face of it, and upon the Pleadings, to
be exceffive : And fo the Court exprefiy declared. And it was a
Diftrefs of Gold and Silver ; which are of a certain knomon Value ;
and even the Meafure of the Value of other Things. But it was
there holden, " that in all other Cafes of Goods or other Things
of arbitrary and uncertain Value, it must be an Adion upon
the Statute." And this (as I am told) was the Diftindion there
taken : And tiiat is therefore an Exception (and was there confi-
dered as being fo) from the general Rule ; and ferves to confirm the
Rule itfdf.
(C
We are therefore All of Us of Opinion That there is no Caufe of
Adion maintainable by the Plaintiff in the prefent Cafe, nor has he
3 ^"y
Eaflei: Term 31 Geo. 2. 591
any Right to recover againft any of the Defendants ; and that the
Defendants be at Liberty to enter a Non-fuit.
The Rule taken was,
" That the Poftea be delivered to, and Judgment
" entered for the Defendants."
Rex verf. Inhabitants of Caver fwall. Monday iii
May 1758.
R. Morton (liewed Caufe againft quafliing the following
Orders.
Two Juftices removed Samuel Brajjington, Mary his Wife, and
their five Children, (naming them, and fpecifying their Ages) from
Trenthajii to Caverfwall : And their Order was confirmed by the
Sefilons.
The Special Cafe ftated was this — Samuel BraJJington, the Pau-
per, was hired for a Year, and ferved a Year in Caverfwall. And
afterwards was hired for a Tear, to Edward Brajjington of 'Trent-
ham, at five Pounds Wages; and served hitn till ivithin three
Weeks of the End of the Tear : When, on fome Difputes arifing
betwixt him and his Mafter, He was, with his own Confent, dis-
charged from his Service ; and received All his Wages except
what was dedu5ied for the 3 Weeks.
Aflbon as he left this his Service, He went to London ; and was
abfent about a Fortnight.
Upon his Return, at Mrs. Brajjington''?, Requeft, (his Mafter
being then from Home,) he went again into their Service ; and
within a Week after the Expiration of the firft Year, his faid Mafter
hired him again for anotheji Tear ; And He ferved Him, in
Trcntbam, for about Six Months of that second Tear, and then
left him.
The Sessions, being of Opinion " That, as the Pauper had
** absolutely quitted his Service, before the firft Year was
*' expired, the fubfequent Service, under the fecond Hiring, though
" with the fame Majier, could not be taken in Aid, fo as to make
*' up a Year's Service, and give a Settlement, within the Meaning
" and Intention of the Statute of 8, t? 9 ^. 3." confirmed the
Order of Removal from 'Trentham to Caverfwall.
This Court was moved by Mr. Gilbert (on loth February laft)
for a Rule to fiiew Caufe " Why thefe Orders fliould not be
. " quafhed :".
59-2- Eafter Term 31 Geo. 2.
" quailied :" Becaufe here was, as be laid, an undoubted n'^/^A?r
Hiring for a Year : And tbe whole of the S k k v i c e , tokcjt together,
was for more than a Year. And he cited 2 Strange 878. Inter Par.
oi Hanmer v. EUefmere : Where it was adjudged " that the Service
■■" needs not be in the fame identical Year." 2 Raym. j :;i i. Rex v.
Inhabitants of Aynhoe. S. P. accord. Rex v. Inhabitants of Fifehead
Magdalen^ M. \-j';,J. 11 G. 2. B.R: Where the Servant kj't his
Maflier's Service, (leaving a Shirt at his M. filer's Houfe;) tlien went
to his Father's Houfe (in the fame Parifli) belore any Difcourfe about
a new Contradt: But in about one Hour met his Malier, and made
a new Agreement for a Year. This was adjudged to be a Continu-
ance of the former Service.
Mr. Morten and Mr. ylJJnirJl, The Counfel for the Orders, upon
.fhewing Caufe now, infifled that the Sefuons had determined r/g-A^.:
For that the former Service, under the firft Hiring, was at a total
End. They ftated the Ads of 3, 4 JV. & M. c. 11. Gf 8, 9 ^ 3.
c. 30. The Cafe indeed of Rex v. Inhabitants oi Aynhoe, 2 Ld. Raym.
* Hit. I G. 1. 1 5 1 1 ; And the Cafe of * Brightwell -And Weji-hanning, upon which
B.R.SeeLu^ that Refolution was grounded, (though otherwife not in itfelf agree-
■ ■ " able to Lord Raynio?7d's own Opinion,) they allowed, are Authorities
not to be fliaken now, " that a Hiring for a Year, and a Service
" for a Year, though not under the fame Hiring nor within the
*' fame Year, (hall be conftrued to gain a Settlement." But then
that mult be. an uninterrupted Continuance in the fame Service.
And accordingly that was the Cafe of a continued uninterrupted Ser-
vice : But here, the ContraB was abjolutcly determined and dijfolved.
\v. 2 Strange ^r. 1745. 18 cf? 19 G. 2. B.R. Rex v. Goodnefione, -f is rather an
('thouah\,if- Authority that this prefent Settlement is bad : For there the Court
intitled.) confidered the Man, as being all the I'itne \h the Service of his
Mafter ; (though he was, with his Mafter's Leave, gone to Sea upon
the Herring-Fifhery.)
They alfo infifted that this could not poffibly be efteemed a Con-
TiNUANCE in the ^AME Service, under the Adl of Parliament :
Which the Cafe of Fifehead, Tr. 9 G. 2. B. R. might very well be
conftrued to be.
Mr. A^orton and Mr. Gilbert, The Counfel on the other Side — , for
quafhing the Orders, cited the fame Cafe of Good?ieJlon, [V.fupraJ
as a liberal Conftrudtion in Favour of Settlements : Where the Ser-
vant had Leave to go and did go to the Flerring Fifhery, 3 Weeks
before the End of his Year; yet the Settlement was holden good.
The Gaining Settlements has been always favoured : And Natural
Birth-right and Juftice demand that the Right of the Subjed fhould
rbot be narrowed. And in thofe Cafes vihzxQfubJequent Hirings and
;.: , Services
Eafler Term 31 Geo. a. 593
Services have been taken in Aid, yet there has been a total End of
the firjl Contradt, as well as there can be faid to be in the prefent
Cafe. However, it is not necejfary that the Contract fhould continue
uninterrupted during the whole Time.
The Court have allowed them to be acquired under different
Contra^ s., under different Services, in differetit Paripes. And a
temporary Interruption or even DifToliition of the Contrad: will not
vary the Cafe : For in many of the adjudged Cafes, thejir/i Contrail
was even totally diffolved, as much as it can be pretended to be in
the prefent Caie.
This Man was of Credit enough, to be hired for a Year: And
that is the proper Teji, of his being a Perfon likely or not likely to
be chargeable. Nay, he is even of Credit enough to be hired
for a Second Year, after his firil was expired : Which makes it
flill flronger.
And this Service alfo is in itfelf fufficient to gain him a Settle-
ment. The Wife received him again &c. And the Wife's Aft is
the Ad: of the Hufband ; and befides, is ratified by him. And it
appears that tlie Servant * returned to his Service, within ihtjirji * "^oie. The
Ypor Words of the
Order are,
"Wf»/AGAIM
To the Cafes cited in Support of the Orders — '"'" 'h='f Ser-
It was replied — that in the Fifhery-Cafe, Rex v. Inhabitants ofR«p'y-
Goodneflotie — the Man hired a Deputy to ferve for him : And that
was adjudged to be a Continuance in his Mafter's Service. Whereas
here, his Service was abfohitely at an End. And the Words of the
Adt are " That he fliall continue and abide in the same
*' Service during the Space of one whole Year." [V. 8, 9 /^. 3.
c. 30. §. 4.]
Lord Mansfield faid the Determinations upon thefe Poor Laws "^
ought to be according to plain common Senfe, and with the leaft
Subtlety pofTible,
A Hiritig for a Tear was neceflary by the * former Adt: ASer- • 3, 4 ur m.
VICE for a Tear was added, by the •+• latter. f. n. § /•
And where the Mafter gives Leave, it is a Continuance in the
fame Service: As in that Cafe of the Herring-Fifliery, where a
Man with his Mafter's Confent, hired one to ferve for him. {V.
2 Strange 1232.) So where there has been both a Hiring for a
Year, and a Service for a Year, (though the original Hiring was for
lefs than a Year,) and the Service coyitinues ; it has not been required
7 M that
c. 30,
594 Eailer Term 31 Geo. 2.
that the Hiring for the whole Year (liould be flridly reckoned froni
the firft Moment of the Service: But it fliall be confidcred as fuf-
ficient, tliat there were both a Hiring for a Tear and a Service for
a Year.
In the Cafe of Fifehead, the Service was, in my Apprehenfion,
(and fo Ld. Ch. Juft. Lee and the reft of the Court alfo took it,)
a continued Service.
But here was a Chasm of a Fortnight or 3 Weeks. And the firfl
Contraft was absolutely dijfohed ; and fo continued for a
Fortnight or 3 Weeks. Therefore this laft Service can not be con-
7ieBed with the former Part of the Year. For if a Chafm of a Fort-
night or 3 Weeks be not a Difcontinuance of the Service, it will be
hard to fay what is.
Therefore I hold that here was no Settlement gained in
Tretitham.
Mr. Juft. Den I SON — The true Reafon of the liberal Conftruc-
tions of Services for a Year has been becaufe the fame Service con-
tinued : Whereas this Cafe is the very reverse ; it being ex-
PREssLYy?^^^^ " That he was discharged." So that We <r^;7-
not help taking it to be totally dijfohed.
Indeed in the Cafe o^ jiynhoe, and in that of Sr?^/:'/^^// and Wejl-
hanning^ the Court (though indeed they were upon a Conftrudtion
fomevvhat ftrained too) determined them upon the Foot of the
Service cofitinuing : Whereas this Service was totally at an
End.
Therefore He concurred.
Mr. Juft. Foster — The Cafe o{ Fifehead confirms the Principle
that the Court now go upon. There they did not confider (o [mall
an Interruption as One Hour or thereabouts, as an entire DifTolution
of the Contrad:. But here it is a total Dijfolution, and the two
Services catz hot be conne£Ied.
Therefore he concurred ; and upon the fame Principle ^ " That
" it ought to be a continued unitJterrupted Service."
Mr. Juft. WiLMOT concurred.
The Cafes of Fliring for lefs thaji a whole Year, and Service (un-
der /i/Ci6 Hiring) for Fart of a Year ; and then a fecond Hiring for
a •whole Y^itx, and Service for Part of it, is indeed within the Words
^ I of
Eafter Term ^ i Geo. 2.
J
595
of theAdl; where the whole Service 'together amounts io One
whole Year. But here is l>oth a Diffohition of the Contradl, and alfo
an End of the Service ; Both, within the Firfl Year. Whereas in
the Cafes cited, the Service co-htinv^ v. The Cafe oi Fifehead
was only, as Lord Ch. Juft. Lee e^preffed it, a Hefitation of the
Boy, for an Hour. Therefore it is plain that if Lord Ch. Juft. Lee
had confidered it as a DiJJ'olution of the Contract and an Etid of the
Service, He would have held the Settlement to be bad.
And it is much the beft Way to determine thefe Cafes upon the
Poor Laws, according to plain and common Senfe. For if once
We go upon Niceties of Conftruftion, We (hall not know where to
ftop : For One Nicety is made a Foundation for another ; and that
Other for a Third ; And fo on, without End.
Therefore He concurred entirely with the Reft of the Court ;* This Prin-
and upon the fame * Principle, " That it ought to be an ^'^^^/^''-fJiy fJnied"
" riipted Continuance oi' the fame Service ;" or elfe, that the fe- and eftablifh-
cond Service could never be connected with the former. %^',''}/^^'"'- .
Inhabttants or
Cro/ionhc, M,
Per Cur. unanimoufly, ' X74;. ig c.
Both Orders affirmed. z.b.r.
Baldwin et Ux' verf. Blackmore Efquire.
THIS was a Cafe referved at the Aflizes for the County of
Lancajler in an Adion for an Afiliult upon, diWAfalfe Impri-
fonment of the Plaintiff's Wife.
Case — That the Plaintiffs William Baldwin and Siifannah his
Wife, being Paupers, legally fettled in the Townfliip of Bank-
newton in TorkJInre, and having been regularly and properly removed
by an Order of two Juftices of the County of Lancafter from Marf-
den in Lancapire, to the faid Townfliip oi Banknewton in the faid
County oiYork, as the Place; of their laft legal Settlement: Which
Order was not appealed from. That afterwards, they {Both of them)
RETURNED of their own accord and without bringing any Certificate
with them from Banknewton (to which they belonged,) to Marfdcn
aforefaid, from whence they had been fo removed by the faid Or-
der of two Juftices. Of which, Complaint being made in Writing,
and upon Oath, to the Defendant, who was a Juftice of Peace of
the faid County of Lancajler v/herein the faid Parifli of Marfdcn
lay, by the Overfeer of the faid Parifli (from which the Paupers
had been lawfully removed, and to which they unlawfully re-
turned,) He iffued his Warrant to bring the two Paupers (the
Man
Tuffday zd
May 1758.
59^ Ealier Term 31 Geo. 2.
Man and bis Wife) before him : Who being accordingly brouo-ht
b:fore him, and the Facts being fully proved, upon Oath, made by
'Thcmcis Murgati-oyd., one of the Churchwardens oi Marjden afore-
Hild, He committed B<.th of them, the Man and kis Wiff, to
the Hcufe cf Correction, " there to remain until they fhould be
*' Di'-ciiARGFD BY DUE COURSE ofI-aw." The Warrant was
direded to the Coftable of Marfde}7, to convey ; and to the Mafter
of the Houfe of Correftion in Prejion, to receive: And was in thefe
Words, " Whereas Thomas Murgatrcyd, One of the Churchwar-
" dens of the Townfhip oi Marfden in the faid County, hath made
" Oath before Me, One of his Majefty's Juflices of the Peace in
*' and for the faid County, That William Baldwin and St/fan his
" JVifc, poor Perfons having been lately removed by an Order un*
*' der the Hands and Seals of Roger Hejkcth and Righy Molincux
*' Efquires, Two of his Majefty's Juftices of the Peace and Riorum
" in and for the faid County, from the faid Townfliip of iW^r/rt'^'^
*' unto Banhie^vVtoJi in the Weft Riding of the County oi Tork, as
" to their laft lawful Settlement, are now returned back, to inhabit
" in the faid Townfl:iip oi Mar [den, contrary to the Statute in this
" Beha-lf made ; Thefe are therefore, in his Majefiy's Name, to
*' command you forthwith to convey them the faid William Bald-
*' ivin and Siifan his Wife, to the Houfe of CorreSlion abovefaid,
" and deliver ruEM to the Mafter thereof; hereby requiring Him
" to receive thkm into his Cuftody, and them flifely to keep
" UNTIL they fhali thence be difcharged by due Courfe of Law.
*' Hereof fail not, at your Peril — Given ^c. this 8th Day ofF^-
" bniary &c.
That under this Warrant of Commitment, the Plaintiff and his
Wife were kept in Prifon in Cuftody of the Keeper of the Houfe
of Corredtion at Prejlon, from iz\.\\ February to 17th March fol-
lowino".
'o-
Notice was proved to be given to the Defendant of bringing the
Adlion, one Month before it was brought.
Upon the Trial of this Caufe, There was a Verdict for the
Plaintiff, and i s. Damages, fubjedl to the Opinion of the Court
upon the two following Queftions ; viz.
ift. Whether there ought not to have been a previous ConviSlion
of Vagrancy.
2dly. Whether the Wife could be convifled of Vagrancy, or
be liable to be fent to the Houfe oi CorreSlion for returning without
a Certificate i as She only accompanied and refided with her oivn
Hufband.
2 N.B.
I
Eafler Term 31 Geo. 2. 597
N. B. By 13, 14 C. 2. c. 12. § 3. It is provided that any Perfon
or Perfons may go to Work in any Parifh or Place, carryijig
^with them a Certificate of their being Inhabitants of their
proper Pari(h : And, in fuch Cafe, if they fliall not return
when their Work is finished ; or fhall fall fick or impotent,
vvhilft they are in the faid Work ; it (hall not be accounted a
Settlement; but two Jufl:ices of the Peace may convey the faid
Perfon or Perfons to the Place of his or their Habitation as
aforefaid. And if fuch Perfon or Perfons fliall refufe to go, or
ihall not remain in fuch Parish, but J}:all return, of his
own Accord, to the Parilh from vs^hence He was removed ; it
fliall and may be lawful for any Juflice of the Peace of the
■City County or Town-Corporate where the faid Offence fhall
be committed, to fend such Perfon or Perfons offending, to
the Houfe of Corre6iion, there to be piinif)ed as a Vagabond ;
or, to a public Workhoufe (in the Act after-mentioned,) there
to be employed in Work or Labour.
By 17 G. 2. c. 5. § I. It is enaded, that Whereas the Number
of Rogues Vagabonds Beggars and other idle and diforderly Per-
fons daily increafes ©"c ; All Perfons who threaten to run away
nnd LEAVE their Wives or Children to the Parifh j and all
Perfons who fhall unlawfully return to fuch Parifh or Place
from whence they have been legally removed by Order of two
Juftices of the Peace, without bringing a Certificate from
the Parilh or Place whereunto they belong ; And alfo all Per-
fons who ^c &c fhall be deemed idle and disorderly
Perfons : And it pall and may be lawful for any Ju/lice of
Peace to commit fuch Offenders (being thereof convicted
before Him, by his own View, or by their own Confcflion,
or by the Oath of One or more Credible Witnefs or Wit-
neffes,) to the Houfe of Correction ; there to be kept to hard
Labour, for any Time ViOT. exceeding one Month.
As to the two Points, It was infifted on Behalf of the Plaintiff—
ifl:. That there ought to have been a previous Conviction of
Vagrancy, before the Juftice could commit to the Houfe of Cor-
redion at all.
2dly. That Sufannah the Wife, following and refding with her
OWN Husband to and at Marfden, could not be convidcd of Va-
•grancy, tor returning there without a Certificate.
This Caufe was firft argued on I'uefday the 2 iff of June ^7S7^
hy Mr. Tales for the Plaintiff, and Mr. Clayton for the Defendant.
7 N ^ And
59^ Eafler Term 31 Geo. 2.
And again on Friday the nth of November following, by Serjeant
Poole for the Plaintiff, and Mr. Norton for the Defendant.
For the Plain. For the Plaintiff it was argued to the following Effed.
tiff.
iff Point — On 17 G. 2. a previous ConviSlion is exprefly made
neceffary ; The Words of it are, " being thereof co?ivi£ied &c." And
3 Methods of Convidion are fpecified ; viz. View, Confeffion, and
Proof by One or more WitnefTes.
Now here was Nothing but the mere Complaint and Information
of the Parifh-Officer j without any Adjudication by the Juftice,
" that it was true."
Therefore the Juffice proceeded without any Authority.
On 13, 14 C. 2. No previous Conviftion is indeed neceflary, by
any exprefs Words of the A&. of Parliament. But fuch an arbi-
trary and extraordinary Power ought to be very narrowly watched.
However, this cannot be a Proceeding under this Statute of 13,
14 C. 2. For the Foundation of this Warrant is the Information of
the Churchwarden on Oath ; which plainly goes upon an Offence
created fincc that Statute of C. 2. viz. " Returning without bring-
" ing a Ccrtijicate from the Parifh to which they belonged."
2d Point — This Return of the Woman cannot be confidered as
an imlaivjul Return. A Feme Covert is obliged to follow her Huf-
band. If She commits Theft, in Company with her Huftand, it
fliall be taken to be done by the Coercion of her Hufband.
1 Ha-wk. P. C. fo. 2, 3. SeB. 9, 10, 13. Bro. Coron. 108. Kelynge
31, 37. Hale's H. P. C. Vol. 1. fa. 516. and pa.^j. 3 Liji. ic8.
Indeed there are Cafes where the Wife is the principal ABrefs,
(as keeping Bawdy-houfcs,) where She is puniOiable with her Huf-
band. But here, She is guilty of no Offence at all.
As to it's being a hard Adion — Our's is a very hard Cafe.
For the Dc- Contra for the Defendant (the Juftice of Peace, who had com-
fendanc. j^itted the Woman,) it was argued to this Effed j
I ft Point — If this Proceeding ftiould be taken to be on 17 G. 2.
And even luppofing a Convidion to be previoufly neceffary, Yet it
is not neceffary that fuch a Convidion (hould be exprcjly stated
upon this Cafe : But the Juftice may, at any 'Time, draw up a
Convidion in Form, upon the Fads here ftated ; which Convic-
tion he was not obliged to draw up in Fonn, till called upon.
I But
Eafler Term 31 Geo. 2. 599
But this Proceeding is upon 13, 14 C. 2. c. 12. § 3. And the
Cafe is within the Words of that Aft, viz. " Returning of her own
'■' Accord, to the PariHi from whence fhe was removed."
And thefe two Adls (of 13, 14 C 2, and 17 G. 2.) are con-
fiftent : And the latter does not repeal or vacate the former ; It
operates as a Saving, under that Adt. And upon this former Ad:,
no Convidtion is necefTary.
2d Point. A Wife may be guilty and liable in committing a
Crime with her Huftand, from Trefpafs * up to Murther and *^-'^"*- 96-
Treafon. In Dr. Hujj'ef^ Cafe, in Hob. and in Lord Coke, A ^r. \uj,y-l'
General Rule is laid down, as to married Women, " That where Cai'e: Where
" they offend voluntarily and knowingly, they are liable to Punifh- be't^he Pu7-
ment. pofe in the
prefent Cafe,
This is a new Law; and the Wife was intended to be included in .'' ^"Lif!ri*\
It IS 3l 311 1(/»|
it: And if Wives are within the Mifchief of a Statute, they fliall will be found.
be included in it. The matrimonial Vow muft be underftood as
reflrained to lawful Adls : The Wife ought not to obey her Huf-
band in unlawful Ads.
In Trefpafs vi et armis, the Wife might be feifed for the Fine.
And the Coercion of the Hufband only excufes Her from fuffering
for the Crime : It does not make the Ad lawful. She ought not
to commit Theft ; although the fuppofed Coercion of the Hufband
excufes Her from Punishment.
This Ad exprefly includes All Perfons whatfoever. The Words
are general ; and fo alfo was the Intention.
And the Hufband's Ad (of returning) is unlawful : And there-
fore She ought not to follow him, and thereby commit an unlawful
Ad Herfelf. Nor is She obliged to follow him for Maintenance :
For the Parifli to which they were removed, is obliged to maintain
Her, in the fame Manner as if her Hufband had run away.
If it were otherwife, here would be an innocent Paridi, who
mufl be at a continual Expence of removing the Wife back, toties
qiioties, without being reimburfed for their Charges : And if She
was obliged to return with her Hufband once. She would always be
obliged equally fo to do, whenever He fhould return Himfelf.
All their Reafoning would hold jufi: as flrongly in obliging the
Wife to ajjiji her Hufband and obey him in keeping a Bawdy-houfe,
as
6oo Eafler Term 31 Geo. 2.
as in any other illegal Aft. Yet for keeping a Bawdy-houfe, fhc
• ' Sa/(5. 38:). js certainly punifhable with her Hu(band. *
Regina v. •' '
U'ill:ams, M.
\oj«n.B.R. This is not a Commitment in Execution, and by Way of Judg-
^if '^1'^/' ^^"' ^"'' ^" Offence : It is a Commitment on 13, 14 C. 2. and not
\itiTcid. on 17 G. 2. nor for any definite Time. They might have been
bailed on this Commitment : For it is only, " //'// difcharged by due
" Courfe of Law," And though the Words of the A&. of 13,
14 C. 2. are " "There to be pimlJI^ed as a Vagabond \' yet this is oq-
ly in Order to be amenable to Juftice upon a future Indidment.
+ But the And fo the fending them " to a public -f- Workhoufe, there to be
h°" TJThe"' " employed in Work and Labour," is no Punidiment to a poor
Houfcof Car- Perfon, who is ufed to Work and Labour.
rUiton."
It would be highly VNreafomb/e that the Hulband (who could
not bring an Adtion in his own Name and on his own Account)
fliould be permitted to bring it on Account of his fVife, and in her
Name, againft a Magiftrate who has aded for the public Good ;
and Himself receive the Benefit of what has been originally occa-
fioned by and taken it's Rife from his own vulawjul A£l.
Reply. The Counfel for the Plaintiff replied to the following Effed.
As to the Convi<Sion being flill in the "Power of the Jujiice t»
draw up in Form — It does not appear that there ever will or can be
fuch a Convidion : But it is plain that there is none.
It does not any how explicitly appear, upon what AB, this
Commitment is founded. But however, it muft be on 17G. 2. be-
caufe the Information is for an Offence exprcfly within that Sta-
tute ; and the Warrant of Commitment is founded upon the In-
formation. Therefore there ought to have been a previous Convic-
■tion.
The Certificate could not be in the Wife'i Power to produce :
Her Hufband muft have it, if there was any.
' We do not deny that the Wife was fo far within the Intent of this
Ad of Parliament, that She was capable of being a Vagrant : She
might have gone about begging ; She might have returned to this
Parifli without her Hufband. But We fay that here is no Ad of
Vagrancy ftated ; and for the particular Fad that is ftated, her be-
ing fub Potejlate Firi, was an Exciife to Her : She is within all the
Excufcs mentioned in Dr. Hujfey's Cafe, for Perfon's guilty againft
^he Letter of a Law.
The Hardfliip of the Parifli to which thefe Perfons returned can-
not dcftroy the Ge.acral Law of the Land.
2 A^
Eafler Term 31 Geo. 2. 601
A married Woman's Keeping a Bawdy-boufe jointly with her
Hufband, varies from the general Principle: Becauie there She is
the PRINCIPAL ASlor, and Chief Manager and Condu&or.
The prefent Commitment is, " //// difcharged h due Cov.rfe of
" Law." But Itill it may be a Commitment on 17 G. 2 : As it
does NOT EXCEED a Month ; though it does not indeed fx it to a
Month.
It is a quite new Doftrine, " that Imprifonment in a Houfe of
'' Corredion is noPuniHiment :" Certainly, It is a Punifliment, and
no fmall One.
As to the Hufband's becoming intitled to the Damages, when re-
covered ; that arifes from the Laiv itfelf : But it is properly the
Wije\ Aftion, and will furvive to Her ; though She (being Co-
verte,) cannot by Law bring it in her own Name. This therefore
is iht ASl of the Law ; and ought not to be objedled to the Hifband^
much lefs, to the Wife^ whofe Aftion this properly is.
Lord Mansfield defired to be informed how the Usage was:
(though it would not indeed, as he obferved, alter the Law.)
The Counfel had not made this Inquiry. But Both the Counfel,
and alfo Mr. Juft. Foster and Mr. Jufl. Wilmot faid, That the
A&. of 13, 14 C. 2. had been always confdered as general, and
NOT as tied up by the particular Words of Reference to that parti-
cular Cafe ongoing to work, only. And
Lord Mansfield faid that perhaps that might have been prac-
tifed for the Sake of General Good.
He flrongly intimated that it would be a right Thing to compro-
mife this Caufe : And if it fhould not be fo. He defired to
know the PraSiice and Ufage, about fending the Wife to the
Houfe of Corrediion, with the Hufband.
As to 13, 14 C. 2. He faid He was now fatisfied by his Brother
Fojier, " That it had always been taken as a General Law j"
notwithftanding the Words of Reference j (which had flruck
Him on the Reading.)
Mr. Juft. Foster defired to know alfo how the Pradlce had
been as to Children.
Mr. Clayton (who was Counfel for the Defendant in the former
Argument) faid He had known the Children alfo committed.
7 O Cur?
6o2 Eaiier 1 erm 31 Geo. 2.
Cur' advis', (i. e. eventually, if not compromifed.)
On Tuefday, 25th Jpril 1758, This Cafe being mentioned at the
Bar, as ftanding for the Opinion of the Court,
Mr. Norton (for the Defendant) then faid He had feveral Certi-
ficates of it's being the Practice, for Juftices to commit the.
Wife, as well as the Huftand, for returning to the Parifti from
whence they had been removed ; although She fo returned, with
her Hupand.
Lord Mansfield now (on 'Tuefday 2d May 1758,) delivered
the Refolution of the Court.
He firft dated the whole Cafe very fully. And He prefaced,
That it was manifeft that the Juftice had i20t adted vite7itionally
wrong : And it is plain that the Jury were of that Opinion, as ap-
pears by their giving only i 5. Damages : The Court would gladly
therefore have leaned towards excufing this Gentleman from fuf-
fering for what he had honeflly and without any bad Intention
done ; if they could have found him juftifiable by any legal Excufe.
But there is One fatal ObjcSlion to his Proceeding, which We
cannot get over ; and which puts all the other Points, out of the
Cafe: And that is, that the Warrant of Commitment is ille-
gal.
The Legality of the Warrajit depends upon Two Ads of Parlia-
ment, or at lead upon One of them : For there are Two Ads of
Parliament upon One of which two, this Warrant muft be foun-
ded ; though it does not appear, upon which of the Two, the Juf-
tice proceeded.
• Vide ante Thefe two * Ads are 13, 14 C 2. c. 12. (a Law made before
/'''• 597- Certificates under the 4- late Ads exifted :) And 17 G. 2, c. c.
f. 30. firft in- (which relates to Perfons returning, ^c. wicncut bringing fuch a
troduced Certificate.)
them.
Now this Warrant is not within \\\\% former Ad, of 15, 14 C. 2 :
Nor is the Cafe irfelf within it. Theie Pcrlbns did not go to any
Parifh, carrying with them a Certificate of their being Inhabitants
of their proper Parifh : Nor is the Commitment made " to the
" Houfe of Corredion there to be punijhed as a Vagabond ;" Nor
" to a public Work-houfe, there to be employed in IVork and Labour ;".
as that Statute direds. So that the Warrant is not at .ill agreeable
to the Dire£iions of that Ad, which fpecifies ihe particular Man-
2 ner
Eater Term 31 Geo. 2. 603
ner of fending the Offender to the Houfc of Correinrion, o-- to a
public Work-houfe : For it is, only, " to remain till difcharged
" by due Courfe of Law."
Neither can this Warrant be good upon the latter Adt, of 17 G.
2. c. 5. Becaufe though this is indeed a Commirment to the Houfe
of Correction, (which the latter Aft direfts,) Yet it is " to re-
" MAIN there till difcharged by due Courfe of Law." Whereas,
by this AB, the Power given the Juftice is " To commit fuch Of-
" fenders to the Houfe of Correftion, there to be kept to hard
" Labour for any Time not exceeding One Month." But this
Warrant is quite general: It is an indefinite Commitment; not
for a precife limited Time, as this Aft exprefly direfts and requires.
Therefore the Warrant of Commitment is totally illegal : And
confequently, the Plaintiff is intitled to the Damages that he has
recovered.
And You'll obferve, that We go only upon the Warrant :
Which for the Reafons I have mentioned, We hold to be totally
illegal.
Rule That the Pofiea be delivered to the Plaintiff.
Thomas verf. Powell. F>-'^''y ;tii
•^ May 1758.
A Feigned Iffue had been agreed upon, between the Parties and
by Approbation of the Court, in order to try a Corporation-
Right.
This feigned Iffue had been now tried : And it was found for the
Profecutor in the Original Motion for the Information in the Nature
of a ^0 Warranto,
■ The Queftion now was, (upon a Motion for the Direftion of the
Court, to the Maffer,) Whether the Profecutor fliould have all
his Co/is previous to the feigtied Jfj'ue ; or aiiy, and what Part of
them : Or whether he ihould only have his Cofts from the feigned
Iffue.
Mr. Jfton and Mr. Nares, who were Counfel for the Plaintiff",
infifted to have All the Cofls : Viz. Cofts of the Original Applica-
tion; alfo Cofts oi fettling the Iffue, (which had been difputed and
fquabbled about ;) as well as the Cofts of the Trial of the Iffue, in
■.the common Courfe. They cited Rex v. Griffiths, M. 1755, 29 G. 2.
B.R.
6o4 Eailer Term 31 Geo. 2.
B. R. Rex V. Ji/JIiccs of Walfall, alias Siiibbs ct at' v. Nichols et al\
Tr. 1755, 28 G. 2. B. R. Herbert v. Wrlliams, P. 25 G. 2. £. R.
Bajkerville v. Redding, there cited. And i Strange 33. Dcminifs
Rex V. Powell et al'. (Which laft was only to fliew that an Infor-
mation in the Nature of a ^«o Warranto, is to be confidered as
Civil Suit, with regard to Cofts.)
And they faid that this being of the Nature of a Civil Suit, in the
Original Application to the Court, was different then^fore from
Cafes where the Original Application was of a Criminal Naturr-
where no Cojls were payable by the Defendant.
Mr. Morton, on Behalf of the Defendant, denied that any mope
Cofls ought to be here taxed, than merely thofe of the feigned JJJiie j
and even thofe, only from the Time of the Iflue joined.
For he infifted that the Original Rule " to fhew Caufe whv the
" Information ftiould not be granted," was aSliially discharged,
even before this feigned Iflue was agreed upon as a proper Method
of Trial of the Right : So that there was no Pretence for the Cofts
of that Application being now included. And the Difputes about
the Perfon to be made Defendant in the feigned Iflhe, were, and
could not but be, prior to its being joined.
Mr. Juft. Denison and Mr. Juft. Wilmot were clear that the
Cofts to be taxed upon fuch a feigned Ifllie, were only the Cofts
of the feigned Iffue it [elf and not any Cofts antecedent to the Con-
jent to " try the Right in a feigned Iffue." And this was fettled
• It was fo ; (as Mr. Juft. Wilmot faid) in the Cafe of Walfal. *
on 12th June
1755, Tr.
28 G. 2. And they Both faid. That it would be endlefs to enter Into the
Cofts previous to the feigned Iffue : For they would always be fure
to have Difputes, " Which Party was right, And which wrong, at
" firft and upon the Original Motion."
Lord Mansfield concurred in their Opinion: Which He ex-
plained to mean, (and to which They affented,) '^ fro7n the Time
" when the feigned Iffue was first Ordered and agreed to."
Note — In the prefent Cafe, The Cofts of the Difputes about
fettling the feigned Iffae, after it was agreed upon and Or-
dered, were confidered as Part of the Cofts which were to be
taxed to the Plaintiff; (who had prevailed in the Queftions
difputed, both before the Mafter, and before the Court.)
Dearden
Earter Term 31 Geo. 2. 605
Dearden, Afiignee &:c. 'verf. Holden.
THE Queftion was, " Whether a Plea of the Statute of 23 H.
" 6. c. 10. (againft Sheriffs taking Bonds Colore Officii &'c.)
" And that this Bond was taken for Eafe and Favour &c ; be or be
*' not an issuable Plea, within a Judge's Order giving the De-
*' fendant Time to plead, upon the ujhal T^ernn of pleading an if-
^' fmblePlea&cr
In the prefent Cafe, the Plaintiff \\2A fgned "Judgment^ upon the
Defendant's having tbm pleaded, under the iijiial Order from a
Judge, *' for Time to plead, on the common and ufual Terms:"
For the Plaintiff confidered this Plea, as a Nullity ; and now infifted
that it was fo ; and therefore that he had a Right to fign Judgment,
without giving any Rule to plead.
But The Master reported this Judgment to be irregular: And
to this. The Court alfo affented — For
Per Cur" This n an ijfuable Plea : For if the Plaintiff had taken
Iffue " That the Sheriff did not let the Defendant go, for Eafe and
" Favour," It would have brought all Matters fuggefted in the Plea,
to Iffue.
The Judge's Order does not confine the Defendant to plead the Ge-
neral IJJue. The prefent Plea is within his Order : And the Plain-
tiff might here have taken Iffue (as above,) " That the Sheriff did
*' not let the Defendant go, for Eafe and Favour:" Which would
have let in all the Matters in Iffue.
Rule " for fetting afide the Judgment, with Coils,"
MADE ABSOLUTE.
But it being fuggefted by the Plaintiff's Counfel, " That the
*' Plea was, in Truth and Reality, only a Shatn Plea, put in mere-
" ly to gain Time;" —
Mr. Norton, on Behalf of the Plaintiff, moved that the Defen-
dant might plead as he would fiand by.
To which, it being confented, on Behalf of the Defendant,
This alfo was made Part of the Rule.
The End of Eafler Term 1758. 31 Geo. 2.
7 P . Trinity
6o6
1 unity 1 erm
3 I Geo. 2. B. R. 1758,
FriJay 26th
iW<v;i 1758.
Rex verf. James Clarke, Efquire.
Habeas Corpus had been iiTued during the laft Vacation, by
Lord MamJieU, bearing Tefte the 8th Inftant, being the
laft Day of the preceding Term, direded to James Clarke
Efquire, commanding him to have before his Lordjhip at
HIS Chambers in Serjeants Inn, immediately, the Body oi Lydia
Henrietta Clarke, his Daughter, then detained in his Cuftody, to-
gether with the Day and Caufe of her Taking and Detainer ; then
and there to undergo and receive what his Majefty's faid Chief Ju-
ftice fhould then and there confider of, concerning her in this Be-
half.
The Writ was now returned here in Court : and the faid Lydia
Henrietta Clarke produced.
Mr. Clarke the young Lady's Father, returned That She was his
Daughter; and that on the 2 2d oi March laft. She, without
any Leave or Notice to Him or to his Wife (her Mother,) fecretly
went away from his Houfe in Great Ormond Street, and took with
her a Box or Bundle containing feveral Sorts of Wearing- Apparel
and about 27/. in Money.
That, in about 12 or 14 Days time. He, being credibly inform-
ed " That his faid Daughter had been inveigled aivay from
" him by the InJIigation of one James Mervin, a Perfon of no vi-
" fible Occupation or Subfiance, nor keeping any Houfe; leith De-
" SIGN to MARRY /:)tr to One Jofeph Ifgrave, who is under Age,
" and who about two Years ago fer'ved the faid James Clarke as a
" FooT-BoY, and is yet in no better Condition ; and that they
" were all gone together into the Ifle of Thatiet, where they were
" to get a LiCEtiCE for fuch Marriage ;" He being under great
Concern for the Welfare of his faid Daughter, and in Order io prevent
the
Trinity Term 31 Geo. 2. 607
the faid Marriage, (She being intitled to a conjiderahle Fortmte,
after her faid Mother's Death, and being hkewife his only Child,)
took a Journey to find them out, and (if in his Power) to prevent
the faid intended Marriage ; and gave Dire<ft:ions to his Nephew Mr.
Peter Starkie Floyer, to go in queft of them, and if he found them,
to endeavour to prevent the Marriage and to bring his faid Daugh-
ter to Him.
That his faid Nephew found them out at a Place called Broad
Stairs, in the Ifle of Thanet : Where the faid James Mervin repre-
fented himfelf as, and pajedfor, the Uncle of his faid Daughter.
That the faid Lydla Henrietta Clarke came Home with his faid
Nephew to his (the faid "James Clarke's) Houfe in Great Ormond
Street : Where fhe arrived the 7th of ^prll lafl : and the faid James
Mervin came with her as far as Canterbury : But the faid Jofeph
Ifgrave run away ; and the faid James Mervin pretends He is gone
to Holland,
That on her being thus brought Home to him. He did, in the
tendere/l Manner, reprefent to Her the Ruin She was inevitably fall-
ing into, if She purfued a Defign to marry a Perfon fo much infe-
rior to herfelf ; and who, having no vilible Way of Livelihood,
mud reduce her to the utmoft Neceffity and Want, as well as Dif-
grace and Shame. Whereupon She affuring her (aid Father " That
" She was not married," He, through his Duty as a Parent, and
from the Affedtion he bore towards her, did receive her into his
Houfe ; and the tnildeft and beft Endeavours have been ufed, to dif-
fuade Her from fuch Marriage ; fuch Endeavours extending no further
than what he humbly conceives to be confident with that parental
Care which may be ufed by a Father towards his Child : And n o
Severity ivhatfoever hath been ufed to Her.
That She hath, ever fince the faid 7th Day oi April lafl:, (when
She came Home to his Houfe as aforefaid) hitherto, of hi, r own
Accord, continued to live and refide with Him (her Father) and
ftill doth live and refide with him, at his laid Houfe, c/'her own
ACCORD and under no Rejlraint whatfoever.
And there is no Other Caufe of detaining the faid L. H. C. &c.
Note — This Habeas Corpus was ifiiied upon an Aflidavit made
by the above named James Mervin ; who made out a very
plaufible Cafe, fully futficient, (if true) to obtain the Writj
but which was now alledged by Mr. Norton, (of Counfel with
Mr. Clarke,) to be abfolutely and utterly false in FaSl.
I In
6o8 Trinity Term 31 Geo. 2.
In it the young Lady was fworn to be oi full Age, (viz. about
22;) which was true: But it alfo alledgcd " that She had
" been hardly tifed, and confined, by her Father," and other
Circumftances, which were falfe.
Note alio— That ahhough this Habeas Corpus diredted Her to
be brought before Lord Mansfield at his Chambfrs; and
although She icas aSlually brought before Him whilft He was
fitting at Guildhall, on Wednejdoy laft ; Yet, the Father de-
firing to have an Opportunity to talce the Advice of Coun-
fel, in fetthng the Return ; And the Young Lady declaring
publicly, " She had no objedtion to continue with her Fa-
" ther, who had always ufed her with great Tendernefs,
" and much better than fhe deferved ;" His Lordfliip judged
it proper to adjourn it, and diredt Her to be brought into
Court the firft Day of Term ; the rather too, that She might
have a Chance of being better advifed : For if fhe had been
then taken from her Father, it was plain She would have
purfued her improvident Defign ; and Mervin appeared at
Guildhall, ready to have carried her off. She was now brought
into Court by Virtue of the same Writ, which was re-
turnable before his Lordjlnpy at his Chambers imtnediate.
Lord Mansfield now only afked Her, " Whether She defired
" to continue with her Father, or to go elfewhere."
She anfwered — " To continue with her Father."
Upon which. The Court told Her, She was at Liberty to go.
Which She accordingly did.
Then Mr. Norton moved that Mervin' s Affidavit might be f i l e d,
(together with the Return of the Writ ,) as Mr. Clarke was deter-
mined to profecute him for Perjury,
The Court ordered it to be fo ; and recommended the Profe-
cution very flrongly to Mr. Clarke.
3
I
Wilford
Trinity Term 31 Geo. 2. 609
Wilford verf. Berkeley. Saturday z-j\k
•' •' . May 1758.
MR. Morton, on Behalf of the Defendant, moved for a tieiv
Trial, for Excessiveness of Damages. It was an Adtion
for Criminal Conversation with the Plaintiff's Wife : And the
Jury (a Special One) had given 500 /. Damages. The Defendant
was a Clerk in the Exchequer, during Pleafure, at a Salary of 50 /.
a Year, only : Which was his whole Subjijlence.
The Court were, All * Three, clear and unanimous, That al- • Mr. Jutlice
though there was no Doubt of the Power of the Court to exercife a J^'J"" **'***'
proper Difcretion in fetting afide Verdidts for Exceflivenefs of Da-
mages, in Cafes where the Quantum of the Damage really fuffered
by the Plaintiff could be apparent, or were of fuch a Nature that the
Court could properly judge of the Degree of the Injury, and could y^'^
manifejlly that the Jury had been outrageous in giving fuch Dama-
ges as greatly exceeded the Injury j Yet the Cafe was very diffe-
rent, where it depended upon Circiim/lajices which were properlv
and solely under the Cogtiizance of the Jury, and were fit to be
fubmitted to their Decifion and Eftimate, And they held the Cafe
of Criminal Converfation with another Man's Wife to be of this
latter kind. For the Injury fuffered by the Huiband, and the
Eftimate of the Damages to be affeffed muft, in their Nature, de-
pend entirely upon Circumstances, which it was ftridly and
properly the Province of the Jury to judge of: And in the prefent
Cafe, the Court could not fay that 500 /. was too much j or that
50 /. would have been too little.
Note— The Cafe oi Chem v. Brigg, M. 6 G. i.B. R. before Ld.
Ch. J. Pratt, was exadly fimilar to this j and the very fame
Sum of 500 /. was given : And the like Motion was rejec-
ted then, upon the fame Principles as the Court have now
rejected the prefent One.
Motion denied.
Rex verf. Little. 1'""''^''^ f
J June 1758.
In the Crown-Paper,
THIS was a ConviSfion, returned to a Certiorari direfted to
JVilliam Bailye Efq; a Juftice of Peace for the City and Coun-
ty of Litchfieldy for offering to fell Goods ^c. as a Hawker and
7 Q_ Fedlar,
6ro Trinity Term 31 Geo. 2.
Pedlar^ without Licence^ contrary to the Statute in that Cafe made
and provided.
It was dated 24/^6 OBoher 31 G. 2. And fet forth that One Tho-
mas Prejlon Gentlernan came before the faid Juftice {William Bailye
Efq;) and gave him Information, that One 'Thomas Little (in the
Writ named) after the 24th of "^june 1698, that is to fay upon the
faid 24th Day oiOBoher 1757, in the PariQi of St. Mary in the faid
City and County of the fiid City of Litchfield, was found Oferiiig
to Sale Silk Handkerchiefs, and trading as an Hawker Pedlar or
Petty Chapman ; and that the [aid Thomas Little did then and there
OFFER to fell a Parcel of Silk Handkerchiefs ; And that he the faid
Thomas Little did not, although required io to do, produce a?2y
Licence, as the Law in that Cal'e made and provided direds, to qua-
lify him for his faid Trading : And the faid Thomas Prejlon then and
there prayed that he the faid Thomas Little might be thereof con-
vifted, according to the Form of the Statute in fuch Cafe made and
provided. Whereupon the faid Thomas Little being brought before
Me, and being then and there prefent, and having heard the faid
Information read, and being charged therewith, He the faid Tho-
vias Little is then and there afked by me the faid William Bailye^
" if he hath any thing to fay, or can fay any thing, Why he \\\t
" faid Thomas Little fliould not be convided of the said Offence
" fo charged upon him in Form aforefaid, according to the Form of
" the Statute in fuch Cafe made and provided." Whereupon he
the {AAThomas Little doth now here freely and voluntarily confess,
before Me the faid William Bailye the Juftice aforefaid, " That he
" the fiid Thomas Little did offer to fell Silk Handkerchiefs to the
'■'■faid Thomas Prefcn, in such Manner as is mentioned in the
" aforefaid Information ;" and " that he hath no Licence for felling
" thereof." And the faid Tho?nas Little is now here required by
me the faid William Bailye the Juftice aforefaid, to produce a Li-
cence granted to him to impower or qualify him to travel or trade^
purfuant to the Statute in that Behalf made and provided. And he
the faid Thomas Little doth not produce before Me 2LV\y fuch Licence,
or any Licence granted to him in that Behalf And the faid Thomas
Little doth not pretend or alledge that he is the real Worker or
Maker of the faid Goods, or the Child, Apprentice, Agent or Ser-
vant of or to any fuch Worker or Maker : Nor doth alledge any other
Matter in his Defence.
Whereupon, and upon due and full Confideratlon by me had, of
and upon the faid Matters and Premiftes, I do adjudge that the faid
Tho. Little IS an Hawker, within the true Intent and Meaning of
the Statute in fuch Cafe made and provided : And it manifeftly ap-
peareth to me the faid Juftice " That the faid Tho. Little is guilty
■" (f the Offence in the faid Information above laid to his Charge^
2 " in
I
Trinity Term 31 Geo. 2. 611
" in Manner and Form as by the faid Information is above al-
ledged."
Therefore it is confidered and adjudged by me the faid Juftice,
That the faid Tho. Little be, and he is convided by me of the
SAID Premisses in the faid Information fpecijied, above laid to his
Charge, according to the Form of the Statute in that Cafe made
and provided ; And that the faid Tho. Little forfeit the Sum of 1 2 /.
for his faid Offence ; to be levied and paid according to the Form of
the Statute in that Cafe made and provided. In Witnefs, &c.
William Bailye (L. S.)
V. 8, 9 W. 3. c. 25. § r, 2, 3. and 9, 10 W. 3. c. 27. § i, 2, 3.
and 12 ^. 3. f. 1 1. V. alfo 3, 4 Ann. c. 4. § 1,4. for continuing
thefe Duties : Which refers to the Defcription in the former Ads.
Mr. Tates, on Behalf of the Defendant, took two Exceptions.
I ft. That the Defendant is not brought within the Defcription of
the Adls, as going from Toivn to Toion (Sc and travelling ^c : But
he is only generally defcribed to be a Perfon that traded as a Hawker
and Pedlar J and offered to fell a Parcel of Silk Handkerchiefs to the
Informer.
2d Exception. That there is no Evidence at all of his Guilt : For
it is a Convidion upon a Confefiion ; And the Confeflion extends no
further than barely to the fimple Fad of offering to Sale Silk Hand-
kerchiefs to the faid T. Pre/Ion in fuch Manner as is charged upon
him. But that Charge is an infiifficient One.
Firft — He cited i Strange 497, 498. Rex v. Sparling, A Convic-
tion for profane Curling and Swearing was held bad, for not fpeci-
fying the Oaths and Curfes : For the Court, not the Witnefs, were
to judge of their being profane. So here, the Court, not the Wit-
nefs, are to be the Judges Whether he was a Hawker, Pedlar or
Petty Chapman, within the Defcription of the Ads of Parliament.
So, in the Cafe of Colehome v. Stockdale there cited and reported in
I Strange 493 ; Civil Adion of Debt on Bond ; And Plea " that
" Part of the Money was won by Gaming, contrary to the Sta-
" tute;" — It was adjudged that the Ga}?ie played at, ought to be
mentioned in the Plea : For it is Matter of Laiv, and 770t barely
Evidence. So, in Convidions for killing Game, not being quali-
fied, The Want of the due Qualifications muft be negatively fpeci-
fied. And He cited the Cafe of T^^.v v. Chapman, 30th jiprfl iyss ;
A Convidion on 43 Eliz. c. 7. for robbing an Orchard ; " the faid
" Robbing fiot being Felony, by the Laws of this Realm:" This
was
6i2 Trinity Term 31 Geo. 2.
was holden not to be a fufficient Charge for the Court to judge
upon. Rex v. Biirtjaby, 2 Ld. Raytn, 90c, 901. was a Convidion
on the fame Ail of Parliament of 43 Eliz. c. 7. for cutting down
Trees without mentioning the Number : And it was holden infuf-
ficient ; and 1; id down as a Rule, that Convidions ought to be cer-
tain and are always taken Jlridily.
Second Exception. All the Evidence to fupport this Convidion is
the Confeflion of the Party : And that is only " That he did offer
" to fell Silk Handkerchiefs to the faid Thomas Prejlon in the Man-
" ner charged upon him in the Information." But it does not ap-
pear by the preceding Charge " That he was a Hawker Pedlar or
" Petty Chapman," such as is defcribed by the Ads of Parliament :
And if not, he cannot be liable to this Penalty.
Mr. Luke Rohinfon for the Convidlon.
This Queftion depends, and the Convidlon is founded upon the
following Ads of Parliament; 8, 9 W. 3. c. 25. 9, 10 W. 3.
c. ij. (which is in the very fame Words, and is now in Force,)
and 3, 4 Ann. c. 4. § 4. pa. \ ib.
And 111:. The Defendant is fufficiently brought uithin the De-
fcription of thefe Ads. The Selling Silk Handkerchiefs is only
One Overt A5l of his Trading, which is fpecified by the Convic-
tion. And the JuJIice of Peace is to judge Whether the Perfon is
or is not a Hawker or Pedlar or Petty Chapman. And He has ad-
judged him to be a Hawker within the true Intent and Meaning of
the Ad of Parliament.
2dly, The Defendant has confefled the Charge, as laid; and
that he had no Licence &c. If he had any Defence, he ought to
have made it, before the Juftice.
And thefe Convidions upon the Revenue-Lzvf% ought 7wt to be
taken fi JiriSlly as others. For which, he cited what is laid down
in I Ld. Raym. 581. Rex v. Chandler. Per Holt Ch. J. " That the
"' Juftices are not confined to legal Forms, in thefe Cafes : It is
" enough to purfue the hitcnt of the Ad."
And the Court will prefume the Convidlon to be right, unlefs the
contrary appears upon the Face of it. And fo is i Strange 608.
Rex V. Theed : Where the Court prefumed that the Officer came by
Day, and not by Night ; becaufe no I'uch Thing as Coming in the
Night was apparent upon the Face of the Convidlon.
I And
Trinity Term 31 Geo. 2. 61^
J
i
And He alledged that Mr. Tates\ Cafes are not ad idem. In
Game-Convidions it is not necelTary to fet out negatively, " That
" he had not fuch and fuch Qualitiss." Nor is it necelTary to fet
out the particular Oaths and Curfes, in Convidlions for profane
Curfing and Swearing. Nor in Chapmmi^ Cafe^ was it neceflary to
fet out that it was not Felony by Law.
Mr. Tates in Reply,
ift. Urged the Neceffity and Reafonablenefs of fpecifying the Adt
of Trading G?c in the Convidion. But this Man was not, in Fad,
within the Definition of going from Town to Town, and travelling :
For he relided at a fixed Place.
In Game-Convidions, it is neceflary to fpecify tiegatively and par-
ticularly, " That the Defendant was not fo and fo qualified."
Mr. Juft. Denison — That has been fo fettled.
Mr. Tates proceeded in his Reply.
2dly. The Confeffion is only " That he did offer to fell Hand-
" kerchiefs &c :" Not " That he traded as a Hawker Pedlar or
" or Petty Chapman."
Lord Mansfield. The Ad of 3, 4 ^nn. refers to the Defcrlp-
tions in thofe of IF. 3.
A SINGLE ^(5? of felling a Parcel of Silk Handkerchiefs to a
particular Perfon, is not a Proof that he was such a Hawker Ped-
lar or Petty Chapman, as ought to take out a Licence, by Virtue of
thefe Ads of Parliament.
Now it is certainly of the Essence of the Crime " of not pro-
" ducing a Licence," That he muft be such a Perfon as ought
to take out a Licence.
And the Confefiion is only of the Fa£}, " That he fold the
" Handkerchiefs to Thomas Prcfion :" Not " That he traded as
" a Hawker &c."
Convidions ought to be taken (IriBly : And it is reafonable that
they (hould be fo ; becauje they muft be taken to be true, againft
the Defendant ; and therefoie ought to be conftrued with Stri5i)icfs.
I do not fav that it is necefl"ary to define exaBly, What a Hawker
Pedlar or Petty Chapman is. But it is neceffary to alledge and
ihew that he fold the Goods, or traded, as One.
7 R Mr.
6 14 Trinity Term 31 Geo. 2.
Mr. Juft. Denison concurred, for the fame Reafons ; and
thought the Material Averment to be here wanting ; it not being
averred " That he was fucb a Hawker Pedlar or Petty Chapman as
" ought to take out a Licence."
And He mentioned a Cafe of Rex v. Gardiner^ Tr. 1738, it,
12 G. 2. B.R. Where the Juftice convidled a Man of keeping a
Gun, BEING an Inftrument to deftroy Game. And fo it certainly
was : But, in Fadl, the Man had never ufed it as fuch ; but only to
keep Pigeons off from his Grounds. And the Convidtion was
quafhed.
Mr. Juft. WiLMOT concurred clearly, for the fame Reafons.
For certainly a Man may fell Goods ai a Hawker Pedlar or Petty
Chapman, vv'ithout htmg fucb a Perfon as is obliged to take out a
Licence. And if he is not obliged to take cut a Licence, moft
undoubtedly he ought not to be convidled in a Penalty for 7iot pro-
ducing One.
Now here, it appears to Me that the jullice has convifted the
Man of an Offence, of which He has not proved him to be guilty.
* Mr. Juftice p^^ C'ar. * unanimoiifly,
Fefttr was not _ -^
prefent. . LoNVICTION QUASHED.
Tue/Jay 6th Doc Oil tlic Dcmife of Hitchings and Another veff.
^'"'^'■5'- Lewis Elq;
THIS was a Special Cafe from the AfTizes, upon an Ejedlment
brought by a Tenant againft his Landlord, who had former-
ly obtained a Judgment by Default, in a former Ejedment brought
by Him againft this fame Tenant.
The Special Cafe ftated for the Opinion of the Court was as
follows.
Thomas Lewis, being feifed in Fee, demifed to fohn Hitchings
(in Confideration of a Fine &c. of 49/. 13^. 6 d.) To hold for 99
Years, if Three Perfons fliould fo long live ; at 1 1 A 5 ^. payable
at Michaelmas yearly ; fubjedl to a Provifo that if the Rent fliould
be in Arrear ©"f. for the Space of one Month, being lawfully de-
manded ; and no fufficient Diftrefs upon the Premifles Gff &c ;
That then it fliould be lawful to the faid Thomas Lewis his Heirs and
Afligns, to re-enter £i?f.
2 That
Trinity Term 31 Geo. 2. 615
That '^ohn Hitchings, the Leffee, entered and was pofTeffed &C',
And then died ; having firfh made his laft Will and Teflament &c ;
Whereby he devifed the faid Term to his Son Ed'ward Hitchi?igs
(the Lefibr of the Plaintiff;) and made his Wife Executrix. The
Teftator's Wife, his Executrix, duly proved the faid Will and duly
aflented to the Legacy: And the faid DevKee Edward Hitchings,
the Leffor of the Plaintiff, entered into the Premiffes, and became
poffeffed of the faid Term, being then and flill unexpired ; and con-
tinued in Poffeffion, till the 15th oi April 1737.
Thomas Lewis, the original Leffor, by his Will, £fc, devifed to
feveral Trufiees, &c, in TrufI: for Morgan Lewis, an Influit &c.
The faid Thomas Lewis died feifed &c: And the faid Devifees in
Truft became feifed &c. And there being 3 Years Rent due and in
Arrear from the faid Edward Hitchi?igs for and upon the Premif-
fes, a Declaration in Ejedment was jerved upon the faid Edward
Hitchifigs, UNDER a}id r.Y Virtue o/'the Statute of 4 G. 2. c. 28.
for the faid Premifles, on the Demife of the Truftees and Devifees
aforefaid ; And Judgment was obtained thereupon, by Default,
againft the Casual EjeSlor ; and a Writ of Poffeffion iffued there-
upon ; And Poffeffion was delivered according to the faid Writ, to
the faid Truftees, on the faid 15th oi April 1737: Which faid
Truftees have been in Poffeffion of the Premiffes e-vcr fvice.
And the faid Edward Hitchings (the now Leffor of the Plaintiff)
has not fince paid nor tendered the Rent in Arrear or any
Part thereof, nor the Cofts ; nor filed any Bill for Relief in
Equity.
On the Trial of this fecond Ejedtment now brought by Edward
Hitchings againft the faid Lewis, no Affidavit was pkoduced,
" That half a Year's Rent was due before the Jir/l Declaration
" in Eje<5tment was ferved upon the faid Edward Hitchings ^
" and that no fufficient Diftrefs was to be found on the demi-
" fed Premiffes, countervailing the Arrears then due ; And that
" the Leffors in that frf Ejedtment had Power to re-enter."
On this Trial of the faid fecond Ejedment, viz. the Ejedment
brought by the faid Edward Hitchings, A Verdid was found for the
Plaintiff; but fubjed to the Opinion of this Court, " Whether or
" no the Plaintiff therein ought to recover."
" Whether Edward Hitchings the Leffor of the Plaintiff in
" the prefent Ejedment ought to recover, oj not;" depended
upon the following
Queflion :
6i6 Trinity Term 31 Geo. 2.
Queftion : Viz. " Whether it was necelTary for the Defendant
'•' Mr. Lewis to produce an Affidavit That, Half a Year's Rent
" &c. utfupra ; And that the Lelfors in that former Ejedment had
" Power to re-enter."
Mr. Nares made two Qneflions : viz.
I ft. How far this Cafe is within the 2d SetSion of 4 G. 2. c. 28.
" for the more effedual preventing Frauds committed by Tenants,
" and for the more eafy Recovery of Rents &c."
2d. Queftion. If it is within it, then how far the Plaintiff has
proved his Title under that Statute, upon the particular Circum-
ftances of this Cafe.
The Firft Point may be rendered the more clear, by conlidering
how it ftood before the Statute ; and how fince.
ift. Before that Statute, the Plaintiff in Ejecftment muft have
proved " that there was Rent in Arrear;" and " that there was
" no fufficient Diftrefs to be found upon the Premiftes;" and,
thirdly, " that he had made a lawful Demand of the Rent in
m " Arrear."
This Condition here annexed to the Leafe in the prefent Cafe,
is in Derogation of the Party's own Grant, and tends to defeat the
Eftate : And therefore Mr. Lewis would have been kept ftridly to
prove all thefe previous Fads. And if it had been a Judgment
againft the Cafunl K]t&.ov ; the Judgment would have been no Bar
againft the nW Tenant, in an Adion of the mefne Prcjits. Indeed
it the Judgment had been obtained againft the Real Tenant, or
againil the Owner of the Eftate, the Perfon who obtained fuch a
Judgment needed not prove any Thing over again, in an Adion for
the mcfne Profits. And fo the Lord Ch. J. at Nif. prius at Giiild-
• See this I'^l^ in " Strange 960. Jefferies v. Dyfon, * cxprefTly lays down this
Cafe Hated at Diftindiou. And here the rtv// Tenant did not enter into the Rule :
Urge, by Mr. g,^^ j^ jg ^^^ -^^^^^ ^^^^^^ ^^^^
Jultice Dim-
jon,foJI.
This Judgment in Eiedment had therefore (before the Statute)
no Relation to the real Tenant : And confequently, Mr. Lewis muft
have Jhetoii bis Title to re enter.
Then, to confider the Cafe as fuhfequcnt to the Statute, here is
not an Acquicfcence of 20 Years. And what feeming Acquiefcence
there was, arofe from the Poverty of the Party.
I 2d]y.
Trinity Term 31 Geo. z. 617
adly. The next Point in Queftion is, " Whether according to
" the State and Circumftances of this Cafe, it can be confidered
" as a Cafe within the Statute ; and that the Plaintiff has proved a
" Title under the Statute."
The Court will not prefume any Thing, in Support of a Judg-
ment obtained by Confeffion or Default, or in any other Way
than upon a Trial of the Merits. Skinner 586. Sanders's Cafe
is a Proof of this : Where HoltCh.]. makes the like Diftindtion.
An Inconvenience would arife from too great a Latitude in con-
ftruing this Statute. As in Cafe of Fraud and Connivance, in
recovering the Judgment againft the Cafual Ejeftor : It would be
very hard, if in Juch Cafe, the real Tenant could not bring an
Ejeftment.
Mr. Nares was now departing from the Fads ftated in the
Cafe ; in which he faid it was omitted to be inferted " That
" there TO<?j fufficient Diftrefs."
.Lord Mansfield — We muft judge upon the Cafe as ftated:
If it is mif-ftated, You muft apply to amend it. However,
I do not fee that this would be very material.
He obferved that it was alfo ftated, only, " That no Affidavit
" was produced:" Not " That there was no Affidavit ^if
" ally Alfo that Prefumptions are not dependant upon cer-
tain fixed Rules; but muft be guided by Circumftances :
And fuch Circumftances are proper for the Confideration of
a Jury.
Here was an Acquiefcence of 20 Years within a few Months.
And it is ftated to be a Cafe " ivithin the Adt of Parlia-
" ment:" Which is a material Part of the Cafe. The
Ejeftment is ftated to have been ferved " under and by Vir-
" tue o/"this Adl."
Mr. Morton was beginning to fpeak on Behalf of the Defen-
dant : But
Lord Mansfield told him that the Cafe was io clear on his
Side of the Queftlon, that it was not neceffary for him to give
himfelf any Trouble.
Then His Lordffiip repeated the Cafe exadly as It was ftated:
(Which fee, ante pa. 614, 615.)
78-. The
6i8 Trinity Term 31 Geo. 2.
The General Qaeftion " Whether the Plaintiff in this laft Ejea:-
" ment ought to recover," depends upon this particular Queftion,
viz. " Whether the firft Ejedment was regularly brought and
" proceeded upon, by the Truftees under 'Jcbi Hitchings's Will,
" purluant to the Diiedtions fpecihcd in the Adt of 4 G. 2. c. 28.
" § 2." This laft Ejedment is brought near 20 Years after the
former.
Now, befides the gkneral Prefumption "That the Proceed-
" ings were regular and omiiia fole)}j7titer aSla, unlefs fomething
" had appeared to the contrary;" and the Rule " That JlaSitur
" prafumptioni, donee probctur in contrariiim j" Here is, in this
Cafe, a decisivk Fa6l ftated : Which Fadl is " That the Pro-
" ceeding under the firfl: Ejedtment was undek and by Virtuk
" o/' //jn ^(i? of Parliament."
Indeed Edivard Hitchings was in Pofe/Jion, as appears by the
Cafe ftated //// the 15th oi Jpril 1737. the Time when PoffelTion
was delivered (by Virtue of the Writ of Poffcflion) to the Truftees.
So that, being the Tenant in PoffefTion, he must have been ferved
with the Declaration in Ejedment ; Whether it was a Common
Law Proceeding, or a Proceeding upon this Adl of 24 G. 2.
But the Cafe itfelfftates it to have been a Proceeding under
this AB : And if it was fo, the Judgment must have been founded
upon fuch an Affidavit as that Aft exprefly diredts and requires,
viz. An Affidavit " That half a Year's Rent was due, before the
" Declaration in Ejedlment was ferved; and that no fufficient Di-
" ftrefs was to be found upon the demifed Premiffes, counter-
" vailing the Arrears then due ; And that the LelTors in that Ejecft-
" ment had Power to re-enter."
And thfe Cafe does not flate, affirmatively, " That the Judgment
" was Irregular;" or, exprefly and explicitly, " That there was
" No Affidavit at all ;" or indeed any Thing whatfoever, to iake
OFF rt Prefumption which is immenfcty llrong the other Way. For
Edivard Hitchings acquiefced under this Judgment, Execution, and
Poffcffion, for almo/l 'Tivefity Tears, and never tendered the Rent and
Arrears together with Cofts (purfuant to the Adt ;) nor filed any Bill
for Relief in Ekjuity, within fix Months after the Execution exe-
cuted, nor indeed at any fubfequent Time. So that he is barred
by the Statute, and fore-clofed from all Relief or Remedy in Law
or Equity, (other than by Writ of Error,) and the Landlord is by
Virtue of the Adl of Parliament to hold the Premiffes difcharged
from the Leafe ; upon Suppofuion that his former Proceedings were
regular.
The
Trinity Term 31 Geo 2. 619
The Affidavit may be loft, after this Length of Time ; Or the
Landlord may be unable to come at it ; although there were, in Fad,
a proper One made, to fupport his Judgment and Execution : And
it would be too hard, to put the labouring Oar upon the Landlord,
of PRcwiNG the Regularity of all the Circumftances upon which his
Judgment and Execution were founded.
As to what has been fuggefled {jv. ante 617,) " That there may
*' be Fraud, Connivaiice , or Colliifion with the Under-tenant, in
*' the Manner of recovering Judgment againft the Cafual Ejedlor;"
It is merely imaginary, in the prcfent Cafe. Befides, Fraud will
infeSl every Tubing : And upon the Principles of Fermor's Cafe 3 Co.
yy. it would not fland.
There can be no Sufpicion of any fuch Thing here. For this
Edward Hitchitigs, the prefent Leffor of the Plaintiff", the Perfon
who has thus long acquiefced under this Judgment and Execution,
and never attempted to be relieved from it either at Law or in Equity,
is Himfelf the very Man iipoti whom the Declaration in the firft
Ejeflment was ferved.
The true End and profeffed Intention of this A51 of Parliament
was to take off from the Landlord the Inconvenience of his conti-
nuing always liable to an Uncertainty of Pofleffion, (from it's re-
maining in the Power of the Tenant to offer him a Compenfation
at any Time, in order to found an Application for relief in Equity;)
and to limit and confine the Tenant to Six Calendar Months after
Execution executed, for his doing this ; or elfe, that the Land-
lord fliould from thenceforth hold the demifed Premiffes difcharged
from the Leafe.
His Lordfliip was therefore clearly of Opinion " that in this
^' Cafe, the Plaintiff ought not to recover."
Mr. Jufl. Den I SON concurred in Opinion " That the Plaintiff
" had 710 Title to recover."
The former Ejeftment brought by the Landlord againft Edward
Hitchings the Tenant, who is now become Leffor of the Plaintiff
in the prefent Ejedlment, is ffated to have been ferved upon Hitch-
ings " tinder and by Virtue o/'this A61 of 4 G. 2. c. 28." Now this
Adl (*u. § 2.) exprefly recites " That great Inconveniences frequently
" happen to Landlords, in Cafes of Re-Entry for Non-Payment of
*' Rent, from the many Niceties attending Re-Entries at Common
*' Law ; and that Expences and Delay often happened from In-
*' junctions out of Equity, after Judgment in Ejedtment :" And the
Aft
620 Trinity Term 31 Geo. 2.
AQ. is profeffedly made in order to prevent thefe Inconveniences.
It prefcribes a Method of Proceeding, in /wo Cafes or Manners of
recovering upon the Proceeding in Ejedment which it direfts ; viz.
One, in Cafe of Judgment againft the Cafiial Ejedor ; the Other
in Cafe of it's Coming to a Trial. In the Jormer Cafe, of Judgment
againft the Cafual Ejcdfor, (and fo alfo upon Non-fuit on not con-
fefling Leafe Entry and Oufter,) it direds " That it fliall be made
*' to appear to the Court where the Suit is depending, by Affida-
" VI T, That half a Year's Rent was due before tlie Declaration
" was ferved ; and that no fufficient Diftrefs was to be made upon
" the Premiffes, countervaihng the Arrears then due ; And that the
" LefTor or Leilors in Ejedment had Power to re-enter:" In the
latter Cafe, (of it's Coming to a Trial,) the fame Thing muft be
proved upon the 'Trial.
The prefent Queftion is upon a Judgment of the former Kind,
viz. againft the Cafual Ejedor, by Default ; and upon an Ejedment
brought UNDER and by Virtue of this A51. And We muft take
and prefume it to be a right, regular, and good One ; as nothing ap-
pears to the Contrary.
And this Cafe is not at all like the cited Cafe of Jefferies v-
Dyfon, 2 Strange 960. Where " in an Adion for mefne Profits^
' ' the Plaintiff offered a Recovery in Ejedment againft the Cafual
*' Ejedor ; upon which no Writ of Pofteffion had iffued : And
" when the Defendant would have gone into the Title, the Plain-
" tiff infifted that he was ejlopped from doing fo, by the Judgment
" againft the Cafual Ejedor." But the Ch. Juftice held " That
" though it would have been an Eftoppel, if the then Defendant
" had been made a Defendant in the Ejedment and the Verdid
" againft him ; yet that that Judgment to which he was no Party
" could be no Eftoppel to Him :" And therefore the Ch. Juft. ad-
mitted the Defendant to controvert the Title- And that Diftinc-
tion is right, there : But it is not like the prefent Cafe.
I am of Opinion the Plaintiff here has no Title.
Mr. Juft. Foster was of the fame Opinion.
The Judgment is certainly good, till fet afide. The prefent Ob-
jedion, " of the not producing fuch an Affidavit," is grounded
upon the Ad of 4 G. 2. c. 28. And that Ad does require fuch an
Affidavit : And for that very Reafon, We muft prefume " That
*' there ijoas fuch a One made ; and that the Judgment was founded
" upon it." But the Plaifitiff in that Ejedment has it not : It re-
mains in Mr. Co^vper'i, Office.
2 Clearly,
Trinity Term 31 Geo. 2. 621
Clearly, the Plaintiff has no Title.
Mr. Juft. WiLMOT alfo concurred.
He faid it would be unreafonable that the now Plaintiff (hould
recover from the Landlord, after almoft 20 Years Acquiefcence ;
and after the Landlord may have improved the Eftate.
He alfo agreed to the Cafe of Jefferies v. Dyfon : But denied it
to hold in this Cafe.
This Ad was made to compel Leffees to bring their Ejeftment,
or their Bill in Equity, within a limited Time. And this is
ftatcd to be a Proceeding " under and by Virtue of that Act."
Therefore there viuH have been fuch an Affidavit, though the pre-
fent Defendant did not produce it.
Per Cur. unanimoufly,
Judgment for the Defendant.
D'cdnefday yth
M
Rex verf. Inhabitants of Painfvvick. jZ'e ij^s^.
R. Morton fhewed Caufe againfl: quafhing the two following
Orders.
Two Juftices removed Ifaac Moorman, Hejler his Wife, and
W. T. H. A. and y. their Children, from Cirencejler to Painfisuick,
Both in the County of Glouccjler : And the Seffions confirmed their
Order.
The Special Cafe, ftated upon the Order of Seffions, was That
on the 13th of Septejnber 1737, the Pauper Ifaac Moorman was
bound Apprentice, by Indenture, to One Henry Phips of Painfwicky
Taylor, for Seven Years ; and lived with him, as his Apprentice,
under the faid Indenture, in the faid Parifh of Pain/wick, for three
Years and upwards : And then, the faid Phips failing, the fiid Ifaac
Moorman left him, and never returned to him again. That in the
Year 1753, the faid Ifaac Moorman took a Hotfe lying in the faid
PariOi of Cirence/ier, of One Thomas Cii ford, for a Year, at the
Yearly Rent of 32 Shillings and 6 d ; and agreed to pay the Land-
Tax and Poors Taxes, a?id all other Taxes, for the faid Houfe, for
the faid Year.
That the Poors Rates of the faid Parifh of Cirencejier being pro-
duced in Court at the faid Trial of the faid Appeal, It appeared,
7 T from
622 Trinity Term 31 Geo. a.
from them, to the Court, That the Poors Taxes for the faid Houfe^
during the Year the faid Ifaac Moorman rented the fame, were
rated or charged in the Manner following j viz, " Thomas Clifford^
" OR Ter.ant."
That the fiid Ifaac Moorman occupied the faid Houfe, during the
faid Year for which he took the fame, and more ; and paid the
faid Year's Rent and the Land-Tax and Poors Rates and ail other
parochial Taxes for the faid Houfe, during the whole Time he fo as
aforefaid occupied the fame Houfe ; and had feveral Receipts given
to him, in his oian Name, by the Overfeers of the Poor of the faid
Parifh oiCirencefter, for feveral Pay metits by him to them made to
the Poors Rates of the fame Parifli j One, only, of which Receipts
was produced and read in Court at the faid Trial : But that the faid
Ifaac Moorman did not know whether his Name was or was not in-
ferted in the faid Rates.
And that the faid Thomas Clifford, during the whole Time of the
faid Ifaac Moorman'% fo occupying the £id Houfe as aforefaid, lived
five Miles difiant from the faid Parifli of Cirenccjler.
V. Stat. 3, 4 IV. & M. c. II. § 6. F. Rex v. Inhabitants of
Sarratf, M. 9 G. 2. B. R. Where it was adjudged " that the Per-
" fon muft be charged, as well as pay." V. ante Rex v. Inha-
bitants of Uffcuhne, P. & Tr. 1757. Where Lord Mansfield
feems to fav " That the Naming the Pauper to be the Tenant is not
" neceffary : For that it may, without that, ht fufficient Notice
" of hid being an Inhabitant."
A". B. Mr. Vernon, who moved to quafh thefe Orders, alledged
" That this Man was fufficiently charged, to notify to the
" Parifh of CirenceJiiT that he was an Inhabitant there ; and
" confequently gained a Settlement in Cirencefter by the Pay-
" ment of the Rates fo charged."
Now, Mr. Morton fhewed Caufe : Which was, that this Pauper's
Settlement was in Painfiaick ; And that he had not gained a new
One in Cirencc/ler, becaufe he was not rated there. 2 Strange
1023. Rex y. Inhabitants of Bovindon, proves that \}c\z Party mufl
be rated : For that the R.at-ng is the Act of the Parifh, and is what
gives the Settlement. Now it is only the Houfe, here, of Thomas
Clijford: But this Man {Ifaac Moor ma?i) Himfilf h not rated : He
is neither exprefly named, nor even perfonally hinted at.
Mr. Afon contra, for quafliing the Orders.
Here, the Man is rated : For it is faid that " the Poors Taxes
" for the faid Houfe during the Year that the faid Ifaac Moorman
I "rented
Trinity Term 31 Geo. 2. 623
" rented the fame Houfe, were thus rated or charged; viz. Tho-
" mas Clifford, or 'Tenant j" /. e. Clifford's Tenant j which is a per-
fonal Rate.
But, however, Rating the Houfe is enough. 2 Salk. 478. Between
the Inhabitants of St. Mary le More, and Heavy-tree — is in Point
" That a Rate for a Houfe is fufficient, without a Rate on his
" Ferfonr
(Lord Mansfield was gone to the Dutchy Court.)
The Three Judges were clear about this Matter, That the
Pauper was sufficiently rated to gain him a Settlement in
Cirencejler.
Mr. Juft. Denison thought that the Court ought not to be over-
nice and critical in requiring a fcrupulous Striftnefs as to the Form
and Terms of rating Perfons : And he even hinted that Rating the
Houfe only might, for aught that he faw to the contrary, be fuffi-
cient . For the Parifh could not but know who was the Occupier.
Therefore He held this to be fufficient to gain him a Settlement,
having paid the Rates accordingly.
Mr. Juft. Foster alfo held that this was a fufficient Notice to
the Parifli; though the Tenant was not particularly and exprefly
7iamed by his own proper Name.
Mr. Juft. WiLMOT held this to be equivalent to the aSfual
Naming him ; and it is not ncceffhry that he fhould be exprefly na-
med : Which He faid, had been lately fo determined ; though He
did not recoiled: the Name of the particular Cafe.
Both Orders quashed.
Cottingham verf. King.
Pafch. 31 G. 2. Roilo 179.
THIS was a Writ of Error brought upon a Judgment of the
Court of King's-Bench in Ireland; who had affirmed a Judg-
ment in Ejedment given for the Plaintiff by the Court of Common
Pleas there, after a General Verdidl for the Plaintiff.
In this Ejedment, the Parcels are defcribed to be (amongft Others
therein mentioned and included) 5000 Meffuages, 5000 Cottages,
10,000 Acres of Land, &c ; in all thofe the Lordfhips, Manors,
and late-diffuived Abbey or Monaftery of Boyle and Infemacranaw ;
and
Friday Qth
June 1758.
624 Trinity Term 31 Geo 2.
and Quarter of Land oiTall^gh, with the Town and lis ne-
MENT o( Boyh', and Fairs and Markets thereunto belonging, in the
Cou NT Y of Rvfcommon ; And all thofe the Lands and Hereditaments
called Grangcmoore, (with many other Parcels, defcribcd by the
Name of Quarter?, fome containing fo many, others fo many
Acres;) and paj-t of Siunternat, &c. a large Deer- Park &c ; and
the 'P.\r{oncLge of Lo?jg ford &c ; \n the Covnty of RofcoNimon ; and
a fmall Park or Field, in the Pojftfion of&c.
On this Ejeftment, there had been (as is above mentioned) a
General Verdidl for the LefTor of the Plaintiff; and Judgment for
him, in C. B. in Ireland. And afterwards, A Writ of Error was
brought upon it, in B. R. in Ireland : And General Errors were af-
figned. The Court of B. R. in Irelajid affirmed the Judgment of
the Court of C. B. there. And upon this Judgment of Affirmance,
the prefent Writ of Error was brought.
Many Exceptions had been taken in Ireland, on the Part of the
Plaintiff in Error, upon the Writ of Error brought in the King's
Bench there. But
Mr. A(l:urfl, who argued for the Plaintiff in Error here, faid he
would no%o only take Exception to the Uncertainty cf the De^
fcription of the Premiffes fpecified in the Declaration : Whereas in
Ejeftment there ought to be a fujicietit Certainty ; that the Sheriff
may know how to deliver Poffeffion. i Brownlow 142. Challener v.
Thomas : " An EjeBment will not lie, De Aqucz Curfu." i Ld. Raym.
I'jj. Shalmer v. Piilteney, feems to concede that an Ejedment will
not lie " de quodam JEdifcio\" for the Uncertainty of the Term
Mdificiinn. In Slylei 30, It was doubted whether an Ejectment
lies " de uno Crcfto.'' Dyer 84. b. in Affize " de quadam portione
" Decimarum ^r," It was objected that the Plaint was un-
certain.
This is an entire Judgment, and entire Damages: And it is
particularly liable to Exception, in the following Inftances ; wz.
iftException. jft. No Fill 2,K all is mentioned throughout the whole Declara-
tion : The Lands ^c are only defcribcd to lie (generally) " in the
" County of Rofcommon:'' This Defect runs through the whole De-
claration.— Cro. Eliz. 822, Gray v. Chapman, is in Point; and by
the whole Court: " The Declaration in Ejectment was holden ill,
" for not alledging in what Vill the Tenements were." Hob. 89.
Rich V. Shere, is moft exprefly in Point: And the Judgment was,
for this very Caufe, reverfed in Cam' Scacc' . 2 Barnes, 150, Good-
7-ight en the Dcmife of Grijfin v. Faiifon: The Judgment was ar-
reited for the fame Uncertainty, " in which of two Pariflies the
Meffuage flood."
2d.
Trinity Term 31 Geo. 2. 625
2d. The Words are — " With the I'own and 'Tenement of 5o>'/^ zd Exception;
*' and Fain and Markets thereunto belonging." Now Ejectment
will not lie for a Town ; nor for a Tenement, generally, i Sid. 295.
Birbury V . Teomam : Ejectment " de j Mejfuagiis Jive Tenementis,"
was holden ill, after a general Verdict. Cro, Eliz. 186. Wood v.
Payjie was the fame Determination, in an Ejectment " de uno Mef-
" fuagio five Tenemento." i Lord Raym. 191. Coplefion v. Piper:
The two Powells Juftices faid, and T-eby Ch. J. agreed. That Eject-
ment " de uno Tenemento" is ill, for the Uncertainty. 2 Strange
834. Goodtitle V. Walton — : After Verdict for the Plaintiff in Eject-
ment, Judgment was arrefted ; And it was holden That an Eject-
ment " de uno tenemento" will not lie. i Barnes 117. Makepeace
V. Hopwood : Judgment in Ejectment was arrefted for the Uncer-
tainty of the Words " One Mefluage or Tenement."
3d. " A ^larter" is another Term ufed in the Declaration : 3d Exception.
Which Term is totally uncertain ; and even appears to confift
of different Numbers of Acres fome, more; fome, lefs. Teh. 1 17.
St. John V, Commyn — : Ejedment " de Cajlro villa et terris de Kil-
" brotigh in Com' &c," was holden infufficient for want of exprefling
the Number and Certainty of Acres. And that Cafe is like the
prefent ; Which is " the Lands called &?<::" but they are defcribed
by the Name of " One garter &c;" Which Term does not con-
vey an Idea of any determinate Number of Acres.
4th. It is of " Part of S. M. & D :" Which is abfolutely un-4thExcep-
" certain and vague.
tioa.
5th. And of " a large Deer-Park in the County of Rofcommon :" 5'*> ^xcep-
Which is vaftly too uncertain and indeterminate. "°"'
6th. " Of a fmall Park or Field, in the FofTeflion of &c ; not 6th Excep-
fpeci/ying WHERE. 11 Co. ^^. Edward Savel's Cafe : Ejedment ^'°"*
©f " a Clofe called Dove-cote C/ofe, containing 3 Acres." The
Judgment was arrefted, for not fpecifying what Nature and Qua-
lity the three Acres were of. i Shower 338. Knight v. Symmes :
Ejedtment of " 5 Clofes of Pafture and Meadow, called Faldowne,
" containing ten Acres:" But did not diftinguiili how many of
' One, and how many of the Other. Judgment was arrefted, after a
Verdidt for the Plaintiffj for want of fufficient Certainty, i Salk.
254. S. C: And Holt Ch. J. is there faid to have affirmed aS<jw/'s
Cafe for Law.
7th. The ^antity and Ratify of the Lands is not fufficiently 7th Excep-
fhewn. "o"-
7 U Therefore
626 Trinity Term 31 Geo. 2.
Therefore, for thefe Exceptions, He prayed to reverfe the Judg-
ment of the Court of King's Bench in Ireland,
Mr. Williams, who argued for Sir Edward King, the Defendant
in Error, faid That the Merits of the Title to this Eftate (an Eflate
of 8000 /. per Ann.) came in Queftion in C. B. in Ireland-, Where
Lord Kingjhorouglf % pretended Will was found to be a Forgery :
And the Court of King's Bench there affirmed the Judgment of C.
B, there. And being after a VerdiB upon the Merits, the Court
here will prefutne what they can in Favour of the Judgment.
And as to the Exceptions——
ifl. " 5000 Meffuages, 5000 Cottages &c &c, in the Lordjl.nps
** and Manors of ©'f late belonging to the diflblved Abbey or Mo-
" naftery of &c in the County of i2." is fufficient without naming
any Vill. For a Manor is as notorious in it's Boundaries, as a Pa-
rifh : So alfo is a Lordfhip.
The " Parifh of ^. or B." has been holden fufficient. For Proof
of which, he cited a Cafe (which does not perhaps quite prove it j)
^iz. 3 Lev. 334. Goodwin v. Blackman : Which was an Ejedtment
of Lands in K. ^ G. whereas the whole lay in K.
And after a Verdi5i, this Manor (hall be intended to be a Vill.
" Parijli" fliall be intended to be a Vill, prima facie. 2 Salkeld ^01,
Rudd V. Moreton — : It is faid to have been fo adjudged in the Cafe of
Wiljon V. Laws, in M. bW. 3.
And if a Place be named generally, that Place fliall be taken to
be and intended a Vill — This was adjudged, (as is alfo faid in 2
Salk. 501.) in the Cafe of Vinckerjhn v. Rbden, M. 10 JV. 2,.
B. R.
adly. As to Ejedment not lying for a Town, or for a Tenement.
After a VerdiB, the Court will intend the Lands to be Parcel
<jf the Townfiip : And they fhall pafs with it. And to fupport this
Pofition, he cited Cro. Car. 168. Gen7iiugs v. Lake; Where tlie
Court conceived that the Land might be faid to be appendant to the
Houfe. 3 Keble 44. Zmith v. Martyn ; Wliere a Garden was al-
lowed to be demifable, as Parcel of a Mefiuage. Doe, ex dim'
Saville V. Borlace et al' determined in the Houfe of Lords (on a
Judgment in the Exchequer) 11 March 1735: (Which he cited
from the Refpondent's Cafe, upon the 4th Exception,) " That the
" Advowfon and Common fliould be intended to have been ap-
" pendant
Trinity Term 31 Geo. 2. 627
*' pendant to the Manor." So here, the Lands may pafs as appen-
dant or behnging to the Town(hip ; though not alledged to be Part
of it. So, " Communia Pajlura," generally, fhall, after Verdift,
be intended to be fuch Common, for which an Ejeftment will lie,
as Common appendant or appurtenant, i Strange 54. Neivman
V. Holdmyfajl is exprefly fo determined. And an Ejedlment will
lie for a 'Town ; and alfo for a Tenement^ where it is reduced to a
Certainty.
Mod of Mr. Jpurft'% Cafes are in the disjundiive ; " MelTuages
" or Tenements." However, here the Word " Vocatd" renders it
certain enough. i Lev. 65. Lady Dacre'% Cafe : Tiny den faid
that though an Ejeftment will not lie of a Croft; Yet it will lie of
" a Croft called Black Acre:' i Siderf. 295. Biirbiiry. v. Teonmis:
He repeats the fame Affertion. And in both Places, He gives the
Reafon ; viz. " That this renders it certain." And here, it is
" the Town and Tenement of Boyle :" Which Appellation of it by
it's Name, afcertains it fufficiently. And this is agreeable to what
is faid in 3 M?^/. 238. Hexham v. Cottiers ; " That the adding vocat.
" the Black Sican, to the Words Meffuagium five Tejiementuni^
" makes it certain that the Tenement intended is a Hoiife."
And the old Rule about the Sheriff's being neceflarily to be in-
formed fo exactly upon the Record, " What he is to deliver Pof-
" fefTion of," is now out of Ufe, and is not to be regarded. For
the Plaintiff in Ejedlment is to take Poffeffion, at his Peril, ac-
cording to his own Shewing. Savile 28. Cafe 67. ^een v. Ayle-
loorth : Mauwood, Chief Baron, exprefly declares this ; and fays
" It was the Opinion of the Chief Juftices in the Star-Chamber."
1 Strange 695. Sullivane v. Segrave — An Ejedtment " de parte
" Domus," was holden fufficient, upon the fame Principle. 2 Ld.
Raym. i^jo. Bindover v. Sindercomb : An Eiedlment of " Part of
" a Mote, Parcclla Arece, ParcellaPonmrij &c," was holden good,
upon Error, after Verdidl. 2 Ld. Raym. 789. Camrll v. Clavcring :
An Ejecftment was brought in the Exchequer, " de minutis Deci-
" mis:" And, after Verdid and Motion in Arreft of Judgment,
Judgment was given for the Plaintiff, by all the Barons. 1 Salk.
255. IFhittingham v. Andrews : Ejedment " de mincris Carboiium,"
(generally,) without (hewing the Number of Mines, was holden
good, in Durham, where the Courfe was lb, and of which the
Court took Notice. And fo the Court will take Notice of the
Kingdom where this Ejedment was brought: And Eight of the
Judges there have determined this to be a fufiiclent Defcription, in
that Country ; And this Court will give Credit to them. 2 Keb. 745.
•* Jane v. Polyxphen : The Court conceived an Ejeftment brought * J^-^rn
in Ireland, of " 20 Villis ct Terris," to be good. Cro. Car. ^ j i . «^^^ ^ jo*^™-
Mulcarry et al' v. Eyres ct al' : An Eje<fimcnt in Ireland, " of ico
2 ' Acres
628 Trinity Term 31 Geo. 2.
" Acres of JS<5^^^, in Villis et Territoriis de D. S. & F." was hold-
en good, 1 Strange 71. Ld. Kildare v. Fijher : An Ejectment of
" 100 Acres of Mountain," was held good in Ireland. And this
laft mentioned Cafe was a folemn and unanimous Judgment, after
confulting the Lord Chancellor and Judges of Ireland.
« Tt is report- ^dly. As to the Term " garter" — The Cafe cited from * Teh.
ed to be pir j^ ^^^ ^■^^ Determination of the Court : Nor was that the
Cuf'tatf: ; ana /
witn a No.'a Point before them. And " a garter" is a known Defcription in
ierJ, too. Xreland : Every Child knows them. That Courttry was divided
into Quarters, when Ld. Strafford was Ld. Lieutenant there.
As to the 4th, 5th and 6th Objedlions. His Anfwer was, That
they All belong to the Townfliip : And befides, they may be the
Names of the Clofes.
ythly. And as to the lafl: Objedion — He infifted that the Quan-
tity and Quality of the Lands are fufficiently fet forth : And then an-
fwered the Cafes cited on the other Side. As to Savel's Cafe — That
Cafe was doubted in Ld. Raymond's Time ; and has been lince
difiUowed, or at leaft called in queftion. F. 2 Ld. Raym. 1472.
Bindover v. Sindercombe. Comberb. 198, 199. Knight and Symms :
Per Eyres Juft. — The latter Opinions are againfl: Savel's Cafe.
Though the Chief Juftice indeed there fays " That an Ejedtment
" ought to be as certain as a Pracipe quod reddat."
Mr. Jpurjl in Reply — I know Nothing of the Merits of this
Cafe : 1 am only to argue upon the Record.
2d Exception. Thefe Premiffes cannot pofTibly be intended to lie
within tlie Townfiip oi Boyle : They are only defcribed generally, to
be within the County of Rofcommon. I fay that an Ejedment will
not lie of the Town and T^enement itfelf: Therefore, confequently,
neither will it, of thefe Premifles as belongiiig thereto.
Poflefllon mufi: be delivered at the Peril of the Sheriff, as well
as of the Plaintiff. " De pa?-te Domus" is much lefs uncertain, than
an undefined Part of a great EJlate. I agree that if the Defcription
be known in Ireland it is enough. But I fay that this Defcription is
every where uncertain.
3d Exception. In Teh. \iy. The Point for which It is cited, is
+ Not direaiy taken -}- alfo into Confideration, as well as the Principal Objection.
and princi-
but^pofitiveiy Lord Mansfield — This is after a Trial and VerdiB in C. B.
and explicitly. Jn Ireland : And the Objedion is, the Uncertainty of the Claim or
Defcription of the Premifles in the Declaration.
I In
Trinity Term 31 Geo. 2. 629
In a Prcecipe in a real Action, which is a formed Writ, Preci-
iion is requifite : Becaufe it was neceflary to follow the Form pre-
fcribed by the Regifter.
Whilfl Ejeflmcnts were compared to real Adtions, and Argu-
ments were drawn from Analogy with them, they muft be, of
Courfe, JWfereJ : And this was fo, till after the Reign of King
James the Firft. But of later Times, an Ejedlment has been con-
fidered with more Latitude; as a Fiftitious Adlion to try Titles
with more Eafe and Difpatch, and lefs Expence.
Even in a Pracipe, I do not know whether the Sheriff could
always be quite certain, Which were the particular Acres &c, of
which he was to deliver Poffeffion. But in this Jidlitious Adtion,
the Plaintiff is to yZvic the Sheriff; and is to take Poffeffion at his
Peril, of o}jly what he has Title to : If he takes more than he has
recovered and fliewn Title to, the Court will, in a fummary Way,
fet it right. So that fuch a very exaft Defcription is not equally ne-
ceffary in this Aftion, as in a Pracipe.
However, there are in this Cafe, (as it is particularly circumftan-
ced,) two Things, which carry it much farther than the general
Cafa of Ejedlments, and aredecilive: For it is after VerdiSl ; and
it is from Ireland. The Title has been tried by a fury of Ireland,
where the Lands lie ; Evidence has been given to them, upon which
they have found for the Plaintiff; and T-ivo Courts there have given
Judgment for the Plaint'ff, without Difficulty.
The Denominations of Land may be certain and known there',
though unknown here : For Words and Names are arbitrary. Ejedl-
ments have been brought there, of Mountain, of Bogg ; nay of
Mountain in a Bogg : And a Certificate has been given by Judges
ol Ireland, that the Term " Mountain'' does not neceffarily include
Situation but defcribes ^lality; that Fines, Recoveries, Writs of
Dower, and Settlements of it, are frequent there ; and Ejedments
ufually brought of it.
And there, it is frequent to dcfcribe the Lands of great Eftates,
even in their Settlements, by " I'owtis :" 1 know this, of my own
Knowledge.
Ireland was planted and fettled by Degrees, both formerly and
lately ; And Toivris came, by Degrees, to be known and certain
Defcriptions : And fo, " ^^r^^ri" might be, zher Cromwell's Set-
tlements there, and the Divilion of it into Quarters. " 'Town" and
*' Tenement", are here ufed as fynonimous Terms.
7 X However,
630 Trinity Term 31 Geo. 2.
However, the Jury of that Country underftood it ; and the Two
Courts of that Country underftood it, and have made no Difficulty
about it : And therefore I am fure I will not, after this, fay " that
" it is not to be underflood."
Mr. Juft. Denison was of the fame Opinion " That the Judg-
" ment ought to be afHrmed :" And He held the Defcriptions to
be fufHcient.
In a Pracipe quod reddat, it was necefTary to defcribe the Lands
formally, once : But it is not fo, in an EjcSJment.
I take this prefent Ejeftment to contain, firfl, a general Defcrip-
tion, which takes in the Whole : And afterwards, the Eftate deman-
ded in it, is defcribed particularly and in Parcels, " luhat it confifts
" of." This was fettled in the Cafe that has been mentioned. Doe
ex dimiJI'. Savill v. Borlace, Tr. 9 G. 2. in Cam' Scacc';" (which
I argued.) It was after a Verdidl ; and was an Ejeftment for Tithes
oif various kinds: And two Things were there holden ; ift. That
being after Verdidt, it was to be intended as brought of fuch Tithes
only, for which an Ejedment would lie; and 2dly. that there was
no Objeftion to a bis fetitum in an Ejectment. And fo here, I
take it that this Manner of defcribing the Premifles is a bis petiium,
a fecond Defcription of the fame Thing.
And as to the Cafes that have been urged in Support of the Ob-
iediions, There has been a greater Latitude of late Years, than for-
merly : Whatever Striftnefs was ufed at firft, it is certain that Ejed:-
ments are now confidered upon a more liberal Foot. " Town" ap-
pears, bv what has been faid, to be a common and known De-
fcription in Ireland. " Mountain" alfo appears to be a known De-
fcription there: And Fines, Recoveries, Writs of Dower, Ejedments,
and Settlements ufe it as fuch. In the Cafe of Z,^/. Ki/dare v. Fiper,
the Cafe of Holbourn v. Babhington in Dom' Proc', is faid to have
been reverled upon another Point : And They gave Credit, in that
Cafe of Ld. Kildare v. Fijler, to the Certificate of the Irijl:/ Chan-
cellor and Judges.
And " garter" may be a Term as well known in Ireland as
" Mountain" is : And in this Cafe, I ftiall intend it to be fo.
Mr. Juft. Foster concurred, for the fame Reafons.
So alfo did Mr. Jufl:. Wilmot. And He added that He never
could undcrftand that Manner of Reafoning, fo often urged upon
Arguments of this Sort, 'uiz. " That the Defcription muft neceffa-
" rily be jo certain that the Sheriff may be able exadly to know,
3 '' without
Trinity Term 31 Geo. 2. 631
*' without any Information from the Plaintiff, of what to give Pof-
" feflion :" Which is not true ; for fuch Precifion is ?iot necrjj'dry in
an Ejedment.
After VerdlEl^ this Defcrlption mud be intended to be fufficicnt.
Fer Cur. unanimoufly,
Judgment affirmed.
Rex ixrf. Earl Ferrers. Saturday loth
-I -June 1758.
ON Wednefday 26th "January 1757. Mr. Norton moved, either
for an Attachment again ft the Earl, for not returning a Habeas
Corpus already iflued, and returnable immediate, commanding him
to bring up the Body of his Countefs (Sifter to Sir William Meredith ;)
cr for a new^ Habeas Corpus, accompanied with an Attachment.
He faid that the latter had been done in the Cafe of Rex v. T)r.
Wright, M. S G. 2. B.R; And that the Reafon of iffuing the At-
tachment at the fame Time with the Habeas Corpus, was for Pre-
vention of a Delay which might, in certain Cafes, render the Re-
medy inefFedlual. * * This Cafe
■' was not at all,
as cited. See
Lord Mansfield afked Mr. Norton, Whether He knew any it in 2 5/ra«5<>
Inftance of an Attachnmit accompanying a Writ. He faid He^'S-
underftood an Attachment going, for not having obeyed a Writ :
Bat did not know any Inftance of an Attachment going out together
•with the Writ.
Mr. Norton ftated Wright's Cafe, from a Note taken by a Gentle-
man who has now left the Bar ; -f Where Lee, then a Puifne Judge t The Note
held it mid^t be done : Though, in that Cafe, Wright did after- ''^'^ '^''^'^
wards return the Writ in Courts roneous.
Note — In the prefent Cafe, Mr. Juftice Fofler had granted a
Habeas Corpus : Which was ferved on the Earl, by Sir William
Meredith. But Sir WiUiam at length agreed not to profecutc
it J on Condition that his Lordfliip fliould carry h^.<^y Ferrers
to Bath ; which the Earl promifed, but had not performed.
M-T.^ Norton faid He would take Nothing by his Motion. And
Mr. Clayton moved for a neio Writ, returnable in Court immediate.
Which was granted.
Lord
632 Trinity Term 31 Geo.
Lord Ferrers negledling likewife to obey this feconJ Writ of Ha-
bcas Corpus, the Counfbl for Sir IVilliam Meredith (on Behalf of his
Sifter) intended, on Tiiefchiy the 8th of February IJ^J. to have
moved for an Attachment agalnft Lord Ferrers, for this his Difobe-
dience : But fonie Doubts and Difficulties having been ftarted by
Members of both Houfes, concerning the Privilege o/"Pf.erage ;
and " whether the Court of King's Bench could iflue an Att ach-
" ME NT agaijift a Peer during the Sitting of Parliament, and execute
*See5^fo«'s" it upon him, otiLY for <2 * Contempt to their Court," Sir
^Tt oHhe^ William Meredith judged it prudent to petition the Houfc of Lords,
Law, Vol. 3. for their Leave to proceed againft the Earl ; and accordingly, did
fo 5. Title Yefterday, (by the Hands of the Earl of //^^/wor^/^W,) deliver fuch
ItTlcigiil'^ Petition, ftating the Fads. Lord Delaware oppofed it; and faid,
Cafe,inpomt;It was too fummary and hafty a Method of determining upon their
and fo. 6. Privileges ; and propofed referring the Matter to a Committee, and
ffxhat an fummoning Lord Ferrers to anfwer it in his Place : And to obviate
Attachment the Objedions which might be made to this Method on Account of
r/^n'hfprer ^^^ ^^^^y. He offered fome Schemes for the intermediate Safety of
refufesObedi the Countefs, But Lord Mansfield anfwered Him, and fpoke in
ence to the Support of the Jurifdidtion of his Court, and the Unreafonablenefs
bdng'2.(^l'. ^'Viuftice and Inconvenience of allowing fuch a Privilege in Cri-
tttnpt a Peer miual Cafcs and Breaches of the Peace. The Duke of Argyle then
has NO pw- fpoke to the like Effed:, and expreffed a Surprife that there fhould
be any Doubt about it ; the Reafon of the Thing being fo clear
and plain. Laftly, the Earl of /il^n/ra/V/^ fpoke flrongly and parti-
cularly in Support of the fame Dodtrine, and adduced many In-
ftances and Precedents in Proof of his Pofitions ; and concluded with
propofing, that to put an End to all Doubt about it for the future,
the Lords Hiould come to a Refokition; And accordingly they did
come to the following Refblution or Declaration, and Ordered it to
be entered on their Journal; viz. " y Februarij I'J'^J. It is Or-
" dered and Declared, That no Peer or Lord of Parliament hath
" Privilege againft being compelled by Procefs of the Courts of
" JVeJhriinfter-Hall, to pay Obedience to a Writ of Habeas Corpus
" direfted to him."
(And it was afterwards, viz. " Die Mercurij 8 Jiimj ly^J.
*' Ordered, and Declared by the Lords Spiritual and Temporal in
" Parliament aflembled. That no Peer or Lord of Parliament hath
" Privilege of Peerage or of Parliament, againft being compelled by
" Procefs of the Courts in IVefttninjler-Hall, to pay Obedience to
" a Writ of Habeas Corpus directed to him." And it was then
and thereby further Ordered, " That this Order and Declaration be
" entered upon the Roll of the Standing Orders of this Houfc.")
On !
Trinity Term 31 Geo. 2. 6'^'^
On the 8th o{ February 1757, Mr. Norton renewed his Motion
for an Attachment againft the Earl : And he produced Affidavits
of his Lordfhip's Difobedience to the Writ, and continuing his
ill Ufage of his Lady.
All the Affidavits (quite from the Beginning of this Affair) were
read.
Lord Mansfield — This is 2l Habeas Corpus at Common Law ^
which is a Prerogative Writ, for the Liberty of the Subjedl. The
Court may inforce fpeedy Obedience to it : And the Circumjiances of
this Cafe (where Delay may be very dangerous), require it. It is
reafonable that the Lady fhould have Opportunity of laying her Cafe
before the Court j and fwearing the Peace, if She thinks proper, in
Order to obtain the Protedlion of the Court. The End of this
Courfe that We now take, in iffuing an Attachment to inforce
Obedience to the Writ, is to have this Lady produced for this
Purpofe.
And therefore We think, under the * extraordinary QV- *Oneofthefe
cumjlances of this Cafe, an Attachmetit fhould iffue ; to inforce Obe- was detaining
dience to this Writ of Habeas Corpus, which fo much affedls the S'^S?"'
Prefervation and Security of this Lady. (who himfelf
ferved the
But at the fame Time, His Lordfhip intimated to them, not ontheEaH.^
/O EXECUTE zV AT ALL, it' it WaS pofllble to obtain the End of and drawing
their Application by any gentler or other Means ; the End and In- ^.'''''°' "P°"
tention of granting it, being only to have the Lady immediately cheiienging
brought up. him.
K-
Mr. Juft. Den I SON (the only other Judge in Court) only faid
that an Attachment ought to go"
Ordered That a Writ of Attachment iflue againft The Right
Honourable Laurence Earl Ferrers.
In Confequence whereof, The Earl having been ferved with the
Writ, (or at leaft having had it notified to him) by the Under-She-
rifF of Leicejierjlnre, accompanied by a Brother of the Countefs ;— •
On the Saturday following He appeared in We/lminJler-HaU ; and
about one o'Clock, fent a Meflage into Court, to Lord Mansfield,
*' defiring to fpeak with him."
Lord M^sfield bid the Meflenger tell his Lordfhip, " That
" when an ilnair was depending before the Court, He could not
" fpeak with any Body about it, but in Court. '\
7 Y Soon
634 Trinity Term 31 Geo. 2.
Soon after, the Earl came upon the Bench, and fpoke to Lord
Mansfield. It was not eafy to underftand what he faid, as he fpokc
pretty low : But I imagine he propofed putting fome certain
Queftions to his Lady ; For Lord Mamjield'% Anfwer was, " That
" when Slie came into Court, Ail proper Queftions would be
« afked her."
Sonne Time afterwards, on the fame Day —
Lady Ferrer i came into Court, and had Articles of the Peace ready
to exhibit againft the Earl.
Note — Nothing more was faid concerning the Habeas Corpus or
the Return of it ; The real End of it being fufficiently anfwered,
by her being left at Liberty to come to -this Court, in order
to obtain it's Protedion.
Sir Richard Lloyd and Mr. Gould, for the Earl, defired Leave to
alk Lady Ferrers one or two Queftions, previous to her fwearing I
to the Articles which She had prayed Leave to .exhibit.
■ But Lord Mansfield told her Lady (hip, That She was not obli-
ged to anfwer any Queftion previous to her fwearing the Peace.
And He told Sir Richard that the prefent Bufinefs was only to
obtain Security of the Peace.
Juft at this Time, The Earl came into the Body of the Court,
(upon the Floor, not upon the Bench;) and defired to afk Lady
Ferrers " Whether an Affidavit which flie had lately made, in
*' the Country, before a Commiffioner authorized by this Court
" to take Affidavits, was made by .Her njoluntarily, or involun-
" tarilyr
Note — This was an Affidavit (in which She had joined, during
her being in his Power in the Country, after the ilfuing of the
Habeas Corpus-^ Wherein fhe was made to fvvear " That She
" was content to remain with her Hufband, that She had no
" Complaint againft him, and that the Application made by
" her Relations for the Habeas Corpus was without her Dcfire
" and againft her Will." Which Affidavit her Friends faid
was fo far from being voluntary, that it was extorted from her
vnder Durefs ; and was the mere EfFed of Fear Force and Com-
pulfion, or at leaft of Ji'ery undue Infiuence. _
i
LORD
Trinity Term 31 Geo. 2. 635
Lord Mansfield perfevered in permitting her Ladydiip, witii-
out anfwering any Queftions, to proceed in exhibiting her Articles ;
And then afked the Earl, " if He had Security ready."
The Earl firft, and Sir Richard, afterwards, prefled that Lady
Ferrers might anfwer their Queftions : And Sir Richard dropped an
Intimation that the Earl's Regard or Difregard for her would depend
upon her Anfvvers.
But Lord Mansfield faid He had before told Her, that She need
not anfwer them : And now he would not fuffer Her, He faid, to
anfwer them.
Lord Ferrers went in and out of Court once or twice : But did
not, at this Time, give the Security of the Peace j Nor did Mr.
Norton prefs that He fhould give it -immediately.
On Wednefday the 27th of ^nV following. The Earl appeared;
and gave Security : Himfelf in 5000/. And each Manucaptor in
2500/.
Monday, 13th February 1758 The Earl having broken this
Recognizance in the Month of Auguft. 1757, by drawing a Pi-
ftol upon Lady Ferrers, at the Earl oi IVejimor eland" % at Mereworih
Cajlle in Kent ; He was taken up fome Time after, again, upon a
frefla Warrant from Lord Mansfield: And having given Bail on the
fame 13th Day of February I'j^)^. before my Ld. Ch. Juftice, (whilft
his Lordfhip was gone out to Dinner,) He prefently afterwards
came into Court, to appear. And upon the Return of the Ld.
Ch. Juftice—
TheCountefs alfo came into Court; and /uwv fresh Articles of
the Peace againft the faid Earl, grounded upon the above-mentioned
Ja(fl. After which. He (being ftill prefent) was called upon to give
Bail to thefe recent Articles of the Peace.
He had previoufiy given Notice of Two Perfons to be his Bail
before the Lord Chief Juftice : With One of which the Profecutors
were not fatisfied.
After feveral Propofals ; and after feveral Hints which came from
Lord Mansfield, as well as from Mr. Norton, " That it was necef-
' fary for the Earl to give Bail at prefent, and not to pray "Time to
do fo, as the giving it noiv was the only Method he could take,
if he expefted to remain at Liberty;" It ended in a Conipro-
mife to iSike both thefe Perfons as Bail now, and to give a few
Days time for the juftifying the doubtful One, (a Peruke-Maker,)
or for finding a better.
2 Accordingly,
6^,6 Trinity Term 31 Geo. 2.
Accordingly, He himfelf became bound in 5000 /. Mrs. Shirley
(his Mother,) in 2500 /. and Mr. John Bennifoldy Peruke-ma-
ker, in 2500 /.
The Earl's Counfel now moved to difcharge the Recognizance:
To which the Lady's Counsel after\vards confented.
r»efjayiii\i R^x veff. Thomas Dawes.
June 175,8. J
ON Thurfday laft, the 8th of June, Mr. Morton and Mr. Bur-
re/l, on behalf of the Commiffioners, fhew'd Caufe againft
making abfolute a Rule of laft Term, made upon the Commiflioners
in and for the County of Sufex, for putting in Execution the late
A6t " for the fpeedy and efFedual Recruiting His Majefty's Land-
" Forces and Marines," for them to (hew Caufe Why I'bomai
Dawes fliould not be difcharged out of the Regiment of Foot com-
manded by Colonel Thomas BrudenelL
They produced a Number of Affidavits ; and refted entirely upon
the Fads contained in them : Which fully proved (as they alledged)
that He was a proper Objeft of the A£l of Parliament ; and that the
Commiffioners had done Right 5 and that He ought not therefore
to be difcharged from the Condition of a Soldier.
'o"
Mr. Harvey and Mr. Norton, on Behalf of the Defendant Dawes,
(the impreffed Man,) on the contrary, argued for making the Rule
abfolute, for difcharging him.
They urged That this was a high and unconftitutional Authority
lodged in thefe Commiflioners, and without requiring from them
any Oath of Duty : And they endeavoured to fhew, from their Af-
fidavits, that the Man was not a proper Objedt of the Commiflioners
Jurifdidion. They argued therefore that He ought to be difchar-
ged ; Efpecially, as the Crown did not at all interpofe.
Note — The Regiment was gone abroad : But the Man himfelf
had firft dcferted from it.
The Court did not come to any Determination, then ; but took
Time, in Order to conlider the Affidavits on both Sides.
Now,
Trinity Term 31 Geo. 2. 637
Now, Lord Mansfield delivered the Oplulon of the Court; in
which. He faid, they were all agreed : And All of them, He faid,
had feparately read over the Affidavits.
Then He went minutely through the Affidavits on both Sides .j
and made the proper Remarks upon their different Reprefentations
of the Cafe.
The Refult was, That they clearly thought him to be a proper
Obje(a ; and that the Commiffioners had done Right.
Whereupon, they discharged the Rule.
Rex verf. Andrew Keflell.
THIS Point was exadly fimilar to the laftj being the Cafe of
a prefled Man, who applied to be difcharged out of Captain
'Temple's, Company in Colonel Duroure's Regiment, upon the Foot
of Injuftice done to Him by the Commiffioners, to whom He was
obliged by Force to fubmit : And the Queftion turned, ia like
Manner, upon the Man's being a proper ObjeSi of the CommiJJmien
yurifdiSiion, or not ; which depended upon the particular Circum-
ftances of the Cafe, fworn to, on both Sides.
:It was argued on the loth o£ yune, by Mr. Norton and Mr.
Bifiop for Kejfell, and by Mr. Hiijfey for the Commiffioners, upoa
the Fa£i only.
No Objedion was made, on Behalf of his Majefty, or of Colonel
Duroure.
The Court had taken Time, (as in the former Cafe,) to look into
the Affidavits. And now
Lord Mansfield declared the Opinion of Himfelf and his Bre-
thren, " That upon the Circumftances appearing in this Cafe, The
" Man was ?iot a proper Objeft of the Commiffioners Jurifdiftion ;
" and that He was, by an undue Exercife of the Power trufted to
" them, compelled to ferve as a Soldier."
And therefore They ordered That he fliould be forthwith dif-
charged. (But they would not give Cojh j though afked for,
by the Man's Counfel.)
7 Z Note —
638 Trinity Term 31 Geo. 2.
Note— In both thefe Cafes (of Dawes and Kejjell,) Neither of
them could have' brought a Habeas Corpus : Neither of them
was in Cuftody. Dawes had deferted, and abfconded : Kef-
fell was made a Corporal. Both prayed to be difcharged from
the Condition of Soldiers, upon the Ground of the Commif-
fioners having mifbehat^cd in the Exercife of a Parliamentary
Authority ; (for which Mifbehaviour, they might be liable to
an Information.) In neither Cafe, did the Counfel objeft. to
the Propriety of this Method : And the Benefit to the Subjedt
is manifeft.
Rex verf. Davis.
y.Rexv. '"■"^HE Defendant having been apprehended upon an Outlaw-
RogerJoh„/o>,, J^ j.y £p^ High-Treafon "in diminifliing the Coin of this King-
%.?""^' dom (viz. filing Guineas,) was brought up by Habeas Corpus from
the Place where He was taken j and afterwards committed to New-
gate : From whence he was brought up by Rule, on Tuefday 6th
June 17 S'^-
Mr. Norton, for the Crown, immediately prayed that he might
be afked " what he had to fay why Judgment (hould not pafs upon
" him."
And the Outlawry was then ordered to be read ; And was accor-
dingly begun to be read. But
The Court not having had any previous Notice of this, nor
liavin"- even feen the Outlawry, Adjourned it to the Saturday then
next following (the loth;) and Ordered that Copies of the Out-
lawry fliould be fent to them, in the mean Time.
The Defendant intimated " that he was out of the Realm at the
" Time of the Outlawry pronounced :" And he alfo intimated his
Defire to have the Affiftance of Counfel.
But per Lord Mansfield — The Court can notajftgh him Courtfel,
till he has pleaded: And then he may have Counfel, upon that
collateral Matter. However, the Court do not reftrain Counfel
from advifing him in private,
N B. The Sheriff of Middlefex was ready With a Jury, in Cafe
he had now pleaded " That he was not the fame Perfon.'"
1 - ' On
f
Trinity Term 31 Geo. 2. 639
On the {aid Saturday (loth Jime) the Defendant being brought to
the Bar, was called upon to hold up his Hand, and then arraigned
i(by Mr. Athorpe Secondary of the Crown-Office, j upon an Outlawry
■upon aji Indidfrient m London, for High Treafon in diaiinifting
the Coin of this Kingdom ; and afked what he had to fay for him-
felf " Why this Court fliould not proceed to give Judgment and
■" award Execution againft him according to Law."
Note — The Sheriff of Middlefcx was again ready with a Jurv,
(as before) in cafe He had denied his being the identical Perfon.
"Mr. Whitaker, who was Counfel for the Prifoner prayed that the
Outlawry might be read. Which being done —
Mr. Whitaker faid that If the Outlawry is bad, the Defendant, or
^even any Amicus Curia, may aflign Errors upon it ; And the Court
will either giv.e him Time to apply for a Writ of Error, or give him
Leave to plead to the Indidment.
Now this Outlawry is ifad, (He faid) upon the Face of it.
ift Exception — The fecond Capias ought to have had 3 or 4
Months between the Tefte and Return : Whereas this has only
15 Days. 8 H. 6. c. 10. is exprefs " that it fliall be returnable
'" 3 Months after, where the Counties are holden from Month to
" Month} and 4 Months after, where the Counties are holden
'" from 6 Weeks to 6 Weeks." 10 H. 6. c. 6. confirms the for-
mer Act ; and extends it to Indiftments removed by Certiorari. And
for Want of this, the Outlawry is void.
2d Exception. Here is a Difcontinuance of Procefs for a whole
Tear : There being a Chafm of a whole Year, in which it does not
appear that any Writs were iffiied out ; (though the Sheriff's Re-
turns to fuch Writs are indeed fet out.)
3d Exception (To the Exigent.) This Exigent is in London : And
the Outlawry is returned to be pronounced by Mr. IsJng, thcCoroner.
Whereas the Lord Mayor of London is perpetual Coroner in London :
And the Recorder is to pronounce it. Cro. Jac. 531. Garrard v.
Regem proves that the Mayor for the Time being is perpetual Co-
roner. 2 Ro. Abr. Tide XJtlagarie, Fo. 805, S06. prove both Po-
fitions : Pa. 806. " That the Mayor is Coroner;" and pa. 805.
per quel, PI. I. " That the Judgment is given by the Recorder ; and
'.' ?iot by the Coroners."
4th Ex-
640 Trinity Term 31 Geo. 2.
4th Exception. He is not faid to be outlnwed, " fecwidu/n Legem
" ct Confuctudinem Rcgni :'" Which the Writ requires. And Dal-
ton gives the Return in that Manner.
t
5th Exception. The Name of OJice of the Sheriffs is not fet to
the Return of the fecond Exigent : 'Tis only " the Return of W.
" A. and 4. C. Efquircs." 2 Hale's Hi,il. P. C. 204. is exprefs
" that it muft be fo :" " The Sheriff's Name and Office alfo mufl
" be fubfcribed to the Return of the Exigent j e. g. A. B. Arm'
" Vicecomes."
N. B. The Record appeared to be right. But Mr. Wbitaker faid
it was not fo in the Return upon the Writ itfelf.
6th Exception was to the Writ of Proclamation : Which he al-
ledged to be faulty, both in it's Tefle and in it's Return. This Writ
is founded upon the Statute of 3 i Eliz. c. 3. Which gives it in Per-
fonal Actions, and diredts the particular Manner Gff ; And to be
of the SAME Tefle and Return with the Exigent. 4, 5 W. M.
c. 22. § 4. extends this Writ of Proclamation to Criminal Cafes,
as well as Civil ; and direfts it to be delivered to the Sheriff 3
Months before the Return.
Now this Writ of Proclamation is tejied and returned upon the
SAME Day. And the Return of the Sheriff is only " That he cau-
" fed him to be proclaimed according to the Form of the Statute."
But Non conflat What Statute he means : There is none mentioned
in the Writ.
The Return ought to be particular ; and iofpecify the refpedlive
Proclamations, and to fhew that they were a Month before the
quinto exaElus by Virtue of the Exigent. And fo Dalton fays.
7th Exception. The Man was abroad, out of the Kingdom, at the
time when the Outlawry was pronounced againfl Him.
This, indeed, is an Error in FaB ; and mufl be verified.
8th Exception. The Huftings (where it was pronounced) are
not faid to be " holden in and for the Cky oi Ziondon."
Mr. Norton contra, fro Regc, faid He would be under the Di-
redion of the Court, whether to defend it now, or take Time.
The Court feemed to think that Mr. Attorney General fhould
;have been prefent.
z .Sut
Trinity Term 31 Geo. a. 641
But Mr. Norton faid that Mr. Attorney had defired to be excufed.
Lord Mansfield — Some of the Exceptions feem to have Weight:
And fome of the Errors alledged are Errors in Fail ; And it is a
Matter of Difcretion in the Attorney General, " Whether he will
" think proper to confefs the7n, or not."
Mr. Juft. Foster — Some of the Exceptions go to (hew the Out-
lawry to be a Nullity, and to avoid it without a Writ of Error.
Which Lord Mansfield agreed to,
Mr. Juft. Denison — The Cuftom of the City of London is a
Matter of Fa<5t.
Lord Mansfield — Mr. Attorney General will confider Whe-
ther to confefs the Errors in Fadl, and let the Party in, to plead to
the Indidlment ; or take the longer Courfe of a Writ of Error :
This is a Matter of Prudence.
Mr. Whitaker prayed that the Prifoner might be fent to the Prifon
of this Court ; and not to Newgate.
Per Cur'. . Newgate is as much the Prifon of this Court, as the
King's Bench Prifon is : Every Prifon in the Kingdom is the
Prijon of this Court.
Prifoner remanded ; and Ordered to be brought up again on
T'liefday, the 13th.
And Now, the Defendant being brought up accordingly, Mr.
Attorney General allowed that One or Two of the Exceptions were
fatal ; As for Inftance the ift and the 6th.
But though the Adt of 31 Eliz. c. 3. declares the Outlawry to
be void, if had otherwife than that Ad: diredts ; Yet he fald. He
was afraid this Making it void could not be done by the Court upon
Motion ; but it muft be avoided by Writ of Error, in the legal Way.
For fo is Plowd. Com. 137. b. and Hob. 166. and 2 Hawk. P. C. 306.
c. 27. § 127.
Lord Mansfield — What do You fay to the Errors in Fa^ ?
Mr. Attorney General — If there are any that I can confefs, I
would do it : Becaufe I am fatisfied it mufl be reverfed upon a Writ
of Error. As to the 7th. If I was to confefs it, it would not fig-
nify : Becaufe his Time is elapfed ; The Year is expired.
8 A Cur,
642 Trinity Term 31 Geo. 2.
Cur.' There is no getting at it, without a Writ of Error.
Lord Mansfield — If the Attorney General has an Authority
from the Crown, lie may confefs an Error in F^ff, which is not
true : But the Court will not permit the Confeffing an Error in Ldic,
which is not true.
Mr. Juft. Foster mentioned a Cafe of one Mr. Stafford, who
was called " Efquire j" And he faid he was only a Yeoman, and
not an Efquire : And the Attorney General came in and confeffed
* r. Lucai's jj. .^jf
Reporti .88. "••
, „ p^^^^j^^ Per Cur\ The prefent Defendant was remanded in Order to -f
fing" his Writ purcbafe his Writ of Error.
of Error is a
technical Term ; which does mt here convey any fecuuiary Idea, as if he was to pay a Price for it.
A^. B. Per Cur' and Counfel — There are a great many other
Errors upon this Record.
jvainefday Cheftcrtoii verftis Middlehurft.
1 4:h June
1758. ■ ;
A Bail- Bond was given in a Court of a Couf2ty Palatine (Che/ier,)
in an.Adion brought there : Which Bail-Bond being afligned
by the Sheriff, an Adion was brought upon it in this Court.
The Defendant filed Special Bail, below ; and then moved to
Hay Proceedings here. And
The Court All held this bringing the Adion here, to be an un-
fair PraSlice ; unlefs there had been fome Special Cirawijlances to
warrant it, (as the Defendant's Living out of the Jurifdiction, or
the like :) Which was not even pretended, in the prefent Cafe.
Therefore the Court held that the Plaintiff ought to have proceeded
In the Court below ; and accordingly fct afide his Proceedings in
this Court.
Rex verf. Florence Henfey M. D.
ON Mo7iday 8th of May 1758, The Defendant was brought,
into Court by the Keeper of Neivgate, upon a Habeas Cor-
pus directed to him, commanding Him " to bring up his Body."
He appeared (upon the Reading of the Return) to have been com-
2 mitted
Trinity Term 31 Geo. 2. 643
niitted by Warrant under the Hand and Seal of the Earl of Hohler-
sicfs One of his Majefty's Principal Secretaries of State, for High-
Treafon in adhering to and aiding and correfponding with the
King's Enemies ; and to be detained in his Cuftody, by Virtue of
a fecond Warrant of the like Kind.
Mr. Attorney General prayed that the Return might be filed.
Cur. Let it be filed.
Mr. Attorney General then informed the Court and the Defen-
dant, " That there was an Indiftment of High-Treafon found
'" againft the Defendant:" (Which Indidhnent was fo found by
the Grand Jury, by itfelf fingly, and brought into Court, fingly,
by them on Tuefday laft.) With which Indiiflment, the Defendant
being now charged, And being called upon by the Secondary of
the Crown-Office to hold up his Hand, The Court Ordered the
Indidment to be read to him. •
But The Court, {before it was read to him,) aiTced him,
" Whether he delired Counfel to be affigned to him ;" And
if he did defire to have Counfel, then " WhoiHy by Name,
" He defired to have affigned to him.."
He named. And accordingly
The Court affigned to him, Mr. '^ohn * Morton, and the M 5. Mr. ^i
Honourable lAuTmmas Howard; and Mr. John Peirce for 1^"°' 9"f °^
' -J His Majefiy s
his Attorney, Counfel ;
(though He
The Indidment was then read verbatim to him, by the exprefs Jp^eceMa.)
Diredlion of the Court : (Although He bad a Copy of it five Days
ago ; agreeable to 7 ^'. 3. c. 3, " for regulating of Trials in Cafes
" of Treafon and Mifprifion of Trcafon,") Upon which Indidl-
ment being ^hus read to him by Mr. Barlow, He was immediately
afked (by Mr. Atborpe, Secondary of the Crown-Office,) " Whe-
'" ther he was guilty or not guilty of the High-Treafon therein
" charged upon him. To which he pleaded
Not guilty.
The Defendant, after he had pleaded " Not guilty," intimated
io the Court " That he had received hard and fevere Ufage, during
" his Confinement."
Mr. Attorney General abfolutely difavowcd his having received
any fevere Treatment at all; and affured him that he wpuld be
treated with all poffible Humanity, fo far as was confiftent with his
being fafely fecured from Efcaping.
Then
644 Trinity Term 31 Geo. 2.
Then a Day was fixed for his Trial ; viz. Monday 1 2th "June
1758.
Which being fettled, without any fort of Obje<5lion on any Part,
the Defendant was remanded (to Newgate.)
On which Mortday 12th "June 1758, at the Trial, The pefendant's
Counfel took Exception to the Reading of two Papers — (N*^. i, 2.)
being the rough Draughts of Letters written by himfelf, and found
in a Bureau where he kept his Linen and Papers ; and which were
only introdiiSlory Evidence ; not any Part of the Overt- A5ls, which
were to fupport the Species of the Treafon charged upon him. It
was objedled to them, that they were not fufficiently proved to be
foimd in his Cujlody ; nor fufficiently proved to be his Ha-id-Writiiig:
For 7ncre Comparijon of Hands is not fufficient to fupport their being
read againft the Defendant.
The Counfel for the Crown anfwered, That, the Papers Being
found in his Cujlody, and his Hand having been efficiently proved by
Perfons who hadfeen Mm write, it was fufficient to intitle the Crown
to read them ; though the Jury are to judge of them. And they
mentioned Layer's Cafe ; and Lord Prejion's Cafe j and Francia's
Cafe ; and Sidney's Cafe ; and Buchanan's Cafe, in the North, in
1746; and Crcfy's Cafe, Skinner ^jS, 579. and i Ld.Raytn. 39. S. C.
Rex V. Crojby alias Philips : Where Comparifon of Hands was al-
lowed to be good Evidence, if the Papers are found in the Cuftody
of the Perfon himfelf. Sir John Wedder burn's Cafe. Sir Cholmeley
Bering's Cafe — for Murder : (i. e. Rex v. thornhill.)
The Court unanimoufly over-ruled the Objedion. Thefe Pa-
pers were found in his Cufody ; and they have been fufficiently
proved, by Perfons who have feen him write, to intitle the
Crown to read them.
* Then the Evidence for the Crown being opened, and given;
(which confifted chiefly of Letters to and from the Prifoner ;) and
being aliedged to be a Proof of Overt-Ads of two different Sorts of
Treafon, viz. Of compafjing and imagining xht Death of the King,
and alfo of adhering to the King's Enemies j
Mr. Solicitor General declined Summing up the Evidence j choo^
ing to referve himfelf for the Reply.
Which the Court held to be within Rule, if He fo thought
proper.
I So
Trinity Term 31 Geo. 2. 645
So the Counfel for the Crown refted it here.
Then the Counfel for the Prifoner (Mr. Morton and Mr. Hoivard)
began upon his Defence. They declined giving any Evidence on
the Part of their Client: But they infifted upon thefe two Topics,
in his Defence j viz,
I ft. That «o One Fadt was proved upon him in Middle/ex-, where
the Indictment is laid.
2dly. That the Evidence, if it had been brought Home to the
Defendant fo as to afFedt him, yet would by no means have amounted
to a Proof of any OveruAds of either of the Pwo before named
Species of Treafon.
For they were only Letters of Correfpondence. And if a Corre-
fpondence of this Nature, either within or out of the Realm, had
been Treafon in general and in all the King's Subjeds, within 25
Edw, 3. it would never have been particularly enabled to be Capital
m a Soldier, by the Mutiny Afts of 3, 4 Ann. c. 16. §. 35. Fo.
266. and 30 G. 2. c. 6. §.1,
N. B. The former makes It Treafon, to do it either " upon
"^ Land, out oi England, or at Sea :" The latter makes it Ca-
pital, or fuch other Punifhment as a Court Martial fhall
inflid, to do it " upon Land within or out oi Great Britain^
" or upon the Sea."
Mr. YoRKE, His Majefty's Solicitor General, then proceeded to
reply : In doing which. He made only fome General Obfervations
upon the Evidence that had been given on the Part of the Crovv'n,
but did not fum it up particularly, (as the Prifoner had given no
Evidence at all ;) but confined himfelf to what the Defendant's Coun-
fel had urged in his Favour, in Point of Law and Reafon.
He anfwered thus, to the Objedions which they had infifted
upon.
1 ft. That the 5th Letter given in Evidence bears Date "from.
" Twickenham, which is in Middlefcx:' Which, alone, is a full
Anfwer to the Objedion.
2dly. That the Correfpondence proved was, in Point of Law, aa
Evidence of an Overt-ASl, of each of the before mentioned Species
of Treafon :
8 B Firft
646 Trinity Term 31 Geo. 2.
Firft — Of Compcifjlng and imagining the Death of the King. To
prove which, he cited i H. H. P. C. 167. Cardinal Pod's Cafe. 3 /«//.
14. S. C. And fo Ld. Ch. J. Hok alfo held, in Gregg's Cafe j
(which He cited from a Manufcript Report of Judge 'Tracy's:) And
Baron Smyth and Mr. Juft. Dormer feemed to agree to it. And in
Ld. Prejofi's Cafe, alfo, Ld. Ch. J. Ho/t fo held.
Secondly — It is alfo an Overt-Adl of adhering to the King's
Enemies. In Gregg's Cafe — , It was agreed by all the Judges,
" That fuch Letters, though intercepted before they arrived,
" were fo."
Lord Mansfield — We have feen three Reports of Gregg's
Cafe; viz. One, by Ld. Ch. Baron Dodd ; another by Mr.
Juft. Price ; and this by Mr. Jufl:. Tracy : And they all three
agree " That fuch Letters, though intercepted, were Overt-Ads
*' of each Species of Treafon before mentioned ; And that Ail
" the Judges agreed in this.''
Mr. Solicitor General — ^^And as to the Statutes of Queen Ann
and the prefent King, The Statute of 7 A7tn^ c. 4. and the late
Mutiny Aft of 30 G. 2. c. 6. ^0 further than the Adt of 25 Ed.
3. does.
Lord Mansfield fummed up the Evidence.
As to the \,.\\\—'Le'vying War is an Oi^ert-AB o^ Compajfing tfie
Death of the King: An Overt- A£l of the Intention of levying War,
or of bringing War upon the Kingdom, is fettled to be an Overt-
Aci of Compafjing the King's Death. Soliciting a foreign Prince,
even in Amity with this Crown, to invade the Realm, is fuch an
Overt-hCi: And fo was Cardinal Poo/'s Cafe. And Ow of thefe
Letters is fuch a Solicitation of a foreign Prince to invade the
Realm.
Letters of Advice and Correfpondence, and Intelligence to the
Enemy, to enable them to annoy us or defend themfelves, written
and fent, in order to be delivered to the Enemy, are, though inter-
cepted, Overt-A(fl of both thefe Species of Treafon that have been
mentioned. And this was determined by all the Judges oi Eng-
land, in Gregg's Cafe: Where the Indiftment (which I have feen)
is much like the prefent Indidment. The only Doubt, there, arofe
from the Letters of Intelligence being intercepted and never de-
livered: But They held " that /i6tf/' Circumftance did not alter the
" Cafe."
2 As
Trinity Term 31 Geo. 2. 647
As to the Fact, in the prefent Cafe — The Jury are to con-
fider whether they were written by the Prifoner at the Bar, in Or-
der to be delivered to the Enemy, and with Intent to convey to the
Enemy fuch Intelligence as might ferve and affift them in car-
rying an War againft this Crown, or in avoiding the Deftinations
of our Enterprizes and Armaments againft them.
Then His Lordfhip went through the Evidence particularly :
And having finiflied his Summing it up, He propofed to the Coun-
fel, and they agreed to it on both Sides, " That the Jury (hould
take the Letters out with them."
As to the Locality of the Fafts — He faid, It is certain i\\&i fame
One Overt- Ad muft be- proved in the Comity where the Indiftmcnt
is laid : Indeed if afiy Ofie be fo proved in that County, it will let
in the Proof of others in other Counties.
Now here. One or the Letters is dated at Twickenham, which is
in Middle/ex.
The Jury went out, a little after eight, taking the Letters &c
with them ; And foon fent to defire Leave to have Candles ;
which the Officer who brought in their MefTage, faid he was
fworn " not to let them have j" unlefs it fhould be fo Ordered,
Lord Mansfield afked the Counfel, if either Side objedled
to it.
And the Counfel oil both Sides agreeing to it-
Leave was given accordingly: And they had them.
In half an Hour, the Jury returned, and brought in their Ver-
di<a, " Guilty."
Lord Mansfield obferved, as to the two Ads of Parliament of
7 Ann. c. 4. and 30 G. 2. c. 6. — That they carried the Matter/«r-
ther than the Law extended to before : And, befides that, they were
Both of them declaratory, as well as enading ; which was calculated
on purpofe to avoid the very Objedion that has been now taken :
{V. ante, 645.)
The Defendant was remanded to Newgate and a Rule made
" to bring him up again on Wednefday"
And
648 Trinity Term 31 Geo. 2.
And the Prifoner being accordingly brought to the Bar, on
this Day about 4 o'Clock in the Afternoon, by the Keeper of
Newgate, —
Mr. Attorney General prayed the Judgment of the Court upon
him.
Mr. Atkorpe, Secondary of the Crown Office, called upon Him to
hold up his Hand, and reminded him, " That he had been indided
" of High Treafon, and thereto had pleaded A^o/ ^z^?7/y ; and for his
" Trial had put himfelf upon God and the Country, which Country
•* had found him Guilty ;" and then afked him " If he had any
" Thing to fay for himfelf, why the Court (hould not proceed to
" giv^ Judgment againft him according to Law."
The Prifoner thereupon took out a written Paper ; and rather
read, than fpoke it. It confifted partly of an Apology, and partly
of a Sort of Defence againfl the Charge ; together with fome Objec-
tions to the Proof of it upon him.
The Subftance of it was — That the Correfpondence with which
He had been charged, as treafonable and giving Intelligence to an
Enemy of his Liege Sovereign, was nothing more than writing Let-
ters to his own Brother, who was fo far from being an Enemy, that
he was in the Service of the ¥J\ng'% good Brother and faithful Ally, as
His Majefty Himfelf had ftiled the King of Spain, in His Speech
to his Parliament ; and that thefe Letters contained only Coffee-boufe
News and idle Speculations; but gave no fuch Intelligence as could
be ufcfol or even unknown to an Enemy ; nor did betray any of
the Secrets of this Government to their Enemies.
That he had no Malignity in his Heart againfl: the King or His
Government ; nor had ever been guilty of any improper Behaviour;
But always conduded himfelf with Decency and Duty towards his
King and Country : For the Truth of which, he appealed to his
Charader and Converfation.
And as to the Papers which were feized by the Meflenger, at the
Houfe where he lodged — They might juft as well be the IVoman's
of the Houfe, as his : For Both of them had Accefs to the Bureau,
in which the Meffenger found them.
That the Statute of 7 ?r. 3. c. 3. § 2 G? 4. direds that there fhall
be two WitnefTes to each Overt-Act of the fame Treafon. Whereas
his Hand-writing had been proved only by One Witnefs, who could
pretend to know any Thing of his Hqnd- writing : For that the other
3 three
'e
Trinity Term 31 Geo. 2. 649
three knew little or nothing of his Hand, and couXdi fcarcely be faid
even to have ever feen him write.
[Note. The Ad direds " That either both the Witnefles muft
" be to the fame Overt- Aft, or One of them to One, and
"' " the Other of them to another Overt- Aft of the fame
" Treafon."]
And there was no Witnefs at all, he faid, to prove any A<Sl of
Treafon committed by him in the County of MiddlefeXy where the
Indidment lays the Offence to have been done.
He alledged that this Cafe of his was ih&jirjl Injlance, fince the
Statute of £^w. 3. where Giving Intelligence has been holden to be
High-Treafon. And he faid that as he had not had four Days
between his Trial and his Sentence, (as was ufual,) his Counfel
had not had fufficient Time to prepare themfelves in Arreft of
Judgment.
Therefore upon the whole, he prayed that the Court would ei-
ther be fo kind to him as to refpite his Sentence ; or, if that
might not be obtained, that they would be gracioufly pleafed to
recommend him to His Majejlfs Merty.
He was then afked " if he had any Point of Law, to move in
Arreji of Judgment."
To which His Anfwer was, " That he had not."
Lord Mansfield then pbferved that the Prifoner had been
convided upon a very full Trial, and upon very cogent Proof;
and that he appeared upon the Evidence to have committed many
Overt- Ads of Treafon.
He took Notice that the Prifoner had even folicited this Employ-
ment, from Inclination ; as well as under-taken for Hire, to ad as
a Spy againft his own native Country, and to reveal the Secrets of
the King and Government to the open Enemies of Both ; and to
give them Information and Intelligence of the Enterprifes and De-
signs of this Kingdom againft them; and all this, with Intent and
in Order to aid and affift them in defending themfelves againft hiS
King and Country.
Pie obferved that the Enemy had manifeftly (hewn " that they
" themfelves looked upon this Correfpondence to be an Aid and Af-
"' fiftance to them ;" by their giving him a Stipend, and paying
him a ftipulated Monthly Price, as the Purchafe and Reward of it,
under a Penalty of his forfeiting 20 i, for every Omiffion of a
' Weekly Letter from him.
8 C He
650 Trinity Term 31 Geo. 1.
He alfo obferved, that the Prifoner appeared to have procured
his Information of the State of our Navy and Army and Finances,
and the other Matters contained in his Papers and Memorandums
feized in his Bureau, with that very View and hitcnt'ion of com-
municating them to the Enemy": And by his Letter of the 22d of
'////y laft, he had even advifed and invited the Eneviy to invade
bis Native Country ; and to bring War and DeJlruBion into the
Heart of it. The Guilt of this Offence arifcs from the Nature of
the Correfpondence, \Yhich is calculated to betray the Secrets of his
King and Country to the Enemy, as a Spy j a Treafon of a very
dangerous kind, and which gives an Enemy much more Aid and
Afliftance, than a Perfon publicly and profeifedly declaring himfelf
an open Enemy to his own Country could give them.
He laid it down as a Point which was never doubted, " That
" this Offence, of sending Intelligence to the Enemy, of the
" Deflinations and Defigns of this Kingdom and Government, in
" Order to afTift them in their Operations againfl Us or in their
" Defence of themfelves, is High-Treafon ; even although fuch
" a'Correfpendence fhould be intercepted, without ever coming to
"the Enemy's Hands. And fo was the Refolution of All the
" Judges in Gregg's Cafe."
And as to the Witnefles to the Prifoner's Hand-Writing — There
are Four of them that have feen him write, and fwear to his Hand,
of their own Knowledge : And thefe four WitnefTes are not contra-
di£led by any Evidence on his Part ; but, on the contrary, are con-
Jirmedhy a Variety of Circumftances.
As to the Point of Locality — He faid that if there had been no
Evidence at all, of that particular Letter which bears Date at Twick-
enham (which is /;; Middlefex,) Yet neverthelefs the Preftwiption
was ftrong and flood uncontradicfted too, " That they were written
" in Middlefex, where the Prifoner refided, and where his Papers
" were feized."
As to Mercy — He told the Prifoner that that was in the King's
Breaft ; but was no Part of their Province : And therefore bis Ap-
plication on that Head, muft be elfewhere.
The Lord Chief Jujlice (it being a Cafe of High-Treafon) pro-
nounced the Sentence.
Mr. Attorney General then moved that the Court would appoint
a Day for the Execution.
Lord Mansfield defired him to name a Day.
2 Mr.
Trinity Term 31 Geo. 2. 651
Mr. Peirce, the Defendant's Solicitor, faid he hoped it would
not be an early Day.
Mr. Attorney General faid. He was willing to give as long a Day
as might be proper.
Mr. Juft. Foster mentioned, that Dr. Cameron had 3 Weeks.
{N. B. Mr. Charhi Radcliffe had only a Fortnight.)
Mr. Peirce defired that this might be a Month.
The Court and Mr. Attorney General very readily agreed to a
Month. Accordingly, it was Ordered to be upon Wednejday the
12th oi July.
The Prifoner was remanded to Newgate ; and bowed refpeft-
fully to the Court, and courteoufly to the Bar and AudiencCj
on retiring.
I^ote.
Gn the lafi Day of a Term
An Attachment may be moved for, in the two Cafes following,
viz.
For Non-payment of Q/?^; and
Againft a Sheriff, for not returning a Writ.
This was alledged by Mr. Clayton, and conceded by the Court,
to be the Practice.
Note alfo
The Rule is, That Counfel may move, on the laft Day of Term,
To quajh an Indictment j but
-Not to quafh an Order.
The Court was not up, till within about a Quarter of an Hour before Midnight.
The End of Trinity Term 1758, 31 Geo. 2.
A Short REFERENCE (for immediate Ufe) to
the Principal Matters contained in this Volume ;
The full Table (or Abridgnmii) being referved for
a more proper Place.
^CCOttttt HfttCD. See Debt^ Extinguifimeftt, Pleading.
S no Extinguijhment of the Original Debt. Fage 9.
I
:^(t^on.
Of Trover. See Title Trover.
Of Trefpafs, See Trefpafs.
Of Ejedlment. Sec Ejeilmefif. . '
Of Debt upon zn Award itfelf differs much from an Adlion of
Debt upon the Arbitration-£oW. 280 to 282.
On the Cafe, upon 12 G. i. c. 29. § i, 2. 332. See Declaration
on Bat I- Bond.
On Indebitatus Ajfumpfit. 375. See Declaration. • . v
■ On a Note. 375. See Declaration.
On a Bail-Bond given in a County Palatine — Pf^here it muft be
brought. 642.
By Hufband and Wife {Parip^-Poor) againfl a Juftice, who com-
mitted the JViJe, for returning without a Certificate. 596 to
603. See PariJIi-Poor.
:St) cittot) namninn.
Is the only legal Authority for altering a Road. 465.
Inclofng a Road. ibid.
Repairing the new Road. ibid. See High-way.
:?lU'Cnatl'Oll of Land.
Could not be made, according to the Ancient Feudal Law, without
the Lord's concurrence : And the For/n oj Cotiveyatice was by Feoff'
moU, publickly, notorioufly and folemnly made. 107.
The Statute of ^ia Emptores terrarum (18 £. i.) took away Sub-
■ Jnfeudations ', and gaveyrt-^ Liberty of Alienation, to the Tenants
S D of
A Short Reference, &fr.
of Suije^s, and to Thofe who held of the King as of an Honour
or Manor : And other Statutes extended the Power to the King's
Tenants in Capite. Pa^e io8.
:?lmbaffat)0Ut'5 Domejlk Servartts
Muft be bond fide fo, in order to claim Privilege under 7 Ann. c. \ 2.
A Land- waiter at the Cuftom-Houfe was denied it. 401.
' »*• w I -Jli
Shall not be made, after the Court can't help feeing that the Matter
is upon Record : For the whole mufl be fupfofed to be ftill in
Paper. 322.
^UtOtt'Ott* See DhfrancBifement.
^appKtltlCe. ' See Trade,
^^ppKtitfccOjfp "'"^'^h A
Where neceflary to be ferved^ previoufly to cxerclfing a Trade.
»'5ee IndiSiment^ and Statutes {^ Eliz, c. 4. § 3JV)-_-
^Xtbitrat^dtt* z ^^6
'!A wards are new confidered with kfs StriSfnefs than former!^.
^' '2-77, '2-7'i. . '-f. 1^
*Yet they muft be ffr/^7;«, ^nd final, ibid.
Ih an Adion of Debt upon the Award itfelf, the PlaintifF needs not
fhew forth fo much as he muft have done, if he had brought it
«/>o« the Arbitration-£o/?</. 280, 281, 282.
. Y"vv mi.. JMMt of j^otjcl ©ilTeifm*
'iyh?>i ^h(d ^^^«f^' introduced J And how and why extended. 107
Againfi Whom, this Remedy lay. no.
^(TttranCC. See Jnfurame, Policy.
:atrac!)tucnt
11
^•Granted againft the Plaintiflfs Attorney, for putting to the Prbcefs
the Narne of an Attorney of this Court, without Authority. 20.
What Sort of Attachment may be moved for, on the /<//? Day of a
■.,;j;Term, 651. See Pra&ice.
2 attnfnt
A Short Reference, &c.
The Writ of Attaint is now a mere Sound : And, in many Cafes, no
Remedy. Pa^e 393. See New Trial, PraSiice.
The Name of an Attorney put to Procefs^ without his Authority,
20. See Attachment.
Taking a Turn-key for his Article-Clerk — -Difaliowed ; And the Ar-
ticles cancelled. 29 k
'^IbtltD* See Arbitration.
A Bankrupt' % Bail (which Bankrupt obtains his Certificate pen-
ding the Aiftion,) difcbarged^ if obtained before they are fixed :
1,/rt/J/^, ifnottill^T/^i-r. 244, 245.,,^ ^ ^. , v*^riW
-AffUavit of the Debt, or of the Sum fworn-to being marked. See
Statutes (12 G. I. c. 29. § i, 2.) and Declaration on Bail-Bond.
How a Soldier's Bail may furrender Him, in their own Difcharge.
See Soldier, Habeas Corpus.
Bail fhall have time to j'urrender their Principal, after a Writ of
Error brought by Him : But upon different Terms, according to
different Circumjlances, 340.
Where the Scire facias is irregular, for want of an Exoneretur be-
ing adually entered. 409.
The Nature and Currency of them, fully difcufTed : And why a
Perfon who has fairly and bond fide received even a ftolen One re-
gularly pafled in Currency, fhall recover againft: the Cafhier who
Jiopped it. 452 to 460. , .^^^
I.
Bankrupt. ,^^^
The Property of a Bankrupt's Goods is, after AfTignmenf, in the
AfTignee, from the time of the Adt of Bankruptcy, by Relation.
3^ 32- ^ . '
And the Afllgnee may maintain Trover againH: the Sheriff who took
them in Execution after the Adt of Bankruptcy and before the
Affignmentj and Sexls them after the Aflignment. 31, 32, 33.
The
A Short Reference, ij'c.
The Bail of a Bankrupt who obtains his Certificate pending the-
Adion, (hall be difcharged, if not htiortjixed : But if already
fixcd^ they remain liable. Page 244, 245.
But the Bankrupt Himfelf, though difcharged of the Original Debt,
is yet liable to the judgment obtained againfl: Him in an Adion
upon the Bail- Bo!7d. 436.
Statutes concerning Bankrupts — How to be con/lrued, in general :
439, 474. And in particular, with regard to lying in Prifon, and
cfcapitig out of it. 439, 440.
Where a Conveyance by a Trader, of his Whole Subftance to a par-
ticular Creditor, but conti^tuing in PoJfeJJion and ading as vifiNe
Owner, fhall be efteemed fraudulent and an A£i of Bankruptcy.
467 to 485.
jBaroti and ftmt.
Are confidered as 0//f, m'M.zitcT^ oi Evidence. 424.
The IVill of a Fetne Covert made under an Agreement with her
Hufband, muft ho. proved ; And Adminiftration of it, (though not
ftrid Probate,) granted 432. But her Power to make it, is a Qt^f-
• tion to be difculTed in a Common-Law Court. 432, 433.
Separated by Articles, in Confideration of Money received by the
Hufband, with Covenants from Him: He ciX\\ fcize Her, or
force Her to live with Him. 542.
' With the Confirmation of their Dean and Chapter, might, at Common
Law, exercife every Ad of abfolute Ownerfhip. 221.
They may now^xzxsx Ancient Ofjices, with the ancient Fees, in the
fame manner as they have been ufually granted before i Eliz.
c. J 9. i6id. to 226.
Limitation of them ; (/'. e. their being fuppofed to be fatisfied.) 434.
See Limitation.
In RfUraint o{ Trade, is not good, without fettingfarth a /<7r/;W^r
Ct/Jiom, to fupport it. 16, 17.
•Such a particular Cuftom can't be pre fumed, ibid.
A By-Law to confne Such as have a Right to the general Freedom
of the City of London, to take it up in fume One particular Co7n-
pany, is a Rcjlraint of Trade, ibid.
I Of
A Short Reference, ^'c,
Of a Company, " To eledl upon their Livery, Such and fo many of
" their Members, as lliould J'cepi moft meet and convenient to
" them ; On pain to forfeit 25/. on Refufai to accept, or to pay
" the Admiffion-Fee ;" is a ^W By-Law. Page 2 t,^, 240.
By-Laws ought to have a reafotiable Conftrudion. ibid.
A By-Law returned to have been made by the Body at large, may be
good, where the Power is given to a fcle£l Number. 131.
A By-Law to prevent being made free, tmtil called at three feveral
Meetings of the Mayor &c, and approved of by them or the Ma-
jority of them, was holden to be a reafonabk Reguhition of Trade.
A By-Law made to give Power cf Amotion, for jufl Caufe, would
be good ; though the Corporation who made it, had no Power of
Amotion given them exprelly by Charter or by Prelcription. 539.
Cafes noubteD or ocn^etj.
4 Leon. 9. pi. 39. 6.
1 Ventr. 46. Dyer v. Eajl — denied. 244. See Statutes (5, 6 E. b.
c. 4.) and Prohibition.
2 Ld. Raym. 767. Regina v. Taylor — denied. 252. See IndiSlmenf^
1 Ld. Raym. 724. Cole v. Davies et ah The ill Polition, (" that
" no Adion will lie againfl the Sheriff — ") denied. 2^.
Dyer 253. b. pi. 102. ~p
Cro. Eliz. 217. Green v. Edwards. CSee Term of Tears, andt
I Co. 153. b. Redor of Chedingtofi's Cafe. C Deeds.
Sheppard's ToucbJlo?ie 274. 3
5 Lev. 334, 335. Goodwin v. Blackman. 330.
Telverton ^'i. King v. Gofpiir aiid Shire. See Common Recovery.
II Co. 99. a. Bagg's Cafe, 2d Refolution, denied. 538, 539. See
Disfranchfemcnf.
€tttioiatL
On 5, 6JV.^M. c. II. § 3. No Co/Is are payable ; unlefs the Tn-
didlment be brought by the Party grieved, or by Juflices, Ma-
yors C^c, or other Civil Oncers profecuting as being Such. 431.
May be fuperfedcd, quia improvide emanavit ; The Return taken
off from the File ; and the Orders remanded. 488, 489. See
fakers.
CljanccUo^.
The 'E^x\ oi Hardwicke {wo'[c-'m the new Lord Chief Juflice, on the
8th of AVjfOT^^r 1756. I. And He Himfelf rf/7^-«^^/^^ 6'f^/ on
the 19th. 20. Which was thereupon delivered to three Comniif-
fioners^ ibid. ■
8 E CDancerp^
A Short Reference, ^c.
Cljanccrp.
Decreeing Deeds fraudulent. Ptzg-^ 480, 481. Stt Fraud, Bank-
rupt.
Commoa
Is only a Right of eatwg the Grafs : But the Lord remains Owner
ofthe^o/A 267.
What the Lord may do: And what He may not do. 265 to 268,
"What the Commoners tnay do : And wliat They may not do. ibid.
In a Jufiijication under a Right of Common, Two EfTentials are,
" that the Cattle be the Defendant's own-," and " that they
^^ ht k'uant and coiichant ." 320. See Pleading.
Ccmmott Itlecotjerp.
On a Writ of Error, to reverfe it, There muft be a Scire facias
againft the Terre-tenants. 361.
What the Terre-Tenant muf, and what He may not plead. 361,
362.
A Remainder- Man's Right to reverfe One erroneoufly fuffered. 413.
His Method of doing it. 412, 413.
The Rife, Nature, and Hijhry of Common Recoveries, very large-
ly difcufed. 115.
They ought not to be fupported, where the Parties have ?:o Power
to fufFer them. 1 16 to 119.
A Secret Feoffment under a //^W PofTeffion, is not fufficient. 117,
118.
Nor an Eftate by Wrong, Fraud, or PraSiice. ibid.
ConfclTiOtt.
Of a Charge, " in Manner and Form as charged," confefles no more
' than fuch Matter So charged j but 710 farther. 613.
Placed upon Commonahle Land, by the Lord, is confident with
the Lord's Grant : And the Commoner can't kill, chafe, or de-
Jtroy them ; much lefs dig the Burrows. 265 to 268.
But if the Lord furcharges, or inclofes, the Commoner has a pro-
per Remedy, ibid. See CommoJi.
Cott'
A Short Reference, ^c\
Gf Statutes — Several Rules laid down concerning it. . Page 447 to
452.
Of Da-^/;, fhould be liberal. 28_J.
On the Game-AQis, niiift particularly and nrgativdy fpecify " tiiaf.
" the Perlbn convided had ?:ct any of the (^lifications required
" by 22, 23 C. 2. f. 25." 153 to 156.
On the Hawkers and Pedlars Ads, are to be taken flriBly : Anrf
a /«^/^ ^(3 of Selling is not a Proof of a Man's being within tiicni-
613, 614.
CoppljDlU.
Copyholds are very feldom granted for Tears : But if they be fo
granted, the Executor of the Termor is obliged to be admitted ;
And the Lord is intitled to a Fine, upon fuch Admittance. 2ofe
to 218.
CO^OttCt* See Deoda?id, Jnqiiifuion.
If the Coroner negleBs to find an Inquifition, Other JurifdidioHS may
do it, 19.
But their Inquifitions are traverfable. i R.
So alfo are the Coroner's. 19. {^i. if thofe of " Feb de fe" are
here included. 18, 19.)
Corporation: Corporator.
How to be taxed. 1 56 to 1 5,8. See Tax.
A Company's Right to have a Livery mult be founded on Charter
or Cuftom : And it can't be prefumed, but muft be fl:ewn. 237.
Freedom of a Corporation may be refrained by By-Law. 132. Set
By-Law.
Eletlion by One fmgk Portman only, being the only remaining
■ One, is good ; though the Power of Eledion was given to the
■ " Relidue or the ^r^tf^fr A/w/wi^fr of them. 541.
DIsfranchifement. 51710541. Stt Disfranchijemcnt. ^
Cofts.
On Difcharging a Recognizance. See Recognizance,
On ?i feigned Iffue. 603,604. Sec Feig?2ed If ue.
On If formations. See Information,
Cotiennnt*
A Short Reference, ifc.
Coljenant.
In a Building and Repairing Leafe — Where it fhall extend to 7ienv
Ercdions only. Page 2go, 291.
Court.
Rules and Pra6iice of it. See PraSlice ; and infra.
The great End of the General Rules of the Court, is the Attainment
oi real Jitjlit\\ W\\.\\ Eafc, Certainty, zx\6. Difpatch. 301.
Spiritual. See Prohibition.
Inferior. See Inferior Courts.
Of Equity — can't decree a Deed made by a Trader to be fraudulent
in Equity, Which is not fraudulent at Law and an AB of Bank'
ruptcy.
2Dama0C0,
pXCE SSIFE. See FerdiB.
SDebt.
ExtinguiJJjment of it. See ExtiiiguijJmient , Pleading.
Deciatattott*
De bene effe — How and when to be delivered j and the Effe6l of it.
SS. 56.
In Debt on a By-Law of a Company, for not taking the Livery —
mufl: yZvw that the Company has a Right to a Livery. 237. See
Demurrer.
On a Promifjory Note — See Promiffory Note, and infra.
On a Bail-Bond — needs not fet forth " that there was an Jfjidcoit
" of the Debt," or " that the Sum fworn-to was marked on the
" Back of the Writ." 332.
Upon a general Indebitatus AJfumpfit, A Note may be given in Evi-
dence. And what Sort of a Note will fupport the Declaration.
And where the Undertaking for an Infant is original ; and where
collateral. 375, 376.
Upon a Prefcriptive Right — What muft be fieivn therein : And
what needs not to be ihewn. 443, 444, 445.
A Short Reference, &c.
The CofiJIruSi'ioti of them, efpecially fuch as execute mutual Agree-
ments for valuable Confiderations, ought to be liberal, and agree-
able to the obvious and apparent Intention of the Parties. P^ig^
285, 286.
Priority of Execution is a Fadt : But if not found, the Court may
make a Prefumption, in fupport of the clear Intention of the
Parties. 106, 107.
Demurrei:.
The Want of Shewing a Right in a Company " to have a Livery,"
(in a Declaration in Debt upon a By-Law, for not taking the Li-
very,) may be taken Advantage of, upon a general Demurrer.
237-.
When it may be ivithdraivn : And when not. 322.
M)COl)dtll)» See Coroner^ Inqmfitio7i.
" For Life and -tio longer," may create an Eflate in Tail, "by
necejj'ary Implication, to effedluate the manifejl general Intent of
the Teftator. 50, 51, 52.
Wherever the whole Property is devifed, with a particular Interej}'
given out of it, the Operation is by way of Exception out of the
abfolute Property. 233, 234.
Where an abfolute Property is given ; and a particular htereft given
in the mean 'Ttnie ; This fhall not operate as a Condition precedent,
but as a Defcription of the 'Ti?ne when the Remainder-Man (hall
take in PoJJeJion. ibid.
In C07iftruing Wills, The Intention of the Teftator ought to prevail,
zj agreeable to Law. 233. 80272,273. 80554,555,556.
And adjudged Cafes may properly be argued from, if they eftablifli
general Rules of Conflrudlion. 233.
The Word Legacy may be extended to Devifes of Land. 272,
273- .
A Pecuniary Legacy can't be limited after a dying without Ifjue.
ibid.
Credibility of Witneffes attefting a Devife of Lands, very fully dif
cuffed and fettled. 417 to 43 i .
The A(ft of 29 C. 2. c. 3. probably not drawn by Hale. 418.
The Power of Devifmg ought to be favoured : And the Ad of 29 C
2. f. 3. did 720/ mean to reftrain it. 420.
It's Rife and Progrefs. ibid.
8 F It
A Short Reference, &c.
It is more reafonable now, than formerly : And why. Page 420.
Objedlions to the Formalities of Devifes ought not to receive too
much Countenance. 421.
Dilablities of Witnefles from /;7/<fr^, difcufled and fettled. 42210
429-
The Ronim Law on this Head, difcufled and explained. 425, 426.
Legacies charged on Land may be altered or revoked by a fubfequent
zmttefted Will. 423.
Devifes of l/flw^ differ from Wills: And how. 429.
A Devifee under a void Devife, being a fubfcribi?2g Witnefs, may
authenticate the Rcjl of the Will : At leaf!:, There is great weight
in Holt's Diftinftion, " That fuch Will is only void quoad the
" Devife to fuch Witnefs." 428, 429.
A Charge upon Land, " to pay Debts," ought not to incapacitate
fubfcribing Witneffes who are Creditors. 430.
Every honeft Man ought to make fuch a Charge in his Will. ibid.
The mod ufual Witneffes are, generally, Creditors (in fome De-
cree) of the Teftator : And the Difallowing fuch Witneffes can
anfwer no End of Public Utility. 430.
SDisfranrtjtfemcnt. See Amoth
ton.
What Sorts of Offences render Corporators liable to it : And where a
previous Co7ivi^ion at Common Law is neceffary ; and where,
not— fully difcuffed and fettled. 538, 539.
Power cf Amotion is incident to Corporations, as much as the Power
of making By-Laws : And it is not true " that they can have
" None, unlefs by Charter or Prefcription." 539.
Catifes of Amotion, particularly Abfence from Corporation-Courts,
difcuffed : And (therein) the Species of Notice neceffary to be
given. 540, 541.
SDilTcifin*
The Idea of it, according to the Old Law before the Affife of Novel
Dtjfcijin. 107 to 114.
What confl:ituted fuch a Diffeifin as tmde the Diffeifor Tenant to
the Demandant's Precipe ; though the right Owner's Entry was
«o^ taken away. 107, 109, 110.
Difference between Diffeifins where the true Owner thinks fit to
admit Himfelf to be diffeifed; and a6iual Diffeifins, in fpite of
the true Owner. 107 to 114.
Diffeifin ever implies a Wrong : But Difpojeffion or EjeSlment may
be by Right or by Wrong. 1 1 1 .
Diffeifin at Election differs from aSlual Diffeifin. 1 1 1, 112.
The Confequences of aSlual Diffeifins (confidered as fuch) continue
Law. 112.
I Where
A Short Reference, &c.
Where an EjeSlment is brought, there can be 720 DifTeifin. Page 1 1 1.
Taking Poffeflion under a Judgment in Ejedment, is 7iot a DilTeifin
of the Freehold. 113. Nor can the true Owner elect to make
it fo, 114.
2>iO:tef£(.
Averia Carucce — where diftrainable. 587, 588, 589.
The DiJlinSlion between Common-Law Diflrefles (to compel Pay-
ment, not Jale able ^ but only detained nomine Pcence,) and Diftref-
fes in Execution (for Satisfadlion, which are to be fold outright.)
588.
The Statute of 51 ^. 3. de DiJlriSiione Scaccarii doth not extend to
the latter. 586, 588.
Nor the Common-Law Exemption of Utenfils, Tools, Implements
G?c. ibid.
A Diftrefs for an e?itire Duty^ {hall not be fplit ; and taken for One
Part at one time, and for the other Part at another time. 589.
Otherwife, if the Seizure be at jirjl for the Whole, and only the
Value miftaken : There, the Execution may be completed by a
fecond Seizure. 589, 590.
Excejive — The Remedy muft be by a Special A€t\on, founded on the
Statute of Marlbridge : A general Adlion of Trefpafs can't be
maintained for taking an exceflive Diftrefs. 590.
ciectment
FOR Land which is Part of the King's High-way, may be
brought by the Owner of the Soil. 143 to 147.
The Owner of the Soil muft recover, and the Sheriff muft deliver
Poffeflion, fubjeSl to the Eafement. ibid.
Ejedtment will lie, by the Defcription and Name oiLand; although
it has a Wall, Porch and Part of a Houfe built upon it (by In-
croachment.) 144, 145, 146.
"More Latitude is allowed in Ejedlments, than in real Adions. 144.
Where the Plaintiff demands more than He has a Title to, He (hall
recover according to his Title. 329, 330.
One of two Defendants in Ejedment died, after Iffue joined, but
before Trial —
iff- How his Death muft be fuggefled. 366.
2dly. How the Judgment and Execution muft be. 364, 366.
Brought by a Landlord againft his Tenant, on 4 G. 2. c. 28. § 2.
who had Judgment againft the Cafual Ejedor by Default, and
Poffeffion thereupon delivered ; Near 20 Years after which, the
Tenant brings an Ejedment againft the fame Landlord, for the
fa??ie
A Short Reference, tfc.
fame PrcmifTes : The Landlord is not obliged to produce the
Affidavit. Page 6\^ io bz2. Sec Statutes.
Lcfs Precifwn requifite, than in a Prcecipe in a real Adlion. 629
to 631.
And lcfs StriBnefs than was formerly required in EjeSlments them-
felves. 630.
/;-///; Defcriptions (not known in England) holden good, after Ver-
did and Judgment and Affirmance there. 624 to 626, and 63 1.
Where an Ejeftment is brought, there can be no Difleifin. 1 1 r.
A Judgment in Ejeiflment is a Recovery of the Poffeffion, without
Prejudice to the Right : And He who enters under it, can only
be poffeffed according to Right y prout Lex poliulat. 1 14.
And He who recovers a naked PofJeJJion only, without Right, can
convey ?70 other to his Feoffee. 1 14.
An Ejedment is a Poffefory Remedy ; and only competent, where
the Leflbr of the Plaintiff may enter. 1 19.
Therefore it is always neceffary for the Plaintiff to Jheiv " that his
" Leffor had a Right to enter," by proving a Pofj'effion within
20 Tears, or accounting for the Want of it. ibid.
Twenty Tears adverfe Poffeffion is a pofitive Title to the Defendant :
It takes away the Plaintiff's Right of PoJJeJion. ibid.
Every Plaintiff in Ejedmcnt muftyZ'^w a Right of Pojfeffion, as well
as of Property : And therefore a Defendant in Ejcdment needs
7iot plead the Statute of Limit atio72s. ibid.
Upon a fpccial Verdict in Ejedlment, It ought to appear " that the
" Leffor of the Plaintiff might enter at the time of his bringing the
Ejedment. ibid.
A Leafe under a Power, made unfairly and in Prejudice of thofe in
Remainder, found in the Cufody of the Maker ot it, at his Death,
amongft his own Muniments, ought (at the Trial) to ht prcjmned
to have been furrendered. 126.
The Allowance of a Writ of Error is the Superfedcas : The Notice '
of it's being allowed, relates only to the Contempt in proceeding
fubfequently to fuch Notice. 340.
To reverfe a Common Recovery. See Common Recovery.
To reverfe an Outlawry, See Outlawry.
On a Judgment in EjcBmoit, from B. R. who had determined for
the Plaintiff, upon the Right ; but againft Him, upon the Re-
medy, (Holding him to be barred by the Statute of Limitations :)
The Lords determined the latter Point, firft -, and affirmed the
Judgment without entering into the ether Point at all. 126, i :j.
Cfcfipe,
A Short Reference, ^c.
cfcapr.
Such as fhall make a Trader a Bankrupt, Page 439, 440. See
Bankrupt.
Ct>iDCnce. See Proof.
A CommiJJion under the Exchequer-Seal, (though a Commifllon of
In/iriiSiion only, «o^ of IntltUng,) is admijjible in Evidence, but
«o/ co7iclufive. 1 47.
Where a TVoi'd' may be given in Evidence : And what Sort of a Note
will fupport the Declaration. 375, 376. See Declaration.
Cjcti'ngtu(l)ment.
•Of an Original Debt. See Pleading.
JFacto^
AFaftor or Agent, to whom a Balance is due, has a Lien upon
all Goods of his Principal configned to Him ; not only for
incident Charges, but as an Item of mutual Account for the ^1?^
neral Balance due to Him ; fo long as He retains the Poffejion
of fuch Goods : But if he parts with the Pojfe/Jion of them, He
parts with his Lien. 494.
JfCl'gtlCD SfUllC,
The Cofts were directed to be taxed f-om the time of it's htingfrji
confented to by the Parties and ordered by the Court: inclufive of
the Difputes about fettli?ig it ; but exclulive of every thing prior
to it's being confented to. 603, 604.
life til CCOtlCtt- SiQQ. Ba}-07z a7id Feme.
Separated from her Hulband. 542. See Baron and Feme.
Will of a Feme Covert. 432. See Baron and Feme, Devifc.
if coffin en t.
In general — The Operation of it. 92. {per Knoivler, arguendo.)
The Nature and Operation of it, with a View only to make a Tenant
to the Prcecipe. 1 15 to 119.
A Feoffee to the Intent to be Tenant to the Pracipe, 1s a mere Inflru-
ment for One Parpofe oi Form only : His Wife fiiall not be endow-
ed; Nor his Statutes or Judgments affe5l the Land 3 Nor his
Term (if he has One) merge. 1 1 7,
8 G A
A Shore Reference, &fr.
A Man fliall not, by hh o'jui injuyious Feoffment, acquire an Advan-
tage to HimfelJ. Page 1 1 8,
JFltte5, to Lords.
On Copyholds granted for Terms of Years. 206 to 219. See Copy-
holds,
ifrauD
May, in Judgment of Law, avoid every kind of Ad. 395.
And it invalidates, as much in a Court of Law, as in a Court 'of
Equity. 391 to 396.
Courts of Equity and Courts of Law have a concurrent Jurifdidion
to fupprefs and relieve againft Fraud. 396.
" What Circumftances and Fads amount to Fraud or Covin," is a
tion of Law. 396.
So is, often, the Queftion " Whether a Tranfadion be fair or frau-
" dulent." 474.
A Court of Equity can't decree a Deed made by a Trader, to be frau-
dulent } which is not fraudulent at Law and an ASl of Bank-
ruptcy. 480, 4S2. See Bankrupt.
ifreeuom
Of a Corporation. See Corporation, By-Law,
ifrecljOltl: irtecIjOlHer^ See Sei/m, Dljei/m.
The Idea of a Freehold, and of a Freeholder, according to the an-
cient Feudal Law. 107 to 1 14.
The Idea which Modern Times annex to thofe Terms, is taken
merely from the Duration of the Eflate. 108.
d^dtllC* See Co/FjiSilon.
(I5jant5
F Offices, by and under BiJJxps, 221 to 226. See Bi-
JliOpS.
Refigned by the Earl of Hardwicke. 20.
Delivered to Lords Commiffioners, Wilks^ Smythe^ and Wilmot. 20.
4 " ~ {Refigned
o
A Short Reference, &c.
[Refigned by them, and delivered to Sir Robert Henley, as Lord
Keeper; on 30th June i'JS7y ^^^ ^^.7 ^^^^^ ^^^^ End of Trinity
Term 30 c? 31 G. 2.)
AN imprejj'ed Man in Cuftody at the Savoy, brought up by his
Bail, in order to be furrendred by them in their Difcharge,
was firfl committed to the Marfial, with Orders to deliver Him
inftanter to the Keeper of the Savoy : And an Exoneretur was
entered. Page 339, 340. See Soldier.
JJJ'ued in Vacation, and returnable itnmediate before a Judge at his
Chambers, does not expire by the Coming in of the Term : But
the Defendant may be brought into Court at Wefiminjler upon the
old Writ, 480, 542, 606.
And if committed to the Mardial, He may afterwards, by Rule,
without a new Habeas Corpus, be brought up, to be bailed. 460.
For a Wife. See Baron and Feme.
For a Tcfung Lady, who had been decoyed away from her Father,
bob.
No Peer or Lord of Parliament hath Privilege againft being com-
pelled to pay Obedience to a Writ of Habeas Corpus directed to
Him. 632. See Privilege.
For imprejfed Men — Two different Rules were difcharged upon the
Merits ; but without Co/Is. 637 and 638.
l^atDfeers, i^eniars, and i^ettr-CIiapmcn,
A Jingle ASl of Selling does not make a M.a.nfuch a Trader as obliges
Him to take out a L/'avza'. 613, 614. Set ConviSlion.
The Owner of the Soil may recover it, in EjeSiment ; fubje<5l to the
Eafement : And He has a Right to the Freehold and all Profits
above and under Ground, except only the Right of PafTage.
143 to 147. See Eje6lment.
Niifances near It. 337, 338. Set IndiSiment.
Repair of Roads or High-ways iticlofed by the Owner of the Lands
adjoining. 465, 466.
Change or Alteration thereof muft be by a Writ of Ad quod damnum,
465.
Repair of a Road altered under an Ad quod damnum, ibid.
3In5iament\
A Short Reference, tfc.
5nt»ctmcnt
t'fy or Bti
^N 5 Eliz. c. 4. may be found at the Seflions of a Q'/y or Bur-
rough ; but «o/ out of the Coiaity. 251, 252. •.•■V\'
For a Niififice, in ereding Buildings at xhtParijh of T^ mar tho
King's Common Highway there, and fiMr Dwelling-houTes y and
there making acid Spirit of Sulphur, whereby the Air was im-
pregnated with iioifome and offenffue Stinks ©"c* To the Cojij-
\ mon Nufance of All Perfons' inhabiting =(^c and paiffing &c.
^333 to 339. -*''^* ti'iV'JV.u ^t,.,.
kin \ jac. c. 22. (about cutting Leather) I'^'jifO'.' An- IrTdld^ment
^^ lib, but not an Information before the Lord Mayor pcrfonally :
For the Jurifdidlion is given to Him in St^ffions. 389, 390.. '•
l^b'r'a Nufance, in placing a Pcrfon (for feveral Days) in ihnFoot-'way
of the Eublic Street in London, to deliver cut .printed Bills — quafh-
ed, as ;zo? indiftable. 516.
Lies not upon an Act of Parliament which creates a new Offence
and prefcribes a particular Remedy. 545.
9?or exercifmg a Trade, contrary to 5 Eliz. c. 4. See Trade, Soldier^
■ • Statutes, Information qui tain Cfc.
•^t.
3Jnfcr(oj Court.
^rovifo of 21 7^c. I. c 23. § 6. " that it fliall extend only to
" fuch as have Utter-Barrijlers of 3 Years Standing" — explained,
" that fuch Utter- Barriftcr muft be prefent at the Trial." 515.
See Procedendo, Statutes.
They may Jet afuie regular interlocutory Judgments, in order to let
in a Trial of the Merits : But they can not fet afide VerdiSls, ty.-
{:Q'^iior Irregidarity. 571, 572.
Jftifo^mati'ou.
For a Challenge (to fight with Piflols) was denied : Becaufe the
Perfon applying was the fir/l Sender of it ; and ought therefore-to
be left to his ordinary Remedy. 316.
For a Challenge — A Rule " to fliew Caufe" was made, upon pro-
ducing verilied Copies of the Letters containing the Challenge.
402.
This extraordinary Remedy fhall not be allowed to Cheats, againil
Oz/jcr Cheats. 548.
Againft fuftices of Peace, for refujing to grant a Licence un ier
26 G. 2. f. 31. was denied; becaufj the Juftices of the Divifioa
have the Sole Difcretion, without Appeal; and they aded with
P/(;;7/y of Intention. 561 10,565.
2 ' But
A Short Reference, &c.
But if they exercife this abfolute Difcretion with Partiality^ Malice
ov Corruption^ an Information fhall be granted. Page 561 to 565.
3Jtifo^matton in Nature of £iuo (UHarranto-
For holding a Court of Record, within a Charter-Burrough, an4
prefiding therein, in the Abfence of the Bailiffs. 407, 408, 409.
I ft. Is no Charge of ufurping the Office of Bailiff, ibid.
2d. How far the 9 uinn. c. 20. § 4, 5. extends, ibid, particu-
larly, as to Cojis. ibid.
3d. The Statute-]\JiAgmtni (" that the Relator recover his CoJls")
was reverfed. ibid.
4th. The Common-h&vf Judgment (ofOuJler) was affirmed, ibid.
Shall not be granted, after a great Length of guiet Poffeffwn of the
Perfons under whom the Defendant claims. 433, 434.
Four may be confolidated into One, on 9 Ann. c. 20. § 4. where
feveral Rights may be properly determined on One. 573.
3lnfo;tmati'on, qui tam, &c.
For exercifmg a Trade, contrary to 5 Eliz. c. 4. Not having ferved
an Apprenticejhip, may be laid at a Parijli ; and needs not aver
" that the Defendant did not then exercife the Trade." 366,
367-
On I f. I. c. 22. (about cutting of heather) does not lie before
the Lord Mayor, alone. 389, 390.
A Common Informer is not intitled to the fame difcretionary Indul-
gence, as the Party really injured is. 402. See PraSlice.
3Jtl(lU':fltJ0ll. See Coroner.
On an untimely Death, may be taken by Juftices of Gaol-Delivery,
Oyer and "terminer, or of the Peace ; if omitted by the Coroner.
18, 19.
But it muft be- done puhlickly and openly, ibid. Otherwlfe, it (hall
be quajhed. ibid.
Oi Injtru^ion : Of Intitling. 147. Sec Evidence.
31nfttrance« See Po/icy.
Double — The Idea of a double Infurance. 494, 495.
A Perfon infured more than once, fhall receive but One Satisfa^ion.
492.
But various Perfons may infure various Interejls on the fame thing :
And Each, to the iDbole Value. 493, 494, 495.
8 H If
A Short Ke.e.ence, tfc.
If different Perfons infure the Whole with different Infurers — How
the Infurers fhall contribute amongft themfclves. Page 495.
The Adl of 19 G. 2. c. 37. againft Re-affuri7ig, difcufled and ex-
plained. 492, 493.
^XiUXititXi of the Parties
Ought to prevail, both in Deedi and Devifes, unlefs contrary to Law.
233, 272, 273, 285, 286, See ConfiruSiiony Deeds, Devife.
Immaterial. See Repleader.
lunges.
At what refpeSiive Times the prefent four were fworn-In. 1, 2.
3Jitt)gmcnt
May be entered nunc pro tufic, at the Difcretion of the Court.
148 and 226.
jds in Cafe of a Nonfuit. See Nonfuit.
In Eje5lment^ where One Defendant dies between Iflue and Trial.
See EjeSlment.
Interlocutory Judgments may be fet afide by Inferior Courts, though
regular ; in order to let in a Trial of the Merits. '571, 572.
Much more, if irregular, ibid.
JurisDictron*
The Want of it, is a Reafon for quaihing an Information upon Mo-
tion. 388 to 391.
special Jurors fined^ for Non-Attendance : But taken off, the next
Day ; a full Jury then appearing. 274.
The Jury are the proper Judges of Cafes depending entirely en Cir-
cumflances. 609. See FerdiB.
So, where the Evidence is nearly in JEquilibrio. 393, 394, 397.
See Verdi£l, PraBice.
But a Verdift againft Evidence, or againft greatly preponderating
Evidence, may be fet afde. ibid.
The Setting afide their VerdiSls, and granting Wfw Trials, difcufled
and vindicated, 393 to 398.
A Short Reference, &c.
^ttftlCeiS of Peace.
Juftices at Se/Jions have a flight of Judging with the fame Latitude
of Difcretion, upon an Appeal from an Appointment of Over-
feers, as the two Juftices had. Page 246, 247.
And they need not give any Reafom : but Oiall be prefumed to have
adted on proper Grounds, ibid. The Court will intend every
Thing in favour of their Orders, 247.
So, if they give an imperfe£i or inco7ichifive Reafon, yet the Court
will prejume their Orders to be rights if they poffibly can. ibid.
But if they give their whole Reafons ; And they are trianifejlly bad,
repugnant, or conclufive againjl their Order; the Court will
then be obliged to adjudge the Order bad. ibid.
Qu. — Whether the Office of Overfeer is incompatible with that
of an ASlitig Jtijlice : (For the Court did enter into this general
Queftion.) ibid.
Reftifing to grant Licences to keep Inns, or to fell Ale — See this
Subjed: fully difcufled, Pa. 556 to 564. See Licences, Infor-
mation.
Warrants of Diftrefs upon Poor -Pates —
I ft. No Action of Trefpafs will lie agalnft the Juftices, though
the Rate and Afteflinent be bad; if never appealed-from. 581,
2d. Nor upon the Warrant ; It not being void, (o as to make it
a Trefpafs ab initio, ibid.
3d. And the Juftices can't be Trefpafcrs, by what the Officers
afterwards do. 587.
Commitment of Wife, as well as Huft)and, hdng Pariffi-Poor,
RETURNING to the Parijh from whence they had been legally
removed, without bringing a Certificate. 595 to 604. See
Pariffi-Poor.
IL^tlD. See Seifin^ DiJJeifij^.
TlOW alienated, in the Times of the ancient Feudal Law. 107.
* ■* See Alienation.
ILdtlDlO^D* See Reftt^ Te?Mnt, Statutes.
Heafes:
^&dc under Powers. 120. See Powers.
A Leafe is a Contradl between Landlord and Tenant, by which
Both are bound in mutual Stipulations : And it can be no Leafe,
unlefs
A Short Reference, ifc.
unlefs fome Perfon agrees to hire the Thing demifed, and to pay
the Rent. Page 122.
For, a Sale and a Leafe are the fame Specjes of Contradt. ii>iJ,
fleat!)cr.
Cutting it. Sec Statutes i J. j. c. 22. § 50. (under Prf. 307, 30&.
and again under Pa. 309.)
Is a v^^^/ Intereft, when the Time is annexed to the Payment only ;
and «o? to the Legacy itfelf: Otherwife, where the Time is
P<;r/ of the Condition of it's becoming payable. 227.
The Term " Legacy" may be applied to Land as well as Money,
271 to 273. See Devife.
ILittntt
To keep an Inn — The Juflices of the Divifion have the fole Difcre-
tion. 556 to 565. See Statutes (26 G. 2. c. 31.) and Informa-
tion (againft Juftices, for refufing One.)
To fell Ale. V. fupra, and Information.
Hiinitation
Of ^io Warranto Informations. See Informations in Nature of S>uo
Warranto.
Of Bojids — About 20 Tears is commonly taken to be the general
Time : But it has been left to a Jury, upon 18 Years (by Lord
Raymond). 434.
HoiiDon
Cuftoms —
ift. If put in Ifue, are triable by the Mayor and Aldermen, by
the Mouth of their Recorder. 249, But there muft be a proper
Surmife, in order to this Method of Trial. ii>id.
2dly. The Recorder ceriifed ore tenus at the Bar : (Which has not
been aSiually done at the Bar of this Court, within 200 Years part.)
248, 249, 250.
3diy. The Cuftom certified by Him, was " That if One Perfon
" has a Houfe which has ancient Lights fronting oppofite to
" or o^ijcr an adjoining Houfe or ancient Foundation of a Houfe,
" the Owner of the latter House or ancient Foundation of a
" House, may exalt his Houfe, or rebuild upon fuch ancient
I " Foundation
A Short Reference, £/r.^
" Foundation ar^.Mew Houfe^ to any Hightb that he fliall pleafe,
" again(i dud oppofite to the faid ancient Lights, of the Former,
" a^nd thereby objcure them :" But this Cuftom is confined to .
Mejfuages or Mouses ; and does not extend to other EreBiom
or Buildings. Page 248, 249, 250.
Mayor in Sessions — His Juri(di<5l:ion under i jfac. i. c. 22. § 50.
about cuttiog Leatbor, See Statutes. - .
Th6r PrhJkges, 632. Sec Pri'-jiJeg^:
■» . I'll » -m.!. J J I fi » » «i 1 1 «
To compel a Meeting under a By-Law. See By-Law.
To approve a Perfon arbitrarily and without Caufe difapprovcd
of. See By-Law.
To a Vifitor " to exercife his Vifitatorial Power ou^r the Temporal-
" Y/Vj of a CathedraK^iiufchj -coirtcerning the intermediate Pro-
'^ Jits during the Vacancy of a Stall" — Denied; as being a Mat-
ter proper for an A6tion at :Law. ^bj:
" Boni Judlcis eft, ampliare Justitiam" — k the true Text: Not
" Jurifdi^ionem." 304.
'Payment of it ?«/o C(j«r^. 578. See Pra^tce. •"- .,.,, ..;^«.'.
!®o;ttjsagt.
;By Banlcrupts. 477, 478. See^Bankrupt. - '.l '
£@tttttal SDebtS* See *S'^/-<?/, Statutes.
n ..... . I ■ . , ^ — Jjt
i^etU Xtial* See Pra&ice, Repleader, VerdiH.
OR Exce^venefs of Damages. See VerdiSi.
Is no more than having the Caufe more deliberately confidered
by another Jur-j ; when there is a reafonable Doubt, or perhaps
ACerfai?3fy, " That 7«/?;V^ has «o^ been done." 397.
A Short Reference, ifc .
It is neceflary to JuJlicCy that unjuft Verdids fliould be re-confidered.
Page 393-
And it is always on Payment of Cojis, to the Party in Poffeffion of
the Verdift. 394.
The Courts of La-w grant New Trials of late Years, more liberally
than they did formerly : And Why they do fo. 395.
The Grounds on which they ought to be granted. 393 to 398.
Adlion againft Two; Judgment against OnCy by Default; Rule
for Judgment for the Other, as in Cafe of a Non-fuit, purfuant
to 14 G. 2. c. 17. § I. Yet this Defendant cannot have his Cofts
taxed as in Cafe of a Non-fuit ; becaufe the Cafe of a Non-fuit
does NOT here exifl : For if the Plaintiff be non-fuited. He muft
be out of Court as againft Both Defendants; whereas He has
obtained 'Judgment againft One of them. 359.
iBoti'ce
Of an Inquifition at the JJfizes, upon an witimely Death, where the
Coroner has omitted to take One — is neceffary. 19.
Of being eleBed on the Livery of a Company — given, " to attend at
" the next Court of Affiftants, to take upon him the Livery."
239, 240.
1 ft. The Notice fhall be intended to be regular : Ter Denifon.
■240.
2dly. A Livery-Man of the Company ought to know when the |
next Court is : Per Lord Mansfield. 239.
To Corporators — Of Courts, which their general Duty obliges them
to attend — Where it muft be Perfonal. 540, 541. See Dif-
franchifements. I
Writ to the Sheriff " to abate it." See PraElice.
Calling a thing a Nufance (in a Plea) will not make it fo : This can
not alter the Law. 267.
The Perfon injured by a Nufance may not abate the Whole of it,
where it arifes only from Excefs ; but only fo much of it, as by
it's Excefs above what is allowable, conftitutes the Nufance.
S67, 268.
In occafioning noxious ^x\6. o^en/ive Stenches, in a Parijh, near the
King's Highway, and near feveral Dwelling-Houfes, 336, 337,
338." See LidiSlment for a Nufance.
I flDffiCOS. '
A Short Reference, £^<r.
/GRANTS of them, hyBKhops. P^^^ 221 to 226. See Bijbops.
Of Juftices are intitled to all favourable Prefumptiom. 246, 247,
248. See this at large under Title " Juftices of Peace."
Of Seffions upon a Turnpike- A51, for digging Materials in private
Soil. See 'Turn-pikes.
An Order needs not be fo JlriBly in Form, as an IndiSimetjt muft :
An Alternative Charge is 7iot good in an Indi£lt7ient ; but may be
good, in an Order. 400. This was an Order on \\ G. 2. c. 19.
§ 3. for preventing Frauds by Tenants: The Orders were affir-
med J though it was objedled, as follows, viz.
I ft. That it is only an alternative Charge " That the Defendant
"^ aided and affifted in removing or concealing the Tenant's
" Goods." ibid.
2d. It is not charged " That the Tenant Himfelf did remove
" them ;" nor " That the Defendant aided and affifted Him."
ibid. .
To appoint Overfeers — appointing more than Four, is bad. 452.
For ajfefmg One Parifi, in Aid of another; purfuant to 43 Eliz.
c. 2. § 3.
I ft. If within the fame Hundred, Two Juftices have Jurifdidlion.
Sl^^ S77'
2d. If the Hundred is not able. Then the Sessions are to aflefs
any other Parifti within the Comity, ibid.
3d. The two Juftices mxx^fiew that both Pariffies are within the
fame Hundred or Divifion fynonymoiis or equivalent to Hundred.
577-
* I have a-
bridged the
* ^iux% of iicmot)aU
Cafes under
The general Rule how to title all Cafes of this Sort. 52, k^t,. this Head,
The Juftices have no Power to remove a married Woman from her ""'' ^""^'
Hufiand's own Property, upon her being only likely to become commodation
chargeable. 53. of Gendemen
The Tenant's being rated and payijig the hA^Ji-tax amounts to ^^^°^^'„^^^g' /^"^
fuch a Notice as gains him a Settlement under 3, ^ W. & M. the C^aarter
c. II. § 6 : Although he be repaid it again, by the Landlord, Seffions.
(or a Tide- Waiter, by the Colledlor :) And this, though it be
two garters 07ily. 247, 248.
An Apprentice (by Parifh-Indenture) voluntarily permitted by her
Mafter to go and work elfewhere for her own Benefit, and ac-
cordingly
A Shore Reference, ^c.
.cordingly ferving another Mafter in another Parini above 40 Days:^
then returning to her Indenture-Mafter, and flaying with him
only 8 Days, at the End of whidi, her Apprenticefhip expired,
is fettled in that other Maker's Pari(h, where She ferved 40
Diiys : For fuch Service was under the Indenture, which was
never dife barged. Page 307, 308.
The Wife attd four Children pf Richard Crockford jun. were re-
moved from Ehetham to Alton : Which Order was confirmed by
the Seflions ; and ioth Orders were affirmed by this Court. This
Richard Crockford's Father and Mother came by Certificate
froni Alton to Bl^rtham j where this §on was born, subse-
quent to the Certificate. He became a hired Servant to Sir
Harry Calthorpe, at Ehetham (the Place of Sir Harry's Re/idence,)
and ferved him, in all, ten Years. But tiie last 40 Days of
.tlx fecond Tears Service W4S at Scarborough : Where, without
ever quitting his Service, He applied to J>ii> Mafter, at the pnd
of the fecond Year, to make a neip Agj-eetnejit fqr another Year.
His Maftef fai,d " It -would be time enough, when they returned
" ^ome to pivetha/n." Whereupon the Servant continued on,
for about fix Weeks, till they returned. Then he was again
Jjired by his fai4 Mafter, for a third Year, at advanced Wages ;
and Jerved it out, in Elvetbani; and continued 7 Years more in
the fame Service, in Ehetham. After which, he married this
Wife, and had thefc Children. 308.
I. The tVife and Children were properly removed to the Settlement ©f
the Hiijhand and Father of tl:em ; And if He fhould in future
come to Ehetham, \\q. niay be removed by another Orden 30S
to 314.
.2. Alton, w]iich gave the Certificate, was that proper Settlement.
310 to 314. For
I ft. Though a Servant may gain a Settlement in a Place where
' his MaJk'K has none, or 5.^'here the Majiev never re/ides biwfelf;
ibid.
2dly. Yet this Servant gained no Settlement at Scarborough (where
his Mafter only went as a Cafual Sojourner., not as an Inhabi-
tant.) ibid.
3dly. Befides, here was not any Finifinng or End of the original
Contt^dl, by what paffed at Scarborough : On the contrary, it
was adjourned and continued ; And the Re-hiring for tlie tjiird
Year was tranfa&ed at Ehetham. So that the Whole was a
CoNTiJiUATiQN of tlic Original Service firft i^egvn under X he
Certificate from Altofi. ibid.
An Order of Confirmation (upon Appeal to the Sefiions) is con-
clude, and binds all the World : But an Order of Disc^iarge or
Reversal is only final between the tim then contending Parifiies ;
And no Third Parifti is bound thereby. And this DifiinSfion is
iiilly fettled, and quite juft and rcafoiiable : For the two conten-
4 ding
A Short Reference, tfc.
ding Parities have been fully heard ; The third Parifh, not at
all. Ptf^f 35410356.
The Child of a Certificate Ferfon, having regularly gained a Set-
tlement in a third Parifh, may, after that^ gain One in the
certificated Parifh. 357 and 358.
A bo7id fide Purchafer of a fmall Purchafe under 30/. Value, if rated
and faying towards the public Taxes of the Parifh, does, by fuch
being rated and paying, gain a Settlement that fliall continue beyond
the Time of his Inhabitancy. 370. For
ifl. The 9G. I. c. 7. § 5. was only levelled z^dXn^H fraudulent
Purchafers. ibid.
2d. The -^y 4.W.& M.e.ii. § 6. k not afi'eBed by 9 G. r. ibid.
3d. The Parifh is not obliged even by 17 G. 2. c. 38. to rate a
Perfon «;z/?/ to be rated. 371.
A Hiring for Eleven Months " and to give a Month's Service in,
" beyond the Eleven Months" — is 2i ilirm^ for a Tear . 372.
A Quefiion was made concerning the Neceffity of a Pauper's ta-
king out Adminiftration, in Order to gain a Settlement : But this
Quefiion was not now determined j becaufe it was holden to be
ftated as a Faft, " That the Pauper had a derivative Settlement"
{exclufive of the Claim under Adminiftration.) 435.
A Hiring for One Tear, to wit, from Michaelmas 1752 to Af. 1753,
with Liberty " to let hi mf elf for the Harveft- Month, to any other
" Perfon," is no Hiring for a Tear. 496, 497.
The ConJlruSlion has been favourable as to the Service; but moi-e
ftridi as to the Hiring, ibid.
An Apprentice (by Parip- Indenture, till 24) was, by a mofl ex-
plicit and formal Agreement between his Mafter and himfeif
DISCHARGED from his Apprenticefliip, And the Indentures de-
livered up; the Apprentice being then under 21. He then
left his Mafler; and was regularly hired for a Year, and ferved
for a Tear in A. He gains no Settlement in A. 500, 501.
ift. The Infanfs Confent is of no Validity : (For, being under
Age, He could not confent to his being difcharged.) 501.
2d. The fubfequent Service of the Apprentice, under the Hiring
for a Year, gained no Settlement ; as being by the Mafter's
Leave and Confent, and fo a Service under the Indenture.
501.
3d, For this is no express and explicit Leave given by the
Mafler to a particular Service ; but intended to be gene-
ral, and even founded on a Miflake. ibid. See ante, under
Pa. 307, 308.
Daniel Harrijon, Mary his Wife, and William their Son (an Infant)
went ^_y v^E R T 1 F I c A T E to refide at Cold-Ahfton. Her Father,
being pofr;;fred of a T^erm in a 'Tenement in Cold-Ahfton, died intef-
tate, leaving Her and Five other Children. Daniel and She and
William (then under 5 Years of Age) entered and took PoJeJJion ;
8 K and
A Short Reference, tfc.
and Daniel and Mary have occupied everjiitce, (being 29 4- Years :)
But NO Adminiftration was ever granted either to them^ or to
any other Perfons. William lived with his Father and Mother in
the faid Tenement, till about 8 or 9 Years ago : When he mar-
ried, and lived feparate, but gained no other Settlement. Daniel
(the Father) ferved the Office of Tithingman for the faid Parifh,
for half a Year, about 25 Years ago ; and the fame Office again,
for another Office Year, about 5 Years ago : The Cuftom there
being " to ferve it for Half a Tear only, at a Time." All of
them were fettled at Cold AJl:iton. 5 1 o.
I ft. The 9, 10 W. T^. c. i\. mentions the " Taking a Leafe of
" a Tenant of 10/. per Annum Value," or " Executing fome
" annualOffice in the Parijh," as the only Methods by which
a Certificated Perfon can gain a Settlement. 507.
,2d. But by a reafonable ConfiruSiion, an Estate of a Man's own,
{vom. "wMich ^Q cannot be removed, is w/V/'/n this Adt. ibid.
3d. The Office ftated in this Cuftom is not an Annual Office;
but an Office for Haifa. Year only. 504.
4th. Daniel, the Father of William, here acquired fuch a Right
2i% \Qnd&xtA\i\m irremovable. 508, 509, 510.
ift. It was a 20 Tear's Fofjefjion : Which will maintain or de-
fend even an EjeBment. ibid.
2dly. After fo long a Pofleffion, a regular Title to it fhall be
prefumed. ibid.
3dly. As to the general Qiieftion *' Whether the mere Pof~
" y^o« of a Term, by the file Next of Kin, without
** Adminifiration, be fufficient to render irremoveable ;"
it is out of the prefent particular Cafe.
5th. William, the Son of Daniel, here gained a derivative Set-
tlement in C. A. from his Father, ibid.
ift. The Children of all Parents muft have the Settlement of
J:!* the Father, till they acquire Another for themfelves. ibid.
.idly. A critical &ndfevere Scanning of Words and Expr^ffions
' . " (hall fiot be admitted, to prevent this, ibid.
An Order of SeJ/ions made on Appeal is not obliged to ftate the Cafe
, fpecially : And, where their Expreffion is not abfolutely clear
and explicit, They ftiall be intended to have done right. 514.
An Unmarried Perfon, not having Child or Children, may be hired
for a Servant, and gain a Settlement by the Service : (by 3, 4 W.
©•M f. II. §7.) 546, 547, 548.
ift. Such Perfon muft be unmarried, when hired, ibid.
2d. One was hired conditionally, being then married ; His Wfe
died; then the Hiring was completed by the Principal, who
ftood at Liberty to have diJJ'ented. This Man was holden un-
married, when hired, ibid. . -
An
A Short Reference, &c.
An Infant, of 8 Years of Age, was hired, to work in Silk-Mills
for 3 Tears : But the Mafter was not to find Diet, or Lodging ;
And the Service was to be only Eleven Hours in the fix Working-
Days ; and all the Reji of the Time, as well as on Sundays, the
Child was to be at it's own Liberty and it's own Mafter, This
gains no Settlement. Page 565, 566,
ift. Here is no Sort of Foundation for One, upon the Foot of an
Apprenticefhip. ibid.
2d. As a Hiring and Service — It gains None. ibid. For
ift. The Infant is not bound: Though an Infant has an Elec-
tion to affirm his Contract, if he pleafes. 566.
2dly. The ContraSl itfelf is tiot a Hiring for a Tear, within
3, 4/F. (if M c. II. §7- ^■^'■^•
Thefe Determinations (upon the Poor-Laws) ought to be according
to plain common Senfe, without Subtlety or Nicety. 593, 595.
A Hiring for a Year, was neceffary by 3, ji^lF. ^ M.. c. 11. § 7 :
A Service for a Year was added by 8, gJV. i. c. 30. § 4. 593.
And, by the Latter, a Continuing atid Abiding in the fame
Service, during the Space of one whole Year, is made eflential.
ibid.
ift. The Majler'i Leave makes it a Continuance in the fame Ser-
vice. 593.
2d. If there be a continued Service for a whole Year, it is enough ;
though the Hiring and the Service be not Both under the fame
Contrast : Provided there be both a Hiring for a Year and a
Service for a Year. 592 to 596.
3d. A fmall Interruption of the Service fliall not hurt. ibid.
4th, But a total Dijfolution, or an abfolute Difcharge, or what
entirely breaks the Comieclion, is fatal to the Settlement : For it
muftjbe an uninterrupted [i. e. an undijfolved) Continuance of the
fame Service. 593, 594, 595.
Rating the Houfe to the Poor's Tax, without exprefly naming the
Tenant, is fufiicient to gain a Settlement : The Land-tax, Poor's
Rates, and all other parochial Taxes were paid by the Tenant ;
♦; ..and the Receipts given to him, by the Overfeers, in his own
Name ; and He had agreed to pay them. This Rate was " on T.
" C." (who was the Landlord) " or Tenant." 623. V. Supra^
(under Pages 247 and 368.) ^
A Juftice of Peace, who was alfo a Half-pay Lieutenant of Marines,
appointed Overfeer of the Parifh where He refides and ads. 246,
247., . See Juftice of Peace.
No greater Number than Four can be appointed. 445 to 453.
£)utlatJj?i'»
A Short Reference, &'c.
Error (Writ of) to reverfe an Outlawry. (The prefent One was
in London, for High Treafon in diminifhing the Coin.) Page
638 to 643.
] ft. After Plea, the Defendant may have Counfel, upon the Col-
lateral Mitter. 638.
2d. If, upon being arraigned, the Defendant pleads Non-IJentily,
it is to be tried injianter. 638, 639.
3d. If Error in FaSi be alledged, the Attorney General may con-
fefs it, tho' not true : But He can not do fo, if the Error affign-
ed be an Error in Law. 642.
4th. Eight Errors were objeded ; (Which were not now deter-
mined.)
I ft. That the fecond Capias ought to have had either 3 or 4
Months between it's Tefte and Return. 639.
2d. That there was a D//£'o«//«aaw£' of Procefs. 639.
3d. That the Outlawry was faid to be pronounced by Mr.
King, the Coroner : Whereas the Lord Mayor is perpetual
Coroner ; and the Recorder is to pronounce the Outlawry.
639-
4th. That He is not faid to be outlawed fecundum legem et con-
fiietudlnetn regni. 640.
5th. That the Name of Office {Vicecomites) is not fet to the
Return of the fecond Exigent. 640.
6th. That the Writ oi Proclamation is tejled and returned u^ion
the fame Day. And the Return does not fpecify the par-
ticular Proclamations, 640.
7th. That the Defendant was out of the Kingdom when the
Outlawry was pronounced. 640.
8th. That the Hujiings are not faid to be holden " in and for
" the City of Loiidon." 640.
HE Ofjicc and the Fees are (Both of them) of temporal Qo^-
nizance. 367, 368. See Prohibition.
T
Paiifl)=
A Short Reference, tfc.
^ari(l)-|^0?. See Orders:
Returning to the Parifh Jrojn whence removed, without bringing
a Certificate, is punifhable by two Statutes, "viz. 13, 14 C. 2.
f. 12. § 3. and 17 G. 2. c. ^. § i. by Commitment to the Houfe
of Corredtion &c. Page 596, 597.
iftQu^ Whether a previous ConviBion be neceflary, upon the
former Acfl : (The Latter exprefly requires it.) 598 to 604.
2d. Qu. Whether a Wife returning ninth her Hufband, to the
Pari Hi from which Both were legally removed, and bringing
no Certificate, is liable to Commitment, as well as the Huf-
band. ibid.
3d. Though 13, 14 C. 2. c. 12. § 3. is, in exprefs Words,
tied up to Perfons going to work in another Pariih, yet it
Jias always been confidered as general, and as not being tied
•up to that particular Cafe of going /(? wori, only. 601.
4th. But a general Commitment to the Houfe of Corre<5lion,
" ,V.NTJL difcharged by due Courfe of Law," (indefinitely, and
without Limitation of Time) is }iot good within either A.Gi :
For the Former requires Pwiijhment as a Vagabond; and the
Latter requires the being kept to hard Labour, but litnits the
Confinement " not to exceed One Month." 602, 603.
^th. An ASiion lies by Hujband and Wife, againft the Juflice,
for this illegal Commitment ; although it arofe from the Huf-
.band's illeg;U Ad:, ibid.
#arltament.
Lords of it — Their Privileges. See Privilege.
I^apntttlt of Money into Court. See PraBice,
l^aCt* See [Security i)f the Peace^ Aitachnent^ Ar-
.ticks.
Their Privileges, See Privilege.
Immaterial. See Repleader.
Liberty to amend it. See Repleader.
JJfuable (within the Terms of the ufual Judge's Order, giving Time
to plead, upon certain Terms, whereof One is " to plead an if-
S L '' fuablf
A Short Reference, £/r.
" /liable Plea—") A Plea (to an Adion upon a Bail-Bond) of
" 23 H. 6. c. 10. and that the Bond was taken for Eafe and
" Favour &C;" is an ijhable Plea, within fuch Order. Page
605.
So is a Plea oi 'Tender. 59. See Pleading.
But not a Plea in Abatement, ibid.
An Account flated is no Extinguijlitnent of the original Debt : And
therefore it is no Plea in Bar to a Demand of a Debt of the fame
Degree. Neither can a Note of Hand be pleaded in Bar to an
Adion upon Simple Contradl : Though a Bond may ; becaufe
it extinguifhes the Debt. 9. But One Bond cannot be pleaded to
Another, ibid.
A Plea of Tender, is an ijjuable Plea, within a Judge's Order giving
Time to plead, upon the ufual Terms " of pleading tjfuably
A Plea in Abatement is not fo ; (becaufe it tends to delay the Plain-
tiff.) ibid.
A Plea calling a Thing a Nufance, cannot alter it's Nature and make
it fo. 267.
Repleader. See Repleader.
Iflbe mufl; be taken upon a fingle Point : But it is not neceffary
that that fingle Point fhould confift of a fingle Fact ojly.
(As if the Defendant juflifies under a Right of Common, It
is a good Replication and not multifarious, to traverfe " That
" the Cattle were the Defendant's ou'«, and that they were
" levant and couchant, and that they were commonable Cattle.")
320.
Where the whole Plea is denied, the Replication mufl conclude to
the Country : Where only a particular FaSi is denied^ it mud
conclude with an Averment, ibid.
Where a corrupt Agreetnent is pleaded, the Replication may either
reply " That the Bond was given upon another Account," and
traverfe the corrupt Agreement with an abfque hoc ; or may deny
the corrupt Agreement direSily, and conclude to the Country.
320, 321.
Condition to itidemnify againfl all Claim of Dower by a Widow, and
againfl: all Co/Is Charges &c arifing therefrom. Breach afligned in
a Bill in Chancery brought by the Widow's second Husband,
for Arrears of Dower : In which Suit, the Plaintiff in the pre-
fent A(ftion had expended 81. 10 s. for Co/is. Judgment for the
Plaintiff, on Demurrer, sys^ 57^-
ift. This is within the Words and Meaning of the Condition, ^jb.
2d. The Obligee, being already damnified, has an immediate
Right, to be reimburfed, without waiting the Determination of
the Suit in Chancery. 576.
A Short Reference, &c.
l^Oll'CP of I?ifu
ura?jce.
On an Eajl India-Ship, it's Body, Tackle, Apparel ^c, and other
Furniture ; againft Perils of the Sea &c, and Fire (expreflly ;)
to any Ports and Places beyond the Cape of Good Hope, and back
to London. At Canton, the Ship ftayed to clean and refit : In
Order to which. All the Sails a7id Furniture were taken out
of the Ship, and put into a Warehoufe built for that Purpofe on a
Sand-Bank in the River there: Where they were accidentally
■ burnt. This was found to be the well-known and eftablijhed
Usage ; and to be prudent ; and to be for the general Bejiefit of
the Infurers and All concerned. Page 347 to 353.
ift. This is a Lofs within the Words and M.eani7ig of the Policy.
347 to 353.
2d. If the Lofs happens by the Variation of the Chance, or Altera-
tion of the Voyage, or other Fault of the Owner or Mafter of the
Ship, the Infurer ceafes to be liable, ibid.
3d. Otherwife, if the Thing be done in the ufual Courfe of the
Voyage, or ex juftd Caufa. ibid.
4th. So, if a Ship, warranted to depart with Convoy, goes out of
the Way in Order to have the Opportunity of Convoy, This is
no Deviation, ibid.
5th. The effential Means and neceffary intermediate Steps mufl:
be taken to be infured, as well as the End. ibid.
6th. What mufi necejfarily be underftood, makes a Part of the
Policy, as much as what is exprefled. ibid.
7th. This is a Lofs within the Foyage, though it happened (ftrid-
ly fpeaking) upon Land. ibid.
8th. But the Infured have no Right to change the Bottom j though
to a better or ftronger Ship. 351.
9th. A Deviation (without Neceffity) determines the Policy, and
dijcharges the Infurer. 351.
Double Infurance — What is, and what is not foj and it's Ef-
feBs. 490 to 495. See Infurance.
^00J'1C^]I^» See Orders^ Statutes^ (43 Eliz. c. 2. § i.)
Rates.
The Limitation and Modifying of Eftates by Virtue of Powers,
came from Equity, into the Common-Law, with the Statute of
■ Ufa- 120. , „
The Intent of the Parties who gave the Power, ought to govern
every ConfiruBion of them. 120.
, . They
A Short Reference, Uc,
They fhall net he exceeded; nor thck Cofidkiom evaded; but fliall
be STRICTLY purfued, in Form and Suhjlance : And all Acts
done under a Special Authority, not agreeable to it, fior warran-
ted by it, are void. Page 1 20.
" To make heajes,' is of all kinds of Powers, the moft frequent.
ibid.
lil. The Plan of this Power " to make Leafes" is for the mu-
tual Advantage of PoffelTor and SucceUor. 121.
2d. The Succejjor therefore muft not be /prejudiced in point of J?f-
»;?£/>' or any other Circumftance oi full and ampk Enjoyment,
ibid.
3d. Tlie two ufual Methods of Leafing are, either " at xhe befl
" Rent,"' or " upon Fives :" And the Conditions in Favour of
the Succeffor mufl: be purfued not only literally, hut fub/lan-
tially. 121, 122.
. 4th, If the ancient Rent is to be referved, It mufl: ht referved
with All the beneficial Circumflances. ibid, and specifically
too, (not generally only;) that the Remainder-Man may be
under no Difficulty in avowing : For other wife^ it will be a
void Leafe, as againft Him,; though good agairaft the Owner
. of the Inheritance, ibid.
5th. It can be no Leafe, unlefs both Landlord and Tenant are
bound in w«/W Stipulations. 122.
6th. Where the Lefee never executed any Counter-part ; never
entered; never covenanted to pay the Rent,; never confented.; ne-
ver accepted the Leafe, nor appears to have bsen jn Foffejjion
of it or perhaps ever known of it; and confequently, was never
bound by it ; Such a Leafe is. no Execution of the Power, ibid,
Efpecially, as there was no Glauje of Re-Entry in it. 125.
■7th. Fqt tvtry fraudulent, unfair, prejudicial Excc\ition of fiich.
a Power, in refpeSl ofthofe in Remainder, is void at Law. 125,
•Sth. But it is no ObjeSlion to a Leafe made under a Power,
" That it is in Trvst for him who executes the Power :" Pro-
vided the legal Tenant be bou/id, during the Term, in all requi-
fite Covenants and Conditions. 124.
9th. The Leafe intended by every Power of Leafing, is the lijual
Hujbandry Lea.k, reCerving a Rack-Rent. 124.
loth. A Leafe, by Virtue of a Power, takes Effe6i out of the 5rf-
//i?Wf«/ that gives the Power. 123.
iD^ClCtl'CC* See Pi-ocefs., Proceedifigs^ Declaratioji^
Pleadings Repleader.
All enlarged Rules to ftiew Caufe, made in a preceding Term, mufl:
be brought on before the laft Week of the Term next following ;
.unlefs particular Leave be given to poftpone. 9.
4
VerdiSi
A Short Reference, cfc.
VerdiSi againjl Evidence is, in general, a good and conftant Reafon
for granting a «f TO TrzW. Page iz. But
Such a VerdiSl being found for the Defendant^ and the Adion ap-
pearing to ht frivolous, trifling, and vexations, the Court re fifed
to gr^nt xh& Plai}7tiff a iiew Trial ; notwithftanding it's being a
Verdi^ againjl Evidence, ibid.
AH Caufes flmtding for Argument in the fpecial Paper, to come on
in the fame Order in which they are there entered ; and fo to con-
tinue to ft and, till they fhall be argued: And none to be put off,
without a previous Special Application to the Court. 52.
A New l!rial fhall not be granted, merely to gratify litigious PaffionSj
upon every Point of Summum fus, or in hard Adions, or after
iinconfcionable Defences : Though the Verdidl be agaifft Evidence
and the ftridl Rule of Law, 54. F. fupra. Pa. 12. infra Pa.
All Motions really and fairly ready at the Bar, made Remanets ; and
to be heard (though they take up 2, 3, or more Days,) before
the Dignitaries and Seniors at the Bar Ihall be again called upon
to move, ^y, 58.
This Regulation of Motions at the Bar was made hy Lord Mansfield,
at his firft Coming upon the Bench ; but was otherwife, till his
Lordfhip's Time, and efpecially in Ld. Ch. J. Holt's Tiriie ;
when the junior Barrifters ufcd to attend many Days together,
■without Opportunity of making their Motions, ibid.
"Judgment entered 7iunc pro tunc. See fiidgment.
A Motion for a new Trial, and a Motion in Arrcft, of fudgment, may
not be made both together : The former muft precede. 334.
Bail — The different Terms upon which they fluU have Time to
fiirrender their Principal, after a Writ of Error brought by him.
340. See Bail.
A VerdiB obtained by Stratagem or uneqiiitahle Methods, fliall be
fet afide without Cofts on either Side, at leaft ; if not wiih
Cofls to be paid by the Party whoy^ obtained it. 353. V. fupra,
under Pa. 1 2 and 54.
Scire facias againft Tcrre-Tenants — See Common Recovery.
The Rule " about not quajlnng w/ Motion, but putting to demur,"
does not hold ; where the Court which is proceeding, wants Ju-
rifdiSlion in the Cafe. 388 to 391.
An Eaft-India-Merch^nt being bound at Bombay in a Bond condi-
tioned " to appear in this Court, to anfwer the Demands of a Black
" Merchant there," was permitted to appear here and enter into a
Recognizance with Sureties, in the Penalty of that Bond, and with
the like Condition ; after Notice to the Eali-India-Qom^m-^ . 39S.
The Court will not fet afide (even on an Offer to pay the Cofts, of it)
a regular Non prof, obtained by the Defendant againft a Common
Informer : Whatever they might have done, if the Plaintiff had
been the Party really injured, fuing for Juftice and Reparation.
401, 402.
8 M Scire
A Short Reference, ^c.
Scire facias againjl Bail, after Surrender of the Principal. See
Bail.
Of bringing i>!(o Court, in. Term-time, upon a Habeas Corpus iflued
in Vacation and returnable immediate. I\foo. See Habeas Corpus^
(under Pa. 460, 542, 606.)
Rule to pay Money into Court, and have It ftruck out of the De-
claration ; upon Payment of Costs ; (in an Adion upon the
Cafe, for the Ufe and Occupation of a Houfe ;) was difcharged
as to'the Cofts ; [i. c. permitted to be done without paying Cofts;)
the Plaintift's Adion appearing to be brought and kept on Foot,
wrj OPPRESSIVELY. 578, 579.
On the laft Day of a Term, TiSi Attachment cannot be moved for;
Except ift. for Non-Paym.ent oi Cojls ; Or adly Againft a She-
riff, for not returning a Writ. 651. Alfo it may be moved
" to quafli an BidiSlme?it" (on the laft Day of a Term :) But not
" to quafli an Order." ibid.
Profits during Vacancy — Upon a Queftion about the Right to them,
an ASiion at Law, or a Bill in Equity, is the proper Method :
Not a Mandamus to the Vijitor. 567. See Mandamus.
|0;t0fCtt'ptl'Oll. See DeclaratiQji.
For a Right o/' Burial in a Chancel, claimed as belonging to his
Meffuage : It was flated " That he had fuch a Right ; and that
" 2 J. isas due to the Parip, for every Perfon buried in the
" Chancel of that Church." 443, 444.
I ft. This Payment is not a Condition precedent, or Parcel of the
Prefcription. ibid.
2d. But either a Cujlomary Payment, or, at leaft, a Collateral Pref-
cription. ibid.
Of Attornies — See Attorney.
Of Lords of Parli anient — does not extend to prevent the Court of
King's Bench from enforcing Obedience to a Habeas Corpus " to
" bring up a mif-ifed Wife," by Attachment, But the Cir-
cumftances of the Cafe muft be fuch as neceffarily require fuch a
Method : And it muft be cautioufly executed. 63 i to 636. (Where
fee all the Particulars of Earl Ferrers^ Cafe, previous and fubfe-
quent to his Countefs's Swearing the Peace againft him.) V. in-
fra, next Article.
No Peer ox Lord of Parliament hath Privilege oi Peerage or 0^ Par-
liammt, againft being compelled by Proccfs of the Courts in Wefl-
3 minfler-
A Short Reference, &c.
viinfter-Hall, to pay Obedience to a Writ of Habeas Corpus^ diredt-
.ed to him. Page 6^2.
Denied to a Btirrongh-Court, who had tried a Caufe witout tht
Presence of mi IJtter-BarriJlcr of 3 Years Standing : (For, by
21 y. I. c. 23. § 6. Such an Utter-Barrifter ought, in all Evcnti,
to be PRESENT at the Trial.) 515.
Set afide, for want of Attorney's Name to the Procefs ; It being fet
thereto, laithout his Authority. 20.
Aftorhefs Naime. See Proceedings.
To a Fifitor. See Vifitor.
Declaring in Prohibition — 198, 199.
I ft. The Defendant in Prohibition has, perhaps, a Right to de-
mand it, where the Opinion of the Court is againft him. 198,
199-
2d. But the Party applying for a Prohibition has no Right to infift
upon declaring, when the Court are clear that his Application
is groundlefs. 198 to 205.
To the Spiritual Court, to ftay Proceedings on 5, 6 E. 6. c. 4. § 2 :
Which Adl contains 3 diftindl Claufes levelled againft 3 diftindt
Offences in Churches and Church-Tards ; "viz. 1 ft. Quarrelling, Chi-
ding, or Brawling by Words only ; 2dly. Smiting, or laying
•violent Hands ; 3dly. Striking with a Weapon, or draiving One
with Intent to ftrike. (For which 2d Offence, the Offender is^
ipfo faSio, to be deemed excommunicate.)
\ ft. The Ecclefiaftical Court may proceed upon the t-xvo jirjl
Claufes J and are ;w/ to be prohibited. 243, 244. But
2dly. Upon the third Claufe, there muft be a previous ConviSlion.
and a Tranfmiffion of the Sentence, and a Declaration, ibid.
' 3dly. But if they proceed for Damages, on either Claufe, they
fhall be prohibited. 244.
4thly. The Proceedings of the two Courts are diverfo intuitu :
This, to punirti ; that, to amend. 243, 244.
To the Spiritual Coun — After Sentence —
I. Shall
■^
A Short Reference, tfc.
1. Shall f2ot go, unlefs Dcfeft of Jiirifdidtion appears upon the
Face of the Libel. Page 315.
2. Nor even where they have ined a Ciiflom or Prefcriptioti ; Pro-
vided they have adjudged againfl it. ibid.
3. Othericife; where they have tried a Cuftom or Prefcription,
and adjudged for it ; (becaufe they will eftablifh it upon lefs
Evidence than the Common Law requires.) 315.
To the Spiritual Court, to ftay Proceedings for reftoring a Parifli-
Clerk, ftiall be granted : (For the Office and Fees are of Temporal
Cognizance.) 367, 368.
To the Spiritual Court, to flay their Proceedings in a Caufe rela-
ting to the Will of a Feme Covert, who had Power (by her Mar-
riage-Settlement) to make a Will : Qa. Whether fuch Will muft
not be proved in the Spiritual Court. 432. See Baro?i and Feme.
^^OlUtCro;^^ ji5Ot0- See Bill of Excha?7ge.
If made pzyskAt certainly arid at all Events, it is a good Note, within
3, i\. j4nn. f. 9. § I. Otherwife, if it be contingent, and uncer-
tain whether it fhall ever be paid at all, or not. 227, 228. See
next below.
A promiflbry Note given to an Infant, payable when He fhall come
of Age, ^x\d. fpecifying the particular Day, (viz. 12th June ly^o,)
is of the /orwdT kind : ibid. For
ifl. This is certainly and /;/ all Events payable, ibid.
2dly. The Dijlance of Time makes no Difference, ibid.
3dly. Nor the Adding " that 'tis the Day of the Infant's Coming
" of Age." ibid.
4thly. It is Debittim in prafcnti ; though folvendum in futuro.
228.
In the Name of Two, hutfignedby One only; promifing to pay on
the Death of G. H. " Provided He leaves Either of Us fufficient
" to pay the faid Sum ; Or if We fliall be otherwife able to pay
" it." 325> 326.
ift. This is not a tiegotiable Note within 3, 4 Ann. c. 9. § i j
being only eventual, not abfolute. ibid. V. fupra.
2dly. If it had, the Declaration might have been againft that
Ont, fmgly, who figned it. 325.
3dly. But this Declaration was upon an abfolute Note : Which
was not fupported by producing this Conditional Note in Evi-
dence j hui'H^z 2i Variance. 325, 326.
d!al:ci%
A Shore Reference, b^c.
REFUSING to pay T'ifhes, Rates, or other Rights Dues or Pay-
ments to Churches or Chapels, for the Stipend or Mainte-
nance of the Minifter or Curate, are. compellable thereto, (if not
exceeding lo/.) by an Order of any Tw(3 Juftices of the County
or Place, OtiDer than Patrons or Perforis any Way interejled (who
may alfo order C^5, not exceeding lOi.) Which Order may be
appealed from, to the General Quarter Seffions ; but fhall }iot be
removed into any other Court, u?ilefs the Title of fuch Tithes
Dues or Payments fhall be in Queftion. P^^^ 485 to 489.
1. The Adt of 7, 8 IF. 3. f. 34. § 4. extends only to great or
fmall T^ithes and C^wrc/j- Rates j and is temporary : But the fub-
fequent Adl of i G. i. Stat. 2. c. 6. § 2. makes fhe former
perpetual, and extends it to <7;;^' Tithes or Rates, or any cuftoma-
ry or other Rights Dues or Payments belonging to any Church
or Chapel, which of Right by Law and Cuftom ought to be
paid for the Stipend or Maintenance of any Minifter or Curate
officiating in any Church or Chapel. 486.
2. Both Adts diredl that the Proceedings (hall not be removed into
ANY other Court, (except the Appeal to Seffions,) uiilefs the
Title ffiall be in Queftion. 487.
3. They mean that the Title be really in Queftion, and upon fome
real Foundation of Controverfy : But the 7nere general Scruple
of the Quakers to pay any Demands of this Nature, and their
confequential Afl*ertion " That the Right is in Queftion,"
(without fliewing upon ivhat Foot,) is not a fufficient Ground
for removing fuch Orders. 488, 489.
4. Thefe two A(5ls were made in Favour to, and for the Eafe
and Benefit of Quakers : And it would fruflrate their End and
Intention, if they might be thus evaded, either by their Obfti-
nacy or mere general Scruples, ibid.
5. A Certiorari having iflued, grounded upon a pofitive, but
general Affidavit on the Part of the Quakers, " That they con-
" troverted the Title to thefe Tithes before the Juftices ; and
" that the Title to them was really in quejlion :" The Writ
was fuperfided (upon it's appearing that this general Allega-
tion and confequential AfTertion had no better Foundation than
their Scruples or Obftinacy as above,) quia improvide emana-
vit ; the Return taken off the File ; and the Order remanded.
488, 489.
6. But thefe Ads never vh^ant to give the Jujlices Jurifdiction to
determine upon the Right and I'itle, where they are really in
Difpute and Queftion between the Parties. 487, 489.
8 N KCCOS-
A Short Reference, ^c.
To remove an Indidment from the Court ofOjvr andTcrminer
at Hicks' s Hall, is a Recognizance at Coimnon Law, and not
within the Stat, of 5, 6 TV. (3 M. c. 11. § 2. Pa, 10.
Such a ComtfWJi-Laiv R^g,^nizance, not within the Statute, ftiall
be difcharged, upon the Terms of it's being complied with; witb-
' w^ Payment of any Co//j. 10.
To remove an Indiftment from the Quarter-Seffions, upon 5, 6 W.
& M. c. n. § 2. fl-iall not be difcharged before Payment of Co/Is
to the Profecutor (after Conviftion,) if the Profecutor be proved
by_ Affidavit to have been a Civil Officer &c ; although his
Name be not indorsed as fuch, upon the Indidment : For the
3d Sedtion does not require fuch an Indorfment, as necejhry to the
Court's giving him CqJs; (though the 2d Seftion does indeed
dire<a; it to be done.) 54, $$•
But NO Co/Is at all are payable on that Aft; u?2lefs the Indidment
was brought; by the Party grieved, or by a Juflice, Mayor &c
or other Civil Officer profecuting as fuch. 43 1.
35,C(JOtJCtp. See Commo7t. Recovery.
A6I of 4 G. 2. c. 28. " for the more efFedual preventing Frauds
committed by Tenants, and for the more eafy Recovery of Rents
anc} Renewal of Leafes. 616. Zee Statutes, Eje5Itfient.
Shall he granted, where the Ifliie joined is immaterial and void, and
does ?20t at all determine the Right : Unlefs the Cafe itfelf appear
to be fo bad, that no Manner of Pleading could have helped it.
301, 302.
So, where the IfTue joined is fo very inconclufive, that the Co«r/ can-
not tell how to give "^judgment upon it. ibid.
But where it clearly appears that the Defendant can have no Title or
Dejence, whatever Shape or Form the Pleadings may be put
into, there Judgment iliall be given and entered againft him,
•without awarding a Repleader. 299 to 306.
If a Repleader be awarded, it mufl: be without Co/Is. 304.
In an Information in Nature of S>uo Warranto, againft a Mayor, He
claims under an Eledion and Swearing purfuant to a Mandamus
under 1 1 G. i. <r. 4, and fhews an Election accordingly, and that
he was fworn purfuant to the faid Statute : But when he comes
1 to
A Short Reference, tfc.
to fpecify the Manner of his being /worn in, He"(by Miftake, in
following an old Precedent) fliews a Sivearing piirfuant to the
Charter, butwo/ Agreeable to the DireBions of the Mandamm-ASl.
The Replication takes Iflbe on this Swearing-in : Which was
found for the King ; the Defendant not beitig permitted to give
Evidence of his being fworn in purfiiant to the A5l ; (which, how-
ever, was, the Fad.) The Court held it right, that he was not
permitted to give Juch Evidence. But as this and Eleven other
Iffues were found for the King, without Evidence, they confi-
dered the Defendant's whole Title, as One entire Title (though
fplit into'Parts by the Replication ;) and were unanimous in fetting
ajide the VerdiB, upon Payment of Cofts by the Defendant, and
in giving him Liberty to amerid his Plea ; as the beft Method of
Coming at the true Jujlice of the Cafe. Page 301 to 307,
To a Certiorari — may be taken off the File, on the Writ's being fu-
perfeded quia improvide emanavit. 487, 488, 489. See Cer-
tiorari.
Of " Nulla Bona" upon Executions againft Bankrupts. 31 to 38.
See Bankrupt.
^OED£>* See Highways.
5^ttlC5/ and |^,;iactlCC of the Court. See Pra^ice.
The great E;?^ of the general Rules of the Court is " to do Jujlice :'
And therefore the Court ought to fee that it be really attained.
301.
^tClltltP of the locate* See Articles of the Peace.
^eifin* See Dijfdfir.
THE Idea of Seifin, according to the Old Laiv, in the Times
o{ Feudal Tenures. 107.
It was the Completion of that Invefliture, by which the Tenant was
admitted into the Tenure ; and without which, no Freeliold could
be conftituted or pafs. 107.
Livery of Seifm —
I ft. Is immaterial, under a Leafe by Virtue of a Po'wer : Be-
caufe the Leafe takes EfeSi out of' the Settlement, which gives
the Power. 123.
2d. Mere
A Short Reference, tfc.
2d. Mere Taking Livery, without Entry or Occupation, is t:oi
fufficient to charge with the Rent refer ved. Page 123.
Settlement
Of Poor. See Orders cf Removal.
Oi Poor. The Determinations upon thefe Laws ought to be ac-
cording to plain common Senfe j without Subtlety or Nicety. 593,
595-
S!)etifF. See Return, Bankrupt.
SOlDt'et* See Habeas Corpus.
No Perfon lifted according to 29 G. 2. c. 4. § 14, ftall be taken
OUT o/'His Majefty's Service by any Procels other than for fome
Crif/jijialMMer. 339, 340.
But He may be Surrendered by his Bail, in their own Difcharge.
ibid.
ift. An imprejfed Man, in Cuftody at the Savoy, maybe brought
up by his Bail, by Habeas Corpus : And when furrendered,
is to be firft committed to the Marflwl, and injlafiter delivered
to his Military Keeper who brought him up. ibid.
2dly. A Soldier at Large, (not in Cuftody at all,) is to be firft:
committed to the Marpal, but ififlantly Jet at large : Per Lord
Mansjield. ibid.
^Volunteer under 30 G. 2. c. 8, is jwt privileged from Arrefts : But
Perfons compelled againjl their Wills, are privileged by § 20. of
that MX. 466.
StdltUtejG)- See CojiJl-ruElion.
5 'Eliz. c. 4. See Trade and Trader : See IndiBmejit alfo j and In-
formation.
5, 6 IV. & M. c. II. § 2. See Colls, Recognizance.
5, 6W.&M. r. II. § 3. The Profecutor's being a Civil Officer
&c may be proved by yJffidavit : It is not eflentially neceffary that
it be indorfed. 54, ^^. See Recognizance.
1 8 Eliz. c. 3 . See Orders of Bajlardy.
6 G.2. f. 31, § I. See Orders of Bajlardy.
22, 23 C. 2. c. 25. See ConviSlion.
5 Ann. c. 14. See ConviSlion.
3, 4. Ann. e.g. § i. See Promijfory Note.
5, 6 £. 6. f. 4. See Prohibition.
9 G. 2. c. 30. § I. to prevent the Lifting his Majefty's Subieds to
ferve as Soldiers, without his Majefty's Licence. See Felony.
21 Eliz, f. 5. §7. 251, 252. Ste Indiclment.
Q, 10 ^.
A Short Reference, &'c.
9, loW. c. 15. Set Arbitration.
II G.I. c.\. S)tQ Mandamus, Pleading.
izG.i. c. 12. § I, 2. See Declaration on Bail-BonA.
29 G. 2. c. 4. § 14. See Soldier, Bail, Habeas Corpus.
14 G. 2. c. 17. § I. concerning Jadgment as in Cafe of a Non-fuit,
See Non-Suit, Judgment.
8, g PF. 2,' c. II. § 7. concerning Suggeftion of Death of the Par-
ty, upon the Record. See Suggejiion.
5 Eliz. c. 4. concerning exercifing a Trade in a Village. See Infor-
mation, 'Trade.
3, 4 /F. G? M. c. II. § 6. concerning Notice. See Orders of Re--
moval, (under P«. 247, 370, 371O
9G I. C.7. §5. |see;/^/V.
17 G. 2. c. 30. i
26 G, 2. f. 54. (a Sujfex Turnpike Aft.) See Turnpikes.
29 G. 2. c. 57. impowering to dig Materials in private Soil. See
Turnpikes.
I j'^f. T. c. 22. § 50. (about Cutting of Leather) gives the Jurif-
diftion to the Lord Mayor of London in Sessions, within the City
and within 3 Miles Compafs of it.
I ft. This is tio fummary JurifdiSiion given to the Mayor, per-
sonally. 389, 390.
2dly. But only as Head of his Court of Seflions. ibid.
3dly. An Information therefore will not lie. ibid. But fliall be
quafhed on Motion, ibid.
4thly. But the Jurifdidion muft be exercifed according to the
Courfe of the Common Law ; /. e. by Itididlment. ibid.
J Ann. c. 12. See Ambajadour.
9 Ann. c. 20. § 4, 5. tee Information in Nature of ^0 Warranto,
Mandamus. And
Z):^ N. B. This Adt is legally, clearly, and correBly drawn : Per
Lord Mansfield. 407. Judge Powell was the Perfon who drew
it : Per Fofter Juftice. 409.
c,()W.&.M.c.i\. § 3. No Co/Is zre payable ; unlefs the Profecu-
tor be the Party grieved, or a Civil Officer (^c. 43 1. See Recog-
nizance, Certiorari.
21 7. I. f. 19. § 2. See Bankrupt, (under P^. 439, 440)
43 Eliz. f. 2. § I. See Overfeers.
30 G. 2. f. 8. I 5 ^ 20. See Soldier.
ic G. 2. c. A private A&. for dividing and inclofing the Com-
mon Fields of Flecknow in JVarwickfnre. See Highway.
1 Jac. I. c. 22. " The Duty of Tanners, Curriers, Shoemakers,
and Others Cutting oi Leather,
J ft. This Adl was intended to fecure the Staple of Leather ; and
is NOT confined to Perfons occupied in the Trade of Cutting it.
498, 499.
8 O 2d!y.
A Short Reference, tfc.
2dly. The v of the Penalty under § 50, belongs to the Lord of
the Liberty of the Place tcbere the Offence was committed ;
fiottvitbjiandivg the Extenfion of the Mayor oi Londo7i% Jurif-
didion to 3 Miles Compafs round it. Vage 498, 499. [l'',
Supra under Fa. 389, 390.)
21 '^fac. I. c. 23. § 6. providing that this A<fl (" to prevent Remo-
" va! of Suits Jro/ii interior Courts of Record^ fliall only extend
to fuch inferior Courts where an XJtter-Barr'iJJer is Judge or De-
puty, a/hi there PRESENT. See Procedendo.
2 1 H. 8. £•. 13. § I. prohibiting 5/>/r//W Perfons from taking Latuh
to Fczrw, creates a new Offence, and prefcribcs a particular Renie-
'dy : Therefore no Indi^ment lies upon it. 54 1^.
3, \W.^ M. c. II. § 7. allowing unmarried Perfons, not having
Child or Cijildrcn, to be hired and gain Settlements. See Orders
of Removal (under Pa. 547, 548.)
29 Car. 2. c. 3. Of Frauds. See Devije.
26 G. 2. c, 31. for regulating the Manner of licenfng Aleho7ifes.
556 to 565. See Liccjice, hiformation (againft Juftices for re-
filling.)
3, 4 Z'^. £? M. f. 1 1. § 7. concerning Settlements under a Hiring
FOR A Year. 565 to 567. See Orders of Removal.
9 Ann. c. 20. § 4. Several Informatious in Nature of ^0 Warranto
confolidated into One againft all the Defendants. 573. See Infor-
■,:~\.j}hition.
43 Eliz. C.2. § 3. about afleiTing One Parirti in Aid of Another.
576, ^yy. See Orders.
See Haivkers, Pedlars and Petty
Chapmen : and See Conviction. ■-
57U, ^yy' oee uraers.
8, 9 ;r. 3. c. 25. § 1, 2, 3. -^
g,'joW. 3. c. 27. §1, 2, 3./ !
12 /F. 3. ^. II. ("
3, 4 Ann. c. 4. § I, 4. 3
4 G. 2. c. 28. § 2. {See Rent, EjcSfment.) It prefcribes two Man-
ners of recovering in an Eiedment brought by the Landlord ;
viz: by Default ; and on Trial ; In botii which, it muft be made
to appear " That Half a Tcar^s Rent ivas due ; that there was no
" fujicienf Diftrefs ; and that the Leflbr had Power to re-enter.'*
In the former Cafe of Judgment againft the Cafual Eje61or (and
'io alio upon Non-Suit on not confefting Leafe Entry and Oufter,)
I'his muft be made to appear by Affidavit : In the latter Cafe,
the flime Thing muft be proved upon the Trial, 620.
I ft. This is a very different Cafe from that of the Defendant in an
A5llonfor the mesne Profits, not being eftopped from going
into the Title, by a Judgment againft the Cafual Ejedtor, (to
which Judgment, He was no Party.) 620.
2dly. The End and Intent of this A(ft was to //;;/// and confine
the Tenant to Six Calendar Mo/iths, after Execution executed,
for offering Compenfation or applying for Relief in Equity.
619 to 621.
3 4, sAnn,
A Short Reference, tfc.
3G. 2. f.25. § 14. i
18 £. I. " Quia Emptoies Terrarum" — it's Effed. Page loS.
See Alienation.
13 £. I- " De Donls conditionalibus" — when and how eisaded.
14 G. 2. f. 20, is a retrofpeclive and declaratory Law; and feems
to have reftored the Original T^cnant to the Frcecipe. It proceeds
upon the Parties to a Recovery having Power to fiiffer it. lib.
See Cojumon Recovery, Tenant in I'aii.
21 Jac. I. c. 16. " Of Limitations." 119. See EJ cement.
I Eliz. c. ig. § ult. (concerning Grants by Bifliops.) 221 to 226.
See Bijljops, Grants, Offices.
I 'Jac. \. c. 15. § 2. 467. See Ba?ikrupf.
7'^ ^'l: ^: 34- § 4. 1 485, 486. See ^takers, Tithes.
1 G. I. Stat. 2. f. 6. § 2. 3^ ^' ^ ^' '
19 G. 2. r. 37. 492. See Infurance [double.)
51 H. 3. ^^ T)iJlri5lione Scaccarii does ««?/ extend to Diflrefles in
Nature of Exe£utions for Pow'i i^^/t-i and fuch hke. 586, 58 S.
See Diftrefs.
13, 14 C. 2. tr. 12. § 3. 17 G. 2. c. 5. § I. relating to Poor Per-
Ibns legally removed, and afterwards returning to the Pariff}
from whence removed, without bringing a Certificate. 596 to
603* See Parijb-Poor.
Of the Death of One of the Parties. 366. See Ej^Slmenf (againfl
Two; One dies ©"<:.)
I/ifluded in Days of Notice. §6, See Declaration {de kn^ ejfe.)
^ ^upetfeDeas
To an A5iion. See PraSiice, Prifoners.
/"Orporation of the Royal-Exchange Ajjurancc Company in Lr,ndon,
V^ ^iLve liable to be afTeffed in their Corporate Capacity, as a Corpo-
ration. 156 to 158.
Firft — The 30000/. or rather 1500000/. {viz. the Sum of
Money exempted by 6 Geo. i. c, 18. § 2, 5, 10.) is conpied
ta
A Short Reference, ifc.
to the Original Fund and Company eftabliflied by that Afl ;
, . and does J20t extend to the prefent Corporation, fince founded
upon a Charter of the Crown, which neither did nor could give
any fuch Exemption. Page 156.
Secondly — They ought to be rated as a Corporation -, not z%.ln->
dividuah (in their refpedive Wards.) 157.
%tXm (of Tears)
Long Terms for Years are modern Contrivances, unknown to our
Anceftors, ^andi different from their Notions concerning Terms for
•:• Years. 217.
Copyholds, for Term of Years. See Copyhold.
Leafe for I'ears, if LefTee fo long live ; Remainder to Another, for
and during the Refidue of ih^fame Term. This (notwithftanding
former Cafes which fay " That the Refidue of the Term is void,
" becaufe the Term is at an End by the Death of the LefTee,")
' fliall be conftrued That the Remainder-Man fhall enjoy during
all the Refidue of the Years /(> come-, where the manifeft /w^d-w-
//Ott of the Parties appears to be fo. 285, 286. Set Deeds {un-
der P^. 285, 286.) and fee Cafes denied.
The Word " Term" may fignifv the Time, as well as the Intereji.
285, 286.
The Old Cafes held " That there could be no Remainder of a
" Term, after an Eftate for Life, by Deed, or Will. But, when
long and boiejicial Terms came in Ufe, fuch Limitations were
firft allowed to be created by Will, (under the Name oi Executory
Devijes :) And afterwards, Remainders were allowed by Deed,
"j^ for the Refidue of the Tears, but fiot of the Term. But now Li-
mitations of Terms are of general Ufe ; their Bounds fettled -, and
, .the Rules concerning them certain and ejlablijhed. 285, 286.
^^igi^iom allowable or not allowable, on the lafl Day of it. See
Practice.
Payable by fakers. 485. See fakers.
Xtatje and ^raDer* See Bankrupt.
A Perfon not qualified to exercife a Trade himfelf, by having ferved
an Appretiticefliip, entering into Partnerflnp with a qualified Part-
ner, and only Sharing the Profits and (landing the Rifques of the
Partnerftiip, without ever exercifing or interfering in the Trade
I himfelf
A Short Reference, &c.
himfelf perfonalh, is not within the prohibitory and penal A£t
of 5 Eliz. c. 4. fo as to be liable to the Penalties of it. Foge 5
to 10.
Reliraint ol'Vi. Sec By-La^.
Regulation of it. See By-Lazv,
In a Village. See Infortnation.
Xreafom
Dr. Henfey's Trial, for High Trcafon in adhering to, and aiJi}i^
and correfpondijig with the King's Enemies : The fummary Hil-
tory of it. 643 to 652.
jft. The Grand Jury brought in this Bill, by itfelf. 643.
2. The Indidtment was read to bim, upoa his Arraignment :
Though He had had a Copy of it five Days before. iMd.
3. Papers /(j«??^ in the Cu/iody of the Per/on Himfelf may be read
againft him, if proved by the Evidence of thofe who have
feen him write, or know his Hand. 644.
4. Wliere the Defendant gives Jio Evidence, the Counfel for
the Crown may decline to fum up their own. 645.
5. Letters of Intelligence written and fent, in order to be delivered
to the Enemy, are, though intercepted, Overt-Ads of
both the following Species of Treafon, viz. Compaffing and
ysfi'ti Imagiiiing the King's Lkatb^ and adhering to his Enemies. 646,
647, 650.
6. Levying War is an Overt Adt of compajfmg the King's Death.
646.
7. Overt ASls of the Intention of Levying War are Overt A(as of
fuch Compaffing. ibid.
8. Soliciting a Foreign Prince, even in Amity with this Crown,
to invade the Realm, is fuch an Overt A£i. ibid.
9. Some One Overt Acl muft be proved in the County where the
Indidment is laid. 647.
10. A Letter dated from a Place which lies in that County, Is fuffi-
cient for fuch Proof, ibid.
1 1 . A Month's Tigie was allowed, between Sentence and the
Day appointed for Execution. 651.
New. See New trial.
Put off, upon Account of a Libel publiHied with Intention to inf twice
the Jury : But fhall not be again put cff'iiW after Trial of an Infor-
mation againfl the mere Pat.'iphlct-Sellcrs. Ji2.
8 p Ciial
A Short Reference, ^c.
XtJ'al at Bar
Concerning a Right to 2iTrack~Patb on each Side of the River Tees
(alternately) for towing, without paying any Acknowledgment —
The Right found. Page 292.
Concerning Fines payable to the Lord of the Barony of Gillrjland,
and their Liberty of Excbanging — Found for the Tenants. 333.
Is a FiBion, in it's Form : But, in it's Subjlance, a Retnedy. 3 i .
It is a Remedy to recover the Value of perfonal Chattels, wrono--
: 'fully converted by Another to his own Ufe. 31. The Form fup-
pofes thafthe Defendant may have come lawfully by the Goods. ■
31. And it lies mfucb Cafes, ibid. Where taken ivrongfidly and
by Trefpafs, the Plaintiff, if he brings this Adion, waves the
Trefpafs, and adtnits the PoJfeJJion to be lawful, ibid.
It may be brought for an unlawful Converting ; though the Original
Pojjrjfion was lawfully obtamed : But no Damages can be recovered
in this Aftion, for the mere Taki72g. 31.
It is an Adion of Tort: But the whole Wrong confifts in the wrongful
Cotiverfon. ibid.
I'wo Things only are neceflary to be proved, to intitle the Plaintiff
to recover in it; viz. Poffefjion, in the Plaintiff; and a wrongful
Converfion, by the Defendant, ibid.
It is maintainable by the AfTignees againft a Sheriff, who fells the
Goods of a Bankrupt, (before taken by him in Execution,) ay-
1-z^ Afjigmncnt : Y ox after A[]ig7unent, they become the Prc/^tr-
ty of the Ajjignees, from the T'ime of the Bankruptcy, by Rela-
tion. 31, 32.
'Trover therefore lies againft the Sheriff, for this unlaiful Converfion :
Though this Relation fliall not make him a Trefpajfer or Wrong-
. Doer, where the Original Taking of the Goods, was prior to the
Aflignment, and lawful. 35 to 38.
In Trover, the Plaintiff waves the Trefpafs ; and relies upon the
unlawful P off effion, only. 31.
It is neither ufual nor convenient, to ered them in the Middle of
• Great Towns. 376, 377.
The Town (itfelf) of Battel is excluded out of 26 G. 2. c. 54.
ibid.
Ad impowers to dig Materials in private Soil: (29 G. 2. c. $7')
The Seffions make an Order upon it : Which was quaflied. 383.
ifl. Ex-
A Short Reference, ^c.
ift. Express Adjudication is 7iot neceffary, where the Recitals
and Allegations are jlrong^ and Ci5«c////7om are adluallv drawn.
Page 382.
2d. Yet the Foundatiom of their Authority ought to appear upon
the Face of the Order, fome how or other. 382.
3d. Notice to the Owner of the Soil is not always neceffary.
4th. But Satisfa^ion IS, wherever i^t? is injured. Hid.
5th. The Order muft specify what Materials can not be found
in or upon the W^J^, and what may be found in the private
Soil. 382.
6th. And alfo ^ the particular Fai-f of the Private Property.
ibid.
7th. For they cannot order a Digging over the ivhole Eftate, in
general. 382, 383.
8th. Nor can they dig the private Property, to t^y for Materials,
without knowing or at leaft a reafonable Profpe£l, that they (hall
find them there, ibid.
AGAINST Evidence. Sc& PraBice^ New Trial.
^ Without Evidence. See Repleader, New Trial.
Obtained by Stratagem or unequitable Methods. 352, 353. See
PraBice.
Wrong delivered by the Foreman — may be amended. {Adjournatur)
384, 385-
May^OT be fetafide by an Inferior Court; except iox Irregidarity
or Surprize : But 72c/ upon the Merits. 571, 572.
Shall not hz, fet afide for Excejjivenefi of Damages, in Cafes turning
upon Circumstances, which are ftridtly and properly with-
in the Province of the Jury : (As, for Criminal Converfation
with the Plaintiff's Wife.) 609.
Where the Evidence which fupports it, is clear and full, fhall not
be fet afide. 394 to 398.
But where the Verdidl is againfl Evidence, or againfl: the Weight
of it greatly preponderating, it fliall. ibid.
Fraud will invalidate, in a Court of Law, as well as in a Court of
Equity : And where it has interfered, the Common-Law Court
have a concurrent furifdi^ion with a Court of Equity, to fet afide
the Verdift. ibid.
Set afide — The Antiquity of this Pradice ; The Rule of icj The
Rcafonablenefs of it. ibid.
General Verdids can only be fet right by a New Trial, '^^l- See
New Trial.
Moft
A Short Reference, &fr.
Moji General Verdidts include legal Confequences, ae well as Propofi-
tions of Fadl. Page 393.
hefting
Of Legacies. See Legacy.
Of Remainders. See Devife.
Of devifed huerejls. See Devife.
mm.
By 4, 5 y^/?;?. f. 16. § 8. in any ASlion brought in any of the CourU
of Record at Wejlminjler,^ where it fliall appear to the Court that it
will be proper and necejj'ary that the Jurors fliould have a View
They may Order Jpecial Writs of Diftringas or Habeas Corpora
to iffue, commanding the Sheriff to have Six of the first
Twelve of the Jurors therein named, or fome greater Number
of them at the Place in queftion ^c : And the Sheriff (hall, by
a Jpecial Rciiirn, certify " That a View has been had."
And by 3 G. 2. c. 25. (the Balloting-Ad) § 14. it is provided
" That where a View fliall be allowed, Six of the Jurors named
in the Pannel, or more, {hall have the View, and fliall be the
firft fworn, (or Such of them as appear,) before any Drawing."
But as the having a View was not, by either of thcfe Statutes, made
a Matter of Courfe, though fuch a Pradice had prevailed, and
had been abufed to the Purpofes of Delay, The Court thought it
their Duty to take Care that their Ordering a View fliould not
cbftruBt yuftice, and prevent the Caufe from being tried : And
they refolvcd not to Order One any more, without a full Exami-
nation into the Propriety and NecefTity of it j unlefs the Party
praying it would come into fuch Terms as might prevent an
unfair Ufe being made of it. For they were All clearly of Opi-
nion that the Adl of Parliament meant that a View fliould not
be granted, unlefs the Court was fatisfied that it was proper and
necejfary : And they thought it better that a Caufe fliould be tried
upon a View had by any Six, or by feiver than Six, or even
ncitbout any View, than be delayed for a great Length of Time,
252.
Accordingly, They added a Claufe to the ufual Rules for Views,
purporting that the Party praying a View consented " That in
*' Cafe no View fliould be had ; or if a View fliould be had by
** any of the Jurors whomfoever, (though not being Six of the
" firft Twelve;) yet the Trial fliould proceed, and no Objcdion
" be made on Account thereof or for Want of a proper Re-
" turn." 256.
3 Since
A Short Reference, iifc.
Since which. Motions for Views are become Motions of Courfe,
with fuch additional Confent annexed to them. Page 256. -aJ
See the Form oi^ the ufual Rule, and alfo of the modern Addition,
both in Caufes to be tried by Special Juries, and thofe to be tried
by Common Juries, refpedlively recited verbatim. 257, 258.
The general Power of Vifitation, properly exercifed, is ufefid and
convenient to Colleges. Per Ld. Mansfield. 200.
The Jurifdidlion of the Vifitor is fumtnary and ivithout Appeal from
it. 200.
The Founder of a College may appoint a Vifitor, either generally,
or fpecially. 200.
He may prefcribe particular Modes and Manners, as to Part. ibid.
He may appoint a Special Vifitor, for a particular Piirpofe, and no
farther, ibid.
His general Vifitor has incidental Power, as fucli : But yet he may
■ reftrain him as to particidar Liflances. ibid.
No technical Form of Words is neceflary for appointing either a
gefieral or a fpecialViCitor . ibid, and 202, 205.
But it muft be colleded from the ivhole Purview of the Statutes con-
fidered together, what Power the Founder meant to give the
Vifitor. ibid.
The Founder may make a general Vifitor ; and yet appoint inferior
particular Powers in Others, in the firfl Inftance. ibid.
Of St. "John's College Cambridge —
ift. The Bifixp of Ely is Vifitor, as to the ElcElion of Fcllotzs,
Per Ld. Mansfield. 201, 202.
And indeed general Vifitor, except as to altering (he Statutes. 201
to 205.
2dly. And of Dr. Keton's annexed Fellowfijips, as well as of
the Refl. ibid.
Ingrafted or annexed Fellowfliips in Colleges, (though ingrafted
by Indenture,) are to be confidered as Part of the old Foundation,
2.Qi^, 205.
And a Claufe of Diftrefs, given to a third Perfon makes no Dif-
ference : For that is no adequate Remedy to the Fellow, (and was
given diver fo intuitu^ nor ought to take away the specific Re-
medy, from the Perfon injured, ibid.
Mandamus to a Vifitor, " to exercife his Power over the Temporal-
" ties, in a Difpute about the intermediate Profits of a prebendal
Stall, during It's Vacancy"— Denied. 567, 568. See Man-
damus.
8 Ct ' For
A Short Reference, &c\
For a Vifitor has no fuch JurifdiBion : It mufl bfe determined ao
cording to the Courfe of the Law of the Landf^s it is a Li-
tigation not only with the Members of the Body ; but with Ex-
ecutors and Adminijlrators of deceafed Prebendaries ; Over whom,
the Vifitor can have no Power. Page 567, 568.
o
mm
F a Married Woman. See Prohibition, Baron and Feme.
FINIS.
3lohn ^bamB
IN TME CUSTODY Or THE
BOSTON PUBLIC LIBRARY.
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