r< o ^ > so , -< ^^OJI1VJJO>' ^OFCAllFOff^ so = ,^MEUNIVERJ/A ^lOSANCEl %U9NVS01^ ^tfOJIlV3JO^ Zl o > AMtUNIVERi"//) ^lOSANCnfX^ awfuniver% (5 o ^IIIBRARYQ^ ^IIIBRAR^ ^OFCAIIFO«»^ ^OFCAIIFO ^j^uoNvsoi^ ■%aMiN(i-3\^ ^^AHVHan^' ^(^AHvaan- O '^/saaAiNflav^** ^lllBRARYQf^ A^VIIBRARY(7/;^ v^lOSANCElfj;> ^OFCAllFOfi'^ ^OFCAIIFO/?^ "^mhmiw '^ o %iUAINI13WV^ ^OFCAllF0«i5>^ ^OFCAIIFO ^^Awaan^ ^CAwviian- ^lUSANCflfJ^ i(Jti ^^^HIBRARYQr^ ^;jNlllBRARY6Jf Mi Ml \'rtEUNIVERi/4 \^lOSANCfl ^.OFCAIIFOR^ ^OFCAllFOff^ Jv\^F UNIVERiy^ ^i iO^j %a3AiNnjftV^ ^•lOSANCfUr^ ^OFCAUFOff^ ce ^J^QNVSOl^ '^/SiQAIN(13V&'^ ^Okmmi^ ^y^imms//^ ^IOSANCFL^a -J;!^l•UBRAfrf(7/J^ -^lUBRAJrVQ.^ ^^MFUNIVOtt/^ .5jrtEUNIVERy//v - &AMVHan-# >&AavaanT<^ %13Dnvsoi^ ^J^lUBRAKr6//: vcvi uBRARYc// Wlli WI7 vV^tllBRARYOr \\«UNIVERS/A vjclOSANCFlfj> 1^ 7.#'\l 01- r[>y -^^30 B A C N\ ABRIDGMENT, By GWILLIM. VOL. IL 'AZl/n ^^^■■■■iMI^iH t^mtm^^Ml* N E W . >^ ABRIDGMENT OF THE L A W. By MATTHEW BACON, OF THE MIDDLE TEMPLE, ESQ^ rUE FIFTH EDITION, CORRECTED; WITH CONSIDERABLE ADDITIONS, INCLUDING THE LATEST AUTHORITIES^ By henry GWILLIM, of the middle temple, esq^ barrister at law, IN SEFEN VOLUMES. VOL. 11. LONDON: PRINTED BY A. STRAHAN, LAW PRINTER TO THE KING's MOST EXCELLENT MAJESTY, For T. Cadell, C. Dilly, G. G. and J.Robinfon, J. Johnfon, R.Baldwin, A. Strahan, W. Otridge, E. and R. Brooke, F. and C. Ri'vington, J. Buttervvorth, E. Newbery, W. Clarke and Son, J. Stockdale, T. Payne, J. Walker, R. Banifter, R. Pheney, T. N. Longman, R, BickerllafF, and J. White. 1798. UN V S « CorporatiDrtS* (A) Of the Nature and different Kinds of Corpo-i rations, (B) By whom, and in what Manner created. (C) Of the Names of Corporations. 1. Of the Name in its Creation. 2. How far it may be varied from In Grants by or to a Cor- poration. 3. How far it may be varied from In Pleading and Judicial Proceedings. (D) What Tilings are incident to a Corporation. (E) How Corporations differ from natural Perfons. 1 . Of Grants made by and to them. 2. How they are to fue and be fued. 3. What Things they may do without Deed. 4. What Things they may take in Succeflion. 5. Where they (hall be Uable in their natural Capacities.; [6. Of the Qualifications requifite to Members and Officers of Corporations. 7. Of the Concurrence required in corporate A6ls. 8. Of the Regularity of their Proceedings. 9. Of the Eledion and Amotion of the Members. (F) How they are vifited.] (G) Of the Dlffolution of Corporations. Vol. II. B (A) Of Corporations, (A) Of the Nature and different Kinds of Corporations. c CORPORATIONS are of feveral natures, all of tliem in- ftituted for the better government of a people combined to- gether, and living under a regular fyftem of laws. ToCo.29.b. Of corporations fome are fole («), and fome Ere aggregate: a 31- •'• fole corporation confifts of one perfon only, as the king [h) : fo, a Ahr° s'lz. clergyman by being made a bifiiop (r), prebendary, parfon () Who is a corporation fole by the common law, and has theieby feveral privileL,es and prerngatives diftinfl: from a common perfon, for \vhi:h -vUe tit. Prerogative, (r ) Thefe aie founded by the king, and are under eccltfiaftical govern- ment ; yet the common law takes notice of them, though not originally. [rl] If he holds his poflef- lions f:ngly, he is a coporation fole ; but if with others he makes a chapter, he is thereby member of a corporsticn aggregate j fo, the fame perfon by being incumbent of the fame preferment may be both a corporation fole, and a member of a corporation agj^regate. Comp. Incumb. 372. 4 Mod. 54. A corporation aggregate Is an (>?) artificial body of men, com- sh"''* *« ^* P*^^'^^ °^ divers conftituent members ad hijlar corporis hmnani., the (<■) And is' ligaments of which body politick or artificial body are the fran- laid to be chifes and liberties thereof, which bind and unite all its members jnvifibie and together; and in which the whole frame and eflence of the cor- immortal, o _ ' and can only poration COnhlt. be created by adt of parliament, or the king's charter ; for though fome corporations are fiid to be by prefcription, yet fuch prcfcription always fuppofes an original grant from the crown, which being loft, or worn out by time, yet having run out inco a preicripticn, ftill continues to unite them. 45 E. 3. 2, 3. Co. Lit. 130. 2 Bulf. 253. Vide in the argumeju oi quo warranto againft the city of L'.ndor, 1 1 5. KeKv. 1 38. Co. Lit. Alfo corporations are faid to be ecclefiaftical or lay; of eccle- *^°* ^' fiaflical corporations fome were called {f) regular ^zs abbots, priors, (/) ihofe ^'"' others fecu/ar J as bifliops, deans, (s'c. lived under certain rules, and had vowed true obedience, wilful poverty, and perpetual chaftity; but are now diflblve-l. Co. Lit. 93. ig) Which Qf ];iy corporations fome are faid to be for general government j law are*^'^' ''^ thofe of mayor and commonalty, ^c; fome for a particular called col- purpofe, as for the advancement of (g) learning, (h) charity, or leges or uni- fome (z) particular trade or branch of bufmefs : thefe receive their are confi-^^ fandlion from the crown, and muil be by the king's licence ; dered as lay though a private pcvfon may be founder, and may give them laws corpora- ^q which they muft fquare themfelves in their future conduft. tions. ' ' Carth. 92. [The corporations of the univcrfities of this country are lay corporations. 3 Burr. 1647, J Bl. Rep. 547.] (i) Such are hofpitals. (i } As TW7J;rji-^c«/i for regulating navigation, ^ci«/i-6V« Company, &c. Fidi tit. Mandamm. Corporationje^. (B) By whom, and in what Manner created. 'TPHE king, by virtue of his prerogative, is the (a) only pcrfon [i Bl.Com. ■'■ that can erecl either an {b) ecclefiaftical or (r) lay corpo- V^'^}'^ ^^^I0r\. pope couu rot have founded or incorporated a college, &c. here, but it ought to have been done by the king hiin- fe'.f. -4 Co. I0-. b. (i)] 5 Co. 26 a. Cawdrj's cafs. (f) 49 E. 3. 4.. 49 AlF. 9. Ero. Prefcrip- tion, iz. 10 Co. 33. b. Yet the king may give power to a common perfon to name the ioCo.33.b. corporation, and the perfons it is to confift of; but when he hath lo done, this corporation does not take its eflence from the com- mon perfon, but from the king. Alio by the 39^7/2. cap. 5. every perfon feifed of an eflate in ride 2 Inft. fee-ilmple, may by deed enrolled in the hi^i^h court of Chancery 7^>3-> ti^'s erecl an hofpital or houfe of correftion, which fliall be incorpo- pounded*' |rated, and have perpetual fucceffion, and (hall be vifited by fuch (^) By the* perfons as fhall be nominated by the (d) founders thereof, (s^c. commm ^ J ^ ^ law, he chat gives tiie rirft poircffion to the corporation, is ths founder. 38 AfT. 22. 5oAff. 6. Bro. C-Tody, 12. 1 Co. 33. b But if the king and a common perfon give poffelfions to a corporation at oat and ths fame time, the king only ihall be the founder by his prerogative. 5 ACT. 6. In the creating of a corporation, the law does not feem to re- lo Co. 30. quire any fet form of words to be made ufe of, as incorporo^fundoy ^^1^^' ^^^' '^rigoj ail be is'.d to be ilcce'ned in his S'''»nt, and the grant void. 1 Roll. Abr. 513. Co. I it 3 a. Lane, 21 By the forelt law, a grant of a privilege within a forcft, to all the in- habltantij being fieeliolders within this fjrell, is good. 4. Inft. 297. (/) By this they havi capacity to take, but not to «r,int the Ijnds to a .otiicr. Cro. Elii. 35. (;n) Where a charter made to aliens may incorporate them f'',aJ the kln^, and not ^ucjti others. Roll. Rep. 140. 2^,6. (n) But if the ki.^g relcalcs the rcnt^ the corporation is ij'j'ofafio d'tjjhl-ved. Dyer, joo. pi. 70. 10 Co. 3f. One corporation may be maclc out of another ; but it muft be *'' ^r-^'o''"' by the k'nig's charter ; therefore where the mayor and commonahy Mo "r, 58+. of London prcfcribed to make another corporation in the city, Sid 291. thoUi;h tlieir cuftoms are conrirmeti, yet it was holden not to be c Keb. 52. gQod^ without the king's charter. Salk. in2. pi. 5. [Rut the cify of l.undon may make a fraternity or ftllowfhip, the rnembers of which may alTert their claim of privilcij^s under the p>e;criptive right of the mayor and commonalty to eteft fuch a company, taz-iltei-ey v. VViklhire, 1 Str. 46i.] (C) Of the Names of Corporations : And herein, I. Of the Name in its Creation- Jl\-L». /. I. O i i - - - - Perk. 8. knot cf their coiribiiiation, without which they could not perform H. 6. 3. j^^^ij- corporate ^6ts ; for it is no body to plead and be empleaded, hob. 32. , - , . M • 1 1 / N ■' ' '^ Lit 201. ^^ '^'^^^ 2^^ gi^^j until it hath {a) gotten a name. II Co. 30. Owen, 35. Dalf. 78. {o) 2 Bendl. a. loCo. 2S. 2 Inft. 666., that the name of a cornoraiion is as the iijme of baptifm. The names of corporations are ufually taken, firfl:, from the per- fons of which they confift ; fecondly, from the ufe and defign of their being ; thirdly, from the names of the patrons that fird pro- cured their inftitution ; fourthly, from the place where they refide ; iiithly, from the names of faints. SsVic. 191. But though a corporation mufl: have a name, yet that muft be £^'^^' ', underflood to be either exprelTed in the patent, or implied in the Ch. Juft.' nature of the thing ; as, if the king (hould incorporate the inhabit- ants of Dale with power to choofe a niayoT annually ; though no . name be given, yet it is a good corporation, by the name of mayor and comn.ionalty. So, the -city of Norivkh is incorporated to be a . mayor and flierifFs, by the charter of Henry the Fourth, and arc called mnyor, fnerifF and commonalty. 4i t. 4. 59, Alfo, the king may incorporate a town by one name, and after 'o^S C ''* by another nzme, and then they {hall ufe their name according i'Sfe^c' to their fecond corporation ; and [b) yet they (liall continue their Kniglitv. (i-)ponefiions they had before by the other name. Mayor, &c. "' of V.'eih, I Ld. Raym; 80. i Lutw. 508. S C— But with refpetft to the extin£lion of the old name by a ncv^ .charter, Hcit, C.J. took this diHinvhere it fhould be fcleljres, it is good. 1 1 Co. 20. — . So, if j. S. abbot of B., mali... .\ 'C'l.:, by the name of y.S. cltricus (le 3. ?i Co. 21. If there be a corporation founded by the name of mnyor atid 1000.125. biirgenfes burgi dom. regis de Lynn Regis y and an obligation is nude ^ J.^"!,^"^,"^ to them by the name of mayor and hurgenfes de Lynn Regis, without g^^ Burgcf- faying burgi dot?:, regis, it is well enough ; for the parties are '"«=> "/ ^^-i'"" fufhciently exprefled ; and all boroughs are founded by the king. ^°'^' If a houfe be founded by the name of mini/Ier dei pauperis dovitis, lUh. J14. and a leafe be made by the name of viinijler pauperis domus dei, this is well enough 5 for the fame defign is fpecilied by botl^ names. But if a houfe be founded by the name oi giiardianus tsf fcholnrcs \o Co. 12^. domus five coUegii fcholarium de Mcrton ; and a leafe be made by them, by the name of guardianus l^ fcholaris domus five ccllegii de Merton, it i$ a material variance of the name, fince they have not cxprefled the defign of the houfe, which is a fubftantial part of the name, B-3 Bu^ 6 (ZTorporationjer. J I Co. 20. But if a college be inftituted by the name of aula Jcholarium Arras's regifta, to be governed by a provoft, and they are confirmed by the king, by the name of prspofitus I3 Jcholares oulte rfgi/itr, and iihey make a grant of an advowfon by that n.nne, tJiih is good ', for that college would never have a nimie according to the words of the firR charter, for then it would be a fole corporation, which is con- trary to the general convenience of fuch a body, for the name would ht prcepofitus fcholarmm aul<£ regiiut^ which cannot be intend- ed, and the •woxdfcholares is not required as in the former cafe ; and the placing it where it is confirms the ellnbiilhment ; and this confirmation of the king, and common appellation, are good interpreters of the original intent of the name. Co. 1J4. Ed-ward the Fourth incorporated the dean and canons of lVif:d- foy-y by the name of The King's Free Chnpel of St. George the Martyr; and in the time of Philip and Mnry they made a leafe, by the name of The Dean and Cations of the King's and ^ieen's Free Chapel, Is'c. this was holden a material niiftake of the name \ for it takes its name from the founder, that ib here millaken, and the name of a different perfon fubRituted in his room, Poph. 57. If a corporation be founded by the name of the dean and cliap- (j) A cor- fg^ ^f jj^g cathedral church in Oxford, and they make a leafe by muft be t^c name of the dean and chapter of the cathedral church in the named of univerfity of Oxford, this is well enough ; for the [a] place of the ^"*=^f,P^.^.'^^ fituation is well and fulhciently fhewn. as will dil- '' tinguiih its fituation from others. P'lde 10 Co. 29. b. 32. b. 2 Brownl. 244. And. 196. Roll. Abr, 513. 10 Co. 124. If the prior of S/. Michael of Coventry makes a leafe by the {b) So, if a j^arne of 57,^ j^^^^^ ^r Coventry, this is good -, fo (/') if the corporation < ''' o ^ ^ ' , . beinrtituted Convent grant an annuity or coroay, and the name of tne iamt be in honour omitted. cf St -George ihs Mirtyr, and in th." it afe they omit the word trart\r, it is well enough ; for the name of dcdicat'^n IS but an empty found, and uo ocherwife reouifite than to difiin^uiih the corpsjiation from all others. Poph. 59. Cro. Eliz. If th.cre be an immaterial addition, this does not hurt •, as if the ^ ■ prcfideiit and fcholars of Corpus Chrifn colhge in Oxjord make a leafe by the name of prefident and fcholars of Corpus Chrifli college in Oxon, com. Oxon, this is good; for utile per inutile non vitiatur. Wafter, &c. [If a bond be given to A. B. (mafter) and the fellows and andSid'r!ey f^^^'o^'^^s of Suflcx and Sidney college, to be paid, ksfc, to the College V. mafler, fellows and fcholars ; this is a bond to the mailer, l^c, in ^\v-^if^°s' ^^^^ corporate capacity, and not to the mailer, whofe name is '*■ mentiontrd in the beginning of the bond, in his natural capacity.] Leon. 307. In devifes, if the name of the corporation be millaken, yet if j/co'21'. ^^^""^ ^^ words fulEcient to (liew that the teilaior could only mean Perk. 8. and intend fuch an one, it will be fulBcient ; as a devife to George Dai-^f"' V ^^''■^ ^ Norwich, w;hen his name is John, ^c. Hob. 33. But if a devife be to the abbot of St. Peter, where it is really the *9 • • • abbot of St. Paul, the devife is void ; for here the faint's name is the only fpecification of the party in the devife, which is millaken. jj 3. How Corporationief^ 7 3. How far It may be varied from in Pleading and Judicial Proceedings. There is a difference between writs, declarations, tifc, and ob- 6 Co. 65. ligations and leafcs, ^i., for if the name of a corporation be mif- (") -^ ^°'- 9 . . . , 1 r 1 r • !.<. porationwas taken in a writ, a new writ may be purchaled 01 common right; inftitutedby but if it were fatal if miilaken in obligations and leafes, the benefit the name of of them would be wholly lolt j and therefore one ought to be fup- /""'^T^f ' ^ ported, though not the other ; as (a) where John Abbot of N. grant- ^„„ raupe- ed common of paiture to J. S. by tlie name of William Abbot of N. gcr. deRe. this was holden rood ; but if this name had been thus miftaken in '^"''■^J:. ^"'^ . 1,1-1 ^n action a writ. It had been tatal. brought by the mmt of pr^fati guarjiatii & focii, and held ill. a Bulft. 133. Tipling and Pexil, and n Co. 21. — In pleading a Icafe by a dean and chapter, the name of the dean muft be flievvn. Co. Lit. 3. a. [BuC fee I Leon. 307. Dy. 80. a. in mar^. and infra. '\ There is alfo a difference between an ancient corporation and a Hob. 211. corporation ne.vly erecfed ; for an ancient corporation, by ufe, ^'^' 5+- may have a fpecial name differing in fubftance, but otherwife of a ^^2. corporation created within memory ; for this regularly can only Latch. 229. have the name by which it is inftituted. _, i,t ^ c n^ r-?'?tl ^ Dyer, z-9» 3 Mod. 6. Cro. El. 35X. If the advowfon of popifh recufants convi£l be given to the chan- 10 Co. S7. cellor and fcholars of the univerfityof Oxford^ and they bring their ^^^Q^f^'^^-^ adllon by the name of the chancellor, mailers and fcholars of the cafe, univerlity of Oxford, this is well brought ; for a corporation by adl of parliament may take by another name than that by which it was inftituted ; for in acts of parliament, the fubjeft and dcfign of the legiflature mud be refpecled ; and thofe that have the power, wholly to change the name, have certainly power to alter it in any adf of theirs ; and all inferior jurifdidlions are bound to fup- port the fenfe of the law. A parfon mull: be empleaded by chriflian and furname, and not i Iml. 666. John, parfon of D. tsc. but in other fole corporations, the chriflian ^'^'^'' 34- name only is fufhcient j as John^ Bilhop of Canterbury ,- Thomas^ Abbot of D., ^c: But where the corporation is aggregate of many capable perfons, ^ Tnd. 666. as mayor and commonalty, dean and chapter, isfc. none of them ^p'^'" ^' in pleading are named by their proper chrlftlan and furnames -, and the reafon Is, becaufe. In the firfl place, the death of the individual is a gooil plea in abatement, for a new fuccefTor comes in his place, that was not party to the former writ ; but bodies aggregate are immortal and invariable ; and therefore the parties to the iivlt writ are always the fame. If a writ is brought by the (b) warden and college*bf All Soulsy Cro. zilz. for lands, err., qucd clamant elTe ins Isf hareditatem fuatn, this is well ~'** 11 1 • r ■ ■ r I L u ^'°" '53* enough, though it is not U\>ljiire colL'giii for they have no other A3J.272. capacity, s. c. ^ •' [b) IF a par- fon pleads be was feifed, he muft {ay jure ecchfia, for that he hath two capacities ; fecui o: an abbot, dean, and chapter, &c. Leon, i 53. /(cr Anderfon — So, in cafe oi a bithf p, it m-ft be fljewn quo jure. 2 Lev. 63. Vent. 223 Wfceie it cannot be alleged that a man vm isiicd jure preftjtcratus, B 4 but 8 (JTorporatioii!^* but ought to be jure cantar'ae, I'idc Cro. Car. 215. If a dean and chapter, being parfcns 'nr.psrfor.ei of the church ot D.y demand the whole church, &c., they fliall fay they were fcifed jure ecclejia de D. Plow. 503. Cro. Car. Where the corporation were named by their name, which was 574- Heal- afterwards miftaken ; as where judgment was given in an a6lion ivlfayor of^ oi debt, that the mayor or commonalty and citizens fhould reco- London. ver the debt and 61. coflis c'ljtlem major, commwiitati adjudged (omitting civihus) \ it was holden to be error : but afterwards upon motion in C. B. and upon examination of the doggett-roll (where it was well entered) it was awarded to be amended. Turviil V. [However, in legal proceedings, any variation from the true Ayniwonh, j^aj^^e of a corporation is fatal, even though the corporation be aLd.*Raym- ^^°^ ^ party to the proceedings. As where in an action on a 1515. Rex South-fea contradl, the plaintiff declared it was for ftock in the Cow"^"^ 6 company trading ad nmrhi Aujlrxalia^ Anglice vocat. the South-fea company. Again, an acSl of parliament gave power to the juftices of the county of Surry, at their quarter felTions, on the application of *' the mayor, aldermen, and commons of the city of London *' in common council aflembled," to ilTue a precept to the flierifF to fumm.on a jury to inquire into the value of certain eftates : an- order was made by the juftices at their quarter lefTions, dating, that on the application of ** the mayor, and commonalty, and *' citizens," they iffued a precept, ^c.\ this order being removed by certiorari into the King's Bench, it was objedled, that it Hated the application to have been made by the mnyory commonalty^ atid citizens^ inftead of the mayor^ aldermen, and comnionSy according to the d'.re6lions of the aft. The court allowed the objection, for that the bodies defcribed in thefe different terms were diftincly the one being a feleft body, the other the corporation at large, and that they could not go into the examination of any fadl: tending to reconcile fuch di(lin£tion, or to (hew that in truth the former were the proper perfons.] (D) What Things are incident to a Corporation. 3 Mod. 13. A Corporation is a creature of the charter that conftitutes and °' '* gives it being, and prefcribes bounds and limits to its opera- (a) That tions, beyond which it cannot regularly proceed: yet there are when a cor- fomc things {a) incident to a corporation, which it may do with- duivc°eated ^^^ '^"7 ^^prcfs provifion in the aft of incorporating. all other incidents are tacitly annexed. loCo. 50. b., that it is incident to fue and be fued, to pur- chafe and fell j but 'vide tit. Mortmu'w, and 10 Co. 30^ Roll. Abr. 515. Hob. 211. icCo. 31. As if the king creates a corporation, and does not give any ex- Hob. -^n. r -11 ^ 11 I- •^ • Moor, 584. P'^'^^s power ni tne letters patent to make laws, yet this power is 5Mod. 43r incident to the corporation, and included in their incorporation ; {b) That for a body politick cannot be governed v.ithout laws ; but thefe hw7by by-laws (^) ought always to be fubjeft to the laws of the realm, as which the lubordinatc thereto. benefit ot the corporation is advanced, is a good by-hw, for that very icafon, that being the true touch- ftoue of all by-liws. Garth. 482. fir Hoit, vide tic. By-Laws, Ancieiiit Corporation!?* 9 Ancient corporations have, as incident to them, a power of (a) n Co. 120. eleaing members; but in newly ere£led corporations, the charter f^^jJ^J^** that gives them being, muft provide for their continuance and king cre- luCCeiTlOn. atesacor- poration of a mayor and eight aldermen, with a daafc in the patent, quod fuper mortem -ve! remothrem ali.ujus a'Jer. munni liccat majori & laferii aldirrr.annii infra cBo dia froximofoji mortem -vci reir.o-.'icrem,^ Sec. to elett another alderman into his place, though no eieaion be within eight days after the death of an alderman, yet they may eleft an alderman at any lime after. Roll. Abr. 513, 514. [So, corporations have as incident to them a common feal. 1 Bl. Com- For a corporation, being an invifible body, cannot manifefl: its 475- ^^''• intention by any perfonal a£l or oral difcourfe : it therefore a6ts ^^^ -j-hc and fpeaks only by its common feal. For though the particular agreement members may exprefs their private confents to any a£l by words, "^/'^^"^''f or figning their names, yet this does not bind the corporation •, it ^ corpora- is the iixing of the feal, and that only, [b) which unites the fcveral tion being aflents of the individuals, who compofe the community, and makes thg"g^'°_ one joint aflent of the whole.] ration- books, though not under the corporate feal, will be decreed in equity. Maxwell v. DuKvich College, 14th July 17S3, cited ia Fonbl. Eq. Tr. 296. li ut fe: con/r. Taylor v. DuKvich College, i P. Wms. 655. If a corporation be created of a mayor and eight aldermen, with Roll. Air. a claufe in the patent, that if any of the aldermen die, or be re- S}5- moved, that it fliall be lawful for the mayor, and the red of the ^ ^.'j^ j^j aldermen, within eight days after the death or removal, to elecl ftatute 33 another in his place, though it is not limited that they, or the ^-8. c.27. greater number of them, may elett, yet the greater number may cletl. And if in the above cafe the mayor, at the time of the death of Roll, Abr. an alderman, be abfent from London till after the eight days, and VJ'^^^ f^^ the aldermen, within eight days, come to the deputy, and require this -vide him to make an afiembly of them to eletl another within the eight 3 ^'^°^- » /•• days, and he refufe, and thereupon the greater part of the alder- is now re- men aflemble themfelves without the mayor or his deputy, and medied elect aa alderman ; this is a void election, for the mayor (c) ought where the to be prefent at it, by the words of the grant. mheroificcr •vho ought to prefide, wilfully or accidentally abfents himfelf, by the 11 Geo. i. c. 4. f^idt l^laiuLi- Alfo where a charter impowers a corporation to choofe ofhcers, 5 Mod. 440. it implieilly obliges the perfons chofen to undergo and to ftand to the nomination -, for by accepting any letters patent, there is an obligation on the parties accepting to perform all things tiiereby required, as to undergo all charges, otlices, ^c. Corporations have alfo divers franchifes, ^^"5 is no good remainder, though a corporation be fi^n. erected before the particular eflate determine j for though a re- mainder limited to the eldeft fon of J. S. in fuch a manner be good, yet this body of men is only capable of taking when they are in ejfe. Co. Lit. 9. If a feoffment or erant be made by deed to a mayor and com- \d) So, if _ . 5 . •' , ■' c lands are Hionaltv, or any other corporation aggregate of many perlons given to the Capable to purchafe, they have a fee-fimple without the word king by fuccejfjrsy [d) becaufe in judgment of law they never die. rolled, without the word fucctjfen or bdn, a fiie-fimple paffeth. Co. Lit. 9. If Corporation^, n If a leafe be made to a corporation aggregate for the life of the ai E.4. 76, leflbr, this is a good eflate for life, becaufe the life of the leflbr, ^^^^' ^^'' which is wearing and will determine, is the meafure of its conti- nuance ; but if a leafe be made to a corporation aggregate for their own lives, this is no eftate for life, but a fee-fimple ; for the leafe being made to them as a body politick, which hath a continued fucceflion, and never dies, a leafe made to them during their lives, is equal to a grant made to them while they continue a body politick, which, by reafon of the perpetual fucceflion of its mem- bers, is in law looked upon to be for ever. A corporation cannot be feifed to the {a) ufe of another ; and Co. iiz. therefore it is faid, that if one by licence, without a valuable con- '^^^ fideration, make a feoffment, levy a fine, or fufier a recovery, or ^'Ves and * the like, to a corporation, to the ufe of J. S., the corporation Ihall Tra.h, 5. have It to their own ufe. j^^^,^ ^^^^ PI Com. 102. 5 5!<. (i) That is, by the ftrift rules of the common !awj for corporations are in point of fact t'reqiientiy made truitees : jr chsritible ufe-:, and arc compeliej in equity to perform the trufts. But theCtrine in the tex. itili holds witn rjijittt -j the king. Giib. ubi 'upra.] liA. grants to the mayor and burgefles of Z)., the moiety of a Leon. 30. yard-land, in the walte of , without defcribing in what part it hiould be, or how it is bounded, the corporation cannot make their election by attorney ; but are firlt to refolve on having the lau'l, and then they make a fpccial warrant of attorney, reciting the grant to them, and in which part of the faid wafte their grant (liould take effecl 5 and according to fuch diredlion the attorney is to enter. '^ 2. How they are to fue and be fued. « Corporations aggregate muft fue and defend by (r) attorney ; Co. Lit. 66. and therefore the [d) proper procefs againfl them is a dijiringas. ('^) '^^^ cflbined. Daif. 121. pi. 154. Ld. Raym. 79. Argent v. Dean and Chapter of St. Pauls, B. R. E. 23 G. 3 cited in 2 Term Rep. 6 — cannot be outlawed. 10 Co. 32 b — No attachment lies ajainft a corporation. Raym. 152 [i H BI. 209. If they have neither lands nor goods, there is no way to malcc them appear, eitlier in a court ol law or equity ; for it is a rule, that for a pub- licic concern, ihe Ihenli' cannot diftrain any individual member of a corporation. Thursfie'.d v. Jones, Skin. 27. 1 Ventr. 351. Style, 367. c^ntr. all ci:ed Cowp. 85 But ina:i extra.jrdinary cafe, where they have no p.operty, and will not appear, an; wheie, conleqaencly, a court of equity can give no relief, the plaintiff" may apply to the Houfe of Lords, who will matce a fpccilick. order for relief, i Ch. Ca. 204. 2 v'erii 3^6. S.C. cited.] (->. V. Morton, iyjjury bv pcrfons atlinc: under the authority of a corporation, but ^ 7^ Rep. 471. cannot alcertam how tar they are concerned, he may tile a DiH ^■^ ^ againft them and their fecretary, or other officer, for a difcovery, •R before he brings an action at law, fuggefting that he intends tq bring one, but cannot do it, without the difcovery prayed ; becaufe as the fuit againll a corporation is by original, the difcovery may be necellary before he can fue out his writ. But if the difcovery of any of the matters called for would be prejudicial to the corpo- ration. t- Covporationjef* 13 ration, and not be neceflary to the plaintifF's cafS, the officer needs not difcover thofe parts. If the majority of the members of a corporation are ready to put R. v. Dr. in their anfwer, and the head who has the cuilody of the com- Wyndhim, mon fcal, refufes to afHx it, a court of equity will flay the procefs ^ againfl tlie corporation, 'till an application can be made to the court of King's Bench for a mandamus to compel him, which that court will grant.] 3. What they may do without Deed. Aggregate corporations, confifting of a conftant fucceflion of Co. Lit. various pcrfons, can regularly do no a£t without writing ; there- 9+- ^• fore gifts {a) by and {l>) to them, [c) muft be by deed. Cro! Car. ' 170. 2 Sand. 305. Raym. 194. (a) They cannot attorn without deed- 6 Co. 38. b. (i) A gift to a dean and chapter, or other corporation aggregate, muft be by deed. Co. Lit. 94. b But an abbot, birtiop, parfon, &c., or other fole body politick, might have been infeofted without deed. Co. Lit. 94. b — (f) Where if pleaded, the thing is done, It muft be intended by deed. Cro. Jac. 411, 2 Saund. 305. A corporation aggregate cannot, without deed, command their Roll. Abr. bailiff to enter into certain lands of their leflee for years, for a 5H- Cro. condition broken. d^u au r c /^ /- t . r- 'f-' '^/ 2 Roll. Abr. 699. S. C. Cro. Jac. 411. Crp. Car. 269. [Neither can they, without deed, appoint one to feife goods as ^jorne v. forfeited to the ufe of the corporation. J"^' * iVentr. 47. I Mod. iS. 2Keb. 567. cited 3 P. Wm3.424. Nor can they, without deed, prefent a clerk to a living.] 13 H. 8. 12. Bro. Corp.83. But a corporation may employ one in ordinary fervices without Vcnt. 4-. deed, as a butler, cook, is'c. but not to appear for them in an ^^°'^' ^^' affife, or any other a£l which concerns their intereft or title. So, a man may avow the taking cattle damage-feafant, as bailiff 3 Lev. 107. to a corporation, without having any precept in writing. Alfo, a corporation aggregate may appoint a bailiff to diftrain Salk. 791. without deed or warrant, as well as a cook or butler ; for it neither ?'• 3- vcfts nor devefts any fort of intereft in or out of the corporation. So if the fheriff makes a M^arrant to a corporation that hath Moor, 552. return of writs to arreft a man, they may by parol make a bailiff to execute it. [The bank of Etiglatidy or any fimilar corporation, may without R^x v. deed, empower their fervant to make promiflbry notes, or bills of ^'.?t'> 3 P- exchange, in their name: and this is the ufual practice with the ■"^•4'9- bank.] If a leafe for years be made to a corporation aggregate of many, 10 Co. 6S. they cannot make an {d) adtual furrender thereof, but by deed ('^^ ^"' '*' under their leal. ^ ^^^ jg^fg thereof, this is a furrender in law of their firll leafe. lo Co. 68. b. If the churchwardens of S. are incorporated, ^c.y and the king loCo 68. leafes, l^c.y to them for twenty-one years, and, in confideration of a furrender thereof, leafes to tliem for fif^ty years, they may with their 14 Corporationj?^ (fl)Adean. their own hands, and without writing, («) deliver the firft letters and chapter patent into Chancerv to be cancelled. in their *^ ' ch^pteihoufe acknowledged a deed of grsnt ot' their lanes to the king, without making an attorney. Moor, 676. held clearly by Egerton, Lord Keeper, thai it might be done, as well as to put their com- mon feal to a dted without attorney; but -i^'ide Leon. 184. Roll, Rep. 2z. Carth, 390. In cje^mentf the plaintiff declared upon a demife made to him Patrick V. jjy j.]^g aldermen and burgefTes of , without fetting forth that it was by deed, or under the feal of the corporation, and on a writ of error, it was holden ^yell enough ; and that this being a fi£l:itiou3 action to try the title, the demife need not now be fet out to have been by deed. Salk. tqz. If a ma)idar/ius be direfted to the mayor and commonalty of T., P'- 4- 1^ the return may be made in the name of the corporation, without 154. pi. a'. ^^ common feal, or the hand of the mayor fet to it ; for though a Seal of a corporation cannot do an a6l in pnis without their common feal, corporation, ygj. jj^^y j^^y ^}q ^^j ^r^ upon record, by which they are eftopped by a perfon to f^y it is not their a£l;. who is not mayor, dees not make it the deed of the corporation. li Mod. 423. 4. What Things they may take In Succeffion. Co. Lit. 46. A corporation aggregate may take any chattel, as bonds, leafes, h. Roll fcj-^^ jj-j jt:s political capacity, which {hall go in fucceflion, becaufe ^ ^* it is always in being. Co. Lit. But {b) regularly, no chattel (hall go in fucceflion, in cafe of a Hob'^64. ^°^^ corporation. Dyer, 4S. Co. Lit. 9. a. {b) But a fole corporation by cuftom may be enabled by the fame eurtonj to take a chattel in fucceflion, as the chambeilaiii of Loidon, whofe fucceflbr by cuftom may have exe- cution of a bond or recognizance acknowledged to his predeceffor for orphanage money. 4C0. 65. Cro. £liz. 464. 6Sz. Co. Lit. Therefore if {c) a leafe for years be made to a bifhop and his m' The or ^^ccelTors, and the bifliop die, this fhall not go to his fucceflbrs, naments of hut tO his eXCCUtorS. the chapel of the predeceflbr belong to the fucceeding bifliop, and are merely in fucceflion, though other chattels, in cafe of a fole corporation, belong to the executors of the deceafed, and go not in fucceflion. iz Co. 105. " So, the ancient jewels of the crown ftiall go to the fucceflbr, and are not devifible by teftament. Co. Lit. iS. b. But they may be difpofed of by patent, per Berkley and Jones. Cro. Car. 344. {d) 19 H. 6. If a [d) mafter of an houfe, that hath a covent and common feal, 44. Roll, recovers in an annuity, and after an-earages incur, and after he dies, where the the fucceeding mafter fhall have the arrearages, and not the fucceflbr of executor of the predeceflbr, becaufe the executor could not make an abbot ^ teftament. fliall recover damages in a writ of entry, though it is otberwife in cafe of a bifhop, and other fole fecular bodies politick. 2 Inft. zS6. 39 H. 6. 44- But if a parfon recovers an annuity, and after arrearages incur, Roll. Abr. gj^j gfter the parfon dies, the executor of the parfon fliall have the ^" arrearages, and not the fucceflTor, becaufe he could make a tefta- ment. Roll. Abr. By the charter granted to the college of phyficians, and con- Atkinsand ^"^^^^ i" parliament, the oflfenders in praCtiCng phyfick in London, without Corpoiationsf* 15 without admiffion by the college of phyficians, (hall forfeit 5/. for Gardner, every month, unum dimidium rcgi^alttrum dimidium d'lclo prefi- ^fo- J^=- detiti cs* collegia: on this charter it was holdcn, that if the prefulent ^oy^ ,j,. of the college recovers in debt againil an offender, and dies, the Brownl. 93. fuccelTor Ihall have a fcire facias to execute it, and not tlie ^' ^* executor ; for the predeceflbr recovered it as due to him and the college. 5. "Where they (hall be liable in their natural Capacities. If a corporation aggregate difTeife to the ufe of another, they are y\dc tit. difleifors in their natural capacity, and the perfons who committed ^lU'lfif- the wrong fliall be charged therewith, and not the corporation, which confilting of a conltant fucceffion of various perfons, and as a corporation, can regularly do no a6l without writing. If a mayor, or any other member of a corporation, procure a Salk. igs, falfe return to be made to a mandamus, they may be proceeded P'' ^ againfl in their private capacities. If the mailer and wardens of the company of woodmongers Lev. 257. enter into bond thus, vix. noveruit^llfc.magijlrumilf gtiardianoSy —Where a l^c.y tctieri, ^t., and the common feal is put thereto, and it is figned "a^ted'air as ufual, by the principal of the company, and indorfed Sigil/af, ^ annuity, deliberat. in pi\efcntidy bfc. and the corporation is diflblved after, ^"'^ ^^^ *^- yet they fhall not be {a) charged in their natural capacity. dlfToWed. I'^ide Owen, 73. 2 And. 107. {a) Wliere in equity, the private members of a company were made liable to the company's debts, where the compariy had no goods, n. Vern. 596. [6. Of the Qualifications requifite for Members or Officers of Corporations. A quaker, who has ferved an apprenticefliip of feven years, is Rex v. entitled to be admitted to the freedom of a corporation as well as M°f''s. any other perfon, and his folemn affirmation, by virtue of jLd.Raym. 7 (5*8 ^F". 3. r. 34. is equivalent to taking the ufual oaths; for 337. that claufe of the Itatute which provides that no quaker, by virtue 5'^l<"^-4°2- of that aft, (hall have any office or place of profit in the govern- ment, does not extend to the freedom of a corporation. Though it be true that where an infant is aBually mayor, or 5 Co. 27. other chief officer of the corporation, this fhall not avoid the acls ^fV" ^^^' of the corporation with refpecl to llrangers ; becaufe thefe afts ^20. Rex are not the afts of the particular perfons, but of the body corporate ; v. White, yet it feems that where neither the provifions of the charter, nor f"/' ^^'"^t' the ulage or the corporation, exprefsly authoriie the election of an infant into a corporate office, he is not capable of being elefted. Refidence within a corporate town is not neceflarily a previous .qualification for the freedom of the corporation, and the freedom, when once obtained, is not forfeited by non-refidence : but by the conftitution of the corporation, whether by prefcription, or the exprefs v/ords of the charter, refidence may be requifite as a previous qualification [b) : and, where that is the cafe, the court of King's [b) i Bar- Bench will grant leave to file an information, in the nature of quo ""*^,'/^- *33- X Salk. 374'* •ixarrantoy i6 Corporatfcn^f, iLd.Raym. KvarratitOy ngainfl; the governing part of the corporation, for ad* 4^^-, mittiiiff perfons non-refident. Carth. 503. *» '^ Where a man is already a member of a corporation, refidence is not a precedent quaUlication to his being chofen to a corporate ofnce, unlefs exprelsly required by the conftitution of the borough ; Cowp. 539. but though refidence be not required at the time of the eleftion, an abfent perfon muft not be chofen colkifively for any fmifler purpofe, and if he be, the election will be abfolutely void. The Rex y. corporation of Camhridgey on the charter-day for the election of r*!ayor, &c. ^ jnayor, elected a perfon who was an officer in the army juft gone biiige, 4 to North America^ and without the lead probability of his return- Bun. 2008. ing till long after the year would be expired : the electors were fufficiently apprifed of the fa£t, at the time of the ele£tion, and foon afterwards had exprefs notice given them of it, but re- fufed to proceed to a new election ; and it appeared they had elected this abfentee for the purpofe that the preceding mayor might hold over, M'hich it was pretended he might do by ancient ufage, and by virtue of a charter of Charles the Second. The court of King's Bench held that this was merely a colour to avoid any election at all : that the eledtors had chofen this perfon becaufe they knew it was impoffible for him to execute the office, and that the election was abfolutely void. Rex V. Heath, By the provifions of a charter, refidence may be required as a I Barnar- previous qualification for fome offices and not for others. See further on this head, tit. « Offices find Officers'" (E) (K). 7. Of the Concurrence required in corporate A£ls. I Kyd on Where no fpecial provifion is made by the conftitution of a cor- Corp. 402. poration, the whole are bound by the a6ts, not only of the major (a) 10 Mod. ^ , s\ r ^ • r ^ r ^ r i ^/ part [a), but or the major part or thoie who are prelent at a regular 12 Mod. corporate meeting, whether the number prefent be a majority of 7?f ■ the whole body or not ib). So, thou";h a particular conftitution 249. require the prefence or a majority or the ivtoie number, yet the con- currence and coufentoi a majority of the whole is not neceflary \ it is (f) 2 Burr, fufficient that a majority of the n\xx^tx prefeni concur (r). So, ^°'^' where a number lefs than the majority of the whole, are by a par- ticular conftitution competent to do a corporate a6t, the a£t of a majority of that fmaller number is equivalent to the adl of the majority of the wliole : thus, by the conftitution of the city of London^ forty are fufficient to form a court of common council, though the number of common councilmen greatly exceeds the double of that number, and a majority of the forty, if no more be Attorney, prefent, bind the whole corporation. So, where it appeared that Gene: a v. Yn\idford ,• on a vacancy, two of the three chofe a chaplain, with the confent of the major part of the inhabitants of Sandford ; the third diflented : the queftion, whether this was a ^ralid ele£lion, coming before Lord Chancellor Hard-ivicke, he is reported to have exprefled himfelf tlius : — " It cannot bedifputed, that wherever a certain number are incorporated, a major part of them may do any corporate a£l: ; fo, if all be fummoned, and part appear, a major part of thofe that appear may do a corporate a6t, though nothing be mentioned in the charter of the major part. This is the common conftru(5lion of charters, and I am of opinion, that the three are a corporation for tlie purppfe for which they are appointed, and that the major part of them may do any corporate a£l: this was a corporate aft, and the choice too was confined, and confequently, it was not neceflary that all the three flaould join." Where a charter requires an a£l to be done by the wa;or part of Fex v. a definite body, no corporate alTembly can be compofcd of lefs than New/ham, a majority of fuch definite body, when complete; and confequently, '''* 1^* when the number is reduced beloiv that majority, the power of v. Grimes, adling is at an end. But in fuch cafe, if the number be indefinite, 5 B"'"''- the words major parth-^wt no operation, and any number of the body, ^ y "j duly aflembled, however fmall, is fufficient to form a corporate Cowp. 248. afTembly. Rex v. Monday, i^. 550. Rex v. Bellringer, 4 Term Rep. 8ie. Rex v. MIllc, 6Term Rep. 26S. With refpe£l to the head of the corporation, there was this dif- Rex v. ference between a corporation aggregate of one perfon capable and ^'y^^e, many incapable, and a corporation aggregate of many perfons ca- ^^i." Ree^ pable, that in the former, as in the cafe of abbot and convent, v. Sutton, there muft have been the concurrence of the major part, and of ^oMoi.-j^, the head befides, becaufe the abbot only acled with the confent of pavies ^* the major part of the reft ; but in the latter, as in the cafe of i Str. 53. mafrer and fellows, or mayor and commonalty, the head is but a member of the acling part, in the fame manner as any other indi- vidual ; and therefore, without a particular ufage, or the exprefs provlfion of a charter, he has no cafting voice. Where it appeared that an officer vi-as removable by bailiff's and zLd.Raym. burgefles, or the greater part of them, " of whom the baililFs to be '^^^; » J -^ r • 1 • 1 I 11 zSaik.434. two, and it was laid m the return to a mandamus, that he was removed by the ballifFs and burgefles, the bailiffs being then pre- fent, the court held, that if the adual confent of the bailiiTs had been required in this cafe, their confent fliould be intended, either as aftually given, or as included in that of the major part: but they held that it was not required ; for that, as in all corporate afts, the act of the majority is the a£l of the whole, fo the bailiffs being the head of the corporation, nothing could be done without thtvc prefence^ though it had not been exprefsly required, and its being fo required did not render their concurrence neceflary. Where the head office of a corporation is vcfted in more than i Kyd 03 one perfon, as in the cafe of two bailifls, t\i& prefencs of both is ^'«rpMa3. abfolutely neceflary, becaufe both fill but one office. Where the provifions of a charter direct that the new mayor Rex v. Ihall be fvvorn before his predeccflor, the prefence only of tlie latter ^".'^' vot.ir. ^ c ' is "'"•^''^ iS Corporations?. is not fufficlent: there niuft alfo be his ajfent ; at leaft nothing muft appear from which his dljftnt is manifeft. 8. Of the Regularity of their Proceedings. Cj. ten-p. Where corporate a£ts are to he done, not on a charter day, and Hardw.151. i^y ^ fcle£l body, there mull be a fummons of every member, except fuch as 2iave abfolutcly deferted the town. And where tlierc are dilTerent afieniblles in a corporation with diftintt powers, and all the members of the fmaller aflembly are membei's of the more numerous; if the more numerous aflembly be fummoned to meet to exercife the powers lodged in tliem, thofe who are members of the fmaller affembly carmot feparate from the reil, and exercife their diftinft powern ; but there muft be a fum- ^mons for that purpofe of the fmaller aflembly by itfelf. Rtjc V. The corporation of the city of Carlille confifted of a mayor. Mayor of aldermen, bailiffs, and capital citizens, who together formed the iStr. /s^. common council, and had the power of elc£ling capital citizens ; MachcU V. the power of amotion was in the mayor and aldermen only, or the 2 Ld'Va"' '^•'^'^"^ P^i't of them. The common council met for the purpofe of i255, s.p. tranfacling the bufinefs of that aiTembly ; and the mayor and aldermen made an order for the amotion of one Poulter, a capital burgefs, for a caufe which was allowed to be legal. The court held, that the removal in this cafe was not regular, and that there ought to have been a fummons for the mayor and aldermen to meet in their diflintt capacity. Ter Lord It hath been faid Ih fome books, that if all the members of the ^Tr'"' corporation be prefent by, accident, or in confequence of a fum- Strarge- HioHS to attend on one particular bufinefs, a£ts relating to an-^ bu- -.vays, Hii. fmefs donc by unanimous confent will "be good. But this is a 'iwd b *Ld P*^^^^'^ 'which hath never been folemnly adjudged. Hardwicke, Ca. temp. Hardw. 151. i Barnard. 80. Mufgrave v. Mayor of Appleby, I Str. 584. i Li.. Raym. 135S. See K.yd Curp. 434-, &c. Rex V.May- Where a fummons is ncceflary, it is not fufficlent that the ^h ^^'0^^ ■ ^''^^^ '^"'^ general orders be given to the fummoning officer ; Ca. teaip.'' ^'^ latter muil acfually do every thing he poflibly can to fummon Hardw. 147. all the members of the feleft body. Jv. Eyre, J. It has been faid, that though the aiTembly of a fele^l number I Str. 3S6. j^gij j.^^^ Qjj ^ cnarter-day, be irregular, unlefs every member within reach of I'ummons, be adlually fummoned, yet that in the Rex V. fummons it is not neceiiary to fpecify any particular act. How- ^Yv\\ ^'^^' *^^'^^ well-founded this may be, as applied to the ordinary buflnefs pool, 2 Burr, of the corporation, it feems that, in the cafe of an amotion of a 723. P.cx corporator, a pvwfr,?/ fummons to every member is not fuflicient; &c ofrh''^ ^^^ ^-^'"^^ ^^ '^^ necelTary to mention, that it is intended to confider caiter, :J. the queftion of removing the particular pcrfon ; perhaps even that 7^8. vt'jii not be fullicient, but it may be neceffary to flate the coufe of his intended amotion. This, however, docs not appear to be fully fettled, for in the cafes where the amotion of members has bt:en held irregular for want of prcper fummons, the determina- tion CTorporation^, 19 tlon hns j^enerally proceeded on the circumRance Oi there having been no fumnions at all. But no fummons is neceffary where a member is not refident 5 Burr, within the town. -^°^- It is laid down as a general rule, that where there is a rijO/al p.exv. method of notice, that cannot be difpenfed with, though there be Mayor, &c. an aflurd fummons of all the members, unlefs indeed every fingle ^"^^,^ ^^^' member be pref(i-nt at the meeting, and confcnt to wave it. Freemen f Saltarti, 5 Eurr. Z6S2. Where it is intended to remove anyone of the members or officers James of a corporation, it is, in general, abfolutely neceflary, rrot only i^agg'scsfc, 1 1 Co. 99, that lie Ihould be fummoned generally to attend ; but he mult 0,^^^ •, have a particular fummons to attend and anfwer the particular cafe, 4M.ei, charge alleged againll him ; for it would be highly unjuft, upon 33* 37' a general fummons, to remove a man for prirticular offences, which he may have had no opportunity of preparing to anfwer. But there may be particular circumftances, under which the Rex v. fummons may be difpenfed with. Thus, fays Ho/ty C. J. " a man ^'^lalke, ought not to be disfranchifed until he has been heard in his de-' l^' ^^'"' fence, on notice and preparation, and notice is only neceiTary for iSaik. 4a, that purpofe. Therefore, if a man be charged inplenis comitlisy and ordered to prepare by fuch a time, this will be good, though there be no a£lual fummons, becaufe if the party be heard it is fulficient." If a party be charged with a particular offence in one afTem.bly, Serjeant and ordered to prepare for his defence, he certainly cannot com- v/j itaker'a plain of M-ant of notice ; but it feems very doubtful whether his '^^^'^ being charged and anfv/ering in the fatne affembly will cure the 124c. V.'ant of notice. 2Sa!k.4^5. See I Kyd. Corp. 445, 6, 7, 8, 9. Where a perfon is removable for non-refidence, there is no [a) Comb. neceflfity to fumm.on him before he is removed, becaufe he has ^9?- ^yo* abdicated the town, and is out of the reach of fummons [a). But «g, ^A^' if he be removable for non-attendance at the corporate aflemblies, v. Trubody, he muft have had perfonal notice to attend, and that his prefence '^I'^'^'^^y^ was neceffary ; for the nfual notice of the intended meeting will ;„' Douei." not be fuihcient, unlefs that icfual notice be perfonal (/■). 151- 157. Vid. Sty. ii;t.44.6. Pa)m. 451. i SiJ. 14. 2 Sid. 97. Fortefc.aoj. (^) Rtx v. Richardfon, iBurr.517," 5-0- 5-iO- A man may be conftituted a burgefs, or appointed to an office, i Ld.Raym. by deed under the common feal, and then he ought to be dif- V-^- ' ^y*** charged in the fame manner: but where the party is conftituted "'"^'^ i>r appointed by eleciion, nothing more is required than an entry in the books of the corporation j and he may be difcharged by an order entered in the fame manner. bo, where an office is granted by deed, the reJigv.aUon or fur- i Ld.Raym. vender cu^rht alfo to be by deed ; bat where an officer is appointed 5^3- u 1 -T.- .1 • .^.■r.^ J- ' 2i>4;k.42;. by election, the corporation may accept his reiic-n^tion or lurren- ^ •* der by parol before them : " if, indeed," favs rhliy " a man fpeak at !^rg^, and fay he will be no longer alderman, i:fc. that lignifie:; nothing: but if I;;^ come in an open affembly of the C 2 corporation. 20 (3:orporation0» corporation, and there refign his office, declaring tliat he vlll not continue in it any longer, and defue them to accept his refigna- tion, and they accept it and elc6l another in his room, this is a good refignation." With refpecl to tlie prefiding oihcer, it is to be obferved, tliat, where ftrangers are not interelted, all volutiiary adls not neceffary to carry on the bufinefs of the corporation, done by an ufuvper or a mayor de facio, or under the authority of either, feem to be «Str. 1090. void : and that fome necejfary atls are void in both cafes. For >VnJr. 163. though in the cp/^ of The Kitig v, Lijle, the court dwelt upon the circumftanceof the eIe6lion of the defendant, not being a necejfary jKydCorp. a£lj yet it appears from fubfequent cafes, that the clrcumftance ♦54- of the a£l being necejfayy is not alone fufficient to make it good. aStr. nop. Ill the King and Hebdev.^ the defendant made a title to the yvndr. 38S. of^ce of bailiff of Scarborough^ from an ele£lion under the bailiff- Ihip of Batty and ArniJro?ig, and on iffue joined whether thefe were bailiffs or not, a record of a judgment of oufter againft them was read in evidence ; and on a motion for a new trial, it was holden, that it was properly admitted ; and the fame evidence was fald to have been lately admitted in a trial at bar, in a cafe relat- ing to the corporation of Orford. J Burr. In the cafe of the King and Grnnesy a quefiion having been a.5oi. made, M hether iht fpecial verdict found on the information againft John Leigh, for ufurping the office of mayor, and the judgment given thereupon againft him, were evidence in the prefent cafe againft Gritnes for ufurping the office of capital burgefs ; and to what degree it ought to be allowed ; the court held it to be ad- mlffible, but not conclufive, and, in facl, gave judgment againft him, on the ground that Leigh, who had prefided at his eleftion, was not a rightful mayor. In the firft of thefe cafes, if not in both, the eleclion was an act necejfary to the prefervation of the. corporation. 1 Barnard. Where the mayor's prefence is neceflary at a corporate aflem- 3 5- bly, his departure before a bufmefs, regularly begun, be concluded, will not invalidate that particular bufuicfs, but the aflembly can- not proceed to any thing elfe. 9. Of the Election and Amotion of their Members. Skm. 45. There cannot properly be any ele£lion to an office which is not ^ y o""?- aftually vacant, for though it may be a practice in fome cafes to choole a pcrfon bcfove-hand, which may be called an inceptive cle£lion, and on the death of the predecefTor, to admit the per- fon before nominated, which completes the election •, yet fuch an inceptive election is not binding on the electors j and when the vacancy really happens, they may eleft another. aKydCjrp. If the election of a particular officer be, by ancient charter, ^' vcfted in one body, a fubfequent one cannot of itfelf alter the mode of eledion •, but if the fubfequent charter be accepted by die corporation at b.rgc, or if they acquiefce under it, and a61: in conformity Corporations?. 21 conformity to it, which is evidence of acceptance, the latter mocie of election is valid. By a charter of Henry 4, it w^as granted, that the mayor, al- Skin. 574. dermen, and citizens of Noriuich, might e!e£l two to be fhcrifFs of that city : Charles the Second, in the i8th year of his reign, by his charter granted, that the mayor and aldermen might elcdl one fherifF, and the citizens the other. — The fubf^^qucnt eledlions . were made according to the provilions of the latter charter, and were held good by the opinion of two juflices againll one. The privilege of eledlion may be in one body, and the privi- 2Salk.43G, lege of approbation in another : thus, the privilege of election to the office of alderman in London and in Norwich is in the ward, and that of approbation in the mayor and aldermen ; but if the mayor and aldermen reject, without reafon, one chofcn by the ward, a peremptory mandamus will be granted to admit him. ' Where the perfon elected is unqualified, and the electors at Reg v. Eof- the time have notice of the want of qualification, their votes to cawen,p.i3. 1 • , J 1 i- I 1 1 . Ann. B.R. him are thrown away, and the perlon who has the next greater r^^ y^ vv'i- number to the qualified perfon, is to be confidered as duly thets, P. 8. eleaed. g.^.b.r. cited in 2 Burr. 1020. Cowp. 537. Taylor v. the Mayor of Bath, M.15G.2.B.R. cited iaCowp. 537. Where a candidate is propofed In a corporate meeting duly af» Oidknow fembled, and a majority of the perfons aifembled protelt againft v- W-m- any election, and do not propofe any other candidate, the mino- 2 g^rr. rity may eledt the candidate propofed. io»7' Sea ^ ^ ^ ^ the cafe of the King v. Monday, Cowp. 530., and 2 Kyd Corp. 17., &:c. Where the time and manner of election are not fixed by char- Macheil v. ter or prefcription, it is competent to a corporation to make re^ Nevinion, gulations refpeding them. ,3,^. Newling v. Francis, sTermRe'p.i'^Jg! It feems now to be acknowledged, notv/ithftanding the opinion Tidderley's of Lord Cche [a) and others, that every corporation aggregate hath, ^■•'*=' ■ ^'^• as incident to it, a power of removing its members for reafon- pVuce's able caufe. cafe, 2 Str. 819. Rex V. Richardfon, i Euvr. 517. [a) James Bagg'a cafe, 11 Co. 99. a. Yates's cafe, Sty. 477. Rex v. Mayor of Coventry, i J^d. Rajm. yji. Kex v. Mayor, &c. of Doncarter, a Ld. Raym. 1566. But this power, like every other incidental power, is incident 2 Kyd Corp. to the corpor.ition at lan ^^^"^ • thus, the mifemployment or non-payment of money, be- chife, F.33. longing to the corporation, is no fufficient caufe, the corporation fays Semb. having a remedy by action ; nor, a refufal to pay his proportion of rT'iti aa6 ^^^ expence of renewing the charter («) j nor a refufal by a livery- (f) 2 Ld. man, to make the ufual payments for fupport of the company (^); Raym. jjor general difobedience to the laws and orders of the corporation; ^^ ' nor, as it would feem, the breach of any particular bye-law (r). gg^ For offences which have no immediate relation to the corporate office, hut which the lofs of credit renders a ground of forfeiture, the corporation cannot disfranchife or remove, without a previous conviction at common law ; for in fuch cafes the corporation can- Style, 479. not try the truth or falfehood of die accufation : it is for this reafon, anesca e, ^^^^ jj. j^ ^^ caufc to rcmovc or disfrauchifc a man, that he is 1304. imliaed of felony, perjury, forgery, libelling, or other infamous 3iMod.27o. crime, becaufe he may be acquitted of the charge. Fortcfc.a75. ' Ca. temp. liardw. 155. i Burr. 359. Kex V. \Yith refpe£t to thofe offences which are of a mixed nature, as c ^!"' _^ being not only againft the oath and duty of the corporator, but alfo Kex V. ' ni^atters indictable at common law, it feems to be exceedingly Mayor, &c. doubtful whether for thefe the corporator can be removed without Ca^iemn' ^ prcvious convi£tion. The difficulty arifeth from the poilibility Haidw./53. of a difference of determination by two different jurifdidtions, as and the cafes the party may be removed by the corporation for the fame fact, of kexV rII ^'^■^I'ch he may afterwards be acquitted on a trial by jury. The chardi'on, qucftion hath been often difcuffed, but hath never received a final J Bun. 538. tlecifion. Hex V. Cor- puratiun of Doncafler, 2 Burr. 738. Sawyer's It hath been afferted, that, after conviction, the king might, by «--?. iijio writ iffuing out of the court where the conviction remains, or out lfaiiw:to, q£ CJijji^cej-y^ command the corporation to difcharge the party con- j Burr. 525. viCted; but this dodtrine has been juftly difregarded [d). [d) I Durr. 530. Rexv. In feme inftances, too, the crown has referved to itfclf the ^meiy, powcr of icmoving at plcafure ail or any of the principal officers of Rep. 516. the CorporationjGf» z-j the corporation •, but whatever may be faid as to the invalidity of (tich a rciervation, as being repugnant to the purpole of the char- ter, luch ■^ poM'er cannot certainly be exercifed to fucli an extent as to del^roy the whole body at once, and render the ele endowed, where no fpecial viiitor (h) is appointed by the founder, ?<='•£."' *'- and (perhaps it may be added) where his heirs are unknown or do vinueo'rbfs not choofe to atl, it is provided by the ftatute of charitable ufes general \i- that tliey may be vifited by commiffioners appointed under the *'^,^^^°"^l great feal. pHve a canon or prebendary far Incontinency or other offences defcribed Fn the ftatutes ; and this, of his own •uthorily without obfervingaJI the preliminary forms the ftatutes may appoint. The King v. Bifliop of Cheiter, i Will'. 206. iBI. Rep.22. But a bi(hop, as vi/itor of tiie dean and chapter, feems to Jiaveno jurifdicftion to determine between the members on the fubjeft of their corporate property. Rex V. Epifc. Dunelm. i Burr. 5^17. It is clear, that he cannot by virtue of fuch power fill up a vacancy in the ftalls of the cathedral by lapfe. Bifliop of Chicheiler v. Harwood, i Term Rep. 650. Ani whether he can, as vifuor, decide in matters of cledlon to fuch ftalls, is a ^uellion which hath not yet received a general folution. Id, ibid, {b) i Wooddef. 474, 5. It is only over eleemofy nary foundations that the vifitatorial power, i Wooddef, properly fo called, extends. For this pov/er, as now underftood, 474- is final and conclufive, exercifable voluntarily, in a fumrnary mode, and without appeal. And as the court of King's Bench cannot i Bl. Com. interfere till called upon, and its judgments are liable to be reverf- 4^'- ed by writs of error, it fecms to want tw^o of the eflential marks of vifitorfhip. This kind of power appears to be of very early date, mention 8E. 3. 69, being made of it in the beginnhig of the reign of Edward the 3d. ^°"^ ^ ^^' It was not introduced by any canons or ecclefiaftical conftitutions, j Vez! \-'z, but is an appointment of the law, and arifeth from the property 2 Term which the founder had in the lands appropriated for the fupport f/''',^^^| of the charity. Hence, it is in the power of the founder to veil it to the Bi- in any perfon and his heirs, or in a fole corporation and his fuc- HiopofZ., cefibrs ; but if hg appoint no one to exercifc it, it will defcend ^Z^^^- *"* , . ' , . f ^ ' chiiltian to his own heirs. name, the gt-'pc is to him in his politick capacity, and it is not neceffary to mention his fucceffors. Bentley v. BJfliop of Ely, 2 Str. 913. t'iizg. 30S. . If the founder dies witliout making any appointment of a vifitor. Rex v. and without heirs, it will in that cafe devolve upon the king to be '^'^aiter, &c. exercifed by the great fcal. Hall, 4 Term Rep. 233. Where tlie perfcns, for vvliofe benefit a charity is eflabliflied, 2Kyd, iS;. are not themfclves incorporated, but truftces or governors are ap- >cco. 31. pointctl, as in the cafe of Sutton's holpital, the governors have pofter'^zp! y kind of vifitorial pcwer with refpecl to die objetls of the charity ; \Vn:s. 3;j. but 28 Corporation^^ Attorney, but wherc no vlfitor is exprefsly appointed, and the legal eflate of General v. the endowment is vefied in the governors, the latter, as to the t'^'^tk. 164 "management of the revenues, are fubjedl to the jurildiclion of the Attorney, court ofXhanccty. General V. Ivliddieton, 2 Vez, 327. 2Kyd, 195, As the power of appointing a vifitor is entirely in the founder, 108 ^^o'^? ^^^ ^^y delegate it either generally or fpecially ; if he appoint a 3 Atk. 663. general vifitor, without any reflraint, the perfon fo appointed hath X Vez. 78.^ all incidental povi'ers. But a perfon coni'tituted vilitor in general I Burr -co' ^^^'^^^J maybe reftrained in particular inftances. So, the founder may appoint a^rt/a/viiitor for :i particular purpofe, and no farther. So, he may make a general vifitor, and yet appoint an inferior particular power, to be executed by another perfon, who M-ill then be zfpecial vifitor. Thus, the vifitation of the corporation at large may be in one perfon ; and that of one of the members, as of the head, may be in another : and if the founder of a college appoint a vifitor of the head fpecially, the general power of vifitation re- mains in the founder and his heirs. The manner too in which the vifitatorial power fhall be exercifed, whether general or fpecial, may be prefcribed by the founder. VU. uh( No technical or fet form of words is necefiary for the appoint- ^^''' ment of a vifitor. " Vifitatorfit Epijcopus Elierjis," is an appointment of a general and perpetual vifitor. But a perfon may be a gene- ral or fpecial vifitor without any exprefs appointment, by con- ftruclion and implication from various branches of the ftatutes. Appieford's The fentence of a vifitor, on fubje£ls within his jurifdidlion, is caie, iMod. £j^^j ^nd conclufivc, and the king's courts cannot in any form of 92! I Lev." proceeding, review it. 3.3. 65. Raym. 56. 94. ico. i Sid. 94. 15a. 346. FhiUips v. Bury, Skin. 447. 2 Term Rep. 346. Rex V. Epilc. Eiienf. 5 Term Rep. 475. 3 Atk. 674. Nor will the king's courts anticipate the judgment of a vifitor, or take away his jurifdiction, if the cafe in which they are called upon to interfere appears to be within the fcope of the general vifitatorial power. Rex V. In a return to a mandamus directed to a college, it is fufficicnt Aif'^p, to i];ate in general terms, that fuch a perfon is vifitor ; for as vifitor. Skin. 13, ■'"'e has power to deternnne all matters that come as grievances before him, unlefs he be particularly reilrained by the ftatutes, and fuch reftraint will not be prcfumed. Nor is it material whether the' grievance complained of happened in the time of the prefent vifitor, or in that of his predccellur, and therefore it is not necef- fary to (hew that in the return. f.tx V. The queftion, whether there be a vifitor or net, may be fome- rsir'*^!* 3n *'"m'ss decided on affidavits : but if a mandamus has been granted, commanding the party to whom it is direcled to admit a perfon to a fellowfliip, on an affidavit of his elc£l;ion, the court will not fu- perfede the writ on affidavits that there is a vifitor, but Vv-ill put the defendant to make a return ; becaufe where the point is deter- mined on affidavits againft the party complaining, he has no op- portunity to do himfclf jufticc by an aiflion. Ingrafted 2 Sir. 1 1 39. CotporatioiiiO?* 59 Hhgrafted fellowfhips in colleges, where the founders of them Attonwy- make no ftatutes for their regulation, are fubjeft to the general p"^'*' v. laws of the college, and, confequently, to the vifitor's jurifdi6lion. j vez!'"8. Green V. Rutherforth, ii/. 475. St. John's College v. Toddington, i Burr. 1 eg. As independent members of colleges are mere boarders, and Exparre liave no corporate rights, it follows, that they are not fiibjefl: to ^^v'''^'"» the vifitor's jurifdiflion, and cannot obtain redrefs for any griev- Cowp. *in. ance by apper.ling to him. Neither indeed can they in matters of Rex v. difcipline obtain redrefs in a court of law. Crunaon, ^ ^ Covvp. 3 : 5. It feems rather doubtful whether a perfon v/ho is not yet Rex et Reg. nftually a member of an eleemofynary corporation, but who claims "• •''t- John's a right to become one, be a proper fubjecl of vifitatorial jurif- ^Mod^Vgo diction. Comb. 23S. If it be quePtioned wliether any vifitatorial power exifts in the i Burr. 153. perfon applied to in that charadier, this muft be fettled by the court of King's Beach. So, if a vifitor (hould aflfume the power of making new flatutes, Creen v. fuch ufurpation would be reftrained by the court of King's Bench. Rut'fer- ^ ^ ^ forth, iVez. 4.72. 1 Burr. 201. If the performrnce of a truft is to be decreed, a court of equity i Vez. 475. mud be reforted to, for a vifitor is incompetent to do complete ^f.* ^• juftice. So, if a college agree with a ftranger to grant him a leafe, cowp. ^3. and refufe to perform the i^greement, the remedy is by bill in equity for a fpecifick performance, and not by appeal to the vifitor. If the Itatutes of a college give to the fame perfon who is vifitor Rex v. the power of appointing to an office one out of two perfons re- ^f}^^' turned to him by the college, he has that appointment not as ^ x^'m vifitor, but by virtue of fuch e::prefs provifion, and therefore muft Rep. 290. make choice t)f one of the perfons returned to him : if he afi^ume the appointment of any other perfon, the court of King's Bench will interpofe. And the fame common law judicature will interpofe, if the Rex v. vifitor be a party. Thus, where a mandamus was directed to the Epifc.Ceftr. Bilhop of Ckejlery as warden of Manchejler college, requiring him in the'v'car to admit a chaplain, and he made return, that he was vifitor of the after this fociety; it was holden, that though a mandamus will not lie where '^5'"'n">3- there is a vifitor free from objection, yet here the two offices was'paiTed, being in the fame perfon, there is a temporary fufpenfion and the toveftinthc Kinji's Bench muft exert its authority. *^!'''.''° '^^^, power over Manchefter-college, whenever the wardenfliip fiiould be holden in ammendam with the biihoprick of Chefter. St. 2 Geo. a. c. 19. See too, 4 Term Rep. 244. In the cafe of Dr. Bentley^ mafter of Trinity-college in Cambridgey Bentley v. who was cited before the bilhop of Ely^ as vifitor over the fociety, Bifhop of to anfwer fixty-four articles charged to be violations of the ftatutes; {^ Vhz<^. the King's Bench granted a prohibition, becaufe the bifiiop in his ic-r. 4.^1. citation had not fet forth his genuine authority. But the Houfe -^ '-'■ ^- ^• of Lords, on a writ of error, reverfed the former judgment, and went into tlie confideration of the feveral articles, and, as to fome, confirmed the prohibition, and, as to others, allowed the bifiiop to 50 €orporaticni8f» (a) Yet it to procced. It was indeed infifted, that the king- vvafs gmerat feems as yet viritor(dr) and the bifliop fpecial vifitor only; but the King's w"ho'u*Re- B*^"'^^^ ^vas of a difFerent opinion ; and, in this refpecl, their judge- nerai vifitor ment feems unimpeached. of that feminary. i Wooddef. 481. Reset Reg. Where the publick lav/sof the land are difobeyed, the court of r ?^J°'^"'* King's Bench will interfere, nctwithft^nding there be a vifitor, for 4Mod.233. ^^is province is confined to the private ftatutes and domeftick regulations. Rex V. If a vifitor refufe to receive and hear an appeal, the court of Epifc. King's Bench will grant a mandamus to compel him. a Term Rep. 338. n. Rex v. Epifc, Elienf. 5 Term Rep. 475. Brideoak's But where the vifitor has a£lually executed a fentence of expul- cafe, H. fion, though hc may appear to have exceeded his jurifdiftion, a cited In' mandamus vvill not lie to reflore the party expelled, for that would I Wiif.209. be to command the vifitor to reverfe his own fentence. iBl. Rep. 25. 58. (^)P)-, or he may, it is faid, (c) I Vez. have an action for damages againft the vifitor (r). 4-7 o- 2Kyd, 282. When the vifitor has pronounced a fentence, which by the er'' cafe ' ^'^tutcs of the College a particular ofiicer is to put in execution, Ca. temp, the court of King's Bench will not compel that particular oiTicer Hardw.2i2. by mandamus, to do his duty ; becaufe that would be to interfere I.l\fc' ^ith the privilege of the vifitor, who has power to compel the lUenf. proper perfon to execute the fentence : but it feems doubtful, Aadr. 176. whether, if the vifitor himfelf refufe to compel the execution of the fentence, the court v/ill grant a mandamus directed to him. for that purpofe.3 (G) Of the Diflblution of Corporations. {J) I F all the members of an aggregate corporation die, the body ■^ politick is diflblved ; but if the king makes a corporation id) Roll. Abr. 5»4. 30. b. * confifi:ing of twelve men, to continue aKvays in fuccefilon, and Roll. Abr. when any of them die, the others inay choofe another in his place; —I'fan ^ ^''^ ^^ ^^^^'^^ °^ •^^^^'^ ®^ "^'^^""^ ^^^' if) y^^ ^^^ ^^^^ ^°^^ ^y ^^^^ ^^^^ eorporation fhall be fufficicnt. aggregate, as mayor and commonalty, or dean and chapter, make a feoffment and letter of attorney to deliver fcifin, this autliority does not determine by the death of the mayor or dean, but the attorney may well execute the power after their death, becaufe the letter of attorney is an autliority from the bcdy aggreg-ite, which fubfifcs after the death of the mayor or dean ; but if the dean or mayor be named by their own private nanii:, and die befcie livery, or be removed, livery after feems not good. Co. Lit. 52. b. 2 Roll. Abr, 12. 14 H. 8. 3. 11H.7. 19. (/) The maftcr of a colkge cannot devife lands to the houfe of which he is head. Dalif. 31. 4Leoji. 223. I Roll. [But where a corporation confifts of feveral diftln6t integral parts, Co^ra 2^6 ^^^"'^ o^ thefe parts become extlnO., whether by the death of the Reg. V. pcrfons of whom it is compofcd, or by any other means, the 6 whole Corporations* 31 U^hole corporation is dlflblved. This indeed was doubted in the Ballivos ds cafe of Colchejler v. S,eaher{a)\ but a later adjudication [b) hath ^^"'^^>> fettled, " that when an integral part of a corporation is j^onc, and ^oy. °'^* the corporation hath no power of reftoring it, or of iloing any ioMod.346. corporate atl, the corporation is fo far diflblved, that the crown ('!,) 3 Burr. * 1 j-/r ^ /■ 1. r J> ]S66. In may grant a new charter tea dirterent let or men. t^^i, ^.f^^ which occurred in 1766, it appeared, thac in ly/o there were judgments of ouftcr againft all the peifons then claiming in fadt to be mayor and aldermen of the corporation : that thofe perlons were all dead befor* the year 1763 : that fiom 1740 to 1703 no pcrfon took udot himfelf to be, or claimed to be, mayor or alderman ; and that in 1763 the charter under *.'hich they afted when the cafe occurred, was granted and accepted. Th-J queltion imnediately before the court was, whether the prefent corpo- ration could maintain an a£tion on a bond given to tlie old corporation in the year 1735 ? which was determiDcJ in the aSrmative ; for that rhc charter of 1763 reftored the corporation to all its forn-.cr rJ^ha and fraachifes, and fubjeded it to o'.i its former obligationj. [b) Rex v. Pafmore, 3 Term Rep. 195. Alfo, a corporation may be diflblved by mifufcr or abufcr •, for 2 Inft. 222. as all franchifes flow from the bounty of the crown, io there is a r,°,^; ''■■?• . ', , 1 • 1 -ri 1 ButtorthiS tacit or implied condition annexed to iuch grants, wliich, 11 broken, „^,v^ thear- forfeits the whole franchife. g-.iments in the great cafe of the quo tuarranto againfl: the city of Lcvdon, which was brought againft the whole corporation, 1. For that the common council had petitioned the king, upon a prorogation of parliament, that it might meet on the day on which it was prorogued, and had charged the prorogation as that which occa- fioned a delay of juftice. 2. That the corptratiun haj impofed new taxes on their wharfs and markets, which was an invafion of the libctty of the fubjeft, and contrary to law ; and the judgment in that cafe wai, that the franchife fiiouid !)e feifed into the king's hands ; but -vide 2 W. & M. § i. c. i>., by which this judgment is declared to be void and illegal } and "vide the cafe of Sir James Smith, Show. 280., 4 Mod. 52., 12 Mod. 1 7, i8., lo Mod. 174., who being chofen an alderman of the city of London, after the fame juiigment (which was never recorded) the queftion was, whether he was duly elected, fo as to be obliged to uke the oaths piefcribed by I W. & M. c. 8.? and it was refolvcd, that though a corporation may be forfeited, yet tha: the proceedings and judgment in the cjuo ■warranto againil the city, did not Jiflblve the body politick, or m ^ke their fubfequent afts void ; and confequcntly, that Sir Jamis not taking the oaths purfuant to the i W. Sc M. c. 8., was a furiicient caule to re- move him from the place of alderman. See Skin. 310. Show. Rep. z8o. If the members of a corporation refufe or neglect to choofe-fuch Carth. 483. officers, as they are obliged to choof^ by their charter, this is a ^"^J"*^"^ forfeiture, and confequcntly a diflblution of the corporation (r). c.4, [(f) In fuch cafe the corporation is diiTolved without any legal proceeding : but for a forfeiture it is not diflblved with.^ut a judgment in a court of law to enforce it. " A j'cire faciai is proper," fays Mr. JuiVice Aflihurf!-, " where there is a legal exifting body capable of a£ting, but who have been guilty oi an abufe of the power entruiled to them ; for is a delinquency is imput;^ to ihem, they ought not t J be condemned unheard : but that docs not apply to the cafe of a non-exifting body. A quo luarranto is ncceHaiy where there is a body corporate dc faBo, who take upon themfelves to aft as a body cor- porate, but who, from fome defect in their conitituticn, cannot legally exercife the powers they atfeft to ufe." — If, in a profecution againlt a corporation, the judgment be for the defendants, the furm of i: i', •' that the liberties be allowed," Co. Entr. 535. b. ; if it be for the crown, and the parties have continued pofljflion of the franchife by wrong from the beginning, the judgment is, " that they be oufted ;" but if they once had title, and lofe i:, the judgment ir, " tiiat the liberty be feifed into the king's hands." Yelv. 192. Co. Entr. t. quo tuarrr.nto. Tiie prior judgment of feifure is called a judgment " quoufjue ;" this judgment, it hath been thought, would diffolve the corporation, if the parties did not come in and avoid it the fame, or at the fartheit, the next term, and that there was no ufe in a ilnal judgment, but to fliew that the king will take advantage of the forfeiture, which he may declare by the grant of a new char-.er. Rex v. Amery, aTecmR.ef. 515. But this opinion was over-ruled in the Houle of Lords, where it was determined, that the efie£t of this judgment was merely to lay the king's hands on the franchife of being a corporation, fo that the corpcration could not ufe its liberties, and the ailion of irs vital powers was fufpended; that in that fituation the king might appoint a cu'.tos ; and might intro- duce a new corporation by charter, to v/hom he might com.Tiir the cuftody ; but tha: the old corporation were entitled to redeem their liberties, and remove the king's hands, upin wh'ch the power of the new corporation mult neccffarily ceafe, and the letters- patent te tbem become void. J^in't the judgment in l-.-x V. Amery ir. the Houfe of Lords, in the account of that cafe in two volumes quarto, and 2 Kyd,4g''., &c — With rcfpect to the form cf a final jujjment, it was dsccrmincJ in Sir Jamis Smith's caf;:, that the ccrporation of Linden was not dilTslvcd by :he judgment xs xeciied in the ail of z VV. Si M- ft. i. c. S., c. 8., which was, " that thr liberty, franchlfc, and privilege of the city of London^ lAng a bodjT politick, &c. ftiould be feized." For the word o/" being omitted before the word being, the judgment was not a|ainft the corporate exiftence of the city, but againft the franchifes it enjoyed : and Holt faid, *' that a corporation might fiibfift after its franchifes were taken away ; for that thefe were not elTential to it, but only a privilege appertaining to it ; that the eflence of a corporation was to make bye-laws, and govern their members, which a corporation might do, though their franchifes were feized." 4, Mod. 51. Skin. 310. Carth. 217. 1 Show. 263.] Salk. 191. A corporation may be diflblved by furrendcrlng the charter, but i2Mod.24.7. ^ furrender of an old charter is void, for want of enrolment. Co. Lit. If a prior and convent, concurrejitibus us qu/e in jure requiriwtur, X02. b. 2^g tranflated to an abbot and convent, or to a dean and chapter, though the name is changed, yet the body is not diflblved. 3 Co. 75. b. Though a dean and chapter have furrendered (^) all their pof- (a) But fions to the king, yet their corporation continues, and they re- not be a main a chapter of the biftiop to aflift him in fpiritual matters, guardian of t^c. for all their pofleflions were from the bifhop, and a prebend- * hen^dle ^^"^^ though he hath no pofleflion, ^vaxhjlallum in choro ^ vocem in chapel and CClpltulo. all the pofTelfions thereof are aliened. 3 Co. 75. a. 10 Co. 31., for there cannot be a guardian of nothing. Co. Lit. If lands are given to a corporation, v^hlch is [h) afterwards dif- 33 •J'* folved, the donor (hall have the lands again ; for the law annexes Godb.211. r ^ 1- • - 1 1 1- • 1 [Mo. 2S3. iuch a condition in every grant to a body politick. ace, vide tamen 20. Jac. C. B. Johnfon v. Morris, that the lands fliall efcheat. Hall. MSS., which alfo cites 21 E. 4. i., and 21 H. 7. 9. And the cafe of Johnfon v. Norway in Winch. 57., which feems to be the fame as that cited by Lord Hale, is againft the donor, though it is not men- tioned in Winch, that the judges finally decided the point. See alfo conty. Lord Coke, the cafe of Southwell V. Wade, in i Ro. Abr. 816. A. p. i., and S. C. in Poph. 91. — Co. Lit. 13th ed. 13. b. n. 2.] Roll. Abr. 816. (1^)' A debt due to a corporation dill remains, though their name is changed by a new charter. 3 Lev. 238.—= — If a corporation bind themfelves in a bond, and are after- wards diflblved, they fliall not be charged in their natural capacities. Lev. 237., and vide Owen, 73. s /ind. 10/7. CoflS^ (A) Of the firft Introdudlon of, and giving the •Plaintiff Cofts de incremefito. (B) In what Cafes the Plaintiff fliall have no more Cofts than Damages : And herein, I. Of Actions of Trefpafs, where the Rlglit of Freehold or Inheritance may come in Queftion, as alfo of wilful and malicious Trepafles. 2. Of ii\ Of Aftions of Slander. 3. Of A£lions of Aflault and Battery. (C) Where the Ccfts fiiall be doubled or trebledk (D) Of awarding the Defendant his Cofts. (E) What Perfons are entitled to or exempted from paying Cofts : And herein, 1. Of Executors and Adnv.nlftrntors. 2. Of Officers and Minifters of Juftice. g-. Of Informers, and where the Profecution may be fcid to be carried on at the Suit of the King. 4. Of Paupers. (F) Of Cofts in Replevin. (G) Of Cofts in a Writ of Error. [(H) Of Cofts in a feigned Ifl'ue.] ( 1 ) Of Cofts in the feveral Steps and Proceedings of a Ciufe. (K) Cofts how aflcficd or taxed. — ■ ■il H^t. i fcm (A) Of the firft Introdudion of, and giving the Plaintiff Cofts i/c incremcnio, THERE were no cofts at common law (»'"('')• . . jw^f/jtl [In an a6fion for taking and carrying away fand and gravel White v. upon Hounjlow Heath the plaintiff recovered a verdidl with damages Smith, under 40J-., and Lord Chief Juftice Willcs who tried the ^^g^^ caufe, having certified, under this ftatute, that the damages found dted "in ' by the jury, were the real damages to be recovered, the court held ^ ^^^' '\'i'^- it to be a cafe within the ad, and refufed to allow any more cofts ^""^ ' ^'"* than damages. So, in an adion of trefpafs for aflaulting the plaintiff, ftopping Walker v. his waggon, and taking away his cart-rope, the defendant juftified Robinfon, the taking of the rope as a diftrefs for toll, due to the corporation I sii^^'i'^' of Doticajler under whom he was colledor, and likewife ftated a " demand and refufal previous to the making of the diftrefs; the replication traverfed any demand of the toll before the taking of the diftrefs, and ilTue being joined thereon, the plaintiff obtained a verdid, at the trial, with one ftiilling and fixpence damages. The D i. judge Say. Rep 250. 36 CoftlEf* judge who tried the caufe, certified under the ftatute. The plain- tiff obtained a rule toiliew caufe why he fliould not have full cofls, upon the grounds, thnt an nfportavit was laid in the declaration, and there was fpecial pleading', either of which circumdances, it was alleged, had been always holden fufficient to carry full cofts ', but after argument, the rule was difcharged- Howard v. In an aftion of tvefpnfs, a cafe was referved for the opinion 01 c^l*" n'ro' *^^^ court, ftating, that the adion was brought for taking a diftrefs ; that the defendant juflified as agent to General Choldmondleyy by virtue of a refervation in a leafe of land from the general to the plaintiff-, and that iffue having been joined upon a traverfe of the agency of the defendant, averdi(5t was found for the plaintiff v/ith one penny damages, and that the judge, who tried the caufe, had certified purfuant to the ftatute 43 El. c. 6. Dennifon and Fojlery the only judges in court, held, that the iffue being collateral to the plaintiff"'s intereft in the land demifcd, the plaintiff could have no more cods than damages. Bartlettv. Where a plea of tender vi-as found againft the defendant, yet, ^wMf"^' « ^^ ^^^ plaintiff did not recover damages to the amount of forty ' '^^ ■ fliillings, it was holden that there might be a certificate under the ftatute. Dand V. A notion formerly prevailed, that the ftatute empowered the Sexton, judges to Certify only in thofe actions which are within the jurif- Rep. 37. di6lion of the county, and other inferior courts : but it hath been holden in a late determination, that the words of the ftatute com- prehend all perfcnal a(tl:ions (not being for any title to lands, or for any battery) ; even adlions vi et arniis^ which cannot be brought in the county court. Holland V. A certificate upon this ftatute, may be granted after the trial Gore, Say. ^^ ^^^ C2i\x{c.-\ Coits, 18. -• {a) Thefta- " By the 22 ^23 Car. 2. cnp. 9. for preventing trivial fuits, con- *"^\\" * " trary to the intention of 43 El'iz. commenced in the {a) courts c.p. enafts, " 3t IVeJlwinjler, it is enatled, for the making the faid law effec- tharthisfta. « tual, that in all adions of trefpafs, affault, and battery, and extend^to " Other pcrfonal actions, wherein the judge at the trial fhall not the princi- " find and certify under his hand, upon the back of the record, paiities of " that an affault and battery was fufficiently proved, or that tlie wumies"" " freehold or title of the land mentioned in the plaintiff's declara- pabtine. *' tiou, was chiefly in queftion, if the jury find d;im-,-.ges under 40/. • Thisfta- it the plaintiff ftiall not recover more cofts than the damage, and n"ot\xtend " ^^ "^"'^^ ^°^^ gi'^^n, the judgment ftiall be void, fffr., and the de- to the Mar- " fendant may have his a£tion for fuch vexatious fuit*." Jhaijta. or other inferior cour's, that may hold plea in luch adtions j n-.r does it extend to any cafe whcrC the defendant juftifics, or pleads fpecially. ciib. Hlft. This ftatute feems to have purfued the fame purpofe with that Giib". Eq!* ^^ *^^ 43 Fl'^^- [b) but neither of them repealed the ftatute of Rep. 197, Gloucejler^ (for a ftatute cannot be repealed by implication,) nor did 108. the ftatute of Car. 2. take av/ay cofts de uicremento^ except where S. qT\%o. ^^ judge's certificate was ncceffary j and that was only where the J95. 215. trefpafs was done to the freehold, or to things fixed to the freehold, 3 Mod. 39. jQ antl and the damages under 40 j-.; and in battery, where the damages 2 Mod. 141. were under fuch fum ; for ;he wording of the ftatute is, that there ^ V^'/'>*' Ihould be no coflis in battery, trefpafs, or other perional actions, \({,\ xheie- unlets the judge certify the battery to be proved, or the title of i'thisdif- the freehold to have come in queltion ; hence thefe words in the f='cncebc- a£t:, other pcrfonal aBions^ were conftrued to extend no farther than ft^tutes of to cafes where the judge was permitted to certify, which was only 43 £'''z- and in battery, and actions of trefpafs relating to the freehold, and ^-*""^2,i things fixed to the freehold. that the former, by certificate depri\es the p.alntiff of full cofts ; the latter, by certificate entitles him to full colts. J Wiif. 95.] Therefore in trover, or a6lion of trefpafs de bonis nfportatis of Saik. 208. goods and chattels not B ed to the freeiiold, the plaintiff lliall have P'- 7- Ills full cods, though tlie damages be found to be under 40X. and though the judge do not certify purfuant to the Itatute. So, if an action of trefpafs to the [a) freehold, and an aftion of Com. Rep. trefpafs de bonis afportatis^ are joined, and the plaintiff recovers in -"'x' ^l'_ "v general upon both counts, he hath no need of a certificate to oh- \^ the rree- tain his colts ; and therefore cofts de incremeuto fliall go upon the hold only, ftatute of Gloucefter. T' '[ ^\ ■' hunting by an inferior tradefman, the plaintiff fhall recover full cods. See ftat. 4 and 5 W. and M. c. 25. ^ id. Salk. irz. pi. 2. I Ld. Raym. 149. Com. Rep. 26. izMod. lai. Comb. 420. Canh. 3S2. 5 Mod. 307. \^A fortiori then, if in an a£lion of trefpafs quare domum fregit et Anon. bona afportavity the defendant be acqui- ted as to breaking the houfe, ^ Fr^em. and found guilty only of taking away the goods, the plaintiff fhall ^^"^^ have full coles, of whatever amount the damages may be; for the acquittal as to the trefpafs upon the freehold, reduces it to a quellion of mere perfonal property, which is not within the ftatute of 22 Isf 23 Car. 2. J So, in trefpafs for breakin^r his clofe, and impounding his cattle, ■? Mod. 39. the plaintiff fliall have his full cofts s {b) for the impounding of his ^^^^^ ^J"^ cattle is an injury to his perfonal property, in which no right of judged. freehold can come in queilion. {!') So, in trefpafs for chafing his cow, and his dome(tick fowls, viz. hares, geefe, &c., with dogs which were ufed to bice :ame fowls, by whofe biiing thfy were rcilled ; on not guiiiy, verdicl for tiie plaintiff; and he had his full tolls, becaufe this is no: a irefpal's wherein the ri^iit of freehold may come in queltion. Mich. 9 Geo. i. in CB Keen and Wliiitler, Sera. 534. So, in trefpafj for breaking his clofe, and chafing his bull, verdidt for tl-.eplaintirf", and one penny damages : and held by the court that he fhould have tiis fall cofts, becaule the 22 & 23 Car. 2. c. o- extends only to fuch actions of tiefpais where the freehold may comtt in queftion. Fafch. 9 Ceo. i. in C. B. Thomfon and Bevry, Stra. 551. Giib. Rep. 197. So, in trefpafs for chafing his flieep, and that he the defendant Garth. 225 ad locci ignota eos abduxit ^ elongavit, after vcrdicl for the plaintiff', ^^■'^' '^.^• and id. damages, he had his full cofts, principally upon the word cafe. ' Ic) abdtixity which is the fame in fignification with afportavit. (r) And note that if any tifing be carried off from the grounds, though of never fo little value, it will be an affortaiixt ; for the words abcarriavit and ajporta-vit in declarations mean fuch a carrying as amounts to the defendant's ufe. Gilb Rep. 198. And Tz/Vi i Vent. 2 i 5. where oigging roots, and removing them about two yards in the fame ground, amounted to an c-porravit. TKut from later refoluiions, it ihould feem, that the af- portation Ihould be an abfolute and entire removal of the property from the land of the owner, and not a partial conveyance of it to another put of the premises. Fr.'nklin v. Jo.'ai.d, B. R. H. S W. 3. cited in 1 Str. 634. .-^non. iStr. 653. Gilb. Eq- Rep. 1.^8. However, if wlut is laid in the declaration as an afpsna-vit amo'jnt to nothing more than a defcription of the mode in which the injury to the land D 3 was 38 CoRief. vas effefled, »t\i is l.ild as part of the fame aifV, a certificate, although the plalntifT obtains a general \c'- didl, is rcquifue to cnciile him to full tolh, unlcls tile damage:, flijuid be fouiid to the amount of forty fhiUings. Ckgg V. Moiyneux, Donjl. 7S0 ] Raym. ?4.7. So, 111 trcfpafs qtiare vi ^ annis the defendant flung down certain Smith and {\-^\\^ yf the plaintiff's, in a market-place •, on not-guilty, and adjudged.' verdict for the plaintiff, but damages under 40j". the court held, 2 Jones, that the plaintiff, without the judge's certilicate, fliould have full ^sh * ^^^% colls ; for this is a trefpafs done to a chattel, in which no title of S.c. ad- ' freehold can come in quefbion ; and though tliey had been fixed to judged. the freehold, yet if the defendant had carried tlieni away, it would be out of the ftatute. Carth. 224. But where the trefpafs is merely to the freehold •, as where in trefpafs tlie plaintiff' declared that the defendant herbam depafccndoy ^ foliim i^ fundum caructs ftihvertendo^ tff ;// folo fod'iundo, iff cum terra inde pr eject, aqiue curjiim fuum objltipaud.^ per qiicd claiifum fitiwi inundat.fult^ &c. the plaintiff' ihall have no more colls than damages. Ventr. 4S. So, trefpafs quare clan fiimf regit y and put flakes in the plaintiff's ground, was holden within the ftatute. Tiin. II G. So, in trefpafs quare claufti in f regit ^ iff qtiendavi taurtivi pcrfoii£ '•'"^•^' ignot Car. -x- that there is no need of a judge's certificate, 214. pi 222. whe^e by the pleading it appears that the title or interell of the (^) Where laud is in queflion j [a) as in an action for eating his grafs, per ant juiiifie's ^'''^^^^^^ commou was impaired j fo, (^}-if the defendant juflifies by any any thing that brings the title of tlie I.iml in queftioii, the judge for a ivny, need not certify, to entitle the plaintiff to his colts. i*'"^ iHutis join. . Eeale v. Moor, 2Str. 1 1 68. [ IJut it is othcrwife, it the way ui.d^r which the defendant judifie^, be dedned by metes and bounds in the pU'a, and the plaintiff reply ex:ra inain; for heic no diubt cm arife c mceining the extent and locality of tl.e wav, fiiice thefe ciicumitunces are admit'.cd and agvee.l by the pleadings ; a'ld rhcrefoie a Clirtihcate from the judge, that the freehold or title was in queltion, is n -celVary to entitle the plaiiitili" to full cofts, in cafe the jury find damages under forty Ihillings. Cockcrill v. Aliaiifon, B. R. iV. 22 Geo. 3. Hullock, 26. Bull. Ni. Pr. 330. j [But if in trefpafs quare daufuin fregit., the defendant plead a Ibbotfon r. juftification, and thereupon the plaintiff make a new aihgament to ^^'^'*"^f which there is a plea of not guilty ; in fuch cafe, if the plaintiff j^ Lio\^i do not recover damages to the amount of 40j-., and there be v. Uay, no certificate, there fnall be no more cofts than damages ; for a "^" '•^S* new aihgnment is equivalciit to a new declaration ; and where the defendant pleads only not guilty to it, there is in reality no fpecial pleading in the cafe. So, if in fuch adlion, the defendant plead two pleas, not-guilty 2 Ventr. and a juftification, and a verdi6t be found for the plaintiff on ^So. 155. the former, with damages under 40X., and a verdidt for the defendant on the latter, there cannot be full cofts without a certi- ficate, becaufe the iffue joined on the fpecial jdea, being found for the defendant, the cafe is exatlly the fame as if only the general iffue had been pleaded.] If an a6lion be commenced in an inferior court, and removed by [Roop v. habeas corpus or certiorari into the courts of WeJ}inmJler^ the plain- Scritch, tiff (liall have full cofts, although the damages are under 40 j-. Archbiiho^' ofCanterbniy v. Fuller, i Ld. Raym. 395. but in Gavel v. Scudamoie, 2 Lev. 124. this is doubted, where the caufe is lemoved by the defendant. J Alfo, by the 8 ^ 9 JF^. 3. cap. 11. for preventing wilful and ma- licious trefpaffes, it is enabled, " That in all atSlions of trefpafs, to *' be commenced and profecuted from and after the 25th oi March " 1697, in any of his majefty's courts of record at Wejlminjler^ " wherein at the trial of the caufe at Wejlmi?jjler it ftiall appear, ** and be certified by the judge, under his hand, on tiie back of " the record, that the trefpafs upon which any defendant fiiall be *' found guilty was wilful and malicious, the plaintiff fhall recover *' not only his damages, but his full cofts of fuit ; any former law " to the contrary notwithftandlng." [Although this ftatute fpeaks generally of " all aclions of trefpafsy* Mllburne v. and Lord C. J. Willes was of opinion that every wilful trefpafs was ^^•^'^t within it, yet there is no inftanceof a certificate upon it, except in ^ ' '^^^' aclions of trefpafs quare clatijum f regit. Every trefpafs is wilful within the meaning of this adl, where 3 el Com. the defendant has notice, and is forewarned not to come upon *'*' 'Term the land j as every trefpafs is malicious, where the intent of the '^^' ^ * defendant plainly appears to be to harafs and diftrefs the plaintiff. And it was holden by Eyrcy]. Tit Ejf ex Lent Affizes, 1719, 6Vin. Abr. that where a trefpafs was luilful^ a judge would certify, though ''t-Cs/^j, Tjo malice proved : which was laid to be the practice. ^^'' D 4 A plea 4© CoGief. Ford V. A certificate under this aft muft be made by the judge in open aWUf. -I. co^'^t ■» if inade out of court, it is void.] 2. Of Cods in Adions of Slander. [This fta- By the 21 Jac. i. cap. \6. it is enaded, " That in cafe for flan- «a repeal' " hich the legiflature hath 181. bIT* ^^^^ ^" ^t> ^oth not extend to courts baron, and other inferior if in an ac- courts ; for as damages cannot be given in thofe courts to the tion for amount of 40 J-. it would be impolhble to ta:c colls de incren\entq mencedori." ^^ '^"X ^dion of flander beyond that fum. ginally in an infeiior court, and afterwards removed into one of the courts at Weftminfter, the plaintiff recover under 40 J., he fliall have no more cofts than dainages. Anor,. C B. T. I3 Ann. 2 Coro. Dig. 546. Vidt Latch a. ^8, Coftisf* 41 A plea of juftificatlon will not take the cafe out of this Ilatute. jiWiif. 258, f(r Clive, J, Dovor V Robinfon, Barnes, izl* If upon a writ of inquiry, the damages be aflefled under 40/. Lampen and the cods be taxed abuvc that fum, and judgment be entered v- Hatch, up accordingly, the judgment will be reverfed in toto. ^' '^'^^' In an action ol fcandaltim tnagnatum^ no cofts are recoverable, 2 Shosv. however large the damages may be.] 5o^- 3. Of Cofts in Adions of AfTault and Battery. By the 22 ^23 Car. 2. cap. 9. it is enabled, "That in aftions ** of aflault and battery, wherem the judge at the trial (hall not " find and certify, und-ir his hand, upon the back of the record, ** that an aflault and battery was fufficiently proved, if the jury ** find dtimagcs under 40/. the plaintiff fiiall not recover more ** coils than damage." On this part of the ftatute it has been [a) holden, that if an {a) i Vent. aflault be only proved, the plaintiff Ihali have no more cofts than ^5^- J ^ ^ ' ^ a Lev. 102. damage. That if a man brings trefpafs for beating his fervant, per quod Salk. 206, fervititim ami/it, it is not an action of aflault and battery within the P^- 5* ftatute, but is an action founded upon the fpecial damage, in n^l^'lf" which there (hall be full cofts. 2 Ld. Raym. 831. [Neither is an action for criminal converfation v.-ith the plain- Batchelor tiff's wife wit.hin this ftatute, for the criminal converfation is the *• B'g?» gift of the action, and not the affault.] aBLRep! l\l'. In trcfpafb of affault and battery, wounding and imprifonment, Mich. 10 as alio for entering and breaking his houfe, and opening the doors ^*"* ^- "* of the faid houfe, and breaking three locks and three bars belong- Beck and ing to the faid doors, the defendant pleaded not guilty to all ex- Nicholls, ccpt the imprifonment, and for that he juftifies ; and on the ^^.^- 5"7«- trial the juftilioation was found for the defendant, and the not Rep. 197*. guilty for the plaintifl", and the damages 2J-. 6d. and held by the » But if court, that the damages being under 40 j-. he couid not have full ^^'^^""^^^ cofts for the battery, becaufc the judge had not certified the battery ju(ti.*ied the to be well proved ; neither could he have full cofts for breaking imprifjn- the houfe, becaufe this is a trefpafs relating to the freehold*. hTrJdb-e found guilty of that, plaintiff would h3\e been entitled to full cofts^ [Again, in an action of trefpafs, the plaintiff declared for an cia.-ke v. affault and battery upon himfelt, and alfo for ftriking his horfe, by O'/^ery,^ which he was leliened in value •, the defendant pleaded not guilty, ' "** and there was a general verdict for the plaintiff with 20j-. damages, but no certificate from the judge. The plaintiff' moved for full cofts on account of the fpecial matter ftatcd relative to the horfe, which, on coniideration, were refufed by the court. But where the declaration charged the defendant with an ajfault^ Milbume v. battery y and ivbiindingy and nvith ohJlruFtwg the plaintiff in getting .^^^^/J.',^''* kis coals^ taking them Ct^..va^^ treading and trampling upon t!:t'i:i, break- ,^2. " ' ' 4^ Hamnfon v. Ad(he3d, Say. Rep. 91. Bull. Ni. Pri. 329. Cotteriil V. Tolly, I Term Rep. 655. Cirruthers V. Lamb, Barnes, izo. Cotteriil V. Tolly, I Term Rep. 655. (a) Mears v. Greenaway, I H.BI.291. Atkinfon V, Jackfan, id. 295. Lockvvood V. Stannard, 5 Term Rep Richards V. Turnpf, B.iU. Ni. rn. 330. Page V. Creed, 3 rerm Kep. 391. }f}g dndfpoUitig the Jlandard and roller of the plaint iff ^ and taking oiuay his goods and chattels^ and a general verdi£l was found for the plaintiff upon the whole charge, except the taking away of the goods and chattels ; it was holden, that he was entitled to full coils, notwithflanding the damages were under 40/., and the judge had not certified an afiault and battery to have been proved : for there was a fpoliation in this cafe diiliu£lly llated» upon which the plaintiff might have brought his feparatc atlion, and have recovered full cofls without a certificate. It hath been refolved, that there fliail be no more cofls than damages, (-(hould the latter be under 40 J.,) without a certi- ficate, in "in action for afiault and battery, and for tearing or injuring the plaintiff's clothes y if the tearing or other injury be charged in the declaration y ox found by the Jury to have been /'/.' con/e- quence of the beating. But it feems to have been once thought, that where in fuch an a£lion the tearing or damaging of the clothes is laid In the declaration as a d'lftincl and fuh/lantivefacJ, and not as a confequence of the beat" ing, even though fuch charge (hould be contained in the fame count with the injury ro the plaintiff's perfon, a certificate is not neceffary to entitle the plaintiff to full cofls. However, it is now fettled (a) that if the tearing of the clothes appear to have been at the fame time with the injury to the perfon, the court will confi- der it as part of the fame tranfadlion, and allow the plaintiff no more colts than damages, notwithflanding the declaration may not allege the former injury as confequentiai to the latter. ,482. "Where the defendant pleads a juflification to the afiault and battery, asy^-'; affaidt demefncy there is no need of a certificate to entitle the plaintiff to full cofls, for the jullificatifcnis ?>n admilTion of the battery, and is tantamount to a certificate of its having been proved. But if the defendant juflify, and the plaintiff make a new affignment, to which the general iffue is pleaded, he will have no more cofls than damages without a certificate. Neither will he, if the defendant juflify the affault only. J (C) Where the Cofts fhall be doubled or trebled. "IT feems agreed that where damages were before recoverable and ■■■ a flatute increafes them to double or treble the value, the plain- plain- '^9" tifFfliall recover his double or treble damagesj and cofls alfo, as 10 Co. 116. a. 1 Inft. 2? Carth. 297. parcel of the damages, fhall be trebled. [i Ld. Raym. 20. Gilb. Hill. C. P. 267. Cowp. 365.] But vv^here a new flatute gives either fingle, double, or treble damages, where there were no damages recoverable before, [b) there no cofls fhall be allowed, becaufc the party can have nothing more than fuch new flatute has already given, and that is damages only ; for the flatute of Gloucejler cannot operate to add cofls to 4 what Vide ubi ft (*) As upon the ftatute aE. 6. c. 13., for not fetting CoSjEf. 43 what is given by a fubfcquent ftatute, becaufe the new flatute muft out tithe?, be conltrued from itfclf, which gives damages only. ^'*-"* ^ *"'*• 651. Cro. Jac. 7c. Cro. Car. 560. Hard. 152. but now -v-Je the 8 ar.d 9 W. 3. c. II. {a) In an (b) a6lion for a forcible entry upon 8//. 6. rap. 9. {a) ainfi. which gives treble damages, the plaintiff fhall recover not only ^^9- 'cCj. treble damages but (f) treble cofts alfo. I Vent. "z. S. p. adjuJge.;. [/>) So, in an afllfe upon the ftatute for a dineifiii with force, lo Co. Ii6. b. (c) And the coitiJc in.ieir.ento,is well a> thofe given by the jury, fhall be trebled. Cro. Eliz. 582. Leon. 282. 2 Leon. 52. Co. Lit. 257. 2 Stra, 1044. But in an action of debt upon the flatute of i {ff 2 Ph. Iff Af. 2rnih2S9. rnp. 12. of dillrefles, upon the branch of the llatute by which the Keiw. 209. 5 A and triple damages are given to the party grieved, for driving vj. s!"c.' a diftrefs out of the hundred, no cofls are to be given, becaufe RoiL Abr. the ftatute, by intendment, gives triple damages in lieu of the 5'^ whole. So, in an ac\ion of wafte againll tenant for life or years, ainft. 2S0. by the ftatute of Gloucejler, cap. 6., the place wafted, and treble KieKv. 26. a. damages fhall be recovered, (ty) but no cofts, becaufe no action S'°p'''~'°' lay againft them at the common law ; but the action and judged. damages are merely given. (-^^ Butnow i.iVA/;/^ra 8and9 w. -. c. 11. But in wafte againft tenant in dower, i^c. treble damages and 210^.289. cofts alfo fiiall be recovered, becaufe (e) an a ing of any cofts, he fliall recover as well double cofts as double [Sands v. ' damages. Child, 3 Lev. 355. Smith V. Dunce, 2 Str. J 048.] So, on the ftatute 2 IF. Is" M. cap. 5. by which treble da- Lawfonv. mages and cofts are given againft the refcoufer of a diftrefs for Storie, rent, in an action upon the cafe for a refcous upon the ftatute, , , "j^* the plaintiff ftiall recover treble cofts as well as treble damages; 555. pi. 4. ' for the damages are not given by the ftatute, but increafed, and ^'aj^th. 32 1. an aclion upon the cafe lay for a refcous at common law. ' ' ^^'"' [The 28th fi-cf. of 25 Geo. 3. c. 50., refpedling duties upon Smith v. game-certificates, directs, " that if any perfon ftiall at any time ^^'^'Sj " be fued, molefted, or profecuted, for any thing by him done or Rep!Tsa. *' executed in purfuance of that a6l, or of any claufe, matter, or '* thing therein contained, fuch perfon may plead the general iffue, ** crV. and if the plaintiff be nonfuited, or the defendant obtain a *' verdicl, fuch defendant fliall be awarded his treble cofts." This claufe, it hath been determined, only extends to give treble cofts to thofe perfons, who are fued for fomeching done in the execu- tion of the acl, not to thofe who are fued for penalties under it : and therefore, a perfon profecuted under the acl for fliooting without 44 Rex V. Poland, 3 Scr.49. Sands t. Child, 3 Lev. 355. l.awfon V. Story, Carth Smith V. Dunce, aStr. 1048. sTidd'sPr. €74> 5' OTofijGf* without a certificate, is not entitled to treble cods upon ob- taining a verdict. Where treble cofts are to be recovered againfl a profecutor for matter not appearing upon ihc pojiaiy tlie court will, upon mo- tion, allow a fuggeftion of the fpecial matter to be made on the record. Where a perfon is entitled to double or treble cofts, not only thofe aflefled by the jury, but alio thofe adjudged de ittcremenio by the court, fliall be doubled or trebled. ,321. But double or treble cofts are not to be underftood to mean, according to their literal import, twice or thrice the amount of fingle cofts. Where a ftatute gives double cofts, they are calcu- lated thus: r. The common cofts, and then half the common cofts. 2. If treble cofts, I. the common cofts ; 2. half of thefe i and then half of the latter.] (D) Of awarding the Defendant his Cofts. T>Y the 23 H. 8. cap. 15. it is enacted, " That in any fuit in -*-' " a court of record, or elfewhtre, in any action, bill, or **' plaint of trefpafs, upon 5 Rich. 1. d'ibt or covenant, upon any " fpecialty or contract, detinue, account, charging as bailiff or " receiver, cafe, or (a) upon any ftatute for any offence or ** wrong [h) perfonal, immediately done to the plaintiff, if the *' (f) plaintiff (a') after appearance of the defendant be {e) non- " fuited, or [f) any [g] verdict (/:>) pafs by lawful trial againft the " plaintiff, tlie defendant (/') Ihall have judgment to recover his " cofts, to be taxed by the judge of the court, and the defend- " ant ftiall have fuch procefs and execution for the fan)e, as " the plaintiff fliould have had, in cafe the judgment had been " for him." (/i) Extends not to an a^Hon for an efcape ; for though within the equity of Wefim. 2., that gives it againA the warden of the Fleet, . yet it is not properly an action upon the ftatute, bccaufe no mention is madeof the ftatute in the declaration ; and this was no perfonal wrong. 2 Leon. 9, lo. 4Leon. 182. but qu. Nor to an au. 1005- *' fuch perfon d.icndant." trover, Poole r. £o'.^Iton, Barnes 119. replevin. Ing!e v. Wordfworth, 3 Burr. 12S.'!.. i Bl. Rep. 355. or an informa- tion. Reg V Danvcrs 1 Salk. 194. for torts are joint and feveial, fo ihit one defendant may be ac- quitted, and the other found guilty. Snus, as to actions upon contracts, for contradt'> are joint, and one of two defendants cannot have a verd:it witiiout a demonliiation that there was no caufe of a joint aCtioij againft both ; t;ie:'fore, where one of two defendants in an a^li'^n oi Jlfumj-ftt had fuffereJ judgment by default, and the other obtain-'d a verdidV, the latter, it was hjldcn, was entitled to cofts. Sbtubb v. Barret. , 2 H 3'. 28. Where the cofts payable to one defendant ftjall be deduced out of thofc pay- able by the others, fee Schcole v. Noble, i H. Bl. 23. Mordecai v. Nutting, Barnes, 145.] And by the fame act, " In all actions of wafte, debt upon ** the ftatute for not fetting forth of tithes, where the fingle value *' or damages found by the jury exceeds not twenty nobles; and " in a fcire facias^ and fuits upon prohibitions, the plaintiff ** fliall recover his cofts ; and if the plaintiff be nonfuit or dif- ** continue, or a verdidl pafs againft him, the defendant J}j all re- it cover his cofts." 46 CoUsf* (E) What Perfons are entitled to, or exempted from paying Cofts : And herein, I. Of Executors and Admiiiiflrators. rtt/u:aff£r, ind is nonfulted, he fhall pay no cofts ; becaufe there was no new caul'e of acHon, but a new a£tion upon afcertaining an anticnt right, notwithllanding which, it (till remaini the ceftator's debt. Eaves v. Mocato, 6 Mod. 93. Said to have been adjudged, z Ann. Saik. iioy. p). 6. 314.. pi. 21. [This cafs of Eases v. Mocato is denied to be law in Andr. 359.3011 5 Term Rep. 234. In the cafe of Coldthwayte v. Fet.:ie, lepoit'd in this laft book, the action was by buiband ar.d v^ife, as executrix for money had and received after the teftator's death to the ufe of the wife, as exccut;ix, and tliere being a verdidt for the defendant, the court held him entitled to colls. 1 So, if the goods of the teftator be taken and converted be- Saik. 4o3. fore they come to the hands of the executor, he (liali not pay /'/''Holt, cofts upon a nonfuit in an a£lion brought for thefe, for they were ' "** never affets. So, where an a6lion was brought by an adminiftratrix for mo- Pafch. ney lent by the inteft;ate, the defendant pleaded payment to the jv^^r. z. plaintiff after the death of the inteftate, and iflue joined upon it, ^^nne and verdict for the defendant; it was infifted upon, that the de- Taylor t. fendant fliould have coft;s upon 4 'Jjc. i. ) that money may be paid Into court in fuch cafe, for the way, effect of it is not to make the executor pay, but only lofe his fub- ?,""^'"'^^9- r ^ a t J^ ] J (^) Crutch- fequent cofts. ^.u ,. scott. 2 Str. 796. Where the plaintiff is executor or adminiftrator, he is not Martin v. liable to cofts under 5 GV5. 2. r. 30. §7. though the defendant '^o^g'f' plead the general plea of bankruptcy, and obtain a verdi£l. ps] Neither does he pay cofts under the 146V5. 2. r. 17. upon a Howards, judgment againft him, as in the cafe of a nonfuit, for not pro- R^^bum, ceedms ■^ 48 CofljSf^ perCur.acc. cccHlng to trial according to the courfe of the court In which the 4 Burr. caufe is inllituted. 7Mod. 9S. But an executor or admlniftrator fliall pay cofts for not pfo- 118. J Saik. ceeding to t:i.il purfuant to his notice, if it be through his own Raym.SoV.' default. iStr. 33. 3 Burr. 1305. 1585. Ogle v. Moftat, Barnes 133. Nuner v. So, he hath been made to pay cofts for withdrawing his record Modigiianl, before trial. 1H.Bl.217. HuUock on It does not appear to be eftablifhed, whether or not an executor Cofts, 103. or adminiftrator is liable to pay cofts upon difcontinuing his fuit ; Ecclefton v. - though no general rule can be extrafted from tlie cafes upon Cliplam, o p _ • • 1 J 1 2Keb. 385. this fubjett, which are contradidtory, yet upon principle and the Baynham v. reafoning of the court in the cafes referred to in the margin, it a^Str!'87i*. fecms, that where the ncceflity of difcontinuing is occafioned by Fitzg. 130. the laches or default of the executor himfelf, the condition of Bird V. paying cofts will, generally, be annexed to the rule to difcon- iKei.'yo. tinue. z Barnard. 154. Haydon v. Norton, Caf. Pr. C. F, 79. Harris v. Jones, 3 Burr. 1451. 1 Bl- Rep. 451. Bull. Ni. Pri. 33Z. Dennet v. Coker, 4 Burr. 1927. Say. on cofts, 96. Hugh v, Lloyd, Burt. Pr. Excheq. i 56. lumley v. An executor fhall pay cofts upon being nonprofled for want of Nicholis, 2 replication, or for not declaring in due time, becaufe guilty of c!p. 14. a default.] Hawes V. Saunders, 3 Burr. 1584. 2. Of Ofiicers and Minifters of Juftice. This aft [By 43 EL c. 2. § 19. (entitled an aB for the relief of the poor y) extends to jf \^ g^y a([^ion of trefpafs or other fuit to be brought againft any aga^ftover- perfon for making any diftrefs or fale, or doing any other thing fcers beGdes under the authority of that a£l, there fliall be a verdi£l for the ttefpafs. defendant, or a nonfuit of the plaintiff after appearance, the de- Salter, * fcndant fliall recover treble damages with his cofts alfo, and that Yelv 176. to be afl'efTed by the fame jury, or writ to inquire of the damages. But the cofts ^^ f^jj^g fj^3ii require.] fiiall not be . ^ ■' trebled, only (he damages. Noy, 137. S. C. If the jury who try the iflue afTefs only fingledamages, or if they omit to affefs any damages at all, the court will, on a vetdidt for the defendant, or nonluit fo^ the plaintiff, fupply the om'flion by awarding a wiit of inquiry cf damages. As aground, however, for this, a fuggeftion muft be entered on xhc pojica that the defendant was an overfeer of the poor, &c.,and that the injury complained of was an aft done in the execution of his office. Such a fuggeftion indeed is not ncceffary, where the defendant's title to treble damages appears on the record ; as, wheie in re- plevin, he avows as overfeer of the poor, &c. Carth. 362. 1 Salk. 205. 5Mod. 76. 118. Skin. 595. iLd. Raym. 59. 2 Str. ic2i. Ca. temp. Hardw. 138. Say. Rep. 214. 2 Bl. Rep. 921. 3 Wilf. 442.3 [See further By the ftatute ']Jac.i. cap. ^. it is enacted, "That if any >fvith refpeft <« adion upon the cafe, trefpafs, battery, or falfe imprifonment, theVaTe*" *' ^^^'^ ^^ brought in the courts of Wefm'mfler^ or elfewhere, and confta- *« againft any j'uftice of peace, mayor, bailiff of city or town cor- kles,24G.2. <( porate, hcadborough, portreeve, mayor, bailiff, {a) conftable, with refpea ** tlthing-men, colle£lors of fifteenths and fubfidies, concerning to officers of *< any thing by them done by virtue of their office, they, and all '•ftums^"""^ " others, doing any thing in their affiftance, or by their com- * «' mand ** mand concerning their office, may plead tlie general llTue, ^c. 20 Geo, 3. *' and {b) if the verdi£l fliall pafs with the defendant in any '^' J°- ^54* ** {c) fuch a£lion, or the plaintit? become nonfuit, or fufFcr a dif- sW^j. '■*' " continuance, the jufHces, or [d) fuch judge before whom the c, 47. *' matter fliall be tried, fhall allow the U) defendant his double ^ 3S_J « cofts " ^'^ . COlCb. to a deputy CJnr'a'jIe. 3BiiIft. 77. Roll. Rep. 274. Moor 845. (i) Theugh judgment is after, given upon tJie infufficiency of" the declaration. He'yer's cafe, Cro. Car. 175. [VVilict v. Tidcy, Carth 188. I Show •14. 12 Mod. 6. S. C] {c) But tiiis extends not to an action upon t!ie cafe againft a conltable, for piei'enting that the plaintiff was an inhab'.tant of ^., by reafjn of which he was compelled to pay, &c. unjuflly, becaule no irefpafs or falfe inriprifonment, wherein liberty is given to plcai not guil.y. Cro. Car. 467. Nor to an i(h.. .n by a freeman againft a M-^yor, for refufing his vote in t'e elcftion jf a mayor, becaufe a non-fcaf^nce. 2 Lev. le.l. And i&'iAper curiam, that th« intent < f the ftatu e u.is to give double cofts in falfe 'mprifonmcnr, &c. where it enabled to plead the ge- neral iflue. {d) '1 hey c.innoi be allo\*ed, unlefi the judg:; of affile ma:ks thefcjf^a. 2 Vent. 45. 2 Lev. 251. Winch 16. [Grinoley v. Holloway, Dougl. 307. They may upon a lp;cia] verdidt, where it appears by th^' fddls found, that the defendant was adding by virtue of his office. Rann v. Pickens, B. R. M. 23 Geo 3. Dougl. jci;. n. Jf the plaintiff dilcontinue, the court will, upon an affidavit, that the a<5l for which the defendant was fued, was done by virtue ot his office, make a rule upon the mafter for the taxa ion of double coifs. Devenlfh v. Mertins, 2 Str. 974. If judgment goes by default, the defen- d.int may enter a fuggcftion on the rjU. Ca. temp. Hardw. ijS-t).] (1?) All the defendants. Vaugh. 1 17. By the llatute 2i Jnc. i. cap. 12. § 3. the above (latute is made (/) Not perpetual, and it is thereby further enadled, "That church- ^jifre a"* *' wardens, and all perfons called fworn men, executing the office brought ** of churchwardens, overfeers of the poor, and others, which againft *' Ihall do (f) any thing by their affiftance or command, con- churdiwar- " cerning their office, fliall have benefit of 7 J^^c." faifei'y and maliciouflv prefenting the plaintiff for incontinency ; becauf» merely ecclefiaftical, and the llatute is in- tended only where troubled concerning temporal matters. Cio. Car. 286. Jones 305. [In cafes, under thefe a£l:s, where it doth not appear on the i Str. 49. face of the record, that the defendant is entitled to double or Ca. temp. treble cofts, (as, where he pleads the general illue,) and there is jj^ j,g. " no particular mode appointed for the recovery of the colls, the 2 Str. 1021. proper mode, after a nonfuit or verdidl for the defendant, is to Say. Rep. apply to the court upon an affidavit of the fa£ls, for leave to en- jwilf. 44a. ter a fuggeftion on the roll. Where the defendant is entitled to double cofts under thefe Skin. 556. afis, the cofts cle incremento^ as well as thofe affiiffed by the jury, fliall be doubled.] 3. Of Cods for and againft Informers, and where the Profecu- tion may be faid to be carried on at the Suit of the King. It feems agreed, that a common inform.er, upon a popular fta- zKeb. 78f,' tute, can in no cafe recover cofts, unlefs they be exprefsly given ^°''' ^'^'^* by fuch ftatute ; for it is certain, that he cannot recover them Lutw. 30Q. at common law, for that doth not give cofts in any cafe ; neither Vent. 133. can he recover them by force of the ftatute of Gloucejier^ which ^^'^- *°^* ' gives the plaintiff his cofts only in cafes in which he fliall recover Moor, 65. his damages. 3 {^v- j74« 2 Inrt. z>'!?. [But on a bonu fid? compofition of a perjal a£Hon by leave of trie court, the pla-iflfFmay be allowgj 3 teafonable fum for his coits. And, on motion, the defendant may pay the penalty into court with colls. Wood qui lam v. Johnfon, a £1. Rep. 1157, Walker v. King, Bull. Ni. Pii. 197. j Vol. II. E But 5^ C0U3^» Jones, 447. But In an Jicllon on a ftatute by the party grieved, for a certain Cro. Car. penalty given by fuch ftatute, the plaintifl" within the flatute of z^o'ft. 289. Gloucejler fliall recover coils, becaufe fuch penalty is intended him Roll. Abi-. by M-ay of recompence for his particular damage by the offence 516, 517. prohibited *, and if he could recover that only, and no more, it Ma.ch, 56. vi^ould be in rnoft cafes in vain for him to fue for it, fmce the , 1 H. Bi. 13. cofts of fuit would exceed it. 3 Lev. 374. So, in debt for a penalty of 20 /. brought by a corporation qui 3 Keb 7ii. fdmy ^c. upon a private act of parliament concerning the i^enu . Caith". ~r-\o, Rivcr Water brought to Plymouth^ where the a6lion was brought •231. The for diverting the wntcr-courfe, contrary to the ftatute; after ver- Corporatlon ^j£^ f^^ ^i^^ nlaiutifls it was Iiolden, that though this was on a new of Fly mouth , , ' i • i i i i "... , , r V. CoHin::s, ^"d pciial law, yet bemg brought by the parties mjured, and tor adjudged, n certain penalty, they fliould have their cofts ; otherwife, where Andthehke j.|^^ action is brouclit by a common informer. point laid to o ; have been adjudged Mich. 5 W. 3. between the corporation of Cutlers and Buflln. 12 Mod. 46. Comb 224: Skin. 363. pi. 6. 367. pi. 14. Holt. 17a. Roll. Abr. But no cofts fhall be recovered in an a61:ion on a ftatute, which 574- gives no certain penalty to the party gi-ieved, but only his da- Id Co. 116. niages m general, e>tr hav- him his cofts {b) like other fuitors •; for though he is at no cofts, or ing a decree Jjut fmall cofts, yet the counfcl and clerks do not give their labour t'^itho.fts ^° ^^^ defendant, but to the pat/per. it was held, on moiion, ftr curiam, to be umeafonable that any one (hould have more cofts than he wft out of pocket ; and thereupon it was ordered tliac the plaintiff and his foiicitor make oath before the inaiti-r, and what they fwore they had paid, or were to pay, was to be allowtd, but no further. Huliock, [A defendant in a civil [c] action cannot be adn:iitted to defencf 2-c. Anon, i,, f^y^yia pauperis ; becaufe no perfon can be admitted either to fue Earnes,':28. ■ r . 1 1 .- -> r 1 • 1 i_ Ruled ucc. o^ derenn as a pauper, but under lome act or parliament j and the in a late cafe ftatutcs ol \i H. 7. and 23//. 8. contaiu no provifions on behalfof by Gouidjj. defendants, but merely enable plaintiffs to fue in that form. And P. c. 2*d if the courts had a difcretionary power, without the diredllon of a ed. 567. ftatute to admit perfons in civil fuits to proceed in forma pauperis ^ zKeb. 378. j.j^£y would in effc£l pollefs a power of difpenfing, in many in- Sed fide ' ftauccs, witli the operation of the ftatutes relative to cofts.] Comb. ,77. II Mod. 84.. Pr. Reg. C. P. 405 contr. {c) But a perfon may be admitted to defend ai» indictment m forma fauperh\ becaufe the profecutor not being entitled to corts in criminal proceedings, he cannot be prejudiced by fuch admiflion, which is in eft'eft nothing more than ordering the officers of the court to t.ike no fees. Rex v. Wright, Ca. temp. Hardw. 211. 253. 2 Str. 1041. S.C. 6 Mod. 88. S. P. And by liat. 2 Geo. 7.. c. 28. ^ 8. a peifon arrefted on a apias, or inftririation relating to the cullom', tjpon making affiilavit before a judge, or commiflioner appointed t.i take arhdavlts, that he IS not worth 5/. exclufive oi his wearing apparel, and upon petition to the court, may at the difcretion of the court, be admitted to defend luch aclion or information in fmna pauperis, in like manner, and with the fame privileges, as other poor fubjeds are permitted to fue for the recovery of their iigh;s. (F) Of Cofts in Replevin. Jones, 434. tN replevin the plaintiff had damages r.t common law, and cods -■■ by the ftatute of Glcucefer, as a ccnfequencc of fuch damage, but the avowant or defendant in replevin had no cofts, although in many cafes where an avowry or conufance was made, and a re^* turn prayed, the defendant was an acStor. (rf)lfde. But now by '] H.^. cap, /\. "Every avowant and perfon that avowTfor *' makes conufance, or juflifies as bailiff in replevin, or fecond 36/. for a " deliverance, for any rent, cuftom, or fervice, if (J) their avowry, " conufance. I €0^0, 53 *' conufance, or juftification be found for them, or the (a) plain- year and a ** tiffs othcrwife barred, fliall recover their damages and coHs, as "-^"^^'^ '«'»^ ** the plaintiff fliould have done if he had recovered." plaintiff pleads payment 0/ li /. ind tliere is another iJluc for the 24/. and the fitft ifliie is foand for the plaintiff, and the fecond fcr the defendanr, the plaintiti ihall have no cufts or damage; but ti.e avowant fi>all have a return, damages and cofts. Cio. Jac. 473. (o) Extends not to a nonfuit, Jones 423. Alfo, by the 21 H.S. cap. 19. by which the lord may avov?, as (i) Extend* in lands within his fee, without naming any tenant in certain, it t" executors is further enacted, " That [b) every avowant or other perfon (c) \,^\l^^i, ** m.ikingjuftificationor conufance, as bailiff or fervant in replevin, c 2. a fub- ** or fecond deliverance, [d) for rents, culloms, [e) fervices, (_/ ) da- '^T'e"' 't^- ** mage-feafant, or for other [g) rent or rents, if the avowry, conu- Rep! 4 c"!' ' *' fance, or juftification, be found for them, or the {h) plaintiff be {c) Extends *' nonfuit, or otherwife barred, they fhall recover damages and r''^"'*'!f~ *' cofts, (/) as the plaintiff fliould have done." cirims pro! pert). Hard, 153. [Nor lo pieas ot'j»ifa ec autre !i,u, opon which the writ is abated. Com. R^p. 1:2. i Ld. P.aym. 7S0.] [d) The defendant avowed :he taking as a itray within his manor ; and -.vherier he fliould have cofts, Haflop and Chaphin, dulntarur ; but judgment reverfed for another caufe. Cio. £l;z. 157. 329. Owen 13. butJon€s43^. ci^cd, and faid, the judgment was reverfed becaufe damjgcs and colls were given ; and that this reafon is entered upon the roll. Not if an avowry for an amerce- ment in a !eet, &c. Porier V. Grey. Cro. Eiiz. 300. Moor 893. Cro. Jac. 520. 2 Roil. Rep. 75. But releafing his damages, he had co.ls by 4 Jac. i. & fit/^ Jones 424. 435. But Cro. Eliz. 257.- 329. It has been the conllant praflice fince this adt to give cofts a-.d damages. [See too ftat. 8 & 9 W. 3. e. 1 1.] Where the avowry was for a penalty up,)n bteach of a bye-law. Cro. Jac. 407. 5^2, Jones 421. 4.35. March 29. {e) Where the avowry for relief dubitatur, becaufe no (ervice, bot a flower thereof only, and go s to executors. Cro. Jac. aii. Cro. Car. 422. 553, 534. Jones 422. a Roll. Rep. 75 But upon a diftrel's f;r a heriot, no queftiDn but cofts fliall be paid. CrT. Jac. -j-'i. YttvldeCxa. Eliz. 2^7. 329. (/) But he fliall reco\er damages fjr the trefpafs at the ti-ne of ilie taking only, and not for the mean time. Diif. t;2. {g) Ex'ends not to an avowry for a mmine poena, [h) Therefoie 2 Sid. i ^5. where the defendant avowed for a rent-charge, and the plaintiff, afcer evi- dence, was nonfuired, the court took the verdidl of the jurors, who found for the defendant, ana aJelT-d damages and cofts. [(i) S^u. Wlxthcr they ihail have both damages and col'.s, where there are leviral iflues, ar.d fame a:e found for, and the otlieis againft the defendants ^ Cro. Ja. 473. 2 Roll. Rep. 37. Erownl, 173. 2 Lutw. 119O. Under 4 Ann. c. 16. §5. they fliall pay co!h on the fpccial avowries found aga'nlt them. Stone v. Forfyth, Dougl. 709. n. Where feme iffiies are found on each fide, and the judge does not certify that the plaintiff had probable ground for pleading thofe matters in Lemrd to which any iffues aie found fir the defendant, the latter is entiiled to have the cofts in refpedt thereof 4e« d-jvled out of the general cofts of the v>;r.i:^. Dodd v. Joddrell, 2 Term Rep. 235.] [By the 17 Car. 2. c. 7. § 2. (extended to Wales and the coun- ties palatine by 19 Car. 2. c. 5.) the defendant obtaining a judg- ment thereon for the arrearages of rent, or value of the goods diftrained, is entitled to his full cofts of fuit. By the 11 Geo. 2. c. 19. ;5 22. if the defendant avow, or make [Thisftatute cognifance according to that ftatute, upon dillrefs for rent, relief, '^"''^ notex- heriot, or other fervices, and the plaintiff be nonfuit, difcontinue felfure'for a his adlion, or have judgment aguinit him, the defendant (hall re- hciiot-cui- cover double cofts of fuit.] „.. ,,..,. „ „ tom. Lioyj -" V. \\inton, 2\\ili. 2S. Barnes, 14S. S.C.J (G) Of Cofts In a Writ of Error. A S there were no damages given in a writ of error, but only a Cro. Ellr. "'"^ r'iverfal or affirmance of the former judgment, there could be 5'"S. no cofts, either at common law or by the Itatute of Gloucejhr: hence it was thought neceffary to make a ftatute to redrcf- the mifchiefs that arofe from writs of error, in order to delay execu- tion. Therefore, E 3 By 54 (toiifS. (a) By the By the (a) 3 H. 7. cap. 10. "Whereas plaintiffs or deniand- jlaiute of (c jjjjfg i^jjj been delayed of execution, for that defendants, &c, c?2o. this " agalnll whom the judgment was given, or others bound there- adtiscon- <* by, brought error to reverfe the judgment, to the intent only firmed; and tt ^^ delay execution, it is enacted, That if any defendant, ^c. ed, that " or others bound thereby, before execution had, bring any writ the fame «' of error in delay of execution, then, if judgment be aflirmed, ihouid trom ti Qj. j.|^g ^.j^jj. ^c ^^^^^ difcontinucd through the default of the tneiicetortn , , • • n- i • i r ""•' i • i r i be put in " P^i^ty, or the pianitirr therem be nonluited m the lame, the execution. «' party againll whom the writ of error is fued, flull recover " his cofts and damage, for the delay, and wrongful vexation, by *' the difcretion of' the juitices before whom the writ of error is « fued." Sid. 157. In the con{lru6lion of this (latute, it has been holden, that it a'^iid^^melTt ^^'^'^'^''^s not to Irelatidj becaufe not particularly named ; there- in c. B. in fore a judgment upon a writ of error in the King's Bench there, Ireland, was wherein cofts were given, was for that reafon lb) reverfed here, I^Ctiii, =^ '"*= cofts. as alfj on a writ of error in B. R. here, and likcvvife on a writ of error in the Houfe of Lords here, and a capias adjathfaciend. in B. R. here, as well for the cofts given by the courts in Ireland, as for thofe given by the court heie, was fuperfcJed as irregular. Carth. 460. Ld. Raym. 427. 5 Mod. 411. Salk. 321. pi. 6. (f) Vent. It extends not to executors or adminiflrntors, where they bring l^^' error upon a judgment againfl: their (r) teftator, or upon a judg- («/) 3 L,ev. mcnt againft [d) thcmf^lves ; for being in outer droit, they are not 375- prcfumed to bring the writ of error for delay. Carth. 2«i. *^ ^ ^ •' 4 Mod. 244. [But where executors and adminiftrators would be liable to p»y cofts in the original aftion, they will alfo be liable in error. Wilhams v. Riley, i H. Bl. 56/1 Cafvvell v. Norman. Ibid. n. a Barnard. 450. a Str. 977.3 Cro. jac. There are no cofts by this a£l where execution is executed, 636. Cro. fQj- jj^gj^ there can be no delay of execution. Car. 401. ^ Vent. 88. Hence, there can be no cofts in a writ of error upon a judgment in ejectment, where execution was executed as to the colts and damages, though not as to the term. Smith V. Nor in error upon a judgment in formedoti, becaufe the plain- Smith, Cro. j.jfj: ^gj j^Q j,Qfj.g jj^ jj^g ^^,j ^j.|^ judgment ; aiid the intent of the w[nne v.' ftatute is to prevent the delay of execution for the fir ft damages Lloyd, and cofts. 1 Lev, 146. Raym. 134. But -i/.-i/e Graves v. Short, Cro. Eliz. 617. 659. Fergufon v. Rawlinfon, 2 Str. 1084." Andr. 113. cont. [c] But in a quiirc impcdit, though therein jio colli are recoverable, but damages only, the party ihall have Culls. Dyer 77. Cro. Car. 145. 175. 2 And, 123. This ftatute extends to a writ of error in the Exchequer- Cio. Eiiz. chamber, though given by a fubfequent ftatute. Alfo, the more effectually to prevent defendants from bringing frivolous writs of error, by the 13 Car. 1. JIai. 2. aip. 2. it is en- acted, " That if any prolccute a writ of error for reverfal of any *' judgment tifte;- vtrdicl in the courts of Wcftmiiijler^ counties *' palatine of Chcjiery Lnr.cajler^ or Durham^ or of the great fcf- " fions iii Walesy and the judgment is aftirmed, they fhall pay . « double <* double cofls ; popular adions upon penal laws (except debt for ** tithes) indiflments, informations, dfc. excepted." But as thefe ftatutes do not extend to cafes where judgment Is 2 And. 123. given for the (a) defendant, and the plaintiff brings a writ of ^^°' ^^^' error, it was thought neceffary to remedy this inconvenience : d°flndanc in And therefore, replevin, though he ic confidered in fome cafes as a plaintiff, /hall not have cofts within th'ofe ftatutes which arc to bs coniti ued ftridly,becaufe cofts are in nature of a penalty, Cai th. 179. 4 Mod. 7. Show. 13^ 165. laMod. 1,2. 2 Ld. Raym. 788. Salk. 205. pi. i. S. C. [Douyi. 709. n.] By the S <^ gW.^- cdp. ii. " If any action, i^c. upon de- 8 Mod. 314. *' murrer by plaintiff or defendant, judgment fliall be given for 3 '6. *' the defendant; or if after judgment for the defendant in fuch a^Ld^iia^ym* *' a£lion, ^c. the plaintiff (hall bring error, and the judgment 992. Saik. *' fhall be affirmed, the writ of error difcontinued, or the plain- ^^54- pl« 3* " tiff nonfuited, the defendant fhall have judgment for his elTo^d.^SsV " [b) cofts, and execution for the fame by capias ad fatisfa- (^) But not " ciend." for double cyfts, tor this fhall not be prefumed merely for delay, fince the plalntifl' keeps pofleflion of nothing by his writ of error. [By 4 Ann. c. 16. § 25. for preventing vexation, from fulng (c) Thefe out defedive writs of error, it is ena6led, " That upon the "^"'^^ inchid* quafliing of any writ of error, for variance from the original ^ctb"^'^'"^ record, or other defetl:, the defendant (hall recover againft the quaihingthe plaintiff in error his cofts (c), as he (liould have had, if the writ of er- judgment had been affirmed, and to be recovered in the fame '■°^- .^'°<'P" JO f V. Oinger, manner. ] 1 str. 606. sLd.R-ym. 1403. Ratcliffe V. Burton, Ca. temp. Hardw. 135. Though no cofts are recoverable in the original adtion, yet they are payable on quafliing a writ of error. Arcbbiftiop of Dublin v. Dean of Dublin 1 Str. 262. But where the defendant in error enters continuances to defeat the writ of error, the plain- tiff in error is not liable to cofts on qua fhing it. Gould v. Couihurft, iStr.159. Rejindbz v, Ran- dolph, 2 Str. 834. r.ut though the adt of a defendant may pccafion the qua!]iing of a writ of error, yet if it be not reprehcnfible, he ftiall not pay the cufts. Cooper v. Robins, Say. Cofts, 207. And none of the ftatutes give cofts on the reverfal of a judgment. Wyvil v. Stapleion, i Str. 617. 8 Mod. 31c. [(H) Of Coils In a feioined Iffue. t)' ■\T7HEN a feigned iffue is directed by a court of law, whether Stiij "v. r:<)- ' ^ in a civil or criminal proceeding, the cofts always abide the ge's", i Lill. event of the verdi£l. But when a feigned iflue is ordered bv a "^'^^u^i r • 1 Ti rill I---. ■' 344- "'''nier court or equity, the colts do not tolJow the verdiCt, as a matterof v. Williams, courfe ; but the finding of the jury is returned to the court that. ,Barnes,i3o. ordered it, where the cofts are difcretionary. d^^i-^' ' J rnilljps, I Will", 261. Herbeit V. Wilkinfon, Id. 314. Say. Rep. 24. S. C- but in the cafe of Hoflcins v. Lord Berkeley, 4 Term Rep. 402. the court of King's Bench ftrongly incimated an opinion, that as feigned iflues were only granted withleave of the court, it would be prudent in future, when they permitted fuch iftues to be tried, to compel the parties to coiifent, that the cofts fiiould be in the difcreiiou of the court. Where the iffue is ordered by a court of law, on a rule for an {A) Rex v. information (^), or motion for an attachment (f ), the cofts of the Nichoiii, , original rule, or motion, do not in general follow the verdict, but jj^r," ' ^^' E 4 only 55 CofljGf* Thomas v. only the cofts of the feigned iflue ; which cofls arc to be reckon- ^g''^"' ed, from the time when the feigned iflue was firn; ordered and Say.Cnrtsr agreed to (a). Yet when it was ordered, by the confent rule, 144. s. c. that the colts fhould abide the event of the iflue, the court di- Grjffit^h *' '^^'^^^ '^^ whole cofts to be paid under it [b-). Say. Rep. 353. (a) Thomas V. Powell, 1 Burr. 603- {/>) Oldknow v. Wainwright, 2 Burr. 1017. Tidd's Vt. 672-3. Tempeft v. If any one of feveral iiTues be found for the plaintiff, he muft ^'"";^' have his coRs. J Will. 331. Williams V. Where the crown is party, the plaintiff (hall not pay cods, GenerT/' t^o^g^^ ^^ fubmit to a nonpros. Burton's Pr. Exch. 24S, Anon. 2 P. If an ifiue be diredled out of Chancery to be tried, and the TVms. 68, plaintiff give notice of trial, and do not countermand it in time; upon motion, the court of Chancery will give colts, and not put the defendant to move the court of law where the ifTue is to be tried.] ( I ) Of Cods in the feveral Steps and Proceedings of a Caufe. A S the courts exercife a difcretionary power in awr»rding cofts, "^"^ before there is a final judgment in the caufe, it feems difTi- cult to afcertain the feveral cafes in vi'hich they will make ufe of this power ; however, it may be obferved in general, that the delays or contempts which either party is guilty of, can only be remitted or purged on payment of cofts. s?Mod.5'=o. As for not going on to trial, inquiry (f), life, fo if the plaintifp [IcUlaid moves to amend his declaration, (which is feldom refufed whilft down m the , . . x . r\ 1 r ,l caf<" here "^^ proceedmgs are m paper,) it mult be on payment or coits. ref.^Tied to in 12 Mod. that, if upon notice of trial, the defendant draws briefs, retains counfei, and mates i?ady his witrefTes, before that notice is countermanded, upon affidavit thereof, and motion, he /hall have fuch cofts as the mafter fhail tsx. but it hath been (ince holdcn, that if a noiicc of trial be regu- laiiy cour.termar.ded, the defencant is not eniitled to iiccive the cofts of a witnefs who refided in London, and, before the c> unrerrr.and was delivered, fct oiit to atrend the aflizes in the country. Heftcr v. Hall, Ban e ,307. Goodright V. Hoblyn, ii. 29?.. Fr. Reg. C. P. 3'i3. S. C. A plaintiff is not liable to cofts for not proceeding to trial accordinj; to notice, ir the delay was the refuit of inevitable accident, Ogle V. Moffit, Barnes, 133. or occaTione I by the negledl of the defendant's attorney. Strong y. Har- wood. Say. Cofts, 174. (f) Shadford v. Kouftun, i Str. 317. Sutton v. Bryan, zStr. 728. J JTide title y^wiW/BcT?;, letter [G). JO Mod. 88. There are no cods in abatement upon demurrer, becaufe there are no damages given, but only a rifpondeas ouJ}tr awarded. 6 Mod. 2. [No cofls are allowed to either party on a repleader, becaufe it jLiii. I'r. J3 3 judgment of the court upon the pleading; and both parties aSaik. 579. '^■''ere in fault to allow an immaterial or infufhcient ifTue to be. 3turr.3c^.. joined, and therefore, neitlier of them can have any claim to re- »Ventr.i,6. ^eive cofts from the other.1 Barnc;,i25. -■ Lcsn. 105. But tlie ftatutes give cofts on a non pr^s.^ and this even before Hurt. 36. declaring, and then the plaintiff is demnndable, for he is riot in ,^'°' ^'' court by attorney until he has declared ; but fince he has put iu iiaid. 152. his €oQ0. 57 his appearance by attorney, tlie court will vacate his appearance, if he does not do as he ought to do in declaring ; and this fort of nonfuit is as well within the ftatutes, as when he is demandable at the tjjft prill s : But becaufe the Kings Bench fuffered them to lie three terms without awarding a non pros.^ therefore, By the 8 Eiiz. cap. 2. If upon a latitat^ alias, or pluries capias Enlarged t« iflliing out of the Kings Bettch^ the plaintiff does not declare with- '^^ ^""^ 9^ in three days after bail put in, or after declaration fhall delay or j,v*an ordtr* fuifer his fuit to be difcontinued, or be nonfuit, the court fhall of K. b. award the defendant his coils and damage. ""^^^ -'^^'«"* ° term I oG. 2, Reg. 2. l^-te r^), [This ftatute doth not extend to anions brought by executors or adminiltratDr!!, in thc;r repreien;ative charader. Cro. El. 69. Cro Ja. 361. If the plain:jft' enter a noli brojequi, the defendant is entitled to colts upon ihis llatute. Cooper v. Tiffin, 3 Term Rep. 511. j After a declaration put in by the plaintiff, if the defendant puts in a bar or demurrer, and the plaintiff does not reply, &c. there is a judgment againft him on the bar, ^c. and cods award- ed, becaufe he does not profecute his writ with effeil. After iffue joined or a verdicl given, the plaintiff cannot dif- *%. jfhe continue without leave of the court, which is never granted but c^'idifcon- r o « ° tjnue at any upon payment Ol colts *. tij^e^ af^^r fuit commenced, without paying colls? The plaintiff cannot bring a new ejedlment without paying the 4 Mod.374. colts of the firft. l"^^^'''^- (B. 3). That if a new trial, or fecond iflTue be direfled out of Chancery, It muft be on payment of Celts, z Vern. 75. 'S Mod, 225. Vide tit. Trial [h). [It was formerly not ufual [a) in any adlions, but ejeftments, {a) Tldd'a to ftay the proceedings in a fecond action, until the cofts were ^'- ^*S* paid in a prior one for the fame caufe j and, particularly, if the Macky merits did not come in queition, on the former trial [b). But of a Scr. 1206. late years, it hiith been clone, in feveral inftances, on the ground ^"^'^ "' of vexation [c) \ and in one cafe (J), where the aclion was brought ^T*' "sayl by hufband and wife, the court flayed the proceedings, until the coft.zji. payment of cofts in the former adlion, at the fuit of the hufband ^* ^• I • u • r I. r J J Lazarus v. only; it bemg tor the lame demand. Pritchard, Barnes, '25. Doe v. Alfton, I Term Rep. a-.i. but fee Lnrd Eiron's cafe, 1 Ventr. 100. {b) Bafs v. Fiimeri, : Ld. ■R:iym. 69-'. ic) Werton v. Wiihers, 2 Term Rep 511. Gravenor v. Cape, Say. Cofts, 245. Melchar v. the Execu;ors ofHiliey, Id. 24-7. 2 Bl. Rep. 741. S. C. 3 Wilf. 145, {^d) Lampley and wife v bands, H. Z5 Geo. 3. B. R. Tidd iPr. 285. So, it was formerly not ufual (^), in any aflions, but eje£l- (f)Reaiv. ments, or aiftions qui tarn, to require fecurity for cofts, where the Macky, plaintiff refided abroad; for it was conlldered, that fuch a pro- j^amu v. ceeding mij^ht auecl trade, by excluding foreigners from our Seweil, courts; and would be a means of clogginp the courfe of iuftice. jWiif. 266. X, 1.1 1 1 • -/T-i 11-, ■ r • c Maxwell T. l>ut now although a planitur be not compellaDle to give lecunty tor Mayer, cofts, merely as a foreigner, if he reiide in this country, yet. Say. Cofts, whether he be a foreigner or native, if he refide abroad out of ^5^' the reach of the proccfjg of the court, the proceedings will be J026. S. C. frayed till he return, or fecurity be given for the payment of Bofeweii cofts (/).] v.Irilh, 4 Gold'ng V. Canow, C.-^^p. z\. Nur.comar v. Burdett, Id. 158. Engllfli v. Cox, U. 321. (/) l*ray V. Edie, ». Edie, 1 Term Rep. 267. Fitzgerald v. Whitmore, Id. 362.. Doe v. Alfton, W. 491. The praflics of the court of Common Pleas in this refpedl hath not been altogether uniform : the circumftance of the plaintiff's being abroad, was atone time not thought to be of itfe/f a fufficient ground for requiring this fecurity. Parquot v. Eling, i H. El. ic6. But the contrary was afterwards laid down as a fettled point to guide the praftice of the court in future. Ganesfoid v. Levy, a H. Bl. 118. It feems now, how- ever, that the point is not fd entirely fettled, as not to admit of being departed from, where an adherence to it would induce ferious hardihips or inconveniencies. Kenfchen v. Garves, Id. 383. The de- fendant before he makes this application, mutt put in bail. De la Prcuve v. the Due de Biron, 4 Terra Rep. 697. lide title The defendant fhall not pay the cofts of reverfing an outlawry ■Outlawry, until the plaintiff declares againft him j and if the plaintiff be nonfuit, the defendant ihall have them again in his coils ; and if there be more defendants than one, and they be all outlawed, they fliall all be contributory for the cofls, and not every one pay the whole cofts. (K) Cofts, how affefled or taxed. Roll. Abr. A FTER the making of the ftatutes that introduced cofts, it was 5^7* ^ ■^*' agreed on as a rule, that the jury fliould tax the damages meriy, if ^-part, and the cofts a-part, that fo it might appear to the court thefe words that the cofts wcre not confidered in the damages; and when it were omit- .^^^^g gyident that the cofts taxed by the jury were too little to an- mifpiaced, f^^er the cofts of fuit, the plaintiff prayed that the officer might in the judg- tax the cofts, and that was inferted in the judgments ; and there- ijient, itwas f^^.g ^^^^ j.^ ^g ^^^^ ^^ affcnfu of the plaintiff" (rt), becaufe at his error. But U/ ./ r v /' this is now prayer. lielped by 16 & 17 Car. 2. c. 8. § !■, and 4 Ann. c. 16. §2. And in adlion of debt, if there be no vrit of inquiry to afcertain the damages fuftained by the detention of the debt, the damages afieifed by the court, as well as the cofts of the fuit, fhould, in the judgment, be ftated to be given iv'uh the aJJ'cnt of the plaintiff; but the omiffion of fuch ftatement, it feemeth, is aided by i6 & 17 Car. 2. or, at leaft, may be fupplied at any time. Tully v. Sparkes, 2 Str. S68. 2 Ld. Raym. 1570. I Barnard. 325. 335. S. C. So, if a manifell mifcomputation, or any plain miftake in figures, fliould apear on the faceof the record with regard to cofts, it may be amended. 4 Burr. 1989. i Roll. Abr. 205. pi. 5-J yMod.iig. [It is fald, that if a judgment be entered up with a blank for HuiiocK, j.|^g cofts, they cannot be afterwards inferted. Green V. If the jury affefs cofts in a cafe, wherein none are recover- - Sa' 1 ^^^^ ^y \^v^y the judgment fliould be entered nulla hahito refpeBu i57. to fuch cofts. Stores V. The jury ought ex officio to give cofts in an adlion in which Tong, Ca. fofts are recoverable by law ; but if they omit or refufe to do fo, wlrdv. ''' *^^ court will, on motion, order cofts to be taxed, and indorfed Snell, I H. on the poJha.'\ Bl. 10. Vide iLill. Abr. 47a. icCo. 117. If there are feveral iffucs found for the plaintiff, or againft fe- veral defendants, entire cofts are given upon the whole pleadings, for that is the whole charge the plaintiff' is at. Keilw. 4S. So, if in debt the defendant pleads feveral pleas, upon which 2Loon.i77. |.jjgy jj^g 2^ iffue, and the jury {n\A one iffue for the plaintiff, and damages \id. another ifl'ue for the plaintiff", and damages \Qd. and another iffue for the ph^hitiff, and damages 6 d. and one ifllie againft the plaintiff", they muft affefs the cofts entirely, and and not according to the damage feverally, for every iflue found for the plaintiff. [In an a£lion of ajfumpfit^ the plaintiff declared upon two fe- Grymfton veral promifes, to which there was the general iflue, and at the ^- ^^^'"* trial a verdi£l was found for the plaintiff, and feveral damages 527'. mq. were affefTed with entire cofts. A writ of error being brought, 10%. s. c. the judgment was reverfed as to the one promife, and affirmed as ^^^^^^ ^* to the other, and the etitire cofts.] Cro. Jac. 343.' S. P, Upon a fc'ire facias on a recognifance in C B. againft bail, Salk. 208. the plaintiff had judgment for execution upon the recognifance, P^„^* Isf quod recuperet damna fua occafione dilationis execiiiiofiis ; upon a pi_ ^zl writ of error in B. R. this was reverfed, for the bail are only liable Fanfhaw to cofts of fuit by the ftatute ; and damages, by reafon of the de- ^^^ ^°T' If • ^ n. n. f r •,. u ^ J '°"' 6 Mod. lay of execution, are not cofts, nor colts ot iuit, but damage 157. s.c. fuftained by being fo long out of his money, which ufed to be zLd.Raym. allefled by allowing the party what lawful intereft would have YJ^^^ come to him in the mean time ; fo that cofts and damages are 306. different in this cafe, given for different ends, and aflefled by dif- ferent meafures. If baron and feme join in an acSlion, and a verdift is given for Roll. Abr. the plaintiffs, and the jury affcfs damages ulira mi/as &' cujtagiaper 5'^. Crufee tpfum (the baron) circa feclam fuam expojita^ to lb much, ^ pro m'lfts adjudged ^ cujlagiis illlsy to fo much; and thereupon judgment is given, upon a wric that the baron and feme ihall recover the cofts and damages; of error, though it is found that the baron only expended and difHurfed the money for the cofts of the fuit, in as much as the feme had no- thing, yet the judgment is good, that the baron and feme {hall recover the cofts ; for there cannot be one judgment for the cofts, and another for the damages. [The hufband cannot have execution for the cofts on a pica of Wortlcy t. coverture found for the wife defendant, without a fcire facias. Rayner, •' -^ Dougl. 637. A demand of cofts muft be made at the time of ferving the Barnes, 120. rule of court under which they are taxed ; and upon an aiiidavit ^^y- ^^P- that the cofts were fo demanded either by the party entitled to t Burr. 651. receive them, or by fome perfon by him duly authorized, and 5 Burr, that payment was refufed, an attachment will be granted in the ^^^^' firft inftance, and may be moved for the laft day of term. The cofts allowed to the plaintiff after obtaining judgment in riullock» an adtion on a fimple contradt, or for a debt certain, only extend ^-^• to the time of (igning final judgm.ent. In fuch cafe, the expences 2 Term of levying, together with all other incidental charges of the exe- ^^P- '57.« cution, muft be paid by the plamtiff', and not by the deftnclant; for the flieriff can levy on the defendant only the fum given by the judgment. But if the judgment be for a penalty, the plain- tiff" has a right to receive the vvhcle of his debt, independent on the expences of the execution, which, in that cafe, muft be fuf- tained by the defendant. A defendant, if he prevail, can only levy the amount of his cofts, and that, at his own expence. It was anciently the pratlice for the court, or one of the judges, Huliock, to tax the cofts and make a fpecial rule for their payment ; upon ^-5- '^ '"'• * ' r • HC.P.i6j. lervice 266. 6o Cobcnant fervlce of which, and refufal of payment, an attachment ifTuedi But, at this day, cofts are taxed in the King's Bench, by the maf- ter, and in the Common Pleas, by one of the prothonotaries, upon the attornies or agents of the parties attending them at their refpedlive offices for that purpofe. After the taxation, the maf- ter, or the prothonotary, marks the amount of the cofts on the pojiea^ inquifition, or demurrer-roll, as the cafe may be, when final judgment is faid to be figned, and execution may be imme- diately taken out. Huiiock, . Where any extraordinary expences have been incurred in a *-5- caufe, and generally in country caufes, an affidavit (in which it is cuftomary for the party entitled to the cofts and his attorney to join) ftating the particulars of fuch extra expences, is requifite to jLill.Abr. enable the proper officer to make an adequate taxation. And it *^°' ^' is faid, that moi^e than ordinary cofts ought not to be taxed, until the attornies on both fides have been heard for their clients, and an affidavit of the cofts produced, except where one of the attornies, having had notice of the intended taxation, negle6ls to attend. It is ufual to give fuch notice to the attorney or agent of the party liable to the cofts ; but as this is a matter of courtefy, and not of right, it may be prudent, in fome cafes, to take out a rule from the office of the clerk of the rules in the King's Bench, or of the fecondary in the Common Pleas, to be prefent at the taxation, which, when ferved on the oppofite party, renders it incumbent upon him to give notice. ThenHflbn In the taxation of colls, no allowance can be made for the V. Staples, contine,ent lofles, which the witiieffes may have fufFered by obey* PoUgl. 438. . 1 ^ /- , ' * ' * * c Co\}enant^ \OVENANTS, contrails, and agreements, are often ufed as ^^ fynonymous words, fignifying an engagement entered into, by which one perfon lays himfelf under an obligation to do fome- thing beneficial to, or to abftain from an adt, which if done, might be prejudicial to another. As the good of fociety requires a punflual performance of, and that no perfon ffiould be allowed to rcfcind and break through liis contrails, fo the law has provided a remedy by a£tion of co^ • Where the venant *, in which the injured party is to recover damages for the violation of the contrad, in proportion to the iofs he has fiiftained. 8 But contra.^ is by ileed Cobenant 6x feut here It may be neceflary to obferve, that where the cove- nant or agreement is for doing fomething in fpecie, as conveying lands, executing deeds, isfc. the moft ufual, and indeed the molt proper remedy is by bill in Chancery ; which court, in cafes rea- fonable, will decree an execution in fpecie, whereas at common law, the party can only be repaired in damages. But if the matter of the bill is merely in damages, the remedy ViJeVoi. i, is only at law, becaufe the damages cannot be afcertained by the ^°7' W' confcience of the Chancellor, and therefore muft be fettled by a jury at law. But if there be matter of fraud mixed with the damages, as if y^. fues B. on a covenant at law for damages, and B. files a bill for an injundliion, upon this equitable fuggeftion, that the cove- nant was obtained by fraud ; if ^. files his crofs-bill for relief upon that covenant, the court will retain it, becaufe the validity of the covenant is difputed in that court, and on a head properly conufable there ; and therefore, if the validity of the deed be efliabliftied, the court will diredl an iffue for the quantum of the damages. But for the better underftanding of this adion of covenant, I fhall confider, (A) Of the Manner, and by what Words an exprefs Covenant is created. (B) Of Covenants created by Implication of Law, (C) Where an Adion of Covenant is the proper Remedy. (D) Where there are feveral Parties : And herein of joint Covenants. (E) Of Covenants Real and Perfonal : And herein of the Perfons to whom they fhall extend : And herein, 1. Of Covenants which fhall extend to the Heir or Executor, fo as to be bound by them, though not exprefsly named. 2. Of Covenants which the Heir or Executor may take Advantage of. 3. Where an Affignee fhall be bound by the Covenant of the Ailignor. 4. Where the Aflignor continues dill liable. 5. Where an Affignee fhall take Advantage of a Covenant. 6. Of Covenants which bind by Force of the Statute 32 H. 8. c. 34. (F) How Covenants are to be conftrued. (G) Where 62 (ZLoUenant (G) Where the principal, and all auxiliary Cove- nants, fhall be laid to be void and extinguifhed. (H) AVhat fhall be deemed a Breach, or conftrued a good Performance. (I) Where the Breach fhall be faid to be v^ell afligned. (K) Where the Performance fliall be faid to be well fet forth and pleaded. (L) What may be pleaded in Bar to the Adion, (A) Of the Manner, and by what Words an exprefs Covenant is created. (a) iChan. ((3)'~r'HE law does not feem to have appropriated any fet form Ca. 294^ 1 q£ ^'ords, which are abfolutely neceflary to be made ufe £1 Burr" ' of ill Creating a covenant ; and therefore it feems that any words 290. Dougl. will be efieftual for that purpofe, which fhew the parties concur- '^Tt ^^3 ^ i'6"ce to the performance of a future ^0i {l>) ; as, (c) if leflec for aifo cove- ycars covenants to repairs, ^c. Provided ahunySy and it is agreed, nant in re- that the lejfcr Jhall find great timhery &c, this makes a covenant tra^aftions'^ on the part of the lefibr to find great timber, by the word Fiowd. 308. {d) agreed^ and it fhall not be a qualification of the covenant of So, he may the leffeC. covenant as to umtfrejent, for it is the conftant language of deed of alienation, that the grantor has lawful power to convey. 3 Wooddef. 86.] (r) Roll. Abr. 518. Brownl. 23. S. C. ( 5'9- the flock of C. fliall remain in the hands of i>. till A. fhall make a where°amaa Certain jointure to C. ipfo B. anmiat'tm folvendo to A. intereJJ'e proinde acknow- fecmidum ratam 8/. per centum^ isfc. ii B. does not pay the faid 'edges him- interefl, an a6lion of covenant lies againft him upon thefe words, accountable bicaufe [a) every (^) agreement by deed is a covenant, otherwife to another A. could not have any remedy for the money. ^'^^ \" f ?- ' ^ ^ ney by him charged upon ^. to be paid to B. Lev. 47 Where the words were only by way of recital, that it was intended that a fine fhculd be levied, &c. 2 Mod. 89. o i. 2 Freetn. 3. S. C. & -vide Leon. 122. (*) Where a man afligns and transfers a choie in action, though nothing pafles, yet it amounts to a cove- nant, that the other ihall have the thing. Mod. 113. 3 Keb. 304. Freem. 268. Ld. Raym. $83. £2 Ld. Raym. 1242. 1419. 2 Bl. Rep. Sio.J If A. makes a deed to B. In tliefe words, I have In my ciiflody Roll. Abr. one nvr'iting obligatory, in ichich ivriting obligatory ^ one William noiu 5 '9- ('OSo, Jiandeth bound to the faid l^.for the payment 0/400 I. upon fuch a day, ^^J^^ ^f^^j being the proper money of B. and [c] 1 will be ready at all times, deed are, •when I JJjall be required, to redeliver the fame ivriting obligatory to ^ oblige the fame B. j if -B. after demands the faid obligation of A. and he riyfom'*uch refufes to deliver it, B. may have an a£lion of covenant upon this money at deed by force of the words, and I will be ready at all times, when '^"^^^ ^^^*u Iflmll be required, to redeliver the fame, &c. at another. Hard. 1 78. adjudged ; but the chief baron doubted, if the words had been tcnen ^ jirmter obiigari j for that thefe words found in debt, and not ia covenant. If A. enters into a ftatute to B. and afterwards B. by his deed Raym. 25. covenants, that upon payment of fuch a fum at a day to come, Robmfon the ftatute fluU be void, and that he will deliver it in, and caufc a.^judoTd^.*"* it to be vacated ; if B. before the day fues execution upon the Keb. 103. ftatute, A. may bring an adlion of covenant; for though it be '?.^'^5;'^' true, that a covenant that is to take elFecl prefently is to fland or 5'. c.'^ * fall by the operation of law, and no a6lion of covenant will lie ; as if a man covenants that a bond fhall be void upon doing fuch an act, or to ftand feifed, no action of covenant will lie upon thefe ■, yet here the laft words bind the party to the performance of a future act, viz. to deliver in the faid Jlatute, and caufe it to be vacated, which, without all quefllon, found in covenant. If A. enters into an obligation to B. and afterwards B. cove- Carth. 64. nants not to fue A. without any limitation of time, this amounts Comb. 123, to a releafe, and may be pleaded as fuch. ** But if the covenant be temporary, and limited to a certain Carth. 64- time ; as if It be, that B. will not fue for^Inety-nine years, b'V. this flill remains a covenant; and for the violation thereof an a£lion of covenant is the proper remedy, but it cannot be pleaded in bar ; fo If there be two obligors, and the obligee covenant that he will not fue one of them, this is no releafe, but only a covenant. A letter of licence containing the words following, v':%. that if Carth. 64, the creditor fue within fuch a time, his dehtJJjall be forfeited, works a forfeiture 64 Cobenant* a forfeiture by the commencement of the fult, and therefore^ may be pleaded in bar to the a6i:ion. Roll. Abr. If there are articles of agreement made by indenture between 5'^- ^""^y J. znd B. in which ^. agrees that J?, fliall have a houfe in a and Read. _ . .*^ , Cro.Car. Itrect in Lofidony lor certam years; provided, and upon condition, ja8, 129. that ^. (hall receive and pay the rents of the other houfes oi A4 ■ d 'l'^'& "^ ^^^^ fame ftreet mentioned in a fchedule annexed to the inden- 'vide Cr'o. turc *, and it is further agreed, that B. for his labour in collefting Eliz.24i. the faid rents, fliall have the overplus of the rents, over and above 2 Co. 71. ^"^^ ^ certain fym ; this is not any covenant on the part of B. to bind him to receive and pay the rents mentioned in the fchedule; but the provifo and condition will only make the ellate of B, void in the houfe. Cro. Jac. If A. by deed enfeoffs B. provided that, if A. pays money to * }'. " '^° B. by'a day, the feoffment fiiall be void, and covenants to fave and King, \_ , r r ■ r adjudged; harmlcfs from mcumbrances and arrears or rent, and to make Yeiv. 206. further aflurance ; and after A. enters into an obligation condi- Judged • "the ^'i<^"^ unreafonable, that tlie others ihould furfer for the perfonal wrong S.C. of their companion. Comb. 163. A. by indenture granted and demifcd to B. certain lands, ex- ^""''p^'t *-^P' ^ \'m\ pernnttmg the pump to run to Sid. 425. decay; it was holden Xy-^ Kehjiige^ Chief J'^dtice, Rauisford and 'I'd^ed^*!';:' -^^^'^'^"i Juftices, that the adtion lay ; for that when the ufe of a Twifden in' thing is (t) demifed, and it runs to decay, fo tliat the lellee can- B. R. Bur not have the ufe and benefit thereof, he may have covenant upon ^^"■^'I'j^l the word cUmifi\ and here the lelTee himfelf could not repair, hav- leverfed for i"g "« intcrelt in the pump, or land where it ftooil. But Tivifden Twifden's totii viribus cont. i. Becaufe a covenant created bylaw, as this r'J*"w- . ^s, never lies but on an («/) actual ouiler. 2. This covenant ere- and Hale atcd by law, IS not (t) properly to recover damages, but the term faid, that if itfelf, ai>d the damages that are recovered are for the whole term, «p':ece°of '^ihereas the pump may be repaired the next day. 3. The leffee plare, and niay repair the pump himfelf, and may come on the ground with- covenant Qut being a trefpaller; as where I grant that you may filh in my have the ufe pon'ij you havc liberty to come upon my ground ; 10, it you have thereof, vet a grant to lay pipes in my ground, vou may dig up the ground if the plate for that purpofe ; and for thefe reafons of Twifden's. the iudg- be worn out .-, /••./-.,-. J ' JO byorainaiy "icnt was wici voce rcvcrfcd in Cam. Ssacr. Ill:, wiihcut any default, n-j aftion of covenant iicj againft mc— — But if oi5s by (3eed grants a water- coviifft tourfe, and after flops it, an aCi'ion of covenant lies againft him. Sand. 322, For hj Twifden, this is a voluntary misfeafance So, if 1 leafea houfe, and therewith grant eftovers out of fuch a wood, if I cut down the wood, fo that no eftovers can be had, tlie leflee may bring covenant againft me. (f ) But if Ji., in conhderation that B. will build a mill upon the land, and a watcr-courfe thiou^jh the land, oemifea to B. by the words d'di & ccnccjji ; and after A. fto.^s the water-courfe, yet no action of covenant lies ; fbr the covenant extends not to a thing which was not in ejfe at the making of the leafe. Leon. 278. {d) Vide Roll. Abr. 519. &f 9^ [e) VideF. N. U. 145. If ^. leafes a Koufe to B. excepting two rooms, and free paf- Carth. 232. fage to them, and the leflee afligns to J. S. who dilturbs the leflbr ^^""^ ^"* in the pafl~age ; this, though a covenant in law, (hall bind the judged. leiTce ; for where the leflee agrees to let the Jeflbr have a thing Saik. 19&. out of the demifed premifes, as a way, common, ^c. covenant f'^r'%?^Jj lies for a dillurbance ; but if the diilurbance had been in the jvfoor, sss. rooms excepted, covenant would not have lain. Cro. eUz. 657. (C) Where an A.£lion of Covenant Is the proper Remedy. TF ^. for valuable confideration, promlfe by his deed not to do a Roll. Abr. certain thing, no action upon the cafe lies upon this promife, '^- ^'^*** but a writ of covenant. •'"^" ^°^* So, if ^. recovers a debt againft B. and B. pays him the con- Roll. Abr. demnatlon, upon which yH. releafes all actions, executions, frV. to 5i7- Be- B. by deed, and by the fame deed promifes that he will withdraw Hiiderfly and difcharge all writs of execution againft B. upon the faid judg- adjudged. ment, yet no action upon the cafe lies upon this promife 5 be- ^^°' -' ^'^•, caufe it is made by deed, and fo he ought to have a writ of co- rsut if arl venant. tides of partnerfhip under feal be diffolvd, and a balance ftruck, and an exprefs promife be made to pay it, an oj/iimpfit may be brought. Fofter v Ailmfon, z Term P.ep 479. So, if there be an exprefs promife to pay a balance ftruck, though the articles, containing a covenant to account, are fubliftine. Moravia v. Lev\, /i 483. n,] If a man leafes for years, refervlng rent, he may have an ac- 2Stra.io89. tlon of covenant, as well as debt, for the rent arrear : fo, if -^. '* '''^o<^- grants a rent to B. payable at a certain feaft yearly, and covenants l\t\^ j^-lf/ to pay the rent at the feaft ; an adion of covenant lies for non- and Aawns payment, though he might have an a6lion'of debt for it. "^ general. ^ J ' ^ & Roll. Abr. 517, 5,?. It feems by the better opinion, that upon the evItS^Ion of a Erowni. 19. freehold, no adlion of covenant will lie upon a warranty, either f^^o-^ai. in deed or in law, for the party might have had his ivarrantia yj^. i-,a^' charts i or voucher ; but in cafe of a leafe for years upon an evie- Noy, t^i. tion, there can be no other remedy *. "The com fe ' now IS, to introduce an exprefs covenant for t^uiet enjoyment, againft all perfons claiming, and tliat the ellate i« free from iiiCumbrances. F 2 6S Coljcnann (D) Where there are feveral Parties: And herein of joint Covenants. 5 Co. i8. b. TF y^. covenants to tlo an -^tO. for the benefit of two or more, and simgfbey's 1 ^ brcaks his covenant, one of them alone {a) cannot main- 2 Leon.' z". t^i" covenant againd him, for then might he be doubly or trebly Eutwheiea charged for the fume breach. covenant may be joint or feveral, 'vUe i Roll. Ahr. 149. Skin. 401 pi. 35. {a) In an indenture between y^. and B. of the one part, and C. of" the other pait; among othci covenants, there is one thus, viz. It is agreed betueen the parties, that C. (hall enter into a bond t.o B^ to pay Jiim 100/. at a day ; in an adlion for non-performance, A. and B, mull join. Yelv. 177. 5 Co. T9. a. So, if A. covenants to do an acl for the benefit of B. and C. Show. 8. gj^j^ enters into a bond to them ^ cuUibet eortim for performance ; ^^" yet this being a joint intereft, each cannot bring a feparate aftion, but two may bind themfdves feverally to pay money, or if jointly and feverally bound, the obligee may fue which he pleafes. SJd. 107. If A. covenants with B. that A. or his fon, or either of them, fhall work with B. at, isfc. B. paying to each of them fo much, &c. and B, requefts the fon to work with him, ^c. if he doth not, the covenant is broken, for B. had the eledlion to require both, or any one of them, to work with him. Comb. 115. If an agreement be entered into between feveral fidlers, that they Spencer and would not play, fe'V. afundcr, unlefs on my Lord Mayor's Day y {b)BMt'v]de ^^' 2nd they bind themfelves in 20 /. each to the other jointly Skin. 401. and feverally, and one only brings covenant, and afligns the r * \? s"*^ breach, that the defendant played ad quandain tabcniamy bfc. this CoLb. %3. is naught, for they ought all to have joined, the intereft being * In this joint ; and it is {b) repugnant and contradidtory, for four perfons be*^ Vu* ^°d *° ^"^'^ themfelves one to the other jointly and feverally. the others who did not join in th*? aftion, were equally interelted with him who fued, and therefore they ought to have joined in the adlion. Lilly V. [Where a covenant is joint and feveral. In an a£lion againft Hedges, ^^^g Only, the breach may be afligned in the negle£l of both. ^ Mod. 166. S. C. Enys y. If two joint leflecs covenant jointly and feverally, and one of Uiorne' them die, fuch covenant will be binding upon his executors, not- 2 Burr. withftanding he (hould die before the commencement of the >'97- term, and the whole intereft muft necefiarily furvive to his co- le iTee. Duke of 'If leflees covenant jointly and feverally at the beginning of bcriand v.* t^^if Covenants, thefe words extend to all their fubfequent cove- Enington, nants, notwlthftanding the intervention of covenants on the part of Sierm the Icflbr.J Rep. 522. CoDenanr* 69 (E) Of Covenants Real and Perfonal : And herein, of the Perfons to \Yhom they fliall extend ; and herein, J. Of Covenants which (hall extend to the Heir or Executor, fo as to be bound by them, though not exprefsly named. "iN every cafe where the teftator is bound by a covenant, the 48E.3. 2. "* executor (hall be bound by it, (a) if it be not determined by ^ro. Cove- ,. , , ; ' \ / ; nar.t,i2. his death. s.c. Cro. Eliz. 553. Same t\ile per Curhm; and fo Dyer, 14. pi. 69. {a) FJas. where it was to be performed by the perfon of the tellacor, the executor cannot perform it. Cro. Eliz. 553. & -vide 2 Mod. 268. [But an exicutor, it is faid, is not chargeable upon a covenant 'wpl:ed. Swan v. Searles, Moor, 74. Sed qu. (if vide Porter v. Swetnam, Styl. 407. Gilb. Covena;:ts, y-'J''\ If A. be {b) tenant for life, the remainder to B. in fee, and A. And. 12. by indenture demife, dffr. to C. for fifteen years, and after A. ^judged. die, and B. enter upon C, yet C. fhall have no action of cove- p^ 204. nant againft the exc^cutors of ^. for the covenant was but (c) dur- Bendi. 150. ing the term, which determined by the death of the tenant for ^* ^' ^P^f' yP ' ■> 257. S. p. ^"6. by three judges againll one, who differed from the others, becaufe the leafe was by indenture, which is a matter of conciulion ; but if it had been by des;d poll, he agreed with the reft. Brownl. 22. S. P. adjudged. {b) So, if tenant in tail demife, and die without iffue. And. 12. I Leon. 179. Cro. Eliz. 257. & •vide Lit. Rep. 334. (f) So, if :he leffee had granted, bargained, and fol.l all his eftate to another (ad- mitting there was, by thefe words, a warranty implied), yet it determines with the eftate. Cro. Eiiz, J57, Leon. 179. If a man covenant that A. fhall ferve B. as an apprentice for 4S E. 3. *. feven vears, and die, if A. depart within the term, a writ of ^'° ^°^^- ■' ,. ■ n 1 r 1 -1 nanc, 12. covenant lies agamft the executor 01 the covenantor, v/itxiout 3. c. naming. If a man be bound to infttuct an apprentice in a trade for Sid. 216. feven years, and the mafter die, the condition is difpenfed with, *^^^^-70'« for it is perfonal ; but if he were likewife bound to find him with Lev. 177. meat, drink, clothes, and lodging, this the executors are obliged to perform. [In genera], the heir fhall not be charged, unlefs exprefsly Touchft. named. If indeed the Icffce be oulled by the htir himfclf, it '^■^• feems an a£lion of covenant will lie againlt him ; though not if '* he be oufted by an elder title from the lefibr. Hence, it is necefTary in an ajfumpjit againft the heir upon a Barber v. promife to pay money due upon the ancetlor's bond, to aver that ^°^' the heirs of the obligor were bound.] ,36. 2. Of Covenants which the Heir or Executor may take Ad- vantage of. Covenants real, or fuch as are [d) annexed to eftates, fhall de- 42 E. 3. 4.. fcend to the heir of the covenantee, and he alone fliall take ad- f^^ 55- vantage ot them. covenants ia grofj. i^aim. 550. — Alio, for a breach in the time of the covenantee, the 3c\ij;i fliail be brought by F 3 hi« yo €oUcnant* his executw^ though the covenant was with him, his heirs, and afligns only. Vent. i^^. z Lev. 26, adjudged. «H.4 6. b. As if an abbot ajid convent covenant to fing for the covenantee 5 Co. 18. an^j i^jg ]^gjj.g jj^ ^^^.j^ ^ chape], his heirs at all times fliall have a writ of covenant for the iiot doing thereof. 2 Lev. 92. If a man leafes for years, and the lefiee covenants with the ■vvima"*"*^ lefTor, his executors and adminiftrators, to repair, and leave it in Skin. 305. good repair at the end of the term, and the leflbr dies, (3'c. his pi. i.S. C. heir may have an adlion upon this covenant ; for this is a cove- *"' • nant that runs with the land, and fiiall go to the htir though he is not named ; and it appears that it was Intended to continue after the death of the leflbr, in as much as his executors, ijfc. are named. Bnjdneli v. [But if the leflbr were only tenant for life, a leafe for years aWilf^iAt made by him, abfolutely determines upon his death, and the heir cannot take advantage of the covenants in the dcmife.J 3. Where the Aflignee fliall be bound by the Covenant of the Aflignor. Roll. Abr. The afljgnee of a term is bound to perform all the covenants 521. Cro. aii;iexed to the eftate ; as if u:^. leafes lands to B.. and B. cove- xliz. 457. \ . . Modi, 399. nants to {a) pay the rent, repair houfes, ^c. during the faid term, 5 Co. 24. and B. alTigns to J. S. the aflignee is [b) bound to (c) perform the fjmhere covcnanls {d) during the life of the firll lefl'ce, tliough the af- the aifignce figncc be uot named, becaufe the covenant runs with the laud ihaii be being made for the maintenance of a thing in (e) e/Te at the time t::^''^' of the leafe made. with a no- rt'ine poer.ee incurred after alTignment, -vide Cro. Eliz- i^^i,. Moor, 3^7. pi. 4S6. Gcli'fb. 129. (b) By the common law, but without queftion by the (tatute of" 31 H. 8. c. 37., Cro. Kliz 457. (f) Lev. 109. Sid. 157. Raym. 80. .S, P. (,/) During the term. Mooi, 399., (S tide Cro. liiz. 457. S. P. by two judges againft two (£•) When the covenant extends to a thin;" in ejje, paicel ^f the demlfe, it is quafi annexed to the thing dcmikd, and runs with the Lnd, and ihall bind the alTignee, though not exprefsJy named. 5 Co. 16. b. Gcdb. 270. 5 Co. IS. But if y^. leafes for years to J5., and B. for himfelf, his execu- Spencer's ^Qj.g ^^^ adminiflratorSj, covenants with A. to build a wall upon part of the land demifed, and after i^. alhgns, the affignee is not bound by this covenant, for the law will not annex the covenant to a thing not in cjje. 5 Co, 15. But \i B. had covenanted for him and his afligns to build the ^A^"tbc wall, ^c. this would have bound the afl^ignee, becaufe it is to fore, it he done upon the land, and the alhgnee is to have the benefit fliouid feem, thereof. that the o- v^nantee would be entitled in equity to a decree for a fpeclfick performance of a covenant to build. City ot London v. Nafli, 3 .'Vtk. 515. t Vez. iz. But fee' the tafc of LuciS v. Comm,:rford, 3 2r. Ch. Rep. J 66 J Bally V. [If a lefl*ee of tithes covenants for lilm a,id his afligns, that he ^wMf ^^^^ ^^^ ^^^ "^"y °^ ^^^ farmers in the parifli have any part oi ^ * the tithes, thiti covenant jruns with the tithes, and biiids the alHgnee.] 2 u If lelTee for years covenants for him and his afligns to rebuild Saik. 159. and finifh a houfe within fuch a time, and after the time expired, P'* 5- ^^• the leflee afligns over the premifes, tlie houfe not being buih and y,^r\^,'it| fjnilhed according to the covenant ; this covenant fliall not bind Cli. Juft. the aflignee, becaufe it was broken before the alFignment ; a/iter, 3 ^""' if broken after; as if the leflee had aflfigned befce the time ex- Rep. 31. pircd. S. p. Alfo, though the covenant be for him and his afligns, yet if the 5 Co. 15. thing to be done be merely collateral, and no way concerning the ^'.'1 p ' thing demifed, the covenant fhall not bind the aflignee ; as if it ^38. s. p. * be to build an houfe upon other land of the leflbr, or [a] to pay aojudijed. a collateral fum. So, if a man demifes flieep or other perfonal things for a cer- S ^° ^^- ^^ tain time, and the leflte covenants, for liim and his afligns at the ]]: *" end of the term, to deliver fuch flieep, Isfc. or the price of them, leafc of a and the leflee aihgns them over, the alFignee fhall not be bound fa'""* wine- by the covenant ; for it is but a (i) perfonal contra£l, and there o'^r"i"g *^* is not (f) fuch privity as between leflbr and leflee of land and his Rut afligns. w*>^'e ^uch an afTignec may be made liable in equity, 'vide z Vcrn.423. (c) \t A. having land charged with the payment of a fee-Farm rrnt, grants p.irt of the land to B,, an i covenants that the fame ftiall be difcharged of the faid rent, and after grants the lefidue of the land to C, tiiis fliall not be taken as a covenaiit'teal, which lh.ill in equity charge the gthcr land gianted to C. with the whole ii.\:X. Hard. 87. So, id) if a man Icafes lands for years {e) with a flock of cattle, 5 Co. 17, a. and the leflee for him and his affigns covenants to deliver the 3>|^'"''27* ftock at the end of the term. pc-nciTeT of a tavern for fix yen?, leafes to another for three years; and it was covenanted, that during the three years quolibct m^njc the lefT-'e fliould give an account to t'e ellbr of the wine which he fold, and /hould pay unto him, for every ton fo fold, io much ; and after the lelTor grants the remaining three years to aiiother : the covenant being collateral, it pafles not by the afiignmcnt of the three years, Godb. 120« Moor, 243., though the covenant, was to account to die leflbr or hii afligns. (e) As in Owen, 139, t-eon. 42. Codb. 1 13. If lefl!ee for years for himfelf, his executors and adminiflirators, Cro. Jac. covenants with his leflbr to leave fifteen acres every year for paf- .'-^ ^^' ture, obfq'.ie cultura^ and after tlie leflee alTign.s ; the affignee, -"^ " though not named, mult perform the covenant, becaufe it is for the benefit of the eflate, according to the nature of the foil : but a collateral covenant, as to build de mvoy ^c. fliall not bind him, unlefs named. If ^. demifes to B. feveral parcels of land, and the lefTee cove- Roll. Abr. nants for him and his afligns to repair, i5i-. and after the lefTee 522- Cio. aihgns to D. all his eftate in parcel of the land demifed, and D. s^c.^adl does not repair that to him alTigned, the leilbr may have an ac- judged, b-:- tion of covenant acrainft D. the alTignee. *=^"'* '^"\ ° ° covenant it devifcable, and follows the land, with which the defendant is chargeable by the common or ^y ftstute Jaw. Jones, 245. S. C. adjudged. So, if the lelFcr ha4 granted the reverfion of part to one, and of another part to another, they might have brought an action of covenant. Lev. 109. Sid. I57» Raym. 80. Kitchen and Buckly. If a man leafes for years, and the lefTee covenants for him and Stii-.4o-, his afligns, to pay the rent fo long as he and they (haU have the ^'^^'^*',''^J pofleflioa of the thing let, and the leflee alTigns, the term expires, wii)i'amf.*n° F 4 and 72 dEotJcnant [^. the form and tKc affigncc continues the pofleffion afterwards ; an a£lIon of Tf>)ff^"\} c°^^^^"^ («) will lie againft him for rent behind after the expiration fee for years, of the term j for though he is not an ailignee {b) ftri6lly accord- vrith cove- ing to the rules of law ; yet he (liull be accounted fuch an af- nants tore- fjcrnee as is to perform the covenants. pair, alTigns o r to y. S. by way of mortgage, and y. S. never enters, equity will not compel him to repair, though he had the whole intereft in him ; and though it was his own folly to make an alngnment of the whole term, ^vhen he (hould have taken a derivative leafe, by which means he would not be liable at law. a Vein. 275.— But fuch an afllgnee, though he never entered, and had loft his mortgage money, was by law compelled to pay the rent ; and having fued in equity, could have no relief. 2 Vern. 774.. [But this cafe was over- ruled in Eaton V. Jaques, Dougl.455., where it was determined, tiiat covenant wili not lie againft a mortgagee of a term, though the mortgage be forfeited, till hf takes aBual poffejpon. It is otherwife indeed in the (!afe of an aflignee under an ablolute indcfeafible affignment of the whole intercll in the term } for there aftual entry is notneceffary to make him chargeable. Walker v. Reeves, id. 4.61. n.] Carth. 519. If A. leafes to B.y and B. covenants to repair, l^c. and he af- Nor"ris ad*^ ^'§"^ ^° 7' ^' "^'^^^ '^^'^^ inteftate ; the premifes being out of re- judged^ Ld, P^ii'"* the IcfTor may bring covenant againft; his adminiftrator as Haym. 553. afTigncc, and declare that he made a leafe to B. ^c. cujiisjlatus pi. 1*1.^°^* ^ refiduum iermini annoriwiy &c. ckveuhy ^c. per ajjignationem to the adminiftrator. 4. Where tlie Aflignor continues ftill liable. Bro. Cove- If a leflee covenants that he and his afligns will repair the ?/"ii' 1^" houfe demifed, and the leflee grants over the term, and the af- Koll. Ajr. ' .. ^?. ,.'., • n. 5ZZ. s. c. ugnee does not repair it, an action of covenant lies either agamlt Jones, 223. the aflignee at common law, becaufe this covenant runs with the (cfHemay' -^^""^ ' °^" ^^ ^'^^ againft the leftee, [c) at the eledion of the leflbr. charge both, but execution fhall only be againft one of them ; for if he takes both in execuuon, he that is laft taken fiiall have an audita querela. Cro. Jac. 523. Roll. Abr, So, if a man leafes for years, rendering rent, and the lefTee cove- y.z. Cro. nants for him and his affigns to repair the houfe during the term, 521' ^s. c. ^^^ ^^^^^ the leflee afiigns over the term, and the lefTor accepts the adjudged, rent from the aflignee, and after the covenant is broken, notwith- a'"[nftlh^ ftanding the acceptance of the rent from the aflignee, yet an ac- exccutor of tio^^ of Covenant lies againft the firft leiTee, for the leflee hath co- the kflee. vcuanted exprefsly for him and his afligns, and this perfonal co- 359! Mioll ^'^"^"^ cannot be transferred by the acceptance of the rent. Rep. 63. Foph. 136. Godb. 276. Cro. Car. 1S8. 5S0. Jones, 223. Sand. 240. Brownl. 20. Style, 300. 2 Mod. 139. Sid. 402 447. 2 Kcb. 640. [But debt for the rent in fuch ca(c would not lie. Vide the caks fuf:ra, and i Frecm. 356., Cro. Ja. 309. Wadham v. Marlow, B,R. M. 1784. And if tl'.e covenant be merely implied by law, the lellor's acceptance of the afligi-.ee will entirely difchdrge the leflee. i Sid. 447. Cro. Ja. 523.] 3 Lev. 233. So, if A. leafes to B. rendering rent, and B. covenants to pay Jiw? ,n J^ ^"^ ^^ter B. aiflo-ns to C. and A. grants the revcrfion to D.y and Morgan, ]7-.r r /■ r 1 adjudged, and JD. alter accepts rent from C. yet for non-payment at anotner CaTch. 178. day, D. may have an a£lion againit B. it being upon an {d) ex- (;)^'rownh P'^^i'^ covenant. 20. Sid. 447. S. P. Knight V. Alfo, an aflignee, who afligns over, is liable, and fliall pay kT-i^.^^o?. ^^^'^ ^'^^^^ which inci>fred due before, and during liis enjoyment. I Vcntr. 329. 331. T. Jones, 109. [In this cafe of Rnight and Freeman, the afTitniTicfit wa» fraudulent. Covenant 73 fiaudulenr, and the fraud was averred, and upon that ground the dec'fion proceeded, But in a later cafe, this circumftance, it is faid, would not alter the cafe at all, but that immediately upon the alijgnment, the affignee is difchaiged. Lelceux v. Na(h, a Str. 1221. Bull. A';. Pri. i 59. Be the rule of law upon this point what it may, it feems to be now fettled, that courts of equity will compel an aflignee of a term to account for the rent the whole time he enjoyed the land. Treacle v. Coke, I Vern. 161;. Whether they will, in order to fecure the future rents under any circumftances, reihain an alTignee from aflijjning to a beggir, or infolvent perfon, was confidered, but not determined, in the cafe of Philpot V. Hoare, zAck. 219. Ambl. 480. S. C. See this point ex'-.mined in Fonbl, £q. Tr. 351. n.J But in covenant againfl A. as affignee for non-payment of rent, Carth. 177. he may plead, that before any rent was due and payable, 'uiz. on Toveyand fuch a day, he granted and afligned all his term and eftate to J. S. adjudged. who by virtue thereof entered, and .was pofl'efled for the, refidue Saik. 80. of the term ; and tins fliall be a good difcharge, without alleging p!^^' any notice of ithe aflignment, or that the leflbr accepted J. S. as s. c. 232.* his tenant. ' i Saik. 4Mod. 71. S.C 3Lev.295. S.C. Show. 340. S. C. 12 Mod. 23. S. C. Holt, 73. pi. i. S. C. i Saik. 81. S. C. Boulton V. Canon, i Freem. 326. S. P. Cooke v. Harris, i Ld. Raym. 36S. Keightley v. Buckly, 1 Lev. 215- S. P. [Although all the eftate and intereft of a lefTee be diverted out Hornby r. of him and afligned by a£l of parliament, yet, without exprefs ^^ouiditch, words of difcharge, he is ftill liable upon his covenant for the j xerm * rent.] Rep. 93. n. S.C. . Hence an afiignment under a commifllon of bankrupt will not difcharge the leflee from hiscxprcfs covenant. Mills v. Auiiol, i H. Bl. 433. affirmed in error, 4 Term Rep. 94. 5. "Where an Aflignee fliall take Advantage of a Covenant. As an afl"ignee fhall be bound by a covenant real annexed to the Roll. Abr. eftate, and wlrich runs along with it, fo ftiall he take advantage 52i- of fuch ; and therefore if the leflbr covenants to repair, or if he q^^!^ /J'q/ grants to the leil'ee fo many eftovers as will repair, or he ftiall Moor, 243. burn within his houfe during the term; thefe, as things appurte- P|-38o. nant, fhall go with it into whofe hand foever it comes. Chan. 39, 40. [But in order to make a covenant run with the land, it is not fufficlent that it be concerning the land ; there muft alfo be a piivity of eftate between the covenanting parties. If therefore a mort- gDgor and mortgagee 01 a term n'i.ike a leafe, in which the covenants for the rent and repairs are with the mortgagor and his afligiis, tiie afTignee of the mortgagee cannot maintain an adion fur the breach of thtfe covenants, becauie ttiey are collaferal to his aflignors intereft in the land, and therefore do not run with it. Webb v. Ruflell, 3 'I'erm Rep. 3.-;3. But fuch a) So, uhere the lefTor cove- nants to €ol3cnant 75 enforced to pay any charge, or ifTues loft, that he (hall with-hold To much of his rent as he fhall be enforced to pay, and A. grants his reverfion to C, and B. afligns the term to X)., D. may take the benefit of this covenant againft C, for it runs with the land. 6. Of Covenants which bind by Force of the Statute 32//^. 8. c. 34. {a) Extendi By the 32//. 8. c 34. reciting, " Whereas divers had leafed ""''"s^i^" ** manors, k^c. or other hereditaments [a) for life or lives, or i^jt. ^ir. ' " years, by writing, containing certain conditions, covenants, and Cro. £iu. ** agreements, as well on the part of the lelTees and grantees, ,\}\ " their executors and aiTigns, as on the part of the leilors and tends to iis ** grantors, their heirs and fucceflors ; and whereas by the com- Tucceffurs, ** mon law, no ftran^er to any condition or covenant could take ^"°"S **"^ , ^ ' named. ** advantage thereof, by reafon whereof all grantees of reverfions, Co. Lit. *' and all grantees and patentees of the king, of abbey lands, ^'S'^* *' could have no entry or action for any breach, k^c. it is enacted, i'. '*** ' . . . • . . tends not M *♦ That all perfons, bodies politick, their heirs, fucceflors, and grantees bj ** afligns, which have, or fhall have any grant of our (^) faid fine UJ at- ** lord the king, of any lordfhip, t5*r. rents, tithes, portions, or fo^'i't^^uA ** other hereditaments, or any reverfion thereof which belonged be intended •** to the monaflcries, ^c. or which belonged to any other per- o^^'^chonljr " fon, ^c. and alfo all other perfons, (r) \d) being [e) grantees **j ccJemo- ** or afiignees, (y) to, or (g) by our faid lord the king, or to, or nies rsquifitc *' by any other perfon or perfons, and the heirs, [}}) executors, ^"j}^'^- Co. " fucceflors, and afligns of every of them, (/) fhall and may c'co^'Va ** have iji) like advantage by entry for non-payment of rent, or 113. *• for doin::£ the covenant was made, though the Jands lie in anjther. Sand. 137. adjudged ; but a writ of error was brought in Cam. Scruc.y and it was after compounded. Sid. 401. Lev. 259. Vent. 10. & 3 Mod. 338. and Ut.yliTtGns L:cal ^nd Travjitcry. (/;) Tlierefore if the conufee of the reverfion betbie attornment, bargains and felis to another, to whom the leflce atc,)rns, the bargainee may, &c., though his bargainor eould not. 5 Co. 113. a. (0) A. devifes to B- for years, rendering rent, upon condition to re-enter for non-payment ; and afterwards devifes the reverfion in fee to another, and dies ; the devifce may take advantage of the condition, though there never was any reveifion, &c. in tlie devifor. 2 Leon. 33. (a) But if leflee for 30 years leafes to another for 10, he is no afiignee within the A.itute j'for he is not tenant to the firft kflbr. Moor, 93, pi. 230. Carth. 289, 290. Midgly and Gilbert T. Lovelace, adjudged. / And by the fame a£l it is enabled, " That all farmers, leflees, and grantees of lordfliips. ^c. rents, tithes, portions, or other hereditaments for years, life or lives, their executors, admini- ftrators, and [a) afligns, fliall and may have like action and remedy againfl; all perfons, bodies politick, their heirs, fuccef- fors, and affigns, vt'hich by grant of the king, or other perfons, fhall have the reverfion of the fame lordfliips, ^c. fo letten, or any part thereof, for any condition, covenant, or agreement contained in their leafes, as the leflees, or any of them, might or fhould have had againfl the leflbrs and grantors, their heirs and fucceflbrs ; recovery in value, by reafon of any warranty in deed or law, only excepted." A. demifed a houfe for a term of years to B. who affigned to y. S. the leflfor devifed one moiety of the reverfion to C. and the other to D. who granted the reverfion to y. S. after which grant C. and D. brought covenant againfl: J. S. for rent due before the aflignment by them j and it was holden, i. That C. and D. being tenants in common, may at their ele6lion join or fever, as well in debt as in covenant, for the rent j but if they fever, they mufl: not each of them make his demand of fuch a certain fum, which amounts to a moiety •, but the demand mufl: be de una meditate of the whole rent -, and if they can count in debt, they may in co- venant, and if debt will lie, a fortiori covenant. 2. That this a6lion vi^as maintainable for the arrears of the rent, notwitliftand- ing the reverfion was out of the plaintiffs ; for though the defend- ant was but an aflignee of a term, yet the very privity of contratl was transferred by the flatute of 32 i/. 8. c. 34. which gives the action for and againfl; aflTignees ; and the contract ft;ill remains, though the privity of efl.ate is gone. Moor, 458. 8C0. 83. SirRiehard Pexhall's cafe. {b) Lev. 10a. Hookes and Swain, Sid. 151. Kcb. 511. S. C. (r) If I co- (F) How Covenants are to be conftrued. ALL contratls are to be taken according to the intent of the •^"^ parties, exprefled by their own words, and if there be any doubt in the fenfe of the words, fuch conflruftion fiiall be made as is mofl flrong againfl the covenantor, left, by the obfcure wording of his contraiSl, he fliould find means to evade and elude it J hence, [b] if A. covenants with B. that, if B. marries his daughter, he will pay him 20/- per ntin. without faying for how long, yet it flrall be for the life of ^. and not for one year only ; for by the word per an/rumy the [c) meaning of the parties appears to doftenant. 77 to be, that It fliould continue longer than one year; and this is venant to the conilrudion that is moft {Irone asainft the crantor. d .uver fo " " ° many yards of cloth, and I cue it in pieces, and tlien deliver it, this is a breach ; for the law regards the real and faithful peitbrmance of contrafts, and dil'c )LintenarjC^-s all fuch aft s as are done in fmuJcm /cris. Raym. 464. So, if the condition of a bond be to piy so/., though it is not faid of jnoncy, yet it muft be fo intended. Sid. 1 i;i. But if a man covemnts that his fan, theri irfta amies nuhiies, fhall marry the daughter of B. befare fuch a day, and he m.i:rics her accordingly, but at the age of confent difagrees to the marriage, yet is th; covenant performed j tor it was a marriage, though fubject to be de- feated by dilagteement, and no other could be had within the time. Owi-n, 25. adjudged. If two men leafe for years, and covenant that the leflee (hall Noy, 86. enjoy free from all incumbrances made by them, and, after, the ^j^"^' 7"\ leflee be difturbed by J. S. to whom one of the lefibrs had made j^j\ and a precedent leafe ; this is a breach, for they fliall be taken feve- I'oph. 200. rally, and not jointly only. * ' If a man leafes for fix years, and covenants, that if he (hall be Godb. 335. difpofed to leafe the land after the expiration of the term of fix f^'^^' years, that the leffee (hall have the refufal ; and within the fix Rep. 3*32. years he leafes to anotherj this is no breach, becaufe (a) out of 347- ii.c. the words of the covenant. LiLu j»„ leales land to £. for fix years, and covenants, that he (hall enjoy it during the term without interruption, difcharged from tithes, and after the fix years he is fued tor tithes, this is a breach ; for the meaning was, that he ftiould be freed from fuiti, and the payment of tithes ; and a fuit after the expiraiion of the term, is as prejudicial, as if b.:fore. Cro. £liz. 916. 2 Browni. 22. If a man leafe for nine years by indenture, dated i Jan. Sid.';74. 16 Car. 2. and covenant to fave the lefiee harmlefs from all evic- j^ll^-^'^^"** tions during the term, but this deed be not delivered till 1 Jafi. 17 Car. 2. if he be in poflefiion and evlded before the delivery, this is a breach ; for during the term, Ihall be conftrued durmg the term in computation, and not only from the time of the deli- very of the deed, when it firft commenced, in point of intereft. If ^. leafes three meiluages to B. for forty-one years, and B. •; Lev. 264. covenants to pull them down, and ere£l three other in their place, ^^^^'^ ^"*^ ac etiatn cle tempore in ieiipus to maintain the mefl'uages agreed to ^vent. 126, be ereded in fufficient repair, ac etiatn to repair the pavements, 12'. S. c. iffc. ac etiatn di5la pratnijTa^ ds* dotnos fuperitide fore ereB., at the end ^'O^'^^ed ; or the term to leave m good repair ; and alter iJ. pulls clown the en as feve. three houfes, and builds five, he muft leave them all in good re- rai cove- pair at the end of the term ; for though by the firlt covenant he J^^"j'g^ ''"^ is bound only to repair, isfc. the meiVuages agreat. fore erecl-.^ yet doubted, by the laft covenant he is obliged to leave in good repair dotnos fu- it fecming perinde erect, indefinitely, which extends to all houfes which fhall ^"1 J^'^^^^^.j^ be built upon the premlfes during the term. nan:, and that the fubfequent matter, concerning leaving the houfes in good repair, muft be reltaincd to, and un- derwood of, thofe agreed to be built. So, if a man takes a leafe of a houfe and land, and covenants 3 Lev. 265. to leave the demifed premifes in good repair at the end of the f^^ s'.'p.'^dv lerm, and he ere6ts a meiluage upon part of the land, befidcs judged be- what was before, he {h\ muft' keep or leave this in good repair tweenBrown .f. > K J tr or andBlun- 2"0' den. Skin. J2I. For itis a continuing covenant ; and though the hofife had no actual, yet it had a potential bting* at the time of the ieafe. Vol. II. F 7 [liut 78 CobcnanL tapty. [But where in a building and repairing leafe, the leflee cove- ^r""' !? nanted to lay out a given fum in ere£Ving and rebuilding mef- fuages or tenements, or feme other buildings upon the ground and premifes ; and from time to time, is'c. all and fingular the faid mefloages and tenements fo to be erefted, with all fuch other houfes, edifices, t^c. as (hould at any time or times there- after be ere£led, i5'c. to repair, ^c; and the faid demifed pre- mifes, with all fuch other houfes, ^V. fo well repaired, Iffc. at the end, t3c. of the term to deliver up, <5c. it was holden, that the covenant to repair extended only to the new erections.] Carth. 135. Jf a leafe be made for years, rendering ?>o I. per annum rent ^ Cues and £j.gg ^j^^j clear from all manner of taxes, charges, and impofitions ■ ' whatfogver, the leflee is bound to pay the whole rent without any nianner of deduction, for any old or new tax, charge, or impofi- tipn whatfoever. Brfwftery. fcio, wherc A, by deed, dated 1649, granted a rent-charge of K'dgii, ^Q /_ pgy Qfif,^ {Q j^^ and his heirs, and on the fame deed there was pf 4'. *^ ' ^^ (^) indorfcment, that the rent was to be paid clear of all taxes : Ld. Raym. by the 3 JV. ^ M' 4s. per pound is laid upon land, and power '^\^'m ^' 6'^^" ^° ^^^ tenant to deduct 4/. in the pound, with -^provifo^ not 160. 171. ^^ altc'r the covenants or agreements of parties ; it was holden, S. c. that fuch a covenant, if made in the year 1640, would not have ^\ *P*' i''£<^'l the rent-charge from the taxes impofed by thofe a£ls, be- CaithrixS. caufe there were no fuch parliamentary tax in being, or known at S. c. that time -, but becaufe there were fuch taxes in the year 1645, f ivJod. 368. -vi^rhich was before the grant, therefore this covenant mud be con- (d) Which ftrued to extend to them. rnuft beprefumed to have been madt: before the deed was executed, and fo parcel thereof. Carth. 439* f:r Cur, BrJdgec V. [In a demife of corn-mills, there was a covenant on the part TBr^p'c' °^ ^^^ leflbr, that " if the leflee, his executors, ^V. Ihould 51^, ' before the expiration of the term, be minded to renew, then, upon application, l3c. the leflbr, his heirs or affigns, fhould grant fuch further leafe, as fliould by the lefl"ee, his executors, Isc, be defired, without any line to be demanded therefore, and under the fume rents and covenants only as in the then leafe ;" and the qutltion was, Whether there muft be a covenant for renewal again in the fecond leafe } The court of Exchequer were of opi- nion, that under the words the fame rents and covenants, the cove- nant for renewal ought to be inferted ; and on appeal to the Houfe of Lords, their decree was affirmed. Vvjrnival Again, in a leafp for three lives, the leflbr covenanted, that he, * i^'tJt^g* ^'^ heirs, err. Ihould and would (in confidcration of a certain ' ' ' fum to be p;itd to him, K3c. at Crew? Hall, or at the place where the faid hall then flood, in the name of a fine, for adding one life to the remaining lives therein before mentioned) execute one or piore leafe or leafe^, ^nd^r the fame rents and covenants which were exprcfltil in the then leafe, andfo to continue the renewing of fuch Uiife or leajls tq the leflee, or his afligns, paying as aforefaid to the ii-fli.r, his heirs or afligns, the fum before mentioned for every life U> Added or rsnjv/c4 ffom time to time. Lord Hardr ^ich Covenant 79 'ivicke held this to be a covenant of perpetual renewal, and decreed a new leafe to be granted to the affignee of the original leflee witlx a covenant Inferted in it to that efFed:. Again, in fuch a leafe, the lefTor had covenanted, that if the leJTee, Cook t, his heirs, ^c. fhould be minded upon the falling in of any of the p°*"^»j lives, to furrender the demife and take a new leafe ; and thereby whe^re the* add a new life to the then two in being, in lieu of the life fo dying, terms of a that he the leflbr, his heirs, t^fc. upon payment of fo much for '^o^^nant are every life fo to be added, in lieu of the life of every of them fo dying, unambLu- would grant a new leafe for the lives of the two perfons named oqs, acoun in the former leafe, and of fuch other perfon, as the leflee, his °' ^*"[ "°" heirs, iffc. ihould appoint in lieu of the perfon named in the pre- of evidence ceding leafe, as the fame fhould refpeclively die, under the fame dehn, to rents and covenants. There had been fuccejftve renewals from the time f *P^^'" '»* of the firfi leafe ; and in every leafe the like covenant for renenval had the parties, been inferted. The court of King's Bench held, that the leflbrs by though the their own a&s conftrued this to be a covenant for perpetual re- o^'^^h*^ newal. may be a fraud upon the covenant. Clifton v. Walmefley, 5 Term Rep. 564, But where In a leafe for years determinable upon lives, the co- ilufleil v. venant was, that the leflbr would upon the death of any of the Darwin, appointees (by name) add a new third life upon payment of 200/. Rep.s^g'a. within fix months ; or upon the death of two of them (by name) within fix months add two new lives upon payment of 500/.; or upon the death of all of them (by name) would, upon payment of 1 150/. make a new leafe or grant for any three new lives to be nominated and appointed by the leflee, his executors, iffc. for the like term as was thereby demifed, at and under the like renty cove- nantSy and agreements therein contained ; Lord Camden was of opi- nion, that the leflTors were not under any obligation to grant any further leafe than for three new lives only, and that the leflee was not entitled to have any covenants inferted for any further re- newal ; the words of the covenant not obliging the leflbrs to grant a new leafe, but upon the death of fome one of the perfons named in that leafe j and they being all dead, no further renewal could be claimed. So, under a covenant in a leafe for twenty-one years, that the Trltton «• leflbr, his executors, i^fc. would, at the end and determination ^°°'^' of the faid term of twenty-one years, execute a new leafe of the Rep'^.'s^e, demifed premifes, for the further term of feven years to com- mence from the end of the faid term of twenty-one years, there- by demifed, y«i^>t7 to the fame rents ^ and piirfuant to the fame excep- tions, covenants^ refervations^ cofidititnsy and agreements in all re- fpeBsy as were in and by the then granted indenture of leafe 7nentioned and expreffed, in cafe the leflee, his executors, if^c. (hould defire the fame ; the lefl^ee, his executors, izc. firfl: giving twelve months notice in writing to the leflbr, his heirs or afligns, of his or their defiring fuch further term of years as aforefaid j Lord Thurlowe declared the leflee entitled to a leafe for feven years only, it appearing that the leflee himfelf had put that conftrudion upon it. j F 8 8o CoDenanf. (G) Where the Principal, and all Auxiliary Cove- nants fhall be faid to be void and extinguifhed. 6 H. 4. 1. 7^ 3 ^^^^ covenants with tenant for life of an houfe, to find a Roll. Abr. •■• chaplain to fing, is'c. every Saturday during the life of the co- il)?jMt if venantee^ if the covenantee furrenders the houfe, and {a) retakes he had not an cftate for years, yet the covenant remains. retaken fuch eftate, ^ Roll. Abr, 55. Mod. 123. UJ. grants a rent-charge to B. for the life of C. hahend. to B» ^"d'^fTT ^^^ htxxi, and affigns, to the ufe of C, and A. covenants to pay it a reft iland. Hob. 14. /^r Car. Moor, 856. Godb. 213. 10 Co. 100. Latch. 143. Mod. 35. Brownl. 282. Vent. 237. Carter, 230. 2 Wilf. 351. If the principal thing to be performed, as the conveying an Sid. 309; cftate, ^c. be void, further covenants which are relative and de- ]f^'/- ^9' 11 r i-i T Style, 357. pendant thereon are lo hkewile. So, if leflce for years grants fo much of the term as fliall be Lev. 45. to come at the time of his death, and covenants that the leflee Capon^^urft fliall enjoy it, although he gives bond for performance of cove- y^^^yCz, nants, yet the principal thing, viz. the grant, being void for un- Ra5-^m.27. certainty, (a) both bond and covenants are void likewife. fa^^Fortho' they are fcveral deeds, yet they make but one aflurance, and are but one contrail. 4 H. 7. 6. 20 H. 6. 293. Bro. Obligation, 6. Dyer, 4. 28. Hob. 168. But where the dean and chapter of Norivich, 8 Eliz. leafed to Owen, 135. jB. for ninety-nine years, and after in /\2Eliz. they leafed to C. ^f^"^^'^^^ for three lives, and covenanted to fave him harmlefs againft B. if chapter of he is diflurbed by B. he may have an adlion of covenant againft Norwich, the dean and chapter, though the leafe is void, becaufe the cove- |^^°o78^'* nant is for a thing collateral, as that the leflbr is owner, ^c. s.c. y^idt and the covenant was broken immediately upon fealing the leaTe 2 Brownl. to r ^34. J36. ^^ ^' 158., &c. So, where In covenant the plaintiiF declared, that the defend- Saik. 159. ant by his deed did grant, bargain, and fell to the plaintiff and ?'• 5- ^^• his heirs, ^c. provided that if the grantor paid fo much money, NoI[hcote ' it fhould be lawful for him to re-enter ; and that he covenanted and Under- to pay the faid money ; and the breach affigned was the non- ^''' ^^* payment of the money ; although it was admitted that nothing paffed by the deed for want of inrolment, yet the covenant in this cafe being to pay money, it is a diftindl, feparate, and independent covenant ; and therefore not material whether any eftate paffed or not. (H) What fhall be deemed a Breach, or conftrued a good Performance. tF a. enters into a ftatute to B.f and afterwards B. by his deed Sid. 48. -*• covenants, that, upon payment of fuch a fum at a day to come, 1^°'""^''" the ftatute ftiall be void, and that he will deliver it in, and caufc it ton, ad- to be vacated; if before the day B. fues execution, A. may bring judged. covenant ; and it is no obje£lion, that neverthelefsjB. at the day may '^^V"' ^^' deliver it in, and caufe it to be vacated ; for it is an apparent prefent us.s.c*. breach ; for after the ftatute was fet a-foot, and had its courfe, The fame t ran flit in rem iudicatavi. and could not be vacated. ^^' '" *^^|* J J * ofapromife. Roll. Abr. 448. If A. leafe to B. for twenty-one years, and covenant at any 5 Co. 20, time during the life of j5., [b) upon furrender of the old leafe, to ^'' ^"' make a new leafe, and after ^. leafe to a ftranger, he hath difabled S(^t and himfelf, and broken his covenant. Main, 2 And. I?. Moor, 452. Cro. Eliz. 450. Poph. 109. S.C. adjudged. (/>) So, if the lefiee aflign his old Iw/e, he liitabies himf.lf to take cenefic ot the covenant. Buht. 2i. Vol. ir. G If 82 Conenantflf, Kaynn.4fi4. If A.y being a common brewer, covenants that J?, fliall have Griffith and fgy^.^ pavts of Iiis grains made in his brcwhoufe fur feven years; aWs', 101. '"""^' after y^. renders them unfit tor the ufe of i? , this is a breach. S. <\ adjuciLcd. Skin. 39. pi. ?. If one covenanis to 1 ave all the timber upon the ground at the ex- piration of a term, and after cuts it down, ir is a breach of covenant, thougli he carry it not away ; but if a iiranger cuts it down, it is no breach of covenant. Skin 40. fir Cur. So, if a m.ia covenants to deliver a hoife, and he poifons him, and then delivers him, this is a breach. Skin. 40. fcr Cur, 2jones,i95. If two men, upon fale of their wives lands, covenant that they Nafh and ^nd their wives have good right to coyvey lands, and to make adjudged. further aflurance ; if one of the women is under age, this is a breach, for fhe hath not power to convey the ellate according to the covenant. 2Vcnt. 213. If the leflbr covenants with his lefiee for years, that he quietly adjudged. j^j.,^ peaceably ihall enjoy tlie land without the impediment or dif- turbauce of the leiTor, if the leflbr exhibits a bill in Chancery againll the lefTee, to reftrain his committing wafte, this is no breach, though the bill be difmifl^ed with colts, becaufe the fuit does not relate to his title or pofleflion. 4.teon. 39. If a parfon leafes his re£lory for years, and covenants that the adjudged. leflcc fnall have and enjoy it during the term, without expulfion, leflee for or any thing to be done by the leflbr, and after, for not reading years, ren- the articles, he is jpfofaBo deprived by the fl:atute 13 Eli-z. c. 12. denngrent, ^^^^ j.j^g patron preftnts another, who oufts the leflee ; this is no dition of breach, for he was not oufted by reafon of any a£t done by the re-entry for lefl~or, but for a [a] non-feafance ; and fo it is out of the compafs non-pay- ^f ^^^ covenant. ment, le?.fes part for a lefs term, and covenants that his leffee ftall enjoy, without impeachment of him, or any other, occafioned by his impediment, means, procurement, or confent, and after he neglects to pay his rent, upon which the litft leiior enters, &c., this is a breach. Built. 1S2. adjudged. Owen, 7. Tenant in tail of a rent purchafes the land out of which it fcr Cur. iflues, and makes a feotiment thereof, and covenants that it is free Co. Lit. from all former incumbrances 5 this is a charge, though not in ejfcy 3^9. a. yet in fufpence ; for if tenant in tail dies, his iffue may diflirain, and then the covenant is broken. Cro. Eiiz. If A. be tenant in tail, the reverfion in the king, and A. leafe 5''7-W"od- £qj. yea^g and covenant that the leflee ftiall enjoy it as;ain{t all ruft and ■' ' , . , , . . ^ i 1 • 1 ■ Greenwood 'pcrlous, and v/itnout the mterruption or any, except the kmg, his adjudged. lieirs and fucceflbrs, kings and queens of Eitglandy and the king grant his reverfion to i)., and A. die without ifl'ue, and B. cuter, the covenant is broken, for that extends only to the king and his fucceflbrs, in which words his patentee is not included. Cro. Jac. If A..^ by the means and procurement of 1?., by fine conveys *i7' But^'er lands to B. and his wife, and the heirs of i>,, and aftei" B. leafes nerton, ad- ^he fame for years, and covenants that the leflee Ihall quietly en- judged ^^r joy during the term, without the dilturbance of him, his heirs or totayn Cu~ afllgns, or of any other perfon, by or through his means, title or 339.* S.c' procurement, and B. dies, and his wife enters, this is a breach, adjudged } for flic claims by the means of the baron j and therefore it is within t{""\ the covenant. <. hamber* lain, though objected, b^ his mean! and prccunnunt, mull refer to fubfcquent ails. 2 Roll. Rep, j26» S..C adjirnatur. Cotjenant.^* 83 ( I ) Where the Breach {hall be faid to be well affignecl. I F in an adlion of covenant the plaintiff declares upon a leafe for Lev. 73. twenty-one years to the defendant, and that he covenanted to ^onietsand pay 20 1, per ann. by equal portions, zi Michaelmas ^nd Lady-day, and /a) In'co, afhgns for breach, that he did not pay the rent debit, ad prad.fepa- venant for ralinfejla durante terrnino\ this breach is («) fulHciently affigned, I"": '"^P^"'- and it (hall be intended that the rent was not paid at either of breach was thofe days. generally al- leged, with- out /hewing in what; i Biownl. 23. adjudged, it was helped after vcrdidl ; h, z Mod, 176. ; and fee Sir T. Jones, 125., where the covenint wr.s to repair all the pales, except thofe on the weft fule ; and the breach affigned was, in not repairing the pales, contra formam ccn-veationis, and held good after verdid, though objefted, that the defedl might be in the parts excepted The breach alligned by the plaintiff iTiould fpecify the particulars, and he may affign every poflible breach, witiiin the meanin"' of the covenant, and though he proves only f^art, he will be entitled to recover. As to the defendant, if he naeans to plead, that he did repair, and if the term is ended, that he yielded up the premifes ia repair, he rtiould purfue the words of the covenant, fully, without regarding the particulars affigned by the plaintif}'. If in debt upon an obligation, the condition whereof is of three Cro. Eiiz. parts, I. That he fhall ferve the plaintiff well ; 2. That he (hall ^3°- Cutler duly account; 3. That within three months after notice he fliall adjudged *' make fatisfa£tion for all lofTes fuftained by his apprenticefhip ; the defendant pleads performance fpecially, and the plaintiff afligns for breach, that upon account he was found in arrear 60/. which he received and converted to his ovv'n ufe, and fo had not ferved the plaintiff well ; this is a good replication, without alleging notice j for though it might be alleged as a breach of the third • part of the condition, yet the converfion of the money to his own ufe, may be alleged as an ill fervice. In an adlion of covenant feveral breaches may be affigned ;. Cro. Car, otherwife, in debt upon an obligation, conditioned to perform '7°' ^'^' ^ Raym. 106, covenants. ^ But now by the 8 ^ 9 ^. 3. cap. 1 1. it is enaded, " That in [it is now " all actions upon any bond or on any penal fum, for non-per- f^'-}^^^' f^^aC *' formance of any covenants or agreements in any indenture, pVifory'on a *' deed, or writing, contained, the plaintiff may affign as many plaintiff to *' breaches as he lliall think fit ; and the jury, upon trial of fuch PJ'°"«'^ '" *' a£lion, may affefs not only fuch damages and cofts of fuit as pointed"out *' have heretofore been ufually done in fuch cafes, but alfo by the ih- " damages for fuch of the faid breaches fo to be affigried, as the '"'«!" "f^^' *' plaintiff", upon the trial of the iffiies, {hall prove to have been provifions *' broken, and that the like judgment fh:\Il be entered on fuch ofthisftc- ** verdict as heretofore hath been ufually done in fuch like L'°"''Ti'^f'^ ** actions; and if judgment ftiall be given for the plaintiff on a iign the ** demurrer, or by confeffion, or fji/jii dicit, the plaintiff upon the breach of *' roil may fusrirefl as many breaches of the covenants and agree- '""^'^ ^°^t' ' ^^ ' . o nants as he ** ments as he fhall think fit ; upon which (hall ilfue a writ to the proceeds tp ** (lieriff of that county where the action fliall be brought, to fum- reover a *' mon a jury to appear before the juflices or juflice of affife, or f^^l^^^'^'^f Q Z " "j/t the defend. H (£o^cnantie?» ant plead to " ii'ifi pritis of that county> to inquire of the trutli of every one of iflue, and << thofe breaches, and to affefs the damages which the plaintiff toVi^u'ryfor " ^""^'^ \i7ivt fuftaincd thereby, in which writ it fliall be command- triaij the " ed to the faid juftices, Isfc, that he or they fliall make a return jury, upon « tii.ereof to the court from whence the fame fliall ilTue at the fuch caufe " time in fuch writ mentioned ; and in cafe the defendant after muft aflefs *' fuch judgment entered, and before any execution executed, fliall damages for u ^ j,^(.q ^\^^ Qoxxxt wherc the aftion fliall be brought, to the fuch of the ^ ' . . ,.._, ,. ,.,„° ri breaches af- " "1^ t)i '^he planititt, or his executors or admniiltrators, lucli fi^ncd, as « damagcs fo to be aflefl'ed, by reafon of all or any of the breaches u'^^on'th"'^^ " °^ ^^'^^^ covenants, together with the cofl;s of fuit, a ftay of ex- triai of the " ccution on tlic faid judgment fliall be entered upon record; or iflues iLail « if, by reafon of any execution executed, the plaintiff, or his ex- hiveV°en *' ccutors or adniiniflirators, fliall be fully paid or fatisfied all fuch broken. If " damages fo to be afleffed, together with his cods of fuit, nnd this be not « all reafonablc charges and expences for executing the faid ex- done, arv- ^^ g^-y^jo^j fi^g body, lands or goods of the defendant, fliall be roio^m be " thereupon forthwith difcharged from the faid execution, which awarded. *< fli^H Hkewifc be entered upon record •, but notwithfl:anding in Brand ^* " ^'^^^^ ^^^^' ^^^^ judgment fliall remain as a further fecurity to sWiif. 377. " anfwer to the plaintiff, and his executors or adminift:rators, Hardy v. « fyd^ damages as fhall or may be fufl:ained for further breach of 5 Term " ^"y covenant in the fame indenture, deed, or writing con- Rep. 5 JO. " tained, upon which the plaintiff may have a fcire facias upon «:;6. So, «c the faid judgment againft the defendant, or againit his heir, If )udgment ,, ^ . . 1 • , • -n r n.- go by de- terre-tenants, or his executors or admimltrators, fuggeitmg fault, he " othtT breaches of the faid covenants or agreements, and to fum- *^!,""h* ^"'^"^ *' ^"^^^^ ^^^"^ "^ them refpedlively to fliew caufe why execution fhall forthewhole *' not be had or awarded upon the faid judgment, upon which penalty, as " there fliall be like proceeding, as was in the a£lion of debt upon he might n jj^g i^Qj^^ Qj. obligation, for affeffuig of damages upon trial of have done at . ^, ... /• 1 , ° . • " i r common illucs joined upon luch breaches, or inquiry thereof, upon a law. Roles « writ to be awarded in manner as aforefaid, of fuch future da- c Te°rm'^''' " niages, cofts and charges as aforefaid, all further proceedings on Rep. 5-58. " the faid judgment are again to be flayed, and fo Mies qiioties ; Goodwin *« and the defendant, his body, lands, or goods, fliall be difcharged rn!ir'^'c; " out of execution, as aforefaid." v,ovvp. 357. • Whether an obligee in a bond of this kind may recover damages beyond the amount of the penalty. Is a point which haih not yet received a final adjudication. See White v. Sealy, Dougl. 49. Brangwio V. Peirot, 2 Bl. Rep. 1190. Wiide v. Clarkfon, 6 Term Rep. 303., that he cannot. But Loi4 Lonfdale v. Church, 2 Term Rep. 388. contr.'\ 9 Co. 6c, liA. leafes to B. for years, and covenants that he hath full power ftawanf " ^"^ lawful authority to leafe, b'r., and in an adtion upon this co- Salmon, venant, B. fays he had [a) not full power and lawful authority to Cro. Jac. leafe, ^r., the breach is well affigned, for he hath well purfued ad°jldscd,' ^^^^ words of the covenant negative; and what efl:ate he had lie* and that the i^ore in the knowledge of the leffor than leffee •, and therefore he defendant ought to flicw wliat eftatehc had at the time of making the leafe, Tvvas ferfed ^^^* ^' "^^7 ^"PV^^^ that he had full power, l^c, in tee, and then the plaintiff mutl fhew a fpecial title In fomcbody elfe ; but the covenant being gene- ral, the general afiignment of a breach piimafMu is good, {a) That he was not lawfully leifed in fee •f an indcfeafible cltate. Cro. Jac 369. £f -vide Rayim 14, 15. €ol3enant0. 85 If A. Icafes to B. for years, and B. covenants to repair during Cro.jac. the term, and at the end of the term to leave the premifes wd\ re- '7i- ^a"- paired, in an a£lion upon this covenant, it may be afl'igned for a Fidd. breach, that he did not leave them well repaired at the end of the term ; and if the defendant pleads, that at the end of the term he i") ^f°- delivered them up well repaired, then if the plaintiff will affign a J"p^^'* breach, he ought to fhew particularly In what part it was not re- ^ Sedvids paired, fo that the defendant may give a particular anfwer thereto ; ^^^ ''^'^ "';« but it was faid that in a declaration in covenant, it fufiiceth to "u.^f .'Ij* aflign the breach as {a) general as the covenant is*. this head. In an action of covenant the plaintiff declared that queen El'i^ Cro.jac, zabeth leafed a meffuage, i^c.y to the defendanr for twenty-one y^°' ^"''^ years, and that the defendant, his executors and affigns, were Strickland thereby bound to repair and leave the premif-;s at the end of the adjudgcj. term in good repair, and that the queen granted the reverfion to B., and that B. granted the fame to the plaintiff; and for not re- pairing, ^c.\ this a good declaration, though the plaintiff is not named affignee. If in an action of covenant the plaintiff declares, whereas by In- Cro. Car. denture, bearing date, ^S'c.y tejlatum exl/lii^ that the plaintiff had Z,^^- ^ demifed to the defendant a meffuage and garden for two years, and Gave and the defendant, by the faid indenture, covenanted not to erect adjudged. any building in the garden, ^r., and avers hi faEloy that he did ^'°;'^i!,^* ere£l, ^c^ this is a good declaration, though he does not exprefsly jaj*.' 383.* fay quod deimfit ^ convenit ; and it is the [b) ufual courfe in B. R., S. P. ad- to declare in this manner. ^^'^t' (S -vide Sid. 375., where the plalntift' dec'ares />sr quoddam fcr'i^tum per quad t.jlatum exiJJit, &c. {i>) And fo are the precedents in B. Cro. Eliz. 195. 2 Roll. Rep. 21c, 211. )duc the ulual method now is to declare, that whereas by fuch an indenture made between, &c., at, &c. (with a protert) fuch a one demifed, &c. If baron and feme being ft:ifed of an houfe, to them and the Cro. Car. heirs of the baron, leafe to yl., and he covenant with them and ^^j''r!r^"'^'" the heirs and affigns of the baron, to repair, crV., and the baron and ajjudgsd. feme convey the inheritance to B. ; in an action upon this cove- Jones, 305. nant, B. may fhew the whole matter, and conclude qucd aclio el ^'^ J^'^' arcrevit\y as affignee of the baron, without ffitiwing the death of bythe re- the feme ; for the eftate for lii^e being transferred with the fee, it pott thereof, is drowned tnerem. ,^ , , \>-as vjC'd, and the fe.-n» and the heir of the biron conveyed, and the aclion was brought as afligr.ce cf the heir, and laid that it was no benefit to the Icfl'ee to have tl;e efiate for life continue, 2nd thcicf.ie, &c. -j- This conciufion is not now u'.'ed, unlefs in cafes of debt on penal ilatutes, itc. Kut in fuch adlioni of covenant, the ufual conciufion, aher figning the bre^cb, is. And fo the plaint'.lf fays thjr thfc de.'ciid- ant (althoujjh requefted, &c.) hatii not kept with the I'laintiff, the covenant ma.e between fuch an one and fuch an one, but harh therein failed and made default, to the piainiifi's djinage of lo much j wherefoie the plaintift' faith he is injured, and hath fuftained damage, &c. If in an action of covenant the plaintiff declares upon an Inden • 2 ^Tod. 3 1 1. tux-e, in which the defendant had covenanted that he was feifcd in ^^^,^^^ fee, Is'c.y and would free the premifes from all incumbrances, and ajjud^Jd. tiiat the plaintiff fliould quietly enjoy, and for breach alligns an (0 S^od entry and evicftion by a ilranger, iff fw conventkium Juani (in the '^^"J^'^^^' fingular nnmhtx) f regit y this is well enough ; (c) for conveiitio ejl centime G 3 iijuun aoiu 86 CoDcnantisf* jraEta, ail nomen colleciivttmy and if twenty breaches are afligned, the count is one. Haid. ^g plac'tto quod tetieat e'l conventlonem. 178. ^ ^ If a breach of Cjvenant is fufHciently alleged, the plaintiff need not conclude ^ fic von tmuit con-vcn^ tiorcm in hoc. Sec, for that is but repetition. Cio. Jac. 298. adjudged. 2 Mod. 229. S. F. adjudged, though it is the ufjal way. Cn. Jic. If in an a£lion of covenant the plaintiff declares upon a leafc in 4-1-''- ^'^"'■5 London^ of a meffiiage in Z)., in com. S., and that the leflee cove- * nanted to repair, ^f., and affigns for a breach, that apiid Lotidon he permitted the houfes to decay, ^c. this is naught, becaufe the breach is in a matter local, and not trnni'itory. 3 Lev. 170. If in an a£lion of covenant the plaintiffdeclares upon a covenant, Proflerand jq f^jjj ^\-^q pJaintirT with meat, drink, apparel, and other necefla- Bijudge'd. t\cs, and alhgns the breach as general as the covenant, viz. that 3 Mod. 69. he did not find him v/ith meat, drink, apparel, and other necefTa- ^" ^" ries -, this is good, without (hewing in particular what other things ^%L cor.tr. s'^c necefiary, and the alia necejfaria fhnll be intended fmall things, as trlmminirj wafning, ^r., which M'ould be too long to infert, and the breach being affigned in the words of the covenant, it is fuf- ficient. Lev. 94, So, in debt, upon an obligation conditioned to fatisfy for all French and gQQ^jg <^^^ j,n apprentice fliall wafte, in his replication, the plain- adjudged, tiff afligned for breach, that he had wafted diver/a bona advalentiam (c) FUcfii- 100 A and adjudged that it was good, without fhewing in particu- w' "^a^d ^'^'■' ^^'^'^'^^ ^^^^ goods were ; for («) the penalty of the obligation is to Saiii. 137. be recovered upon any breach, but faid that it would be otherwife pi. I. • 60, i^ covenant, where there is to be a rccompence for the damages*. afligning that he had received of divers perfons divers funis of money, in the whole amounting to a large fum, to wit, the fum of ico/., and convened the fame to his own ufe, contrary to the condition, would be good. Yelv. 226. If in debt upon an obligation conditioned to fave the plaintifF Brownl. harmlefs from all charges and troubles, by reafon of the lafl will a Bulii. 19. <^f ^-j or any thing tlierein mentioned, touching one B.^ or any S. C. G? legacy to her given, ^r., the defendant pleads non dnmnif.catuSf "lata"-?' ^"'■- *^^ plaintiff' replies that he paid 60/. to 5., for a legacy, f \^«. alfo, ^'"-^j this is no good replication ; for he ought to fhew that a ifheiTiouid legacy of 60/. was given her by the will; for though the will is je°'ld he was ^^^'^^^ i'"" ^^''^ ^-"^^^i againft wiiich recital the defendant cannot fay obliged to he made no fuch will, yet the legacy given to B.y is not recited, pay the le- but in general ; again (I which the defendant may take a traverfef. gacvjorpiid ^ u j \ it to avoid a fuit ? Jones, 218, If A. covenants to permit J5., his heirs and affigns, to take and Symcns and (.^jq^ ^1^^ rents, iffues and profits o'i certain lands, and in an adion Car. 1-6. ot covenant the phuntift afhgns for breach, that A. took the pro- S.C. & fits, & {b) no:i permjit B. to enjoy, f.s'c, this breach is well afhgn- wiU Ha:d. g^^ fQj. jjjj, taking of the profits by A. is a fpccial difturbance. {/«) Cut r.cn ftinnjit alor.e is too general. S Co. 89. b. 91. b. lif -vidt And. 137. 2 Vent. 278, Mod 223. \l A. grants a rent to B. and his heirs, for the life of C, to the I' ^rand "^"^ "^ ^•' f^^ covenants with B. to pay the rent od opus ^ ufum Cookj of C, and in an adlion upon this covenant, i^. ailigns the breach, in 5 not not paying the rent to him ad cpus l^ ufum of C, this breach is 2 Mod. 138. well alFifrned in the words of the covcnanc, though a ia) negative S.c. ad- » ' . .'5 V -' fa juoged; and pregnant. ^ la^d, that if it was paid to C, which is a performance in fubfJ-ancc, the defendant ought to have pleaded it. (j) For this 'uide 2, Leon. J 97, If in an a6lIon of covenant the plaintiff declares upon a cliarter- 2jones,TS6. party, by which the plaintiff, being niniler of a (hip, was to pay Bellamy and two parts of the port-charges, and the factor of the defendant the judged, other part, and the plaintiff fhews that he failed from L. to C, and there paid all the pert-charges, "o'l-z. two parts for himfelf, and the other part for the defendant, and that the defendant had not repaid him ; this breach is well affigned -, for when the plaintiff fiys he paid the third part, it Ihall not be intended the defendant did, but that the plaintiff was necefiitated to pay it, or otherwife his fhip would have been ftayed in the port. In covenant, which was that the defendant fliould make out a Carth. 124. good title in law and equity, before fuch a time, to the fatisfaftion R;iwinsaAd of the plaintiff, his heirs or affi^ns, or to his or their counfel learned adi'ujged in the law, the breach was affigned in the very words of the co- (*) Vidt venant \ and it was objeeled, that the covenant, being in the [b) ^fo- £'■«• disjun£live, "01%. to fatisfy the plaintiff or his counfel^ he had his ^ Mod i??. eletlion, and therefore the plaintiff ought to have given notice who Saik. 139. his counfel was, before which time the defendant could not fatisfy P^' +* him ; but it was refolved that the breach, being in the very words of the covenant, was fufficient ; and if the truth was, that the defendant did not know who the plaintiff's counfel was, he fliould have fet it forth in pleading. If an affignee of a term has a covenant from the affignor, that Saik. xjS. he fhall quietly enioy, free and clear from all taxes, and all arrears P^*.^ , r ci^iiii 1 rri- vjliffith ana or rent, cfr., though there be rent arrear, yet he cannot allign this Hamfon as a breach of the covenant ; for the rent being arrear^ is no da- adjudged, mage to him, unlefs he be fued or charged therewith ; and if paid at any time before he is damnified, it is fufhcient for him. So, if a counter-bond or covenant be given to fave harmlefs Sa!k. 196. from a penal bond, after the condition of the obligation be broken, P'- ^- /""" or to fave harmlefs from a fingle bill, without a penalty, the coun- ter-bond cannot be fued without a fpecial damnification. But where the counter-bond or covenant is given to fave harm- Salk. 197. lefs from a penal bond, before the condition broken, there, if the P^" 3- /'"' penal fum be not paid at the day, and fo the condition not pre- ferved, tlie party to be faved harmlefs does by this become liable to the penalty, and fo is damnified, and the counter-bond for- feited. The defendant covenanted to pay fo much ^:r chaldron for all sMod.^i^i, coals laden either at Newcajlle, or upon the river Tyne^ and brought Toddard to London ; and the breach affigned was, that the coals were laden dietoji. on fuch a (hip infra port urn de Tinniouthy viz. at North Shields, and brought from thence to London ; and on demurrer, the court in- clined that the breach v/as not well, affigned, for that they could not take notice judicially, that Tinmouth is upon the river Tyne, G 4 bttt S8 CoDenantjGf. but they gave the plaintiff leave to difcontinue upon payment of cofts. Loggin V. [In an a6lion on a covenant to pay money on one of two con- Orr^ryr ^'"^^""es, whlch {hall firfl happen, if the plaintiff fliew that one I Ld.Raym. ^as happened, he need not aver it to be the firfl. Dougi. 667. In a declaration in tliis fpecies of action it is not merely unne- Cowp. 665. cefTary, but improper, to flate the whole of tlie deed. So much only as will entitle the plaintiff to his adion muff be fnewn -, and that part need not be literally recited, but may be fet forth accord- ing to its fubftance and effeft ; though it is ufual and advifeable to deviate as little as may be from the expreflions in the inftru- nient.] (K) Where the Performance fliall be faid to be well fet forth and pleaded. Co. Lit. 1 F a man is bound to perform all the (a) covenants in an inden- Kdw. 9-. *"^^> ^^ ^^^y ^*"^ ^'^ ^"^ ^^^ affirmative, he may plead perform- Leon. 136. ance thereof generally. Palm. 70. Lev. 303. S. P. ( ^"'^ 3°''- ^^ anotlier day, the defend- adjudged. '^^^ ^"^Y pJe'^d payment of the 60 I .fecundumformatn ij effeBum con- (^)But fuch ditiofi'is prad.; for reddendo fwgulaftngulisy it is as if he had pleaded general _ j.j^g feverai payments at the ieveral (b) days. pleading is ^ •' ^ ' ■' not good, where a certain day of payment is not mentioned in the condition. 2 Buift. 167. — In debt upon an obligation conditioned to deliver fuch briefs fuch a day, the defendant pleads tliat he delivered them Jtcunditm fcrmam conditioms frad.y and the court i.ncl;ned to think it bad j but the matter was adjourned. Lev. 145. Cro. Eliz. If jn debt upon an oblit^ation, conditioned that if the obligee ^.70 Waller fl,^}} ^^- ^^^\^ l^^^jg jin ^^^^ f^n 3,,. ^f y_ 5^ ^„j if J 5^ ^,^^1^1,^ and Croot, -^ ' . , *- *^ * * aojudged. o"^ month after his full age, makes an aflurance thereof to the obligee, then, ^c. the defendant pleads that J. S. is not yet of full age; this plea is not good, without fhewing the obligee hath enjoyed the lands in the mean time ; for the condition is in the copulative. Cro. Jac. If in debt upon an obligation, conditioned to pay 30/. to yi.B. 359- and C. tarn cii'o as they fnall come to the age of twenty-one years, S.c. Haiit^y ^be defendant pleads tliat he paid thofe fums tarn ciio as they came and Carpen- of age, this is no good plea ; for the {c) time, place, and man- ter, Buift. j^^.. Qf performance, oueht to be fiiewn in certain ; fo that a cer- (f) If the tain ifiue migiit be taken upon it. condition be to fiirrender a copyho'.d, tlie defendant muft not plead generally, that he hath furrendered it, but muft (hcv wlien the court was held, &c. Winch, i l. adjudg'-d If the condition be, that the obligee ihail c-^joy an cffice accoioin_!» to letteis patent, the defendant mull not plead In ha:c i/erbuj but Ihcvv the eflcdt of the letters patent, and the eijoyment accordingly. Hob. 395. a Mod. 33. If in debt upon an obligation, conditioned to perform cove- Duck and nants, one of which was for the payment of money upon the adjudged'. making of an aflurance, the defendant pleads that he paid the mo- ney fuch a day, but faith not when the afTurancc was made, this is naught ; for that it ought to appear that the money was immedi- ately paid, purfuant to the covenant. 2Sapd.4?o. In an a£tion of covenant, the plaintiff" declared that his father \v;..itcn and ^^^ feifed in fee of a mcfiuap-e, and leafed to the defendant for twenty- Cobenantjaf* 91 twenty-one years, and that the defendant covenanted to repair, fupport, and amend the fame, during the term, and that his fa- ther died, ^c. and that the mefluage was totallter dirtit. isf niinof.f and the defendant pleaded, that before the houfe was ruinous, i^c. he afTigncd to J. S. and that after the houfe was burnt, quod- que in convenicnti tempore pojl deJlruEl\oncm donius prad.^ and before the a£lion brought, mejfuag. pr,ed. cutn pertifietdiis fufficienter re- tedificat.j t^c. fuity ^ adhuc in bond reparatione fufficienter exijlit. Adjudged, upon a fpecial demurrer, that this plea was naught; becaufe it was not fliewn by whom it was rebuilt ; though it was objedted, that (/z) it was not material by whom it was rebuilt ; and {a) i Vent, if by a ftranger, it could not be built again by the defendant •, and 3^'-^' ^* he having afiigned all his intereft before, it lay not in his notice by whom it was built ; but that it could not be prefumed to be built by the plaintiff; for that he could not intermeddle with the poffefTion during the term ; but by the report,, it being alleged that the plaintiff had rebullL it at his own charge, Hale refufed to hear the reafons, and qtmft in a paffion, without confidering the matter in law, gave judgment for the plaintiff. In debt on a bond, for performance of covenants in an inden- CartTi. 4, 5. ture, the defendant cannot plead performance generally, without Seems to be fetting forth the indenture. thathe can- not plead performance, wiihojt fhewing it. All. 72. i Vent. 37. Sid. 50. Mod. 266. Where he fwears he never had part theieof, or hath loft it. Sand. 8, 5. Cro. Jac. 429. In covenant by an affignee of a leafe, againft the affignor, who Skin. 397. covenanted to indemnify the affignee from all rent arrear, ^c. the P'-.S^- breach affigned was in the non-payment of the rent ; to which Harrifon^ the defendant pleaded as to part, payment to the leffor ; and as 4 Mod. 249. to the other part, that he left money with the plaintiff ed inten- ^f^- '9^- tiotie quod folverct to the leffor; though it was objected, no iffue a;:'-udged. * could be taken on his intention, yet the court [Holt^ C. J. con- tra) inclined the plea was good, but held clearly that if it had been reliquit ad folvendum^ it had been good, and that non reliquit modo ilf forma^ had been a good traverfe. [On a covenant " to permit the plaintiff in the lad year of the Hughes v. term to fow clover among the barley and oats fown by the de- ^i^hman, fendant," the breach affigned was, " that the defendant fowed °^^''' '^^' barley and oats ivithont giiiitig notice to the plaintiff;" to which the defendant pleaded, " that he did not prevent the plaintiff from fowing as much clover as he thought fit;" and adjudged a good plea.J (L) What may be pleaded in Bar to the Adtion. iN an a£lion of covenant for non-payment of rent, the defendant 2 Rrownl. -■■ cannot plead levied by dijlrefsy for that is a confeffion it was not ^'37- Hare paid at the day ; for it could not be diftrained for till after the day ; adhidgid!* but it was agreed, that the covenant alters not the nature of the rent; but that nothing behind,or payment at the day, is a good plea. In 92 €oDenaiUj9f» ^ Lev. 7. In debt upon an obligation, conditioned that If a flap that wattonand ^.^g going fuch a voyage fliould return, (the perils of the fea ex- •on. '"^" cepted,) the defendant fhould pay fo much ; but if the {hip fhould be loft, nothing, &c. the defendant pleaded, that the {hip did go on her voyage, and, in her return, fuch a day amijfaftnt ; and it was adjudged a good plea, though it was not faid quod amijfnfuit periculo maris ; and flie might be loft by the defendant's own default ; for the plea is in the laft part of the words of the con- dition, which makes the bond void, as well as if the {liip had re- turned, ^c. (fl)Lev.T52. It has been adjudged, that to avoid circuity of aflion where johnfonand [here are reciprocal covenants in the fame deed, one cove- nant may be pleaded in bar to another ; as {a) in an inden- ture of a leafe for years, where the covenant was that the lelTee might fubdu61: for charges, and he pleaded this cove- nant in bar to an adion of debt for the rent, it was holden good, s Mod. 309. But in 2 Mod. 309. it is faid, that reciprocal covenants cannot ^r^"^^2 be pleaded one in bar of another, and that in the afhgning of a 7 c^." Ugh- breach of covenant it is not necelTary to aver performance on the tred's cafe, plaintiff's fide. Cro. Jac 645. 3Keb. 351. 3Lev. 41, 42. Show. 391. Comb. 265. Sand. 319. As, whcrc z writing was drawn in thefe words, It is agreed that Pordage A. Jhall pay to B. 170/. for his land and houfe, &c. the money to be Lev, 274. P^^<^ before Midfummer. In witnefs^ &c. It was fealed by both Sid. 423. parties. The money not being paid at the day, [_B. brings an adlion ^kT ^^^' °^ ^^^^ upon the bill, but makes no averment in his declaration S. C. ' that he had conveyed the land, or tendered any conveyance of it ; it was holden to be well brought notwithftanding, for both par- ties fealed the deed ; and if the plaintiff had not conveyed the land to the defendant, he might have had an action againft the plain- tiff on the agreement contained In the deed, and fo each party had mutual remedy againft the other : but it might have been otherwife, if the fpecialty had been the words of the defendant only, and not the words of both parties by way of agreement, as in the cafe ftated.] Hil. 20 and So, in an a£l:ion of covenant the cafe was, A. covenants with 30 Or. 2, j5^ |.Q j53j,j^e \^\t^ a good leafe of his land and his flieep, and that Tuejad- -^' ftiould have {ire -wood upon his land, and B. covenants to pay judged. one half year's rent at Michaelmas following •, in an aflion of co- venant for this rent, B. pleads, that A. refufed to leafe the land before Michaelmas -, ^ per toiam cnriam^ The plaintiff muft have judgment, for B. has his remedy upon the covenant of A. Hewlett V. [Unliquidated damages arifuig from a reciprocal breach of co- Strickiand, yenant, cannot be pleaded by way oi fet-off. Turner v. But vv'hcre the covenants are dependent, no action w^ill lie by Goodwin, j^jg Qj,g party againft the other, unlefs he have performed, or of- 10 Mod. r 1 ^ 1- 1-- 1- 1- r T I • joo. 2 Bar- ftred to perform his covenant; the perlormance or the one bemg n.'.rd. 308. a condition precedent to the performance of the other : therefore;, Jones V. whcr« Courtief, ann tfieir Juvigtiietion in general. 93 where two a(Sls are to be done at the fame time, neither party Barkley, can maintain an adlion without fliewing a performance, or offer £?"6i- 684. to periorm on his part. J Prefton !(/. 689. GOodiffon V. Nunn, 4 Term Rep. 761. And where mutual covenants go to the whole of th« confidcration on e.Kh fide, they are mutually precedent conditions. Boone v. Eyre, cited in i H. £1. 273. Duke of St. Alban's V. Shore, id.zjo. But if there be a covenant, that an obligee fiiall not put the Carth. 64. bond in fuit at any time, fuch covenant is pleadable in bar as a re- f^''^"''' leafe, becaufe in efFe£t it is fo ; but where the covenant is that it fliall not be put in fuit for a certain time limited in the deed, this is only a covenant ; and for breach thereof an adlion is maintain- able, but is not pleadable in bar to the bond. [Accord ivlth fatlsfaclion by deed^ is a good plea in difcharge of Robards ▼. covenant, as well before breach as after ; becaufe it is an adtion Stoker, merelv perfonal ; in which only damages (hall be recovered, and F^'n'l'i?* ^» irci 'In Ruflell It enures as a releaie or the covenant. v. Ruffeii, 3 Lev. iSg., it is faid to be no plea, unlefs executed on both parts. . So, accord lo'ith fatisfoBion hy parol ^ made after the breach, is a Co. Entr. jrood plea, the defendant alleging that the terms of the agreement "7- ^ovt. J 1 r J -.1, U- . T ° ever, ava- were duly complied with on his part.] riation by parol, of the terms of an agreement under feal, can avail neither plaintiff' nor defendant at law, though fuch new difpcnfation may be a ground for refortin^ to a court of equity. Littler v. Holland, 3 Term Rep. 550. Courts, anD Vs^tix 3luti0tit(tion (n FOR the better underftanding of the nature and jurifdidllon of courts, it may be neceflary to premife feme confiderations concerning them in general, before each particular court comes to be treated of 5 and this I fhall do by confidering, (A) The Nature and Original of our Courts, and by what Authority conftituted. (B) Of the Judges and Perfons exercifing a Ju- rifdidlion. (C) What determines their Jurifdidion and Au- thority. (D) Of 94 Court*?, anti tfttir Jurfetiiaion in genecaT, (D) Of their Dlvifion, and the Subordination of one Court to another : And herein, 1. In general, of the feveral Kinds of Courts which exercife a Jurifdi6tion. 2. Of fuch as are of Record or not. 3. How inferior Courts muft claim their Jurifdi6lion ; and herein of Pleading to the Jurifdi£tion, and demanding Conufance. 4. Where it muft appear that inferior Courts have a Jurif- di6lion. (E) What is incidental to all Courts in general. (A) Of the Nature and Original of our Courts, and by what Authority conftituted. "iN the Saxon times, the JVittingham Alote * was the chief court "*• of the kingdom, where all matters both civil and criminal, and alfo relating to the revenue, were debated and determined j but for civil and criminal matters, it was only a court in the firfl: in- ftance, for fa£ts arifing within the county where it fate ; but by way of appeal from the injuftlce of other courts, it heard and de- termined caufes from all other counties. Lamb. Arch. 57. 239. 245. Mirorr, c. 5 §1. * Or lu'iten- cgemot, or noitten-age- mot. See Squire on the uingh-Saxon Government, 1 65 Lamb. Arch. 339. Maddox, MaJdox, c. 9. To this court were fummoned the earls of each county, and the lords of each leet, and like wife reprefentatives of towns, who were chofen by the burgefles of the town, who appeared on the king's fummons, which ifiiied once a year at lead ; and here new laws were enabled, or old ones repealed, after the manner of our parliaments. But William the Conqueror caufed the dates to recognize him, and fearing that thefe parliaments, confifting of EngUJhmen^ might prove dangerous, he eflabiiflied a conllant court in his own hall, made up of the officers of his palace, and they tranfadled the bufmefs both criminal and civil, and likewife the matters of the revenue ; and as they fate in ihe hall, they were a court criminal, and when up the flairs, a court of revenue j the civil pleas they heard in either court. The court confided, i. Of the Jiifiiciar^ who prefided, and was called Capitalis Jnjiiciaritis totitis Aiiglia^ and chiefly deter- mined all pleas civil and criminal, and was alfo the chief officer of date. 2. The chancellor who formed all patents, and put the feal to them, and had the cudody thereof, both for writs and patents. CourtiEf, ann ttcir 3[utfet5ictton in general 95 patents. 3. The treafurer, before whom all accounts were chiefly audited ; and he it was that prefided in matters relating to the re- venue. 4. The conftable and marfhal, to whom all matters of honour and of war and peace were referred, to determine accord- ing to the law of nations and of arms. 5. The fenefchal or fteward, and marflial, who determined the quarrels and difputes between the king's menial fcrvants 5 the marflial was aUo to keep the prifoners, and take care that no indecency was committed in the king's houfe. 6. The chamberlain, who was to count the king's money as it came in, and iflued out of the treafury. This was the fovereign court of the kingdom, where juftice Maddon, was adminiftered, and where all matters of the higheft moment *^- ^• were tranfa£led by the king himfelf and thefe officers ; yet, in fome cafes, of great importance, as upon the levying of a new war, or raifmg an efcuage, m.ofl of the great perfons that held in capite were called, and then it was termed the commime concilium regniy or the parliament \ to which afterwards the reprefentatives of bo- roughs that held /// capite were called. Towards the Norman period, the power of the jufticiar became Maddox, formidable, and in the barons' war was turned againft the king ; ^* ^* the king alfo found, that the barons who held large dillridls, were likely to grow more and more troublefome to the crown ; for though in the Conqueror's time, and for fome reigns after the conqueft, they were kept in very good fabje£lion, the Norman and EngliJJj barons being a balance for each other ; yet time wear- ing away the diftinction, and the Normans growing up Engii/Jjy they became fond of thofe liberties and privileges that the EnglijJ} had enjoyed in the Saxon times; hence it was neceflary to intro- duce a new policy, and hence the original of our courts, as we have them at this day in Wejiminjler-kall. To give countenance to this new eretlion and divifion of courts, Maddox, (which was completed by E. i.) as alfo that it might dill be feen, ^' '9- that all juftice flowed from the king, the king himfelf {a) fat in g^J ^'. perfon in the court of {h) Kings Bench ; and hence the power of Pvoil. Abr. this court, which it flill retains, of exercifing a fuperintendency 94->S's'"^' over other jurifdidtions ; but though tlie king was fometimes pre- ^r ' ' fent, yet the chief juftice gave the rule, that the king might not {") Speed, decide in his own caufe. ^V' ^°"' Abr. 535. JEd. 4. * and Rich. 3. ■}- fat there in perfon. Ho-w. Mod. Ili/I. ^ng. * 131. -f- 136. {i>) Is ilill fuppofed to have always the kir.g himfelf in perfon fitting in it. Oyer, 1S7. pi. 6. MaJdox, 543. Cronipton of Courtb, 78. — And hence every prccefs in the King's Bench is made returnable before the king himfdf. z8 Afl". pi. 52. But however this regulation might have been begun, or however 2 iml. 73. it might have been formerly, as to the king's fitting and determin- ^ Hawk. ing in caufes, it feems now agreed, that our kings having dele- gated their whole judicial power to the judges of their feveral courts, thcfe judges, by the long, conftant, and uninterrupted ufage of many ages, have now gained a known and ftated jurilditlion, regulated by certain and eftablifhed rules, which our kings themfelves cannot make any alteration in without an a6l of par- liament. But g6 (ZTouctiS^, anD tfjcir jui'iBDiftlon in general S. p. C. But as the king is the fountain of juflice, and the fupremc I^Hawk. niagiflrate of the kingdom, intruded with the whole executive P. c, 2. power of the law, no court whatfoever can claim (a) any ju- (d) There- rifdidlion, uniefs it fome way or other derive it from the fore if an •' ordinary C^OWn. certify, or try baftardy, without a writ from the king's temporal courts, it is void ; for the fpiritual jurifdidion within thefe kingdoms is derived from the king, and muft be exercifed in the manner the king has appointed. Roll. Abr. 361. 6H.7. 4. b. But it is clearly agreed, that the king cannot give any addition 4'init. 1 2-. ^^ jurifdiclion to an ancient court, but that all fuch courts muft 327. be holden in fuch manner, and proceed by fuch rules, and in fuch 6 Co. II. b. cafes only as their knovi'n ufage has limited and prefcribed ; and hence it followeth, that the court of King's Bench cannot be au- thorized to determine a mere real adlion between fubjeft and fubjecl ; fo neither can the court of Common Pleasy to inquire of treafon or felony. 4-Inft. 87. And it is faid, that the king is fo far reftrained by the ancient (l)That'the f^^^ms, in all cafes of this nature, that his grant of a [b) judicial king cannot office for life, which has been accuftomed to be granted only at grant a mere will, is Void. fpiritua! ju- rifdidtion, as to ordain, inftitute, &-C., to a lay perfon, nor can he exercife them himfelf j but muft adminifter thofe laws by biihops, as he does the common law by judges. Vide Cro. Eliz. 259. 314. 4Afr. 5. Alfo, commiflions to feize the goods, and imprifon the bodies miffio^°"'" °^ ^^^ perfons who fhall be notorioufly fufpe£l:ed of felonies and J5, le'. ' trefpaffes, without any indidlment or other legal procefs againft 32 Co. 30, them, are illesal and void. 31. alnft. ^ 47S. A commiffion under the great feal to take J. N., a notorious robber, and to feize his lands and goods, illegal, z Inft. 54. And it is faid, that the king cannot grant any new commiffion whatfoever that is not warranted by ancient precedents, however neceflary it may fecm, and conducive to the publick good ; and, (f) 4 Inft, therefore, (c) commiflions to alTay weights and meafures, being of 1 8E. 3. T.4. ^ "^^^ invention, were condemned lay parliament •, and it is {d) 2 Inft. (d) faid, that the king could not authorize perfons to take care 472. of rivers, and the fifhery therein, according to the method pre- fcribed by the ftatute of We/Im. 2. cap. 47. before the making of that ftaiute. (B) Of the Judges, and Perfons exercifing a Jurifdidlon. 4 Inft. 7c, 'THE king himfelf, though he be intruded with the whole 7^- l^JP''^' executive power of the law, cannot fit in judgment in 13? b. ^"y court, but his juftice, and the laws, muft be adminiftered ac- s. F. c. 54. cording to the power committed to and diftributed among his fe- Dait. c. I. ^,£j.^j courts of juftice. 6 All (EourtiS^, anD tftefr 3:uri0t)i'S(on in general 97 All judges muft: derive their authority from the crown, by feme 4 In/l. 74, commiirion warranted by law: the judges of Wcjlrninjler are "5- [(".) H« (ail except the Chief Juftice of the King's Bench (a), who is jy maje by" created by writ) appointed by patent, and formerly held their patent aifo: places only during the king's plealure ; [h) but now for the greater ^1^° a'tera- fecurity of the liberty of the fubje^l, by the 12 cff 13 W. 3. c. 2. place under their commilhons are to be quamdiu fe bene gejferint ; but upon E. i., when the addrefs of both houfes of parliament, it may be lawful to re- ^'* ^'J^^*^* move them. ixo^^jummui to capharii juftkianus. Ibid. {h) The chief and other barons of the Z;cchequer were created ia Sir E. Coke's time, q'torr.d'tu ft bene ge£'trint, /J. I17.J And by the 27 i/. 8. cap. 24. it is enafted, *^ That no perfon or " perfonsof what eftate, degree, or condition foever they be, fhall *' have any power or authority to make any jufticcs of ^j/v, juftices '' of affife, juflices of peace, or jultices of gaol-delivery, but that *' all fuch ofhcers and miniilers fliall be made by letters patent *' under the king's great feal, in the name, and by the authority of *' the king's highnefs, in all (hires, counties palatine, Wales, ^c, *' or any other his dominions, (5*^., any grants, ufages, allowance, " or act of parliament to the contrary notwithftandlng." As all judges muft derive their authority from the crown, by Bro Judges, fome commilhon warranted by law, they muft alfo exercifc it in a "• legal manner, and hold their courts in their proper perfons, for cro. Carl they cannot act by (c) deputy, nor any way transfer their power to 259. Cro. another, as the iudges of ecclefiaftical courts mav. ■^','^^?"''* 'JO 4 f^c) That a recorder of a town, unlefs the cuftom allows, cannot make a deputy; for this is a judicial office. Vide Ravm. 88. Lev. 125. Keb. 53S. 639. 659., and the title O^.a ar.d Off.ari. But it feems, that, regularly, where there are divers judges of a 2 H5'.vk. court of record, the a61; of any one of them is effectual, efpecially ^•^- 3' if their commiflion do not exprefsly require more. authoritiesTberTdtld! The judges are bound by oath to determine according to the ^/i^thefta- known laws and antient cuftoms of the realm ; and their rule herein '"'" ^^ ^• muft be the judicial decifions and refolutions of great numbers of 20 E. V- learned, wife and upright judges, upon variety of particular facts c. i, z. and cafes, and not their own arbitrary will and pleafure, or that of 4- ^'■^' ^^* their prince. S. 13. But though they are to judge according to the fettled and efta- s.p.c.173. blifhed rules and antient cuftoms of the nation, approved for many Co. 24. fuccefiions of ages, yet are they freed from all profecutions for any 21 e. 4. thing done by them in court, wjiich appears to have been an [d) 67. a. error of their judgment. fjl''^;,^^^* Jo (. i2Afl'.2i. 4lnft. 163. H. P. C. 162. (A) Whe- ther ihey have notice theieof or not. 4lnft. 73. Butya. 21H.7. 29. b. [Bro. Commifiion, 10., faich that it is not determined, unlefs proclamaiion \i made of the coming of the King's Bench. But fee a Hawic. P. C. c. 3. § n.] If a commiffion is made to judges of affife, and after the king Keiw. 116. makes other judges of affife in the fame county, {c) by this the (■;) ^"* firll commiffion Is not determined, but they may proceed there- the iVuine upon [d) till notice of the fecond ; and they are not bound to take and notice notice of a proclamation thereof In the county, for the law hath "^thefc- not provided that any fuch proclamation thereof fliould be m.ade. million, the firft is actermined, and what fliall be futlicient notice, ■t';rf<; Lfon. 270. Gcdb. 105. 34 Air. 8. Bro. Comminion, 14. Moor, iS6. pi. 353. H.P.C.162. 4lnil.i!>5. Dyer, 355. p. 56. Andyet ^e pryccedings ihall not be difc«atim>ed, vldt the ftatut«5 of x 1 K 6. c. 6. aiid j L. 6. c 7., aod 2 Hawk. H a P. C. loo Couct0, ant! tljclc Jurfisftiiftion in general p. C. c. 5. § 1 1. (ir. li. the commifTion be granted for a certain time, or qunmdiu nobis pla- P^'^''°^' cuerit, as it does not necefiarily require any adjournment, if the court liolden by virtue of fuch commiflion break up without any adjournment, or upon a void one, as being made without the con- fen c of the majority of the commilTioners j yet it may be holdeii again on a new fummons. (<») Rro. It was [a) formerly holden, that by the juftice's acceptance of Commif- gj^y ^^^^, name of dignity, the commiffion was determined ; but (A) tut \t this is remedied by i E. 6. cap. 7. by which it is enadled, "That hath been <« if any perfon, being in any of the king's commiffions whatfo- w^'e-hcr'the " €ver, fhall fortune to be made or created duke, archbifhop, dignity of " marquis, earl, vifcount, baron, bifhop, [b] knight, juflice of the a baronet, « one beuch or of the other, or ferjeant at law, or [c] flieritr, yet bee'ncrea?ed " ^^^^ Hotwithftanding he (hall remain commiflloner, &c." fince that ftTutc, be within the equity of it. Cro. Car. 104. Lit. Rep. 81. _ (e) But now by the 2 Ma. c, 8. No peifau being iheiiff, fliall cxercife the office of juftice of the peace. " By the i&iP.h.^'AI. cap. i8. a new commiflion of the ** peace, or gaol-delivery for the county, ifc, fhall not fuperfede *^ a former commifTion for a city or town corporate being no *' county." (D) Of tbeir Dlvifion, and the Subordination of one Court to another : And herein, I. In general, of the feveral Kinds of Courts which exercife a Ju- rifdiclion. Hale's An. ^y^HE moft general diviflon of our courts is, into fuch as are of 35- * record, or not ; thole of record are again divided into fuch as are foprem.e, fuperior, or inferior. Hale's An. The fupreme court of this kingdom is the high court of parlia- 35* ment, confiding of the king, lords, and commons, who are in- vefted with a kind of omnipotency in making new laws, repealing and reviving old ones ; and it is on the right balance of thefe three dr-pends the well-being, and indeed the very being, of our coidlitution. i:a!c'5 An. Superior courts of record are again, thofe that are more princi- 3 ■ pal or Icfs principal; the more principal ones are the Lords Houfe in Parliament, the Chancery, King's Bench, Common Pleas, and Exchequer ; and by Hn/e, fuch are the jultices itinerant ad com- mimia placitn ^ ad placita fore flit. iToic's An. 'j'he !efs principal ones are fuch as are held by commifTion of 2 ■ gaol-delivery, oyer and terminer^ alTife, nifi priusy ^c.j by cuflom or charter j CouctiBf, ant) tljtk Juri5tJi8ion in general loi charter •, as the courts of the counties palatine of Lancajier^ Chejler^ Durham ; or by virtue of a£l of parliament, and the king's com- mi.Tion, as the court of fewers, juitices of the peace, irV. The inferior courts of record, as ordinarily fo called, aie corpo- Hale's An. ration courts, courts Iset, and flieriffs torn, l^c. 3^- Courts not of record are the courts baron, county courts, hun- dred courts, K^c. Alfo, the admiralty and ecclefiaftlcal courts, which are not Vide pop ot courts of record, but derive their authority from the crown, and ^^^ Adnw- are fubjecl to the control of the king's temporal courts, when "cdffiafti- they exceed their jurifdiclion. cal Courts. All thefe are bounded and circumfcribed by certain laws and Hale's An. ftatcJ rules, to which, in all their proceedings and judicial deter- 35- minations, they mull fquare themlelves. And here it may be proper to oblerve, that where aftatute pro-^ Dyer, 236. hibits a thing, and appoints that the offence fliall be lieard and de- ^Co. 19, b. termined in any of the king's courts of record, it can be pror , g. (.>o, ceeded againft '/?) only in one of the courts of Wejlminjler-Hall^ Hiz. 737. becaufe thofc being the highed courts of record, lliali be intended ^'^' ^"* only to be fpoken oi fecuiiduin excellenU.im. Cromp, Jur. I 32. Salk. 17S. (a) But that on a ftatute fo worded, the profecution may be in any court of eyer znii terminer. 4lnft. 164. H.P. C. 261. 2. Of fuch as are of Record, or not. Every court of record is the king's court, though the profits Co. Lit. J7. may be another's : if the judges of fuch court err, a writ of error ^^°- 3^- ''• lies; tlie truth of its records fiiall be tried by the records them- -Lev.2o<. felves, and there fliall be no averment againll the truth of the mat- ter recorded. All fuch courts are created (h) by acl of parliament, letters pa- (^) Co. L'c tent, or prefcription, and (c) every court, by having power given it ^^^\\ to hue and imprifon, is thereby ( b. cond deliverance^all be granted, which the franchife cannot do. fj°^^ °""' S. C. 26E. v?!- D-iIf. IJ. Co. Lit, 134. b. S. P. (f) 38E. 3. ■^i. conulance is not grantable, becaufe tiie original writ of replevin is in nature of 3 jti/licies, and not returnable, and in j juflicies no co- nufance can hi demanded, becaufe none can demand conu'.ance but he that i.at'i a court of record ; but the c >unty court, thoujjh the plei is hohen by juftiiies, is no court of lecord, and it the iheriff Ihould gianS the conufance, he could notaward a le-lummims. a Inft. 140. Bro. Conufance, 4. 23. Nor in wafte, becaufe by the ftatute the writ muft iflue out of i H. 4. 5. the Chancery at IFeJhnliifter^ and thole writs are returnable into ^^"^ '-• the [d) king's courts there, and not into any inferior court. riufancecrii be granted u^on an attaint, bi;aufe all attaints, /icr 23 H. 8. c 3., ;ire to be tjicen bef-jre the liing in his bench, or before julHces of the Common Fleas, and in no othti cjutt. Co. Lit. 294. Dyer 202« Kelw. 210. N.iiendl. 99. Nor in admeafurement of pafture, becaufe the franchife cannot Dalf. 12: grant a writ ilc fcciitnld ftiperciieratlone. So, if a -fine be removed out of a franchife by writ of error in t,o A(^. 9. B. R. and a fcire facias iiuie out to luve execution, they ihall !.^'*'- '-''•"'i- not have conufance ; becaufe the king never parts with the re- Roh.'Abr* cords of his court, and without it they can do no right to the ^j^. i. c. party. If a borough have an ancient cliarter, by which it was granted N. Bcndl. to thern quod tntllus burgeufts inkahitans infra biirginn pr^ed. placit. ^^* P'* '34* vd implacitdur de terris, titiemetitis^ cGntra6libus ^ \lfc. witliin the borough, elfewhere out of, '<^c. and the mayor and burgefles of H 4 the 104 Courtsf, antJ tbeir Jiiri^tiiaion in genetaL {a) So, the faid borough are empleaded /;/ Banco for lands withhi their where conu- boroLigh, they ihall not have conufance; for in this action («) the granted to wholc body is empleaded. the chiwcellor of the univeifitv, to ho!J plea where fchilars or privileged perfons are concerned, this fliall. not extenJ to an aflion .iga'mft the prt.ii 'ent and ichours of a college. I Mod. 163. [This cafe is erroneoufly reported, — the claim was allowtd. j 2'- H. 7. If the king grants tiinjon'f ballivisy ^ juratis quinque portumny Keiw. Sf!, ji^^j. fi^j.y fi-jgh ,^()j be empleaded for land or other caufe elfewliere, ^' ' than within the faid ports, yet in a quo warranto^ tsfc . where the king is direitly a party, they fhall not be empleaded there. [The like If a fcholar of Oxfjrd or Cambridge be fued in Chancery for a 'n fucli for the defendant cannot plead by attorney without leave of the P'^^i^^ce- court firll had, which leave acknowledges their jurifdiclion ; for r.iuft make the attorney is an officer of the court ; and if they put in a plea but half ie- by an officer of the court, that plea muft be luppofed to be put in |fg""'^^^^^ by leave ot the court. fu.ioefence, SS qv ird^j i2f ubicur. unJUera-vcrit, he fubmits to the jurifdiftion. Co. Lit. 127. b. Mud be pleaM.', 4 Burr. 2244.] But where the proceedings of an inKrior court need not be fet forth at large, but by way of taiucr frocefjumfuit. Vide z Ltv. %i. 3 Lev, 403. Carth. 53. [2 Mod. 195. Lord Ray ni. 80. I Wiif. 31b. 2 Wilf 5. Cowp. 20. Greater indulgence hith of late years been fhewn to inferior courts, and the p-elumption hath rather Leen in tavour of their jurifdidlion. In a juliiticition under the procefs of an inferior court it is fufficient to llate tr-at a plaint was levied for a cuiie of adlion arihng within the jurifdi^iun, without fetting it forth at lengrh, or dll-ging that the defendant became indebted there. Cowp. 20. 3 Terra Rep. iS^ j (j) Sand. 74. Sid. 3:1. Same rule — whether if a.7 bridge fhould be intended within the jurifdiction of the court of iia//. Lev. 289. Vent. 72. duLitjtu-,^ i/ide Style 200. Lev. 154. • Therefore if an a£lIon is brought on a (Z-) promife in a court RoU. Abr. below, not only the promife but the cotifi deration muft be alleged ^^^l^l^^} to arife within the inferior jurifdittion; for a debtor, who has tothispur- contraded a debt, does not, by coming into the limits of fuch pofc. [See 4 jurifdiclion, io6 CouctjBf, anti tfjci't Jun'stiiSion in general too I Lev. jurlfdlclion, give fuch court authority to hold plea thereof; not' 5o_96.i37. jg jj. fuf[^cient to allecje the caufe of aftion within the iurifdi6tion 2 Co* 1 Lev. ^ , -' , 87. iSaund. of tlie court ; but it muft be proved upon the trial j and if the 73. Ld. plaintiff proves a confideration out of the jurifdif^ion, it cannot awnf^^s"^ be given in evidence; and if it be, the defendant's counfel Cowp. 20. (0 iiiay propofe a bill of e>:ceptions, and upon fuch bill of excep- Freein. 321. tions the judgment will appear to be erponeous. J Term ^01* Rep. 151.] [h) An inferior court cannot hold plea of an obligjtion, contra£l, battery, or other tranfitory aftion, if it was not made within the jurifdidtion or' the court, alnft.231. (/') Where he muft plead to the jutifdi(flion, and if fuch plea be refufed, an attachment lies. 210(1.229,230. 2 Lev. 230. Raym iS^). Mod. Si. But fuch plea muft be put in prctrii ferjcna, and whilft the court is fitting, and oath muft be made of the truth thereof. 6 Mod. 146. But i-.'Je Carth, 402. That a plea to the jurifdidlion need not be on oath, as a foreign plea mult. By A Ann. c. 16. § ii. no dilatory plea is to be rece.ved without affidavit of the truth, and the affidavit muft ftite that the plea is true in fubftance. Where upon the ikxiuisof Wijimitifiir i. c. 35. a prohibition will be granted. Salk. 201. pL 5. ;iC2. and by F.N. B. 45, 4b. 3.R0II. Abr. 317. Though the defendant by plea admits the jurifdiclion, yet the fuperior court may grant a prohibition; but in 2 Mod. 271. Meudyke and Stint, it is adjudged, that after verdict and judgment, no prohibition lies r, but there faid, that if any matter appears in ths declaration, which fheweth that the caufe of aftion did not arife Infra jurifdlcii'-ncri!, a prohibition may b'.' granted at any ti.nie : fo, if the fubjcft matter in the declaration bj not proper for the judgment and determinition of fuch court ; or if the defendant, who intended to piead to the jurlfdidtion, is prevented by an art. rice, as by giving a /hort day, or by the attorney's refufing to plead it, &c., or if his plea be not accepted, or be overruled ; in all thefe cafes, a prohibition will lie at any tiriic. 2 Mod. 273. Where tiover, trefpafs, or faife imprifon.Tient lies. 22 E. 4. 31. 10 H 6. ly- As where in an action oi faife imprifonmcnt, the defendant jultified the appreheniling; of the tlaintifF by virtue of a parol con:m2r.d, and the prelcription being that it muft be by precept, (which muft be underftood in writing,) the plaintiff had judgment. Kob. 63. But an officer may proceed 0:1 his du^y, and execute a procefs, though there be no caufe of adtion, or though it arofe out of the juiifdidtion, unlefs the contrary appears to him. Sa'k. 2C2. / Saund. 74. But here a diflin£l:ion mufl be obferved between counties pala- Peacockand jjj.^^^ ^^^^^ othcr inferior courts ; for a county palatine is a general judg'ed. Sid. court for all the fubjc6ts of the palatinnte, and not merely for the 331. S. c. caufi^is arihng within that palatinate ; fcr if a debtor goes from a foreign county into a palatinate, his obligations go along with him, as much as if he went from one kingdom into another ; and if it v/ere otherwife, a palatinate jurifditlion v/ould be a flielter and ajy.inn to debtors, for no procefs but the fupreme preroga- tive procefs runs there; and therefore it is determined, that though the caufe of aclion be out of the palatinate, yet if the party be a fubjc£l of .that palatinate, as he is by coming into that dominion, that the adion there may be brought againlt him. Roll. Abr. In an a£lion upon the cafe in the court of Lnuncejlon in Ccrtiu- 546. ad- j,j^^ jf ji^^ plaintiff declares, that whereas he was an attorney of •^" ' the huncired court of Strattoji ii: Corntdnay the defendant having communication with J. S. of the faid office, of the plaintiff, faid thefe fcandalous v/ords of him within the jurifdiclion of the faid court of LatmceJIctiy Thou art a chenter, l^c. after verdicSl for the plaintiff, and damages given, the judgment was reverfed upon a writ of error ; for the jury could not inquire whether the plaintiff was an attorney of the hundred court or not, being out of their jurifdiftiun ; and tins was the principnl caufe of the aclion. Lev. 50. If in the marOial's court the plaintiff declares, that in conf- R',miay ard deration the plaintiff, at the requefh of the defendant, had taken adiud"eT* piiins to procure him a leafe of an houfe in Holborn ; the defend- and the aut apucl S. infra jur.^ is'c. promifed to pay him 10/. ^sc. this is j.idiiment jjqj. jufiicient to entitle the court to a iurifdiclion ; in as much m tlie Mar- j ' Coutti?, ann tijcit 3luri0tiiaion in general* 107 as it does not appear that Holborriy where the houfc ftands, is rnalfeare- within the jurifdiclion, and the jury are not only to try the pro- ^"'-'^- ^J'^- mile, {a) but the confideration alfo. (a) Judg- ment upon an ajfumpfit, in confideration that the plaintiff would folicit a cau!e in Chanc-ry, reveried for want ofjurifdidtion. Vent. 2S. & -v'xde Lev. 289. I Vent. nx. — Whce in debt againit an heir, if he pleads riem fcr dijcent, the plaintiff mull reply affets within the jurifdidion. • Roil. Abr. 494, In an indebitatus ajfumpfit for money for a cow fold, it muft ap- sid. S7. pear that the fide was within the jurifdiclion ; for the being in- ^-'X'" 7S« debted there does not neceflarily imply that the fale was there, \l^^ ^,' for he that is indebted in one place is fo in every place. 208. b^ P. Vent. 2. 243. 2 Lev. 87. Jones, 230. S. P. In debt for rent, upon a leafe made infra jitr. of an inferior Lev. 104. court it muft appear alfo, that the lands lie within the jurifdic- ^iJ. loi. tion ; for if part of the caufe arifes within the inferior jurif- 5. c.' Drake diclion, and part without, the inferior court ought not to hold andiieare. plea. In an a£lion for calling the plaintiff ivhore^ by which flie loft Sid. S5. 95. her marriage, the lofs of the marriage mull be laid within the ^^^J""^" ^^* jurifdiclion, becaufe the words are not aclionable without fpecial saik.4c*4. damage. pi- ij ^^ ° s. v. For the lofs of marriage is the gift of the adion, ©" vide Sid. 342. Lev. 153. Keb. 798. 837. March, 48. But if in an a£lion upon the cafe in the court of Bath^ in com. Roll. Abr. Somerfety the plaintiff declares, that he was a tailor, and that he i^^\ '^°*'* riir-i r r i r -ii-- ■ r ^^-^ Ireland, uled the laid art tor leveral perlons mhabitmg tarn injra civitatem (j,.(j_ ,^^^^ pradici.y quam alibi infra regnuin Anglia^ and the defendant, to 570- fcandalize him in his laid art, faid thefe words of him : Th:u hafl J"""' 45o« Jiole as much cloth out of my fuit and cloak ivhich thou madefl for me^ as did make thy ivife a ivaijlccat ; by which he loft his cu Homers ; the aclion lies in that court, notwithftanding the allegation quam alibi infra regtium Anglic, for that is only matter in aggravation of damages. So, if in the court of H. the plaintiff declares, that he lent his Sid. 151. horfe at H. for the defendant to ride to B. and that the defendant ff°- alTumed at H. to re-deliver him, this is well enough ; for it is not the riding, but the re-delivery, which is the caufe of the atlion. So, in a writ of error of a judgment in the Palace Court, in SjIIc. 404. an a6lion on the cafe, wherein the plaintiff declared, that fuch a p'- ^* day, in fuch a parifh in the county of Middlefex^ he delivered to ^ " ' nal^' the defendant (being an inn-keeper) a gelding, fafely to be kept Sianniin in his inn, and that he fuffered him to be taken out of his ftable, ^,"'^ Davi5, and rid fo immoderately that the gelding was fpoiled ; it was ob- s.c! ^"^* jecled as error, that the riding did not appear to be within the iiMod.7. jurifdiclion of the Marflial's Court ; but per cur. in aClions in P'* ^* inferior courts, it is necefTary that every part of that, which is the gift of the a6lion, fhould appear to be within their jurif- di6lion ; otherwife of fuch matters as are inferted only for ag- gravation of damages, and might be omitted, and yet the ac- tion remains as in this cafe j and therefore the judgment was afHrmed. io5 <2:ourt of parliament What is incidental to all Courts in general. (E) to" Roll. Abr. tF the king grants a court by letters patent, to a corporation of 526. ±2, town to hold pleas, ^c. in this cafe, though there is not any c^not make claufe in the patent to make a bailiff or ferjeant to [a) execute a bail ff CO the procefs of the court, .and to return juries, yet it is incident to execute their grant to do it ; for othervvays they cannot hold a court, JDquify of damages, without a claufe in the palent for that purpofe. RoU. Abr. 516. j^iJe each Every court of record, as incident to it, may injoin the people refpeaive ^^ keep filencc, under a pain, and impofe reafcnable fines, not II h!6. 12. only on fuch as (hall be convidled before them of any crime on a Koil. Abr. formal profecution, but aifo on all fuch as fhall be guilty of any 8 Co -S b contempt in the face of the court, as by giving (Z-) opprobrious 11C0.43. b! language to the judge, or obftinately refufmg to do their duty as, Cro. liiz. officers of the court, and may immediately order them intQ [For contemp's in the fjce of the court, courts not of record may commie] (5) As was the c.ife of one R.edJing, wlio was convidtsd of tampering with Bedloe, one of the king's witnelfes, in the pipifh plot, anJ endeavouring to make Bedloe deny what before he had conlirmed, con- cerning feveral great perfons engaged in ths plot 5 for which he was adjudged to pay 1000 1,, to ftand jn the Dillory, and to be impriloned for a year ; and this conviiflion being iiefore commifTianers of oyer and terrrjrer, vi whom Sir Thomas Jones, and Sir William Dolben, judges of B. R. were twj , he afterwards, being fet at liberty, came into B. R. with an infoimalion againft all the commiflioneis of cicr and terminer, and after having demanded the juftice cf the cou.t, he faid, that Sir Thj^t.ai Jones, End Sir Will. am Doben, contrary to Mjgra Charta, the king's ca.h, aid their oath, have ruint-'d me j for which woids (ifies regvi tiobiieSi proceres ed, or that they confided of knights, cititens, and burgefTes. Sir Bcbrt A'kim of the jfurije^inhn cf Farl.ameurs, 1 ^ In the pn face to Fortefcue, of aljolute and limited Mono-cly, c.%, 't is laid, that by reading the Saxcn la.vs, and the prefaces and preambles to them, it win appear, th.it t'-'.e c miniiis of England, always in the Saxon times, made part of that augaft afTembly Spelm. Gl (T. 'verb. ;:/!>/;(/!«•?.', the commons attended in extraordinary cafes, as in jjrant- ing new aids and taxes, as Danegeit, &c. and Maddox, c 7, "i, 9. ?i;rees herein, and gives us a full ac- count of thofe aids and taxes, which he fays were but feiiiom raif-d ; the king, in thofe days, being abundantly fuppiied by his antient demefne lands, fines, foifeitures, &c. SeeWright's Upon the coming in oiWiHinm the Conqueror, every perfon found Tenures. jj^ arms againil l:im forfeited his whole eitate, in which he placed his Normans ; and he compelled all thofe who were not in arms againft him, to take cut patents of their lands to hold of himfelf ; and in order to this he made a general furvey of the whole king- dom, which was called domefdny, and changed the nature of the tenures, which in the Saxon times was allodial^ mto feudal^ to be holden of himfelf by knights fervice ; and by this means made the property of rheir eftates depend on their allegiance to him : and hence it is, that all lands are faid to be holden mediately or im- mediately from the crown. {b) In Ed- The baronies and earldoms were antiently created by granting w^jrd th» f-Q many knights fees, viz. if the grant confided of 137 {b) knights t^me when ff cs, the party was compellable to hold^tr barcnlam; and he that had the modui twenty knights fees, to hold as an earl [c) \ but when thofe grants tex-rJitcr- ^ame to be loft by time, they held both their honours and eflates {v^opoied to by the prefcriptive right of pofleiTion ; the earls and barons were have been wont to grant out lands to other vaiTals, to do certain duties, which \vritten,tlicy (igpended on the bounty and agreement of the firft grantor ; and ufuaffub- hence came all the fruit of the feudal tenure, as wardfliip, mar- firt*! ce of riage, relief, ^f., but thofe who held immediately from the crown, a knight were called tenants ifi capite. and did fuit only to the kinsr. could not be ■« ' ■' o ^ le!s than 2C /. / fr annum, that of a baron 4C0 marks, and that of an earl 4C0 /. But Seld . tit. Hon. is of opinion, that there was no certain number of knights fees neceflary to make a baron or earl, but that they confifted of f<) many knights fees as were contained in the charter. [(c) The feudal peerage was ori- ginally territorial ; rot attached to the perfon, but to the poflefTion of the feudal eftate. " The firft «' form of the creation of a.T earl," according to the author of the HflTays on Biit'ijf} Aniiquit'ies, quoted by ^'' J' Dalrytnple in his Hllay on Feudal Property, c 8., " was that of a grant of an office over a *<■ county. When by the multiplication of earls, the eaildoms were become more numerous than the « counties, the form was to eredt a particular eftate into an earldom or county, which was all that was «' neceflary to beftow upon the proprietor the territorial dignity. Afterwards, when the notion of per- <« fo.''.aI honour crept in, certain folen;nities were ufed at the creation of a peer, fuch as girding him «' with a fword, c«vering his head with a cap of honour and circle of gold, all of them marks of per- «< fonal refpcft. And now, both in Etig/ard 2nd Scctlcind, the notion of territorial dignity being quite • ' worn out, an earl's patent is I'o framed, as to import a mere perfonal dignity, without relation •< either to office, or to land." The caftic of Arundel, however, llill confers an eaildom on its pro- prietor : the a£l of 3 Car. 1. c. 10., f)r annexing the caftle and honour of Arundel unalienably to the title of Earl of ArunJil \n the heirs of Ttotiias then Farl of Arurdel, in its preamble, fpeaks of the title as real and local. The barony of Berkeley oi BerkeLy-cajlle is alio faid to be territorial.] Of thefeve- Alfo, William the Conqueror ercfled a new court, called curia rai oficers, qj. ^^/^ regisy compofcd of his principal oIEcerg of Hate j to thefe, **'** ^^^ 5 when fiourt of Iparliamcnn in >.'hen any matter of moment was in agitation, as levying a new rranner of ^^'ar, raifmg an efcuajje, ^t., were called molt of the barons, and j"^'<:'*'"r="^ chief perfons who held in capite^ and they trar.fadled all bufinefs ,„i. MadI civil and criminal, and alfo that relating to the revenue, and were dox, c 2, 3. the great court-baron of the kingdom, where every thing done therein, was faid to be done per coticUiitm regni ,- it was in the election of the king to fummon which of his attendants he pleafed to this court -, and fuch attendance being deemed a burthen in former days, the barons were feldom called, efpecially when they rofe to that grandeur as to make fuch ^ concourfe formidable to the king. In this great aflembly of parliament, it feems plain, that in the Maidor, firft reigns after the conquell, the commons of England were no ^9'- Whcie part, and therefore the tenants in antient demefne, who ufed to notable' re- maintain the king's table, and alfo thofe who held by burgage te- corJ of the nure, as by certain rent, fetting out ifiips in the navy, cs'l., accord- city of Lin- ing to the nature of their patents, were wont, upon any extraordi- tailaged,'ani nary expedition, befides the duties of their tenure, to grant an aid aifo deci- to the king, which was demanded of them by the juftices itinerant ; ™^'^'* '°' and which, if they refufed lo pay, the king, at the end of the ex- ment • and pedition, might, with tlie advice and confent of his council, tallage upon fuch them to a tenth of all their eftate, but not to more ; for none •^-''^""^^lon tncy were could be taxed at pleafure but villeins, and thofe who held by bafe obliged to tenure. fwear to the value of thsir goods. ^T^e Rjley, 516. The great controverfy, with refpeft to the original and anti- {a) Petit, quity of parliaments, relates chiefly to the power and firft forma- ^"^ Robert tion of a houfe of commons after the conquelt. (a) Some have powerand aiierted tliat they have been always part of the ancient conditu- Junfdiaion tion, and that the commons o^ Englnfid^ by their reprefentatives, of ^•^'■''3- have always compofed a part of that auguft afTembly ; [b) others and"othefs7 hold, that the houfe of commons was formed 49 //. 3. when the {l>) Csmden king had given a total overthrow, at the battle oi Evejham to Synw/i '" his^w- Mrjtintfordi Earl of Lercejler, and the barons that adhered to him; dl'ts^the^'* and to derogate from the power of the commons, and to lay afide original of parliaments, a notion was propagated in king Charles the Second's '"'^*^""- reign, that they firft aroie by the art and management of Spnvi part oV the Mountfordy to be a balance to the crown and peerage ; and that parliament, their firft inftitution was the invention of a rebel to ferve a parti- ^p*^^' "^'^ . 1^ eietted, cular purpole. from the 39 H- 3-. and fays, he has it ex fata antiquo fcr:/>tire, but does not mme his author ; and herein he is follov.cJ by Pryn, in his plea for the lords, 182. Dugdule, in his Orig. Jur. 18. Hey.in's life of Ljud, 01. Brady, in his aiifwer to Pet;t, 133, &c.. Sir Robert Filmcr, in his Freeholder's Grand Snaueft, iS., and others, who think, themfelvcs fufficisntly fupporred in tliis opinion, bscaufe the Jirft writ of fummons of any knightj, ciiizens, and borgeires, now extant, is not ancienier than 49 H. 3. But, as neither of thefe accounts feems to be the true one, the Speim. moft probable opinion is, that the houfe of com.mons wasintlitut- ^''°'^- 6aroi:£s n.inore:, as appears by the greac cha-ter granted by him at Runny Mead. Se!d. lit. Her.. 704. But the more received opinion is, that it was accompli'^ed in the vidlorious reign of Henry 3. who, :nftead of grafping at the liberties of his people unon his con- quefts, confirmed the great charter, and eltabliihed a houfe of comnnons, as a balance to the peerage, which they never would have permitted before he had vanquished tnem Camden Britt. 13. Dugd. Crig. Jur. 18. Brady's ar.f.ver to Petit. 133. It is plain, that that wife prince E. i. went into this policy, and 'hat in his lelgn we find a parliamentary peerage, or houfe of lords eitabliflied, as aifo a kaufe ot commons, confifljng of knights, citizens, and burgeifes. As one of the principal reafons for eflablifhing a houfe of com- mons, was for the more convenient taxing of the people ; hence we find the true reafon why all taxations began in that houfe, and why the commons would never fufFer it afterwards to be altered ; and the reafon is, that being at firfl: indrudled by their principals, whom they rept'^fented, to give what each man thought he could bear ; to vary from thefe inftruclions, or to fuff;r the fuperior peerage to alter it, would, as they rightly judged, be the higheit breach of truft in them. RyleyPia. Hcnce a'lfo wc find the true reafon why the power of judicature ^■■^ 74- was ref-rvcd to the lord's houfe; for the barones mnjores^ who Jud^ofthe conflitutcd this houfe, were called to the antient curia regis^ and Peers, ?4. fat there in their own right, as pares ciirtis to the king ; and as this (6) A no- court had a juvifdiftion of (^j determining in the firft inftance, bicin^n was ^ x / o # tried by his both in civi! and criminal caufes, efpecially thofe relating to great peers very perfons, and the king's officers of ftate, as alfo by way of appeal ancienc.y.as f^Qj-^ the iniuilicc of all Other courts: fo the lords continued to appears by . •' . . . . . the earl of determine on petitions exhibited by private perfons, or thofe ex- Heretoid's hibitcd bv the houfe of commons, called impeachments, and were tinieofWiu ^^^^ ^^^^ dernier rejort to corredl the errors of inferior judicatures. liam the Conqueror. 2 \n\\. 50 This turns on the principle of the feudal law, /? inter d m'ln-jm & •vaffjlum I'ii -rv.c^eetur par^i cwiit fi'ttt jud-.cei ;, i\iil therefore the peers, in the time of parliament were tried by the pceis in tiie houfe of lurdb, and out of parliamtnt by the jurticiar, and in his abfcnce by the fleward of Er.glard, who iummoned fome of his peers upon the trial, and twelve at l^.afl w<;re obliged to appear. Thii fum.xons is let faith 3 Inil. 23. where my Lord Coke fays, there mult be twelve or more appear. 4l»Il. 46. At the firft inftituting of a houfe of commons, the reprefenta- tives-of knights, citizens, and burgefies, were only looked upon as truftees to manage the affairs of their principals *, and therefore, in former days, it was held reafonable, that they (hould be recom- penced by their principals, for the trouble and expcnce they were at in managing the truit repofetl in them. Hence the fee of every knight of tiie fliire was 4^-. per dicm^ and that of a citizen or bur- gefs 2X. per diera^ Court of Parliament 1 13 (B) Of the Perfons of whom it confifts. '^HIS auguft aflembly confifls of the king fitting there in his 4tnft. t. ■*• royal political capacity ; of the lords fpiritual, as archbifhops ^'^^^*'^ and bilhops, who fit there by fucceflion, in refpedt of their coun- pa^iament, ties or (a) baronies, parcel of their bifnopricks •, of the lords tenn- io6. 14.2. poral, as dukes, marquifies, earls, vifcounts, and barOns, who fit y^' there by reafon of their divinities, which they hold by defcent or [Lord Haie* creation; thefe compofe one houfe ; and when any parliament is thinks that liolcien, each of them is to have a writ of fummons ex deb'tto iufiitia, ^''^.^'^"P' -,,.,., . . , , _ , , . -' -^ ' fit in the or the [b] knights, citizens, and burgelles, who are cholen by force Houie of of the kind's writ, which iflues ex debito jujikiis, none of which '^ttrsby oueht to be omitted ; thefe compofe the houfe of commons, and *^"'^°'" ^"° r 11 1 r 1 1 ■ 1 u'age, and repreient all the commons ot the kingdom. not from their baronial pofTeilions, a notion which h .th been at)ly controverted by Bilhop Warburt:>n in his Aitlanct letiveen Church and State, 4th edit. 1,19. but which receives confirietable fupport from trie teafoningand authority of the learned editor t'f Coke upon Littleton. Co. Lit:. : 3 Ed. 15+. b. n. i.l (i) Of thefe in Fortefcues time, viz. H. 6. there were 300. Fortrf.ue de Laud. Leg Ang c. 18. f. 4. in my Lord Coke's time, 493. 4lnft. i. At the time of the union, 51^. And by the 5 Ann, c. 8. for uniting England and Hcitland, 45 Scotch members were added, which m.ikes the number at this day 558. In the SaxoTi times, the lords fpiritual held by fran%almoigne^ Pryn, of but yet made great part of the grand council of the nation, being ^''^ i-ord's the mod learned perfons, that in thofe times of ignorance met to 24.2. ' make laws and regulations ; but William the conqueror turned the frankalmoigtte tenures of the bifhops, and fome of the great abbots into baronies ; and from thence-forward they were obliged to fend perfons to the wars, or were afTefTed to the efcuage, and were obliged to attend in the king's court : this attendance they com- plained of as a burthen, and infilled, that the court took conufance of treafons and felonies, and that by the canon of Toledo, the clergy were forbid to give judgment in blood : to obviate this ohjeftlon, the conftitutions of Clarendon permitted them to withdraw in cafes of blood ; but fl:ill they were obliged to do fuit, and fuch fuit con- firmed their eflates as baronies, and as barons they fit in the houfe of lords at this day. When a parliamentary peerage was eftabllfhed, which compofed Wake'sAo-' a houfe of lords, as alfo a houfe of commons, confirting of knights, ^hority of citizens, and burgefles ; Ed.i. being under great difficulties through p/jnceT" his wars in Scotland^ and tlie kingdom being exhaufted by the 364. Stil- barons civil wars, thought, from his fuccefs in the holy war, that ''"?•. ^': he had good pretenfions to bring the clergy, who held hy frankal- diaionjs'^T*. moigfie, to contribute to the taxes and public charges of the king- &c. dom •, and accordingly projefted a fcheme, to make them a third eftate dependant on himfelf ; for which purpofe was the pramu- nientes writ framed: this the clergy ftrenuoufiy oppofed ; for though thereby they were to have a power of making canons, yet they forefaw, that the principal defign of it was to m.ake them contribute to the public charges ; and therefore thev infifted that tReir power was totally derived from Heaven, and that they "Would not fubmit to any temporal power j but upon the king's Vol. II. I pcrfevering 114 Court of lg)arliamcnt perfcverhig they came to this mind and temper, that the king might lend his writ to the archbifhop, and if he allowed the king's writ to be a good motive, the archbifliop, by virtue of his fpiritual ju- rifdiclion, might fummon them, and then they were convened by by a fpiritual jurifdidtion. From henceforward, inftead of making one eftate of the kingdom, as the king defigned, they compofed two ecclefiailical fynods, under the fummons of each of the archbifhops; and being forced into this regulation, they fat and made canons, by which each refpe6live province was bound, and gave aids and taxes to the king ; but the archbifhop of Catiterbtirfs clergy, and thofe of Tork, ailembled each in their own province, and the king gratified the archbilhop's vanity, by fuft'ering this new body of con- vocation to be formed in the nature of a parliament ; for the arch- bifhop aflumed tlie ftate of a kin^r, and his fuffragans fat in the upper houfe, as his peers ; the deans, archdeacons, a prodor for the chapter, reprefented the burgefles, and the two pro • 1 • 1 r r r 1 re «C ine lam* V to lit m this houle as a rcpreientative ot the peerage oi beat- timg jj. la « icnd" ii6 Court of parliament fpeftingthe " land.** And about this time the houfe {hewed a (Irong difpO* Duke of fition to adhere to thefe refolutlons. For in the May following it ryT^who was ^'^s ordered, " That a copy of the refolution of Jau. 21,1 708-9 ; created Ba- '* be tranfmitted by the clerk of tlie parliaments to the lord clerk Ton Douglas, n regiftrar of Sf(?//fl«i/, with injundlion to him to conform thereto." Journ. i8th And again in the next year it was refolved "That it is the opinion Way i7'o7. <' of this houfe, that the lord clerk regillrar and his deputies, ^'^ Z^-?"^ " acling at the eleftion of the Scofs peers., ought to conform to the *' refoluticns of this houfe, of which they have had notice by *' order of the houfe." In confequence of thefe orders, the de- puties of the lord clerk regiftrar refufed to admit the votes of the Duke of ^leefi/hury. Lord Abercorti^ and other lords in a fimilar ntuation at the following general ele ^^ avifametito coticiliiy refolving to have a parliament, de-* Summoning fircs quod iiiterfitis cum^ i^c. each [e) lord of parliament is to have a djllin^ Court of Pavliamcnt 119 a dlftln joins the abjuration oath with like penalties, which is jlfo altered lo its form by 6 Ann. c. 7. § 20. (r) Of ths inaaner of chufing a fpeaker, vide ^ Inft. 3. 9. I A I2Q Court of parliament. (D) Of Eledions : And herein, I. Of the EIe£tors, and their Qualifications. A' S the right and qualifications of ele;s are bound by adli of pailiamenl, who are rot parties to the eleftions of knights, c.tizens, and bu'^gefTes ; as all thofe that have no freehold, or have freehold in antient demefne ; and all women having fieehold or no freehold, and men within age of twenty, one years, &C. 4lnft. 4, 5. toH. 6. By the ioH.6. cap. 2. it is ordained, " That the knights of Scot'/in/ bv " ^^^ counties within the realm, to be chofen to come to parlia- an adl of " mcnts hereafter to be holden, fhall be chofen in every county Jam s 6. ti |jy people dwelling and (e) rcfiant in the fame, v^hereof every ^i.4.^none " "^^" ^^'^ ^^^'^ freehold to the value of (/)40J-. by the year at wereentitied " the Icaft, above all charges, within the fame county where any tov.tein « fuch chufer fhall meddle of any fuch eledtion." counties, ' who had not 3405. land of old extfnt, holding of the king. By an ad of Car. a. A. D, 1661. c. 25. thofe voting on church la.;ds were ob! ged to have 1000/. Stots of prefent rent. By another aft in that rsign, A. D. 1681. c. 21. voters were ob'iged to have either a 40J. land of old extent, or 400/. Scott of valued tent. And by later fbtutes, Itill greater artention is required to the purity of the rolls.] (f) By 1 H. 5. c. I. choofers of knights of the fliire ftall be refident within the fame /hires the day of the dae of the writ of fummons of parliament ; Gf ii(/t; Crom. Jurif. 3. [The ftat. 14660. 3. c. 5S. repeal, fo much of this and the aft in the text and other old afts therein fpecified, as relates to the refnience either of theehfted. or eleftors.] (/) By theftatute 8 H. (j. c. 7. he who cannot expend 40 j. by the year as aforefaid, flia'l in no wife be choofer of the knights for the parliament. [By (ubfequent ftatutes of 7 & 8 Vif. 3. c. 25. 10 .'Vnn. c. 23. and 18 Geo. 2. c. iS. § 5. this qualification of » free- hold ellate of the cleas )cailv va'ue of 40 i. mull be over and above all rents and charges payable out ofor\ in rtjpeit 'J the j^ms, and the voter is required to fwear that he is a freeholder, and has ?.n ertate of fuch value- Two committees have determined, th.it the intereit of a mortgage is a charge, which, if it re- duces the value under 40 j,, takes away the vote j though there is an intermediate dcc.lion of a commit-. tce» Ccurt of IParliament 121 tee, wherein the contrary was holden. aLude.-s467. The cafe of Wetherell v. Hill, B. R. M". 23 Geo. 3. which arofe on a qua'ification uniier t' e game adt of 2.3 Car. 2. c. 25. § 3. curned oa a iimilar point, and received a determination agreeably to thole of the two coniinittees.j| [No perfon (hall vote in right of any freehold granted to him lo Ann. fraudulently to qualify him to vote. Fraudulent grants are fucn ^'^^"p^^" as contain an agreement to re-convey, or to defeat the eltate c.20. ex-* granted; which agreements are made void, and the eftate is ab- tends the rc« folutely veiled in the perfon to whom it is fo granted. And every 6"'-'"""- ^ * pofleflien is re(iuired from the voters, j Dougl. zzt^ PerfoAS 122 Court of parliament. (j) 7 & 8 Perfons under twenty-one years of age (o), or perfons convi£led w. 3. c. 25. (jf perjury or fubornation of perjury (^), or employed in ma- m'zG.z: "3ging and colleding the duties of excife, cuftoms, ftamps, fait, c. 34. §6. windows, or houfes, or the revenue of the poft-office, are inca- (c) zzG.3. pable of voting at any eledlion (c). this laft a£t does not extend to fieehold offices granted by letieis patent, nor to commiflioners of the land- tax, or perfons uSt'ing under them. a Geo. 2. Perfons lawfully convicled of voting or with-holding their c. 24. § 7- votes in confequence of a bribe, provided they are ferved with pro- ?^%*8.* cefs within two years after the commiflion of the offence, are for B)i § 8. of ever difqualified to vote. the a£l of » Geo. 2. if the offender difcover any other perfon offending againft the aft, fo that fuch perfon be thereupon convifled, he thereby procures an indemnification for himfelf. But the difcovery of an offender already indemnified, it hath been adjudged, will not avail him. Lord Portchefter T. Petrie, £,.23 Geo. 3. B. R. In general, it feems, that perfons receiving alms are difquali- fied to vote. But by 18 Geo. 3. c. 29. § 25. parifli relief given to the family of any militia-man, during the time of actual lervice, will not deprive him of his right to vote. R. Nint. No peer hath a right to vote at any eledllon, nor fhall any lord C:rt. 14. lieutenant of a county concern himfelf therein. And by ftatute Dec. 1699. 2 ir. ^ M. feff. I. f. 7. the lord warden of the cinque ports (hall Con. Feb. not recommend any members there, jjoo. R. 24 oa. 1702. 5 & 6 W. If any officer of the excife, cuftoms, flamps, or certain other &M. C.20. branches of the revenue, prefume to intermeddle in eledlions by V' j^ \^^ * perfuading any voter or diffuading him, he forfeits 1 00 /. and is difabled to hold any office. For the qualifications of eledors In Scotlandy fee 6 Ann. c.6. oAnn. c. 5. 12 Ann. J}. I. n for their exclufion at prefent. See further on this point, i WooddeC 47-8. Whether a clergyman be eligible in Scoiland'-.i itill matter of doubt, though it Teems fettled by pradtice, that he may be enrolled upon the roll of freeholders.] A perfon attainted of treafon, or felony, l^c. is not eligible; 4 Inft. 48. for he ought, according to the writ, to be magxs idoneus^ difcretus ^^hiteion i3 Jtiffli ciens. 370. [So, tetnp. H. 7. Perfons outlawed for treafon could not come Bac. H. 7, into parliament, till their attainders were reverfed. . '3- Com. Dig. tit. Parliament. (D. 9.) Nor perfons outlawed after, or before judgment, in a civil Ruled by an aifiion. 'be juftices. 1 And. 293. Com*. Dig. ublju*>r. Nor perfons taken In execution upon a judgment.] Moor, §7. Com. Dig. ubifupr. The king cannot grant a charter of exemption to any man, to 4 inft. 49. be freed from eleftion of {e) knight, citizen, or burgefs of the ^'^ ^°^ ^** parliament, becaufe the elections of them ought to be [f) free, grant a^ and his attendance is for the fervice of the whole realm, and for charter of the benefit of the king; and his people, and the whole common- ^''ei'pt'on , 1 , , . /? 1 • to a lord cf wealth hath an mterelt therem. parliament, to difcharge him from his attendance in the lords houfe. 4 Inft 49. (y) Forthe incapicitiesofiheriffs, mayors of towns, &c. and the reafons why they may or may not be clefted knights, citizens, or burgefTei, vJt 4 Inft. 4S. Bro. Abr. til. Parliamer.t 7. Cromp. Jur. 3. t6< Sit Sioun D'cwcs, Jour. 38. 436. ^t/^, Ruih. ColL VoL X. 634. Tgv,.^f. Coll. iS j. By 124 Court of pacliament 8H. 6. By the 8 H. 6. cap. y. it is enad^ed, « That they who hav9 T\'a h ** the greateft number of voices that may expend 40/. by the writ for " y^ar, and above, (hall be returned (a) knights of the fhire, iffc. deaion of *' and that they w^hich (hall be chofen, (hall be dwelling and knights, &c. tc (^)rerident within the fame counties." was auos ^ ' milites glaJih cinBos, (S'c, it required an a£l of parliament, viz. zi, H. 6. c- 15., That fuch notable efquires, gentlemen of birth, as are able to be knights might be eligible. ^Inih lo. [h] 'I"he like is enadled by 1 H. 5. c. j. as to knights, citizens, andburgefiesj but tlicfe regulations being grown obfulete, are repealed by 14 G. 3. c. 58. 9 Ann. c. 5. [But now every knight of a fliire fliall have a clear eftate of {c) Or freehold or copyhold to the value of 600 /. per annuryi^ and every mortgage, .. ^ y r i i r t , \ 1 11/1 if the more- Citizen and burgels to the value or 300/. (t); except the eldelt gageehas fons of peers, and of perfons qualified to be knights of fliires, beenjnpof- ^^^ exccpt the members for the two univerfities. Of this quali- 16 111 On I even years before ficatiou the member mud make oath, and give in the particulars hiseieftion. in writing at the time of taking his feat (J) j or, upon refufal, the ( J^or any of the officers following {f)i viz. commiffioners W. 3. c.s. of prices, tranfports, lick and wounded, wine licences, navy, 32 & 13 w. j^j^j victualline ; commiffioners of the revenue in Ireland ; fecre- ■?. C. 10. . .^ 6Ann. c. 7. taries or receivers of prizes; comptrollers of the army accounts i j5Geo. 2. agents for regiments; governors of plantations and their depu- *■ ^^' ties ; officers of Minorca or Gibraltar ; officers of the excife and cufloms ; clerks or deputies in the feveral offices of the treafury, exchequer, navy, viftualling, admiralty, pay of the army or navy, fecretaries of flate, fait, ilamps, appeals, wine licences, hawkers and pedlars, nor any perfons that hold any new office un- {g) 6 Ann. der the crown created fince 1705 [g), are capable of being elenfider3fcle ingenuity and ability in the houfe of lords on aa appeal from a decree of the court of (eiTions. The q.ieiVion arofe upon the clainn of Lord Daer, eldeft fon of the Earl of Selliirk, to be enrolled a freeholder of the ftewarty cf Kirkcudbright, at the Micbaelmat court in ; 79!' It was objedled, (and it was the fole objetlion, for his lord(hip was admitted to be ia «very other refpefl qualified,) that his lordfhip being the eldeft fon of a peer of thi* realm, wis in- capable of being enrolled. The freeholders, however, admitted his claim; but upon an appeal to the court of feffion, the objeflion was fuftained, and his lord/hip's name was direded to be expunged from the roll ; and this decree was affirmed in the houfe of lords. Lord Daer v. Jobnltonc and others, printed cafes of the lords, a6th March 1793. 3. Of the Duty of Returning Officers, and the Remedies againft them; [and herein of the Mode of Proceeding upon Com- plaint of undue Eleclions.] [We have feen above, that the writ of fummons iflues from the 23 H. 6. clerk of the crown in Chancery in confequence of a warrant from *^' ^4- ?&* the lord chancellor, or fpeaker of the houfe of commons, accord- i, Ann"/^* ing as the eledion is general, or not. "Within three days (^j) after Seff. i. the receipt of this writ, the fheriff is to fend his precept, under ?',^^;l, his feal, to the proper returning officers of the cities and bo- officer of the roughs within his county, commanding them to ele£l their mem- CinquePorts bers : and thefe Ouicers are to proceed to ele6lion within eight ^^^ ''^ ^^^* days {b) from the receipt of the precept, giving four days notice w. 3. c. j, of the fame ; and to return the perfons chofen, together with the {>>) in Nev> precept, to the ic) fiierift. Sboreham tr r y \ J ^ the eleftion muft be wif.hin tiud-ve days, with eight days notice thereof, (c) The notice muft be given within the liours of 8 o'clock in the forenoon, and 4 in the afternoon from the 25th Ocicber to the 25th of March indufive, and within the hours of 8 in the forenoon, and 6 in the afternoon fiom the 25th oi March to the 25th 05c^fr inclufive, and not otherwife. St. 33060.3. c. 64. With refpecl to county eleftions, the fherifF, having indorfed 25060.3. on the writ the day on Vv-hich he received it, {hail, within two '^^+- W days after the receipt thereof, cr-ufe proclamation to be made at £|,enff can- the place [d) where the enfuing election ought by law to be not alter the holden, of a fpecial county court to be there holden for the pur- piacewith- pofe of fuch election only, on any day, Sunday excepted, not fentof a^i"' latet from the day of making fuch proclamation than the fixteenth the candid- day, nor fooner than the tenth dav. ^^"* ^^ ' _ ' ^ an exprefs aft of parliament 20 Geo. 3. c. i. for holding tht eltB'io-^ for Hairt^Jilre 2'. Ne^- ^resfcrd. So, &r adjourning the poll from Winchefter to Newpcrt in the Jjk cf fVigbt. j SiS W. 3. c. 25. 25 Geo. 3. c. 84. § 16. Upon the day fixed for the election, the returning officer is firft to take an oath againft bribery, and for the due exe- cution of his office. The candidates muft, if required by each other, or by two eleifhors, fwear to their qualification ; and the electors both in counties and boroughs to theirs ; and the latter are alfo compellable to take the oaths of allegiance, fupreoiacy. ii6 Court of Iparliflment fuprcmacy, and abjuration, and the oath agalnft bribery and cor- ruption. 34 Geo. J. And to prevent delays, the returning officer is required, at the ^iy requefl of any of the candidates, made in writing under his hand, to appoint commiflioriers to adminifter the oaths of allegiance, fupremacy, and abjuration, who are to deliver a certificate to the party to whom the oaths have been adminiflered, of his having taken them, upon the production of which he is permitted to poll in like manner as if he had taken the oaths before the return- ing officer. srfCeo. 3. All electors for cities and boroughs are likewife to fwear to CS4, §5. tlieir name, addition, or profeffion, and place of abode j and alfo, like freeholders in counties, that they believe they are of the age of twenty-one, and that they have not been polled before at the eleftion. ^ r» If a poll is demanded at any eleftion for any county or place in England or IVales, it fhall commence either on that day, or at the fartheft upon the next, and fliall be continued from day to il» day (Sundays excepted) till it be finiflied ; and it fliall be kept open feven hours at the lead each day, between eight in the morning, and eight at night -, but if it fliould be continued till the fifteenth day, then the returning officer fliall clofe the poll at or before three in the afternoon, and fliall imm.ediately, or on the next day, publickly declare the names of the perfons who have a majority of voices ; and he fliall forthwith make a return ac- cordingly, unlefs a fcrutiny is demanded by any candidate, or by two or more of the eledtors, and he fliall deem it neceflary to grant the fame, in which cafe he is to proceed thereupon ; but fo 33 that, in all cafes of a general eledlion, if he has the return of the writ, he fhall caufe a return of the members to be filed in the crown-office on or before the day on which the writ is returnable. If he is a returning officer adling under a precept, he fliall make a return of the precept at leaft fix days before the day of the re- turn of the writ ; but if it is not a general eleftion, then, in cafe of a fcrutity, a return of the member ffiall be made within thirty § 6. days after the clofe of the poll. Upon a fcrutiny, the returning officer cannot compel any witnefs to be fworn, though the ft;atute gives him a power of adminiftering an oath to thofe who confe7it % J. to take it. And where there are objedlions to votes on each fide, he fhall decide alternately on them. 7&8W. 3. The fcrutiny being finiffied, the ftierlff muft make a return of '* 7- the perfons who have a majority on the revifed poll within the jSeff. c. 15. ti™^ limited by law. And the perfons fo returned are the fitting 15 Geo. 3. members until the houfe of commons, upon petition, fliall ad- DoubieV^ judge the return to be falfe and illegal. For a falfe return, the mages may flicriff, by the old fl:atutes of H. 6. forfeits 100/. and the return- be lecovered ing officer In boroughs 40 /. and they are befides liable to an ac* eturn^th * ^^°^ ^^ '■^'^ ^"^' °^ party grieved, in which double damages there have fl^-all be recovered. And they are alfo liable to fuch an adlion for been no Je- wilfully negle£ling, delaying, or refufing to return the perfonj of^'choufc whom the houfe of commons fl\all adjudge to be the legal repre- featatiye. Court of Iparliamcnt 127 fcntative. And for any offences againft the a£l of 25 Geo. 3. c. 84. of common* thev are punifhable by information or indi£lment, relative to ■' * ' the right of of cleftion for the place in queftion. Wynne v. Middleton, i Wilf. 125.— —By flat. 7& 8 W. 3, c. 7. the IherJff was liable to a penalty of 500/. for not making a return, at the return of the writ, if it were a general ek^ion, or within fourteen days, if an occaOonal vacancy. Any perfon bribing the re^ turning officer forfeits 300/. 7 &8 W. 3. c. ^. When the eleftion is over, the returning officer Is bound, un- 7&8W. 3. der a penalty of 500/. to deliver forthwith a copy of the poll to ^"^S* ^^' any perfon defiring it, and paying a reafonable charge for writing c. ^^ t*, it. And the (heriff muft within twenty days after a county elec- The check tion deliver upon oath to the clerk of the peace all the poll books ^"^^^ *^ *T^ of fuch ele£lion without any embezzlement or alteration ; and nai boofcs^'' where there are more than one clerk of the peace, the original muft be poll books to one of the clerks, and attefted copies to the reft to [""^sed with be kept among the records of the county. the peace. Rex v. Davies, a Str. 104S, If a perfon having a right to vote Is hindered by the prefiding Afhby v, officer, an a£lion on the cafe lies at common law. whue, 2 Ld.Raym. 938. 1 Salk. 19. 6 Mod. 45. 8StateTr. S9. i Br. P. C. 45. But the obflruftion muft be wilful 2nd malicious. Drewe v. Coiton, Lent afTizcs for Cornwall, «/•. Wilfon J. 2 Lud 245. Sargent v. Millward, z Lud. 248. Whether it lies at common law for a falfe, or double return. * Lev. 114. 2 Ventr. 370. 3 Lev. 29. 2 Salk. 502. i WilC 127, The returning officer, it feems. Is not to judge of the difability i Comm. of candidates. „„ „ Joum. 511. 5'3' 5^5- ""°* II Comm. Joura. 201. If the freedom of eleflion is violated by any riotous and tu- multuous proceedings, the fheriff may take the offenders into cut- tody. But whether he may commit, where the eledlion is not i Comm. obftrudled in any manner amounting to a breach of the peace, Joum- 826. may admit of fome doubt. 34- «37« By the ftatutes of loG^c. 3. cap. 16. explained and amended by II Geo. 3. c. 42. ; both of which are made perpetual by 140^0.3. c. 15. and ftill farther improved by 25 Gt-o. 3. c. 84. 28 Geo. 3. c. 52. and 32 Geo. 3. c. i. a tribunal is creeled and re- gulated for determining the merits of contefted elections. By thefe flatutes, any perfon may prefent a petition complaining of an undue election ; but one fubfcriber of the petition muft enter into a recognifance, himfelf in 200/. with two fureties in 100/. each, to appear and fupport his petition ; and then the houfe ap- point fome day beyond the days after the commencement of the feffion, or the return of the writ, and give notice to the peti- tioners and the fitting members to attend the bar of the houfe on that day by themfelves, their counfel, or agents j which day may be altered; but notice muft be given of the new appointed day. On the day fixed, If 100 members do not attend, the houfe fliall adjourn from day to day, excJept over Sundays, and for any num- ber of days over Chri/lmas-day, IVhiifunday, and Good Friday ; and when two or more members are prefent, the houfe ftiall proceed to no other bufinefs, except fwearing in members, receiving re- 2 port* 12^ Court of lg>arliament ports from committees, amending returns, attending his majedy or commiflioners in the houfe of lords, receiving meffages from the lords, or on days appointed for the trial of any articles of im- peachment exhibited by the commons in parliament, the bufinefs neceflary for that purpofe. Then the names of all the members belonging to the houfe are put into fix boxes or glafles in equal numbers, and the clerk draws a name from each of the glafles in rotation, which name is read by the fpeaker, and if tlie perfon is prefent, and not dirqu.Jified, it is put down, and in this manner they proceed till forty-nine fuch names are coUcdled. But befides thefe forty-nine, eacli party fele£l, out of the v/hole number pre- fent, one perfon, who is to be the nominee of that party. Mem- bers who have voted at that eledlion, or who are petitioners, or are petitioned againfl, cannot ferve j and perfons who are fixty years of age, or who have ferved before, are excufed if they require it i and others who can fhew any material reafon, may alfo be excufed by the indulgence of the houfe. After forty-nine names are fo drawn, lifts of them are given to the refpeQive parties, who withdraw, and alternately ftrike off one (the petitioners begin- ning) till they are reduced to thirteen ; and thefe thirteen, with the two nominees, conflltute the felect committee. If there are three parties, they alternately flrike off one ; and in that cafe, the thirteen choofe the two nominees. The members of the com- mittee thus formed are then ordered by the houfe to meet within twenty-four hours ; and they cannot adjourn for more than twenty- four hours, except over Sutulay, Chnjivi.is-day^ and Gcod Friday^ without leave of the houfe ; and no member of the committee can abfent hlmfelf witliout the like leave, upon fpecial caufe, veri- fied upon oath. The committee cannot proceed to bufinefs with fewer than thirteen members [n)\ and they are diffolved, if for tiaree fucceffive days of fitting, their number is lefs than that : they continue to fit notwhbftandlng a prorogation of parliament. They are all fworn.at the table of tlie houfe, that they will give a true judgment according to the evidence, and every queftion is determined by a majority. They may fend for witnefles, and exa- rii.v proceed mine them upon oath. When the whole evidence is heard, they iQ t>u ne s. yepQj-j. |.Q j.}^g houfe, whether the eledlion be a due election or void, and alfo whether the petition or defence be frivolous and vexatious, in which cafe the party aggrieved fliall recover cofts : and the houfe, on being informed of fuch report by the chairman of fuch committee, order the fame to be entered in their jour- nals, and give the neceffary direftions for altering or confirming the return, or for iffuing a new writ, or for carrying fuch deter- mination into execution, as the cafe may require. But when the committee are of opinion that the merits of a petition depend upon a queftion refpedling the right of ele<^ion, or the appointment of a returning officer, they require the coun- fcl of the refpe£live parties to deliver a ftatement of the right for which they contend, and the committee then report to the houfe thofe itatements with their judgments thereupon •, and if no perfon petition within a twelvemonth, or within fourteen days after the commence- {a) If z committee have fat 14 «!ays, iz members, and if 25 days, ] I members, But a re- newed peti- ticii mull be Court of Iparltament 129 commfrncement of the next fefiion, to oppofe fuch judgment, it picfented is fwial and conclufive for ever. But if fuch a petition be pre- ^^i'^in 14 fented, then, before the day appointed for the confideration of it, thlcoin- nny otlicr perfon, upon his petition, may be admitted to defend mencement tlie judgment ; and a fecond committee arc appointed exaftly in ofanyfub- the fame m?.nner with the firft, the decifion of which committee fion%nd ' puts an end to aJl further litigation on the point in quefbion.] upon its be- ing prefent- ed, a day and hour, not lefs than 14. days diftance, mud be appointed by the houfe for taking it into confideration. If peti;ion{! are not rene%\ed within this time, the judgment of the ccmmiitee upon th« point in quei^ion ihall be final and condufive. (E) Of the Method of paffing Bills. A N a6t of parhament muft have the confent of the lords, the 4 Inft. 15. -^^ commons, and the royal (a) afTent of the king ; and (b) what- Hob. m. foever paffeth in parliament by this threefold confent, hath the Laud. c. 18. force of an a£l of parliament. Dyer, 92. (a) By the 31 H. 3. c. 21., The king's royal aflent by his letters patent under his great fsal, and figned with hi» hand, and declared and notified in his ablerce to the lords fp!rit;ial and temporal, and to the commons, aflembled together in the high houfe, is as eft'ecluai as if the king were perfonally prefent. {t?) Difference between an crdinance and an aft of pailiament is, that an ordinance wanteth the threefold confent, and is only ordained by one or two of the.Ti. ^Inlt. 25. [See Co. Lit. 159. b. n. z. i3thed.J Anciently, the manner of proceeding in bills, was much differ- 4inft.25, ent from what it is at this day ; for, formerly, the bill was in na- ^- ture of a petition, and thefe petitions were entered upon the lords ^y„^ ,Li, rolls, and upon thefc rolls the royal aflent was likewife entered; 8Co. 1. and upon this, as a ground-work, the judges ufed, at the end of the parliament, to draw up the a6t of pnrliament into- the form of the ftatute, which was afterv/ards entered upon the rolls called xh.tjiatute rolls ; which were different from thofe called the lords rolls., or the rolls "of parliament : upon thefe Jlatute rcllsy neither the bill, nor petition from the commons, nor the anfwer of the lords, nor the royal afTent, were entered, but only the ftatute, as it was drawn up and penned by the judges ; and this was the method till about Henry the Fiftli's time : in his time it was de- fired, that the acts of parliament might be drawn up and penned by the judges before the end of parliament ; and this was by rea- fon of a complaint then made, that the ftatutes were not equally and fairly drawn up and worded. After the parliament was dif- folvcd or prorogued, in Henry the Sixth's time, the former me- thod was altered, and then bills contincntes fonnam actus parlia- meiiti were firft ufed to be brought into the houfe ; the bills (be- fore they were brought into the houfe) were ready drawn, in the form of an acl of parliament, and net in the form of a petition, as before ; upon which bills it was written by the commons, Solt ba'iie al Jeigneurs ; and by the lords, Solf bayle al roye ; and by the king, Le roy le vent [b); all this was written upon the bill *, and the (.) See Ob- bill, thus indorfed, was to remain with the clerk of the parlia- ^Y^^-^a-'^nsu^a ment, and he was to enter the bi!! thus drawn at firft, in the form no-.c (.'}". Vol. II. K of ijo Court of IpacKamcnt {a) They of an atl of parliament, or flatute, upon the ftatute rolls, wltTi- were an- quj- entcrriiig the anfwcr of the king, lords, or commons, upon cinil^ed^bv' the ftatute rolls, and th.en ifTued out writs to the flieriffs, with the rhcriff, tranfcripts of the ftatute rolls, viz, of the bill drawn at firft in but upon ihe jj^g (q^^ Qf ^ ftatute, and without the anfwer of the king, lords, pin"ing"hi*s and commons, to the bill, to {a) proclaim the ftatute. meihod was difcontinued ; (o that at this time every body is obligtil to take notice of an ad of parlia- ment at his peril. 4 lnl\. 26. 4inft. 34. In the lords houfe, the lords give their voices from tht puifne lord ferintiniy by the word of content^ or uon content. 4inft, 3^. The commons give their voices upon the queftion by yeoy or no ; and if it be doubtful, and neither party yield, two are ap- pointed to number them •, one for the yeas, another for the fioes ; the '-eas going out, and the 7ioes fitting ; and thereof report is made to tije houfe. At a committee, though it be of the whole Jioufe, the yeas go on one fide of the houfe, and the noes on the otlier, whereby it will eafily appear which is the greater number. A Inft. li. To the paffing of a bill, the afient of the knights, citizens, and Iv*) But not 'buTgefles muft be in perfon, but the lords may give tlieir votes by litto excr- proxy {b) -, and the reafon hereof is, that the barons did always fit cife juxig- in parliament in their own right, as part of the pares curtis of the s^^"d o d ^"^"o ' ^'''^ therefore, as they were allowed to ferve by proxy in Houfe of " the wars, fo they had leave to make their proxies in parlia- Lords, nth mcnt (r) ; but the commons coming only as reprefenting the ba- '^T '^h^' *'"''^^ minoyes, and the focage tenants in the county, and the citi- Marchi697. zcns and burgefles, as reprefenting the men of their cities and Svo. edit. boroughs, they could not conftitute proxies, becaufe they them- J^'^^• felves were but proxies and reprefentatives of others, and there- are now fore could not conftitute a proxy in their place ; according to that made by the niaxim of law, deUgata potejlas nou potfji delt'gari» king'i li- cence. Elf. c. 5.] J Wcoddef. [Proxies from a fpirltual lord are to be made to a fplritual lord; 41. Elf. and from a temporal lord to a temporal lord ; and no lord can re- •*■■• 5- ^''^' ceive more than two proxies : and a lord voting in a queftion muft Wililii. vote as proxy, if proxies are called for (^). ^i/) Ord. I ith Feb. 1694. ii^iii. JM. c. 5. it hath been made a queftion, if a proxy be given to two or Alcrifhail niote lotds, and they ditrer, vrhofe voice ftiall ft ind ; which is ab"ve t.vo ^'^^'^ "t° \\-^\^ been refoved by the Earl of Manchefcr, lord prefi- pr^xici. By dent of the council, in favour of him who is firft named in the order z Car. delegation, and prefent. But according to Lord Coke, if three Rumw.2 9. ^^^ proxies of the fame lord, and all prefent, and one is content 4lnft. i2» ^i^^j. ^ i^-jj p.^j-g^ 2j^^ jj^^ other two are not content, this is no voice. 4inft. 13. The mere prefence of the lord in the houfe, though he neither argue, confent, nor fpeak any thing, feemeth to be a revocation of his proxy. field. -5 Vol. A lord may be fummoned with a claufe that he do not make, ap. 1476. -, *■ ^' a proxy.] Court of pacliamenr. ijx (F) Of the Continuance, Adjournment, Prorogation^ and Diflblution of the ParUament. 'TTHE parliament can neither begin nor end without the king's 4 Inft. 48. "*• prefence, either in perfon, or by (a) reprefcntation. ('') ^"^^ 33 The pafTing of any bill or bills, by giving the royal aflent there- 4 inft. 27. unto, or the giving of any judgment in parliament, doth not [l>) (*)'rhattlie make a felFion, but the {eflion doth continue until that feflion be j")J[ce are prorogued or difTolved. to take no- tice of the commencement of parliaments, and alfo of prorogations snd feflions. Lev. 206. Ravm. 191. Hed. 119. Dyer, 203. The diverfity between a prorogation and an ^adjournment, or 4 Inft. 27. continuance of the parliament, is, that by the prorogation in open ^^>"^- »-°' court there is a feflion, and then fuch bills as palled in eirher houfe, or by both houfes, and had no royal aflent to them, muffc at the next aflembly begin again, ^c. for every feveral feffion of parlia- ment is, in law, a feveral parliament ; but if it be only adjourned or continued, then there is no feffion, and confequently all things continue Hill in the fame ftate they were in before the adjourn- ment or continuance. When a parliam.ent is called, and doth fit, and is diflolved with- 4 Inft. 38. out any ar life or yearb levy a fine, or fuffer recovery, equity will not relieve againil the forfeiture. Freced. Chan. 570. Alfo, upon this foundation, that a court of equity could not relieve againft a maxim of the common law ; it was fiTmerly holden, that r^ne executor could notcom- pel the other cii account. Roll. Rep. a6;.-~^Thatone jointenant could not lue his companion. RoiL Abr. 576 1 hat if an obligee loft his bond, he was without remedy Roll. Abr. 375. So, where the leflor entered upon hi; leiTee, and lufpended his n-nt, it was held, that he had no remedy. Latch. 145 So, where the party became remeoilefs by his own a£l, as by paying money w; hou: an acquittance. Roll. Abr. 3-4 So, where one on vaUnble confioeration promiled to mjk;- a leafe, it wjs held, that the party could not fue on this proraile in equity, becaufe he might have an action on the cafe. Roll. Abr. 3S0. But thefe lail opiniuns are now of no weight or authority, ai> appears by daily experience. All matters of truft are peculiarly within the jurlfdiClion of Abr. Eq. the court of Chancery; but if a trultee does bv fraud and com- '.'V,-^'^'. bmation with the cejtm que triiji endeavour to evade any penal iaw, Truju. under pretence that a truft is only cognizable in equity, and that u) fhata equity (hould not aftift a {c) penalty, or {d) forfeiture, yet Chan- J'"^i^^""" eery will aid remedial laws, and not fuH'er its own notions to be manded in made ufe of to elude any beneficial law. equity. 2 Chan. Ca. Si. \d) That all forfeitures nouft be waived, as in wafte, fo in a bill for the recovery of tithes. Vetn. Court of Ein^'iCt 'Bcnclj* 140 Vern. 60. 2 Vern. 127. Fide Abr. Eq. 40. 127., SiC. Crtat Br'n.irt, fee Stia. 149. For the authoiity of the Chancery of [Upon this head the Editor takes leave to refer the Student to the lall chapter of the third volume of the Commentaries, and to Mr. Fonblanqiie\ Notes upon the Treatlfe of Eqtiityy where the prin- ciples upon which the court of Chancery exercifes its equitable jurifdidlion are traced in a moll mafterly manner. A clear and fuc- cinct account of the origin of the court of Equity in Chancery will be found in the third volume of INlr. Reeves's Hi/lory of the Law.^ Court of MWs Btnci). Maddox, c. 19. Braft. lib. 3. c. 7. f. 105. 4 Inft. 70. 2 Inft. 24. Co. Lie. 71. Dyer, 187. Cromp. of Courts, 78. Roll. Abr. 94. TOWARDS the latter end of the Norman period, the aula regis, which was before one great court, where thtjufiiciar prefided, was divided into four diftincl courts, /. e. the court of Chancery, King's Bench, Common Pleas, and Exchequer. The court of King's Bench retained the gi-eateft fimilitude with the ancient curia, or aula regis, and was always ambulatory, and removed with the king wherever he went : Hence the writs re- turnable into this court are coram nobis ubicunque fuerimus in An^ glia; and all records there are ftiled coram rege, as it is ftill fup- pofed to have always the king himfelf in perfon fitting in it ; from whence it obtained the name of the court of King's Bench, and hath always retained a fupreme original jurifdidlion in all crimi- nal matters ; for in thefe the procefs both ifliied, and was return- able into this court ; but in trefpnfs it might be made returnable into either the King's Bench or Common Pleas, becaufe the plea was criminal as well as civil. (A) Of the Jurifdidion of the Court of King's Bench : And herein, 1. Of its Jurifditlion in Criminal Matters. 2. Of its Jurifdi(£lion in Civil Caufes. 3. Of its Jurifdiction iji reforming and keeping Inferior Jurifdidtions within their proper Bounds. (B) How far its Prefence fufpends the Power of all ether Courts. (C) Of the Form of its Proceedings. Court of Eins'iEf -^encfj* 141 (A) Of the Jurifdiction of the Court of King's Bench : And herein, I. Of its Jurifdi£lion in Criminal Matters. 'TTHIS court is termed the ciifios morum of all the realm, and by Sid. i6S. -■■ the plenitude of its power, wherever it meets with an of- p^*''* fence contrary to the firft principles of juftice, and of dangerous confequence if not reftrained, adapts a proper punifhment to ir. It has a peculiar jurifdiclion, not only over all capital of- 4ln(t. 71^ fences, but alfo over (a) all other mifdemefnors of a publick na- "J""',^^' turc, tending either to a breach of the peace, or to oppreflion or p. c. ubi faction, or any manner of mifgovernment ; and it is not material >/r. whether fuch offences, being manifeftly againft the publick good, l^^^g^"*^ '^^^^ tiiredlly injure any particular perfon or not. fliewap.s- eedent of the lilts nature formerly punillied here, agreeing in all circumftances with the prtfcnt. 2 Hawk. P. C. ubifupr. And for the better retraining of fuch offences, it has a difcre- 1 Hawk, tionary power of inillcllng exemplary punifliment on offenders, ^' ^* cither by fine, imprlfonmcnt, or other infamous punifliment, as the nature of the crime, confidered in all its circumllances, fliall require ; and it may make ufe of any prifon which fhall feem moft proper ; and it is ("aid, that no other court can remove or bail perfons condemned to imprifonm.ent by this court. Alfo, it hath fo fovereign a jurifdiOilon in all criminal matters, 4.lnft. 549- that an act of parliament, appointing that all crimes of a certain ^j?""! 53- denomination (ball be tried before certain judges, doth not ex- \>,c. ubi elude the jurifdlcllon of this court, without exprefs negative fupr. words ; and therefore it hath been refolved, that 33 i/. 8. cap. \ 2. which enacts, that all treafons, i^c. within the king's houfe, (hall be determined before the lord fteward of the king's houfe, is^c. doth not reflrain this court from proceeding againft fuch of- fences. But where a ftatute creates a new offence, which wns not taken SM. ao6. notice of by the common law, and erects a new jurifdiction for p^*"^*^: the punllhment of it, and prefcribes a certain method of proceed- /;,,L " ing, it feems queftionable how far this court has an implied jurif- diction in fuch a cafe. ' Alfo, this court, by the plenitude of its power, may as well Daif. 25. proceed on indidtments removed by certiorari out of inferior 44^-3-3^- courts, as on thofe originally commenced here, whether the court j'uriidic- below be determined, or fiill in ejfe^ and v/hether the proceedings tion, 131. be grounded on the common law, or on ib) a ftatute makino; a 1*) ^^ ^^f ° . . , , m ^ ^ ftatutes of new law concernmg an old offence. forcible entries. 9 Co. 118. i-Lie t;t. fji:ib!e Entry and Dctah: r ^ — And the ftatute of Ph. & Ma. againft peifi,n3 tilii.Tg away females under the age of fixteen years, from tiieir guardians. Cro. Car. 4O5. 2 Inft. 549. aLev.179. 2 Mod. laS, 2jones,53. 3 Keb. 75. 94. 106. 273. But the court of King's Bench will not give judgment on a Carh 6- conviclion in the infericr court, where the proceedings are re- ■^^{"'^ ;'^ '" moved 142 <2tourt of Eing'iGf 'ScncD^ •ne Baker, movcd by certiorari, but will allow the party to waive tbc iffuc who wjs below, and to plead dc ftovo, and eo to a trial upon an iflue joined opon Hu/I, for fpcaking feditious words. 2 Hawk. Nor can a record, removed into the King's Bench from an P c. uit inferior court, regularly be remanded after the term in which Jiifr. and . • -r i ri.- • j feveui au- It came m ; yet ir the court perceives any practice m endea- thoritics vouring to remove fuch record, or that it is intended for delay, there cited, ^j^^y ^^^ -^^ difcretion refufe to receive it, and remand it back be- fore it is filed. 4 Inft. 74. Alfo, by the conflruftion of the ftatutes, which gave a trial by Rajm. 364. „jj-^ pyi.isy the King's Bench may grant fuch a trial in cifes of treafon or felony, as well as in common cafes, becaufe for fuch trial, not the record, but only a tranfcript is fct down. And by the 6 H. 8. cap. 6. it is enatted, ** That the King's ** Bench have full authority, by difcretion, to remand as well (fl) "Extends " the bodies of all (a) felons removed thither, as their indi£l- n^ttohigh But if an indi£lment is found in the vacation-time in the fame "^bVif^*' county in which the King's Bench fits, and in term-time the fuch com- King's Bench is adjourned, there may be {h) a fpecial commifTion mifiioii bcjr fo hear and determine it. tefte in term- time. 3 Inil. 27. <£f wVf Keilw. 152. Dyer, 286. pi. 45. s Hawk. P. C. c 3. (C) Of the Form of its Proceedings. Vide head of '"THE cIvil fide in the King's Bench commences on a fuppofitioa Fiuiju i. jj£ ^ trefpafs committed by the defendant in the county where it refides, and that he is taken up by procefs of that court, as the fovereign eyre^ and committed to the marflial, in which cafe he may be declared againfl in any civil ac^lion whatfotvcr. The firPi procefs therefore is a bill either real or feigned, and fo called, becaufe its foundation was the Bill of Complaint in court touching the trefpafs: on this is founded the latitat, which fup- pofcs that the defendant had efcaped, and therefore iffues in the 6 king's Court of Common pieaief, 145 lclng*s name, to apprehend the party wherever he may be found ; for the king has an univerfal jurifdidion over all his fubjedts, and, confequently, may call any of them that fled from the juftice of his own court. All procefs or writs of appeal, and all procefs on indl£lments 2 Hawk, removed hither by certiorari from a [a) foreign county, ought to ^^^^'J^'\ be returnable coram nobis ubicimqiie fuerimus *. procefs upon bills of appeal againft one in cujicdia mareJchalU, ought to be returnable coram nobis apud Wejimo-nafie- r'lum. 2 Hawk. P. C. c. 3. Of indidments commenced in the King's Bench. 2 Hawk. P. C. c. 3. Q- * And fo are proceedings in civil fuits, in this court, by original. Aifo it hath been refolved, That where the court proceeds on 9 Co. i\%. an offence committed in the fame county wherein it fits, the C0.L1t.134. procefs may be made returnable immediately; but that where sid.72.* it proceeds on an offence removed by certiorari from another, a Roil, there muft be fifteen days between the tejie and return of every ^{^^'^l' procefs. Court of Common i&leas* TOWARDS the Norman period, the power of the jujliciar Maddox^ was broken, and the aula regis, which was one great court, ^- 9- divided into four diflin^t courts, as we have them at this day in the caufes WeJItnitijler-Hall ; the Common Pleas was eftablifhed for the de- between fub- termination of [b) pleas merely civil, and was at firft ambulatory, J^^a"'^'""''- and removed with the king wherever he went ; but by [c) Magna be there de- Charta, cap. 11. Communia placita non fequantur {d) curiatn nof- termined, tram, fed teneantiir in aliquo certo loco. fli^e^of "this court ■>N^%flacita coram, &c. or Common Picas ; the word plfjs, anciently fignifying the convention of the ftates b: campisj •viz, german'ue in pladts ; and becaufe in thofe conventions of the ftates all caufes were heard, debated, and determined, therefore, by corruption they got the name of pleas from the court where they were decided : Hence the court that was particularly eredled to hear and determine fuch and fuch caufes, was called the Court of Pleas. Dufr. 395. (c) That this court was not created by or foca after the making of Magna Charta, wde Co. Lit. 71. b. 2 Inft. 22. And for my Lord Coke's opi- jiion of the antiquity of it, fee the prefaces to the 8 & 9 Rep. and 8 Co. 145. [See alfo note 2. 1 3tii edit. Co. Lit. 71. b. and Mad. Hift. Excheq. fol.edit. 63. 539-] [d] Before this act, common pleaa might have been held in B. R., and all original writs were returnable there. 2 Inft. 21. The jurifdiftlon of this court is founded on (c) original writs 4 inft. (59, ifluing out of the Chancery, which are the king's mandates for (.') B.afton, them to proceed on, to determine fuch and fuch caufes; thefe \,.f\.i!°^' writs iffue out of Chancery, becaufe, when the King's Court was fays,>;e but one, the chancellor had the fcal ; and therefore, when they 'J^;^^"„'^'^'" were divided, he fealed all original writs. By this method the n.nLh^fy feal was a check on the other courts, to know what caufe was and to Uie Vol, II. L there. J 46 Court of Common jpiea^* fame ptir- tlicfc, and likewife, that the (a) fines for having juftice in the poie isFie- King's Court (hould be anfwered incontinently before there were ta, lib. 2. ° ,. ^ c. 34. f.85. any proceedings. Brittnn, 2. b. fays, On the eftablifliment of this court, that they fhall plead fuch common pleas as we fliall command them by our writ, fo that the proceedings on our writs may be recorded. {a) In Mad- dox, 293 to 3i4.> there are variety of inflances ot fines recorded for having juftices in king's courtSa See Anz. Dial, of £xcheq. 56. 4lnft. 99. But this is to be underftood when the caufe is between com- mon perfons -, for when an attorney, or any perfon belonging to the court, is plaintiff, he fues by writ of privilege, and is fued by bill, which is in nature of a petition ; both which originally commence in the Common Pleas, and have no foundation in the Chancery. £ inft. 09. This court, my Lord Coke fays, is the lock and key of the .(*l j^"^.^*^' common law in common pleas ; for herein are real a6lions, where- jurildidtion ^ , ^ f ir 11 1 1 r\' of each court upon fincs and recoveries pals; as alio all other real actions Is fo well by original writs : alfo, common pleas mixt or perfonal, in divers eftabhfhed, f ^hich the Kws['s Bench has a (i>) concurrent iurifdidion with thatasatthis o ^ ' J day the court thiS COUrt. of King's Bench cannot be authorifed to determine a mere real aftion ; fo neither can the court of Common Pleas, to inquire of felony or treafon. z Hawk. P. C. 2. Fide tit. Court of Kingi Ber.cb. 4 Inft. 99. This court, without any writ, may upon a fuggeftion grant ^d^' V^d'h prohibitions, to keep as well temporal as ecclefiaftical courts with- a!ithe%dges i^^ t^eir [c) bounds and jurifdidlion, without any original or plea v{ England, depending ; for the common law, which in thefe cafes is a prohi- Mich.yjac. bition of itfelf, ftands inftead of an original. I., and that ' o there were feveral precedents to this purpofe. [c] All prohibitions for encroaching jurlfdidlion ifl»e as well out of [he Common Pleas as King's Bench. Vaugh. 157. fer Vaughan, Ch. Juft. Vaogh.154.. This court, in term-time, may award a habeas corpus by the &c. & tide common law, * for any perfon committed for any caufe under * So it 'may treafon or felony, and thereupon difcharge him, if it clearly bythei^fl- appear by the return, that the commitment was againft law, as ^rt* "'^P* being made by one who had no jurifdi6lion of the caufe, or for a 2. 'c.2. ' niatter for v/hich, by lav/, no man ought to be punifhed. So, by th: fame ftatute, any judge of this court, may in the vacation award an hjbcai corpus. 4 inO:. 100. This court, upon an adjournment, upon a foreign voucher may hold plea likewife upon other foreign pleas, and upon general bafliardy, iie unqucs accmple in loinle f?mtnmony, isfc. for none but the king's courts, and no inferior court, fhall write to the bifliopj fo likewife upon ancient demefne pleaded. [ H7 ] Court of 6)rci)equer* (A) Of the Nature and Antiquity of this Court. (B) In what Cafes it has a Jurifdidion. (C) Of the Manner of its Proceedings. (A) Of the Nature and Antiquity of this Court. THE court of [a) Exchequer Is an [b) ancient court of record, 4 Inft. 103. for all matters relating to the revenue of the crown. ^"^ ^'^^ ° common derivation of the word is from the old French word efchequier, which fignifies a chefs-board, or chequers "work ; and becaufe a cloth of that kind was laid upon the table upon which the accountants told out the king's money, and fet forth their accounts, in the fame artificial manner as is done in the cofferer's ac- count at this day, it was called the Court of Exchequer, Maddox, 109. Spelm. Gloff. tit. Scacc, Fortefc. on Monarchy, the notes there, 117, ti8. {h) It was formed from the Exchequer in Nor- mandy, which was a court of fovereign jurifdiftion, and fuperintended all manner of complaints, by and againft the Sheriffs and bailiffs who exercifed an ordinary jurifdidlion, and whofeduty it was to gather the duke's rents in each bailiwick, and to account for the fame in this great court; and as in the court of Normandy the great officers of ftate fat as judges ; fo with us, before the divifion of the courts, the great mini(ters, as the jufticiar, conftable, fenefchal, chancellor, and treafurers, fat in this court ; but the treafurer ufually prefided, as belt acquainted with ail matters relating to the revenue. Maddox, 109. Vide alfo for the antiquity of this court, and of its feveral officers, and their duty. 4 Inft. I03. Sav. 48, 2 Inft. 104, 105. 551. In the {c) Exchequer there are feven courts, i. The court of {c) The Pleas. 2. The court of Accounts. 3. The court of {d) Receipt, court of firft 4. The court of Exchequer {e) Chamber, being the (/) aflembly tenths^^ of all the judges of England^ for matters of law. 5. [g) The erefted court of Exchequer-chamber, for errors in the court of Exche- {^^"''^ quer. 6. {h) The court of Exchequer-chamber, for errors in diiToi'vedby the King's Bench. 7. {t) The court of Equity in the Exchequer- Qu. Mary, chamber. *'^''- '• f^^- 2. C. 10., and the clergy difcharged thereof by 2 & 3 Ph. & Ma. c. 4. But by the firft of EHz. c.4., the firft- fruits and tenths are re-united to the crown, but no court is revived, but the fame to be within the rule, furvey, and government of the Exchequer, &c. 4 Inft. 120 The court of augmentations was erefted by 33 H. 8. c. 39.; but Queen Mary, according to the power given her by the ftatute I Ma. c. 10., by letters patent dated 23 January in the fame year, diffoived the fame court : and the next day, by othrr letters patent, united the fame to the Exchequer, which was utterly void, becaufe fhe had diffoived the fame before. 4 Inft. 118. Moor, 289. But i;;"(/e Plow. 377. 542., and the Banker's cafe, where, by the opinion of Lord Sommers, the uniting of the court of Augmentations to the court of Exchequer was not abfurd, nor an iraprafticable thing. {d) This is the true centre, into which all the king's revenue and profit ought to fall, 2 Inft. 197. (;) What caufes are to be ad- journed thither, and the method there, as to the arguing of them by the judges. 2 Bulft. 146. Lev. 7. (/) 4 Inft. 68. no. {g) Ereded by 31 Ed. 3. c 12. {h) Ereded by 27 Eliz. c. 8. (i) The lord treafurer, chancellor, and barons of the Exchequer, are the judges of this court ; and their jurifdiftion is as large, for matters of equity, as that of the barons in the court of Exchequer, for the benefit of the king, by the common law. 4 Inft. 1 18. L 2 14S Couct of (!Brc5c(iuer. (B) In what Cafes it has a Jurifd'ufllon. (a) It hath "nY the (a) ftatute of Rutland, made 10 ^. i. (b) " No plea fliall been doubt- D « ^e held in the Exchequer, unlefs it fpecially concern the ed, whether ....,,„ ^ ' i^ this is an aft ^^if^g or his miniiters. of parliament, or an ordinance only, made by the king, for the better orJer of this court. Plow. 209. 4. Inft. Ill, But 2 Inft 551., it is laid, there is a writ in the rcgijler, under title Brevia de Statut , which recites the words of this ftatute ; an^l in the margent of the writ, Statut. de Rutland is quoted J fj that without queftion this ftatute was made by authori:y of parliament. And 4 Inft. 113. it is faid, it is entered in the parliament roils, (^ -vide 8 Co. 20. But 4 Inft. I14. i't is faid, the writ is founded upon the common law and cuftom of the realm, (i) This is only in affirmance of the common law. 3? AfT. 20. The king's {c) farmer may fue one that detains from him part Koii. Abr. q£ jj^g pofleffions that he hath from the king, out of which the farm (/)So, ofhis is to be paid, by which he cannot pay his farm to the king. debtor*, zlnft.^ji. * And by this fiiflion, the court of Pleas hath a concurrent jurifdldlion vriih che Common Pleas and King's Bench in civil fuits, (except real aBiom and quart impedit.) 4 Inft. 112. The debtor [d) of the king's debtor may fue here by quo minus, (d) That the leflee of the king's leftee is not entitled to the privilege of the Court of Exchequer. Owen, 38. ■ ^But fee the pieceding note, and the fame fidion is uled on the e(}uity lide.j Sav. X34. An information for the queen and party, upon the ftatute c— "^d^rh of liveries, 8 E. 4. cap. 2. was brought in the Exchequer ; though adjudged. ' by the exprefs words of the ftatute it ought to be in the King's Cro. £iiz. Bench, or Common Pleas, before juftices of the peace, dffr. and 326. s. c. ^YiQ Exchequer is not mentioned; yet it was adjudged it lay in Moor, 564. "^is court, becaule the queen was party, and there were no nega- S. c. upon tive words ; without which, [e) this, being a fuperior court, fliall ^'^'''"^ have iurifdiaion. error m Lam. J Scaec. reverfed as to the informer 5 for the penalty was given to him only that informed in the courti ipecially napied. z A.nd. 127. S. C. reverfed accordingly, [c) Plow. Com. 208. 3S AfT 20. If the king's farmer fues in the Exchequer againft a perfon for Koii. Abr. detaining tithes, parcel of the poflelTions to him leafed in farm by the king, though the right of tithes comes in debate between them, yet the court fliall not be oufted of jurifdidlion. Lane, 100. If J. S. be parfon impropriate of D. and B. vicar there, and ^"g' s^c' ^^^ ^'"^ patron of the vicarage, and there be a debate between the parfon and vicar for tithes, the fuit for thefe tithes ought to be in the Exchequer, lane, 39. If (f) a copyholder of the king's manor be fued in the eccle- Roli. Abr. flaftical courts for tithes, upon a fuggeftion in Scaccario, that he fn'so of P^'^fcribed to pay a certain modus decimandiy he fliajl have a pro- the king'6 hibitiou there, and this incdus fliall be tried there. farmer. Lit. Kep 525. Lane, 55. If a man be amerced in the king's leet, and upon procefs out of ^■,°) . or difcharge all forfeitures of recognizances, penalties, fines, iflues, amerciaments, and other fums of the nature cf recognizances, fines, iffues, and amerciaments, whereby the fub)e£ts are chargeable to his Majefty, the court difcharged a penalty fixed by ftatute. Rex v. Dibbens, Parker, 165. So, fines judicially fet have been compounded. Nov. 21ft, 6 W. & M. c\ted ibid. And now by flat. 4 Geo. 3. c. 10., the barons are empowered to difcharge without any qu]etui, recognizances eftreated into the Exchequer for neglefling to attend as parties or witnefTes, cr to profecute indictments in any court of record, or at the affizes, &c. upon petition and affidavit on behalf of the perfons who may be jmprifoned, or be liable to be imprifoned on the forfeiture of fuch recognizances ; but the aft exprefsiy provides that no difcharge fhali be given on fuch petitions where any debt is due to the crown, other than by the recognizances fo prayed to be difcharged ; nor in any cafes of defrauding the revenue by contraband trade, or affaulting the officers of the cuftoms or excife in the execution of their duty, or any perfon lawfully aflifting them therein.] (C) Of the Manner of its Proceedings. "iF prohibited goods are feifed, and proclamation made accord- ■■■ ing to the eourfe of the court, the owner fhall not have them {c) delivered unto him upon fecurity, v/ithout putting in [d) a writ of de- plea, (liewing caufe why he (hould have them. livery (hail be granted but upon good fecurity, and for goods perifhable, or where the informer fhall delay the trial. TAnd even for periftable goods, it is difcretionary in the court whether they will grant it or not, Parker v. Afliton, Bunb. 21. Vincent v. De Laar, Parker, 196. What /hail be fuch adelay as /hall authorize the awarding of a writ of delivery cannot be certainly ftated : indeed, it feems to be generally agreed, that if a feifure be in the vacation, and there be no information filed the term following, if it could have been tried in that term, that this would be a delay to ground a writ of delivery upon. Johnfon v. Sowers, Bunb. 30. Where it appeared in an information, that goods feized by the officer of commiffioners of excife, were removed from one port to another without a permit, the court granted a writ of delivery, upon giving fecurity, this being an unlawful importation, and therefore not within their jurifdidlion. Warwick v. White, id, 106.] {d) Upon a bill in equity to difcover the value o{ cordage feijed to the king's ufe, the defendant, in his anfwer, made title to it as his own 3 and upon giving Sav. ic. & 14 Car. 2 II Court of ti)C Conaable anD Cad ^atl!)al 151 giving fecurity had a writ of delivery, though the king claimed the property as his own goods, and not as goods forfeited. Hard. 191. But it was faid, ic would have been otherwife if the king's tick had appeared by inquiiltion or other record. Before the 5 R. 2. fo great care was taken of the king's reve- 4lnft. no. nue, that no man might fue or plead for the difcharge of any debt, account, or demand, in this court, without exprefs com- mand, or letter of the great feal. But by ^ R. 2. cap.g. this praclice was declared illegal, and 4lnft. no. ordained, that the barons fhould have power to hear every anfwer of every demand in this court ; fo that every perfon, dsfr. may plead, fue, i^c. without fuing any writ or other com- mandment. In cafe of an outlawry, ic is the courfe of the Exchequer to Mod. 90. prefer an information, in nature of a trover and converfion, againll ^"' ^^'*» him that hath the goods of the party outlawed, '■^" * Court of tl)e Confiable anD Carl #arfi)al. TN the king's own court, eftabliflied by William the Conqueror, Maddox,27. there were high officers, called the [a) Conftable and [b) Mar- Fieta.hb. z. fhal, to whom chiefly belonged the conuzance of matters of ho- speim. nour, war, and peace ; and therefore all foreign fa6ts committed Giofl". by the king's fubie£ls were referred to them to determine, accord- ^'^^ ^.'^^ , . ^ . ° J . 1 r name is of mg to the law 01 nations and or arms. Norman tx. traftion, and came from their Comes StahuH ; there was the like officer in France, called Lc O^njiahle de Franc, who was the great general of the army, whofe power v^as confined to rruilers of war only : But -it feems the conllable of England had a civil as well as a military jurifdiftion, efpecially as to matters tranfadted in foreign parts: This office was created in WilUajn the Conqueror's time, and was anciently hereditary, and went to females : but, being an office of fuch high power and dignity, it became formidable to the crown ; and therefore H. 8. got rid of it, fmce which there has been no fuch officer for a conftancy, but only one created fro hue vice. Vide the notes to Fortef. on Monarchy, 130, 42 E. 3. 3. 1311.4.4,5. 4lnft. 127. Dyer, 285. {b) Of the feveral kinds of marlhals that were attendants on the king's court, and the nature of their offices, vide Maddox, 31, 32, 33. Ar.d that the marfhal who was joined with the conftable, fat as judge with him, and was called the carl niarflial, or marfhal of England, vide Fleta, lib. z, c. 3. Maddox, 33. Show. P. C. 60. Co» Lit. 74. 4 Inft. 123. But to underftand the nature and jurifdi. ^ -vide Show. P. C. Co, 61. [1] In Oldls's cafe, Show. P. C. 6i 65. 2 Hawk. P. C. c.^ (B) In what Cafes it has a Jurifdidllon. 'T'HE jurlfdi£tion of this court is declared by the 13 i2. 2. njeZK.-z, ■*■ caj>. 2. by which it is recited,- *^ That the commons made ^' '^' , * grievous complaints that the court of the condnble and mar- p. c.c.a, * (hal daily incroached contracts and trefpafles, and many other ' a(flions at the common law; and thereupon it is declaredy That ' to the conftable it appertaineth to have conufance of contrails * touching deeds of arms, and of vv'ar out of the realm, and alfo * of things which touch war within the realm, which cannot be ' determined nor difcufltd by the common law ; with other * ufages to the fame matters appertaining, which other con- ' ftables before have reafonably ufed ; joining to the fame, that * every plaintiff fhall declare plainly his matter in his petition, * before that any man be fent to anfwer thereto; and if any will * complain that any plea is commenced before the conftable and ' marfhal, that might be tried by the common law, he fhall have * a privy feal to the faid conflable and marflial, to furceafe till * it be difcufTed by the king's counfcl, if the matter of right per-^ * tain to that court, ^c." And it is further ena£led by i H. 4. cap. 14. " That all appeals Vide-iht fe- * of things done within the realm fhall be tried and determined ^raiftautes ' by the good lavi-s of the realm ; and that appeals of things c i;. * done out of the realm fhall be tried and determined before the 35 H.8. ' conflable and marflial, and that no appeal be made or purfued ^ !'' ' m parliament. ^. u & a Ph. & M. c. TO., and 2 Hawk. P. C. c. 4. as to its jurifdidion at this day, wich lel^cd to hings done beyond fea. As the jurlfdittion of this court is reftralned to things touch- RuO-. worth's ing war within the realm, it can have no jurifdidion as to a Coll. Part 2. civil matter, and therefore cannot proceed againll a perfon for "^^i^sk^^' bare fcandalous words, reflecting on the honour and gentility of P. C. c. 4. families. Alfo, though the marfhaling of publick funerals belongs to the Lev. 2^. heralds, who are the attendants of this court, and no other per? ^j^* 355- fons, without their licence, can lawfully intermeddle in it ; yet it -r?^" ^^' feems to be fettled, that this court cannot punifli thofe who fnall i>how. P.c. be guilty of fuch an incroachment, becaufe it is a proper ground ^^.v, ^ „ r n.- 1^ r 111 1 r. ^ 1 -^ 4Mod.i2S, lor an action on the cafe ; and by the above ftatutes, this court has nothing to do with matters which may be determined by the f ommon law, But by the conftant pra£tice, and the general opinion of law- 2 Hawk. yers, it feems at this day to have a jurifdidion as to difputes con- ^'' ^* '=-4' cerning 154 ^^ ^6^ €o[ivt Of tfie 3[uQiccjBl of cerning precedency and points of honour, and fatisfa£Hon there- in ; and may proceed againft perfons for falfely afTuming the name and arms of honourable perfons, i^c (C) Of the Form and Manner of its Proceedings. 3 Inft. 125. 'TPHIS court is to be governed by its own ufages, as far as they 3 Hawk. X gQ^ ^^^ i^ other cafes, by the civil law ; but fince it is no court of common law, no condemnation in it caufes any forfeit- ure of lands, or corruption of blood ; neither can an error in it be remedied by writ of error, but only by appeal to the king ; yet the judges of the common law take notice of its jurifdi£lion, and give credit to a certificate of its judges. Hutton, 3. It is made a doubt, whether the king hath any remedy in this court againft an offender, by way of indidlment or information by the attorney general. £)f tlit Court of ttft gjuftiCee; of Oyer anD' Terminer, mH <^mh^tU^tX^, C0.Lit.293. "fUSTICES of aflife, oyer znd terminer, and gaol-delivery, were 4 Inft. 184. I appointed in the room of the iuftices in evre, who formerly Bacons ^ '^K . . . .. •» irrjjL Eiem. IS, went their circuits once m leven years, and iuperleded the power i6« of the fheriff's torn wherever they came, and tranfadted all man- ner of civil and criminal bufinefs ; thefe were part of the king's court, who exercifed their jurifdidtion in the feveral counties of the kingdom, and, by communicating with the king's court, kept an uniformity in the law. (A) Of the Manner of authorizing Commiflioners of Oyer and Terminer, and Gacl-Dehvery : And herein of the Determination of their Power. (B) Of their Jurifdidion when appointed. (C) Of the Form of their Proceedings, and holding their Courts. Oyer antl Terminer atlB CaoI-DcIitJCr^. 155 (A) Of the Manner of authorizing Commiflioners of Oyer and Terminer^ and Gaol-Delivery : And herein of the Determination of their Power. A S all juftice proceeds from the king, fo thefe commlffions Lamb. B. i. •^^ muft receive their authority from the [a) prerogative of the l'**'';.'* crown ; and this the common law requires, and it is alfo ex- Lev. 219. prefsly enabled by the 27 H. 8. cap. 24. (j)Thatthe kin^ is the proper juHgff, and may determine to whom, and upon what occafions, fach commiflions may be granted. 2 li.it. 419. The common {h) form of thefe commiflions is to authorize the 4111ft. 16s. commiflioners, or three or four of them, of which number fuch Crom.Jur. or fuch a perfon is to be one, to inquire, by the oaths of twelve pjo^. 384. men, of all treafons, felonies, and mifdemefnours, ^c. in fuch 2 inft. 419. and fuch place, and to hear and determine the fame at fuch times p ^^^'^^ and places as fuch commifl~ioners (hall appoint, ^c. for which ^'50. purpofe the king acquaints them, that he has fent a writ to the (^) Whether (heriffs of fuch counties, commanding them to return juries j^^ ^ea " before them at fuch days and places as fhali be notified by pointed as them, ^C. well by writ as by com- miflion ; and for the difference "vUe 2 Hawk. P. C. c. 5. § 2.— —That the court of feffions in Lea- don does not differ from other commiffions of cytr and terminer, &c. Vaugh. 140. The validity of fuch commiflions muft be determined accord- And. 296. ing to their conformity to ancient precedents*, and therefore a p^^*^* commiflTion to a corporation, appointing fome of its principal ^"^/ members to be juftices of gaol-delivery, together with thofe whom Reg. 124. the king fliall appoint from time to time, was adjudged void ; for ^* '^^ ^' fuch an authority, depending on the precarious appointment of h.P.C, other jufliices, is not agreeable to the knov/n forms of fuch com- 159. millions . But new commiffions of oyer and termitier may be added p ^**'^' to the former by a writ, or commiffion of afl!bciation, which, fct- ^ ^g. ting forth the purport of the former commiflTion, adds new com- (0 The milTioners to thofe appointed by it ; provided fuch new commif- ^ant^but fioners attend at the times and places appointed by the former ; one patent and it is ufual to dire£t another writ to the former juftices, com- of affocia- manding them to admit fucli new juftices as their aflbciates ; but j-o^^^^j"*, fuch writ [c) binds not fuch juftices to admit the new ones, unlefs 2 Hawk, they alfo produce one directed to themfelves ; and fuch writ to P-C. c.5. the perfons aflbciated is always patent, but that to the others to q^ \q^^. admit them is clofe. ther a com- miilion cf adbciation, relating only to a fpecial caofe, can affodate the perfons named in it to thof: appointed by a genera) commiffion. 2 Hawk. P. C. ubi j'ufra. Upon the death of fuch commiflioners, after an indictment Reg. 12S. taken before them, and procefs thereupon, a new commiflTion may ^' ^' ^* authorize others to proceed, and a writ fliall go to the executors ^ Hav.fc. of the firft commiflioners, to fend the records and procefles before p. c. c. 5. the new ones. ^ '^* After 156 €)f tfje Court of tlje luQfcejGf of Reg. 124. After a writ of aflbciation, it is ufual to make out a writ of F. N. B. Jl t)on otnves, which authorizes fuch a number of the juflices ap>- 2 Hawk. pointed by the former commifllons to proceed, if all of them can- P. c. c. 5. not conveniently be prefent. But for There are feveral ancient precedents of fpecial commifllons of *^H^ ^t^' ^y^'' ^""^ tenniuer, as thofe for inquiring and determining feme P. c. c.\. particular enormous violence done to the party who fues it ^12., &c. out, i^c. a Hawk. As to the difFerencc between a commifllon of oyer and terminer P. c. c 5. a^ J gaol-delivery, it may be proper to obferve, that where the feveral au. fa'Tic perfops at the fame time are both commifTioners of oyer and thorines alfo of gaol-delivery, they may proceed by virtue of the one there cited, commiffion, in fuch cafes wherein they have no jurifdicHon by the other, and execute both at the fame time, and make up their records accordingly. 4lnft. 163. Thefe commiUions may be fufpended by the court of King's H. P-^' Bench fitting in the fame county ; but the jurif iiclion of the juf- asGeo. 3. tices is revived of courfe, when the faid court no longer fits e. 18., and there : alfo, their authority may be fufpended by a writ oi fitper- V" A.%°'i' fi^^^^i which is grantable on proof that their commiflion was un- jufticesof duly granted ; in which cafe their power may be reftored by a 2 Co. 32. (*) And by 4E. 3. c. 2. the juftices a/Hgned to deliver gaols /hall have power to deliver the fame gaols of ihofe that Ihall be inJidted before ihej..ltices of the peace. (f) But juftices of oyer And ter- miner have regiiLily at fuch power. 2 Hawk. P.C c. 5. § 32. Cro. Eiiz. It feems the better opinion, that juftices of gaol-delivery may And! MI. ^^^^ indidtments againll any perfons within their commiirion. a Hawk. F. C. c. 6. § 2. H. P. C. 158. 4 Inft. 168. r.W^2Hawk. Alfo, that they may, by virtue of a general commiflion, deli- «". ■ * * ver the gaol of perfons committed for treafon. r;rf« a But juftices of gaol-delivery have no power to proceed againft P.*C.'c.6. ^"y» except thofe who are in adual cuftody ; and therefore they ^ 5, have no more to do with one let to mainprize, than if he were at large. Juftices Oyer anti Terminer aiiti (5aol^H:)eIitierj?» 157 • Juftices of gaol-delivery have not only power to difcharge pri- 2 Hawk, foners acquitted before them on a trial, but alfj (a) all fuch againft ^'^'^' ^' M'hom, on proclamation, no evidence {hall appear to indicl them : («) wiiich Alfo, juftices of gaol-delivery may award execution againft pri- neither juf- foners outlawed for felony before juftices of peace ; and though ""^ "* '^ their commiGion be in ftriclnefs determined after the end of their juftices of feflion, yet may they, after their feflion, order the reprieve or '^y^'- and execution of the perfons condemned before them. , u , „ '''''"''■"' ^^ t do. 2 Hawjf . V. C c. 5. § 6* By the 4 £. 3. cap. 2. it is enacted, ** That juftices afligned to That by the ** deliver gaols fhall have power to inquire of thofe in whofe '^'"'"o" *' ward perfons indicted before wardens of the peace fiiall be, if ^^^ puniSh '* they make deliverance, or let to mainprize any fo indidted thoie who " which be not mainpernable, and to puniQi them if they do any "".^"'v bail *' thmg agamlt this act. By the 1^2 P/j. <$" M. " If any juftice of peace of the quo- z Hawk. ** r«//i, or coroner, fliall offend againft that ftatute, either as to ^* ^- *• 5« ** bailing prifoners or taking their examinations, or the informa- ^ ^' *' tion of thofe that bring them before them, or not putting the " fame in writing, or not certifying them to the next gaol- •* delivery, or not putting' in writing the evidence to a jury on % ** coroner's inqueft of murder or manflaughter, or not binding ** over material witnefTes, or not certifying fuch evidence and ** fuch recognizances, the juftices of gaol-delivery fhall, on due *• proof by examination, fet fuch fine for every fuch offence as '* (liall feem meet." By the 4 E. 3. cap. 5. " Juftices of gaol-delivery (hall punifh " (heriffs and gaolers refufing to take felons into their cuftody ** from conftables and townfhips, without being paid for fuch ** receipt." By the i E. 6. cap. 7. " Where any perfons fhall be found (*}3ut fack *' guilty of treafon or felony, for which judgment of death may fubf^^uent *' enfue, and (hall be reprieved to prifon [b) without judgment at ^^ power^t* ** that time, thofe perfons who fhall at any U) tim.e after be award the " alTigned juftices (cJ) to deliver the gaol where fuch perfons execution of ** fhall remain, fhall have authority to give judgment of death demned'by* ** againft fuch perfons, as the fame juftices before whom they former juf- *« were found guilty might have done, if their commiffion of ""V "*^ <* gaol-delivery had continued." by'them- Dalf. 20. Dyer, 165. 2 Hawk. P. C. c. 6. § 19. (r) Extends to fubfequent commiflioners au- thorifed by a fucceflbr, as well as to thofe auihorifed by the fame king. 7 Co. 31. Dalf. ao. (r is good. Raym. 115. a Hawk. P. C. c. 5. §15. But an adjournment, of which no entry appears, ihall not be intended to have been made. Sid. 348. aKeb. 2S4. 292. By the 9 E. 3. cap. 5. " Julllces of afTife, gaol-delivery, and of <* oyer^ fhall feud their records and procefles determined and put ** in execution, to the Exchequer at Michaelmas every year -, and <* the treafurer and chamberlains for the time being, having the *' fight of the commiflions of fuch juftices, fhall receive the fame ** records and procefles of the faid juftices under their feals, and «' keep them in the treafury as the manner is ; fo that the juftices ** firft take out the eftreats of the faid records and proceflTes, to *' fend to the Exchequer, as they were wont before." By the 6 R. 2. cap. 9. " Juftices afligned to take afllzes, and « deliver gaols, (hall hold their fefllons in the principal towns of ** the counties where the (hire courts were then holden, or after « Ihould be holden." [By^. 19 Geo. 3. c. 74. § 70. " Whenever the courts of aflife, ** }iifi prius, oyer and terwifier, or gaol-delivery, for any county *' at large in England, fiiall be holden in or near any city or town " that is alfo a county of itfelf, and at the fame time with the «* like or any of the like courts for the faid city or town, the *' lodgings of the judge or judges (hall be conftrued and taken to <* be fituate both within the county at large, and alfo within the « county of fuch city or town, for the purpofe of carrying this *< aft into execution, and of tranfafting the bufmefs of the af- *« fizes for fuch county at large, and for the county of fuch city •* or town, during the time that fuch judge or judges ihall con- ** tinue therein for the execution of their feveral commiflions."] £>f. tl)e Court of tt)e ^Juftices of Affize anU Nifi Prius. 4lnii. 158. tUSTICES of (a) afllze derive their authority from the com- Cromp.jur. J mifliion, by which they are empowered to inquire of all dif- (fi) Are fo feifins, and to reftore fuch, as have been difl'cifed of their lands called from or tenements, to the pofleflion of them, by trial at one aflfifes. the writ of aflize } but for this viJe tit. y^JJize, and 4 Infti 15S, Co Lit. 153. a To £)f tje Court of @)e(Kon]Bf, &c, 159 To thefe, by writ of nift prltiSy direcled to the judges or com- 2 Inft. 424. miflioners of aflife, and clerk of aflife, is annexed an authority 4lnft-iS9' and jurifdidlion of trying fuch iflues as are joined in the courts at Wejiminjlery in their proper counties ; and this method was in- troduced after the laying afide of the juftices itinerant, and was contrived for the eafe of the fubjeft, that the jury and witnefles might not be obliged to come out of their proper counties. The manner of contriving it was, to dire£l the venire^ d'ljlringasy 4 Inft. 159. or habeas corpora juratorunty to return the jury at fome day the next term, unlefs the juftices prhis tali die isf loco venerint ; there were no iflues returned on the venire to make them appear at nift prius ; yet it was fo much a greater difficulty to them to appear afterwards at Wejlminjlcr^ which if they did not, the dijiringas ilTued, that it had its effetl to convene them in their proper coun- ties ; the writ was contrived to command them to come into court, becaufe it would have been improper for the court to have commanded them to come into any other place j fo that their ap- pearance before the juftices of affife, is an excufe for their non- appearance in Bank ,- but if they did not appear at the afTife, nor at Wejlminjler^ then iflTued a habeas corpus and dijiringas to bring them up. The day at nifi prius and in Banh are in conlideration of law 6 Mod. 9. the fame, becaufe the writ of nift prius which gives authority to the judge to try the caufe in the county, is inftead of the court; and therefore the pojlea certified by him on the day of Banli is the fame as if the jury had come up to the court, and the trial had been had in open court. The juftices have large jurifdidtion, by feveral ftatutes, as to all criminal matters, and may punifti offences in (herifFs, gaolers, and other officers, ^c. which fee in 2 Hawk. P, C. c. 7. £)f t!)c Court of ^tfljions of 3)ufttces of tlje jDeace. A COURT of feffions of juftices of peace is (a) an aflembly Lamb. Book of two or more, whereof one is of the qucruniy at a day ^?'?" and place before appointed by them, in order to inquire of, hear, j^jjuceiof and determine matters within their j urifdi£lion. '^' Peace. (a) Purfuant to the ftatute 34 E. 3. c. 1. by which it isenafted, that two or three of the beft reputation in the coun- ties /hall be alfigned keepers of the peace by the king's commifl5on, and at what time need fliall be, the fame with other wife and learned in the law (hali be afligned by the king's commifllon, to hear and determine felonies and trefpafles done againft the peace in the fame countiei, and to inflift punifliment reafonably, according to iuw and rsafon, and the manner of the deed. Any i6o £)f tfie Court of ^t^om» ^c. Lamb. B. 4, Any juftices, whereof one is of tht quorum^ may dlre£l their V\%h ^^^ prec-pt under their tejle to the fherifF, for the {b) fummons of fuck pre fu'^'i ^ lellions, tliercbv commanding him to return a grand jury, eeptcjnonty and to wam all (t") llewards, conftables, and bailiffs of liberties, ^d b"^''^^' to be prefent before them or their fellow juftices, at fuch a day out .FChati- and place, and alfo to attend there himfelf, and to proclaim in a trade, («) ^c. But they cannot make an original order for late i«j ^ Burr. i- • ,./-„. ° V 1 ,366. overieers to pay over monies to their fucceffors {0) j nor can they make £)f tf)e (^ccIcfiaOfca! (Jtourtief* i6i make a new fcavenger's rate (a), or fet afide an alignment of an (<»)W.i46o, apprentice bound out by the juttices (^), nor have they cognisance ^^) ' ^^'' over the bailiff of a corporation for not qualifying (f).J (^j Sa>t Rep. J38. £)f ti)e CBccleCalJical Courts. THE church, before the converfion of Con/^antlney was a dif- CodoIpV tin6t and independent fociety from the ftate, and, as fuch, ^'^''^'■] it was neceflary they (hould have rules and orders among them- jj^ to 1331 felves ; for the better government of the body of chriftians, the s^Co. i. power of judicature was placed in the bifliops, who had by their ^^^^1* wifdom and gravity obtained an authority in the church, and who ufed to fend abroad their minifters to propagate the gofpel in their feveral precin£ts ; and therefore they determined all controverfies among them, which could not be carried into a heathen court without great fcandal to the quiet and peaceable way of living which was the glory of the primitive chriftians ; and this they founded on the dire£lion of St. Paul himfelf. Dare atiy of you^ having a matter aga'injl another^ go to laiv before the uttjujl, and not before the faints ? After the converfion of the emperors, their zeal for chriftianity made them allow the bifhops the fame jurifdic- tion ; but then thofe bilhops, in their fentences, followed the laws of their country: but, when the pope afterwards pretended to infallibility, he would no more conform his decrees to the laws of particular ftates and kingdoms ; and, therefore, thofe ftates were under a neceflity of exerting their original right and power of ju-» dicature : Hence it is truly faid, that [d) the fpiritual jurifdi6lion, (^ RoU, within thefe kingdoms, is derived from the king, and that fuch ^'"'•S^it jurifdiftion when exceeded, is fubjeft to the controul of the king's ' temporal courts. But, for the better underftanding the jurifdi6lion allowed the fpiritual court at this day, we fhall confider, (A) The feveral Ecclefiaftical Courts which exercifQ a Jurifdidion ; And herein, 1. Of the Court of Convocation. 2. Of the Court of Arches. 3. Of the Prerogative Court. 4. Of the Court of Audience* Vol. II. M c . Of i62 £)f tlje OBcclcOaQfcal Courts. 5. Of the Court of Faculties. 6. Of the Court of Peculiars. 7. Of the Conliftory Courts. 8. Of the Court of the Archdeacon. 9. Of the Court of Delegates. 10. Of the Court of Commiilioners of Review. (B) Of appealing from an inferior to a fuperror Court. (C) Of citing one out of his own Diocefe : And herein of the Boundaries of their Jurifdidion. (Dj In what Cafes the Ecclefiaftical Courts are allowed to have a Jurifdidion. (E) How they are to proceed as to thofe Matters ia which they have a Jurifdidion, otherwife will be controuled by the Temporal Courts. (A) The feveral Courts which exerclfe a Jurifd lotion :. And herein, I. Of the Court of Convocation. {a) That 'TTHE convocation Is commonly called a national fynod, convened they were 1 by tJ^e king's {a) Writ, direfted to the archbifliops of Canter- femtfcdby ^"H and I'l^r^, requiring them to fummon every bifliop, dean, and the king's archdeacon, a proftor for the chapter, and two prod;ors for the ^V^^'"!' tlergy of each diocefe in the province of [b) Canterbury ;. but in Godoiph" * 'y^orky two prodlors for each archdeaconry. Rrpert. 99. and the 2.5 H.S. c. 19. the »£t of fubmilTion of the clergy, by which it is exprefsly de- clared, that they can only affemble by virtue of the k"ng's writ, &c. [b) The Provincial Synod of Cantaiury confilts of twenty-two bilhops, twenty -two deans, twenty-four prebendaries, fifty-four archdeacons, and forty-four clerks, reprefcnting tlie diocefan clergy. Godolph. Repert. 98. The archbifliop of York, at the fame time and in like manner, holds a convocation of ail his province, con- ftantly correfponding, debating and concluding the fame matters with the Piovincial Synod of Canter- hmy. Godolph. Repert. 9S. 4 Inft. 322. • This afTembly are to meet at the time and place appointed by the king's writ, and conftitute an ecclefiaflical parliament, the archbilhop and his fuflragans as his peers fitting together, and com- pofing one houfe, called the upper houfe of convocation ; the deans, archdeacons, a pro^bor for the chapter, and two prodlors for the ckrgy, the lower houfe ; in which they chufe a prolocutor in the nature of a fpcaker of die houfe of comuioiio, , • Their j©f t&e (SccIcriaStcal Courts^* 163 Their jurifdiiftion is in matters of (^7) herefy, fchifms, and other 4 In ft. 32^. rnere fniritual and ecclefiaftical caufes ; but they cannot meddle i")^^-^'- ^he ..,' ,. i~, rill ii-» convocation With any matters reuting to the laws or the land, or the kings ma-- declare crown or dignity ; and in thofe in which they have a jurlfciiclion whatopini- they are to proceed juxla legem dhnnnm ^ canones fanclk ecclef:x. ""^ '^'^ ^^' whether ac this day thev have power to convene the herccick, ^ iS" i;(/c- a Roll. Abr. 226. Hawk. V.Q. c. 2. § 3. • Alfo, by 25 H. 8. cap. 19. it wris enacted, that no canons, con- iih 4 Inft. llitutioii, or ordina^nce, fliould be made or put in execution within j^S- t^^' this realm by authority of the convocation of the clergy, which is 'oniv de- were contrariant or repugnant to the king's prerogative royal, or ciaratory of the culloms, laws, or Itatutes of this realm : and by this acl the thecommoa f . , , . f ■' . law, cj> -vtae court or convocation, as to the ma. ^4'- 3. Of the Prerogative Court. In this court all teftaments are to be proved, and all adminif- 4 Intl. 33S. tratlons granted, where the party dying within the province of the ^'^^ -eadof archbifhop of Caiiterbury hath bona notuhlia in fome otlier diocefe and Al',. than where he died, which regularly is to be to the value of 5/. nijira:, s. but in the diocefe oi London it is 10/. By compofition the arch- bifliop of Tork hath the like court. M 2 Jhe i64 0( tit (Ecclcdaaical Courtfsi, 4 Inih 335. Thfe prchafe of rvery bifhop's teftament, or granting of adrhltiif- tration of his goods, although he hath not goods but within his own jurifdiclionj doth belong to the archbifliop. 4. Of the Court of Audience. 4 itn!*- 337- This court is kept by the archbifhop in his palace, in which arc ^°nan V'" t'^anfaded matters of form only, as confirmations of bilhops, tudonV' eleftions, confecrations, the granting of the guardianftiip of the thiscourt, fpiritualtiesj/^-^^ f^rfl«/£' of bifhops, admiiTions and inftitutions td me'ddks not ^^"^^^€3, difpenfing with banns of matrimony, and fuch like, with cohteniidUs matteys, -vidt Godolph. Repcrt. 106. 5. Of the Court of Faculties. 4 Inft. 337. This is a court which belongeth to the archbifliop, in which his ever '^dioce- ^^^^"^i Called inagijlev ad facilitates , grants difpcnfations, as to {a) fari mav do marry, to eat flefli on days prohibited, to ordain a deacon under the fame, age, that the fon may fucceed the father in a benefice, that one 4 n' • 337- may have two or more benefices incompatible, ^c. 4lnrt. 337. This authority was raifed and given to the archbifliop of Cati- LVbe"fub- '^^'^''^y ^y ^^ ftatute of 25//. 8. cap. 21. whereby authority is fcribed, re- given to the faid archbifliop and his fucceflbrs, to grant difpenfa- giftered, and tions, faculties, Isfc. by himfelf, or his fuflicient and fubfl:antial ^^e'de^fut^y'' commiflary; or deputy, for any fuch matter whereof heretofore of the chief fuch difpcnfations, faculties, ^c. then had been accuftomed to be clerk of the had at the fee of Rome, or by authority thereof. faculty. ' ' Rex V. Epifc. Ceftr. 8 Mod. 364.] 6. Of the Court of Peculiars. 4lhft. 338. Thefe courts, which exercife an ecclefiaftical ji^rlfdiclion, and Re'^er't^^ii ^'^^ exempt from and not fubject to the controul of the ordinary of {h) Within the diocefe, are called peculiars, and muft; be either regal, (1^) the province archicplfcopal, epifcopal, or archidiaconal ; and in every one of b^iw'of^ " thefe the owner has (r) a power of common right to grant adminif- Cantcrbiiry tratioH, ^c. on fuppofition of an original compofition between there are 57 him and the ordinary of the diocefe for that purpofe. peculiars, ' ^ ^ ■iJl which belong to the archbiihop. Godolph. Repcrt. 1 19. (r) Salk. \q, pi. 10. 41. 6 Mod. 241. [As the perfons, entitled to peculiar jurifdi61:ion, have no known or certain regiflers, or publick place to keep their records in, and wills are therefore liable to be lofl: : they are ordered by canon 126, once in every year, upon pain of being fufpended from the exercife of thisir jurifdiclion, to exhibit into the publick regifl:ryof the bifliop of the diocefe, or of the dean and chapter, under whofc jurifdi£lion the peculiars are, every original teft:ament of every perfon in that time deceafed, and by them proved, or a true copy of every fuch teftament, examined, fubfcribed, and fealed by the peculiar judge and his notary. If Of t6e (Cccleftadical CourW- 165 If a peculiar be fubordinate to the billiop, the caufe mufl be re- Hob. i86. ferred to the immediate ordinary, as in the cafe of an archdeacon ("). Thepe- {n) or commifTary, and not to the archbifhop, unlefs the pecuUar diabn^Jf * have his immediate refort to the archbifhop. an archdea- con is not properly a peculiar, but rather a fubordinate jurifdi£lion. P^r Holt, C.J. 6 Mod. 30S. 2 Ro4. Rep. 446-8. But if the peculiar be free by a general exemption from all or- Hob. i?6. dinary jurifdi(£lion (which was common in the cafe of monafteries -^P^f "'"'»' both by the grants of kings and popes) then the caufe muft be re- h'to be^un. Tnitted to the king, as appeals muft alfo be in fuch cafes ; and fo it derftood of is provided by ftat. 2C /i. 8. r. 21.1 I*'"? ''^* * ' -^ -■ hath co- ordinate jurifdiftion with the bifhop. Per Hblt, C.J. 6 Mod. 308. Where one dies pofTefied of goodt in fevcral peculiars within the fame diocefe, adnniniflration fhall not be granted by the bilhop of the dio- cefe, but by the metropolitan 5 inafmuch as they are exempt from ordinary jurifdicUon. Gibf. 472. Swinb. a. 4^0. 7. Of the Confiftory Courts, The confiftory court oC' each aj-chbifliop, and every bifhop of 4 Inft. 333. every diocefe within this realm, is hoklen before the bifhop's ^odoiph. chancellor in the cathedral church j or before his commiflary, in ^ " 3* places of his diocefe, far remote and diftant from the bifhop's confiftory fo as the chancellor cannot call them to confiftory with any conveniency, or without great travel and vexation, for which reafon fuch commiflary is called commijpinus forarieus. 8. Of the Court of the Archdeacon. This court is holden by the archdeacon, in fuch places as the 410(1.339. archdeacon, either by prefcription or compofition, hath jurifdiclion ^odolph. in fpiritual caufes within his archdeaconry ; he is called oculus &c^"'* epifcopi, and exercifes an ecclefiaftical jurifdidlion, cither concur- rently with the biftiop, or cxclufively. 9. Of the Court of Delegates. This court is erefted by virtue of the king's commiflion, which 4 Inft, 339. Iflues out of Chancery upon an appeal or petition [b) directed to f (^^ ^'^^'^ * him, complaining of fome grievance or injury the party has fuf- ^^^ i,e fered by the fentence or proceedings of the eccleGafticai court. granted at tr.e initance of a perfon interefted, though not an original party in the caufs. Jones ?. Bou^ett, i A.k. 293.J On fuch appeal, the king appoints (r) commiiTioners called [d) {c) Thefe delegates, who are to hear the grievances complained of, ar:d wao commiflion- by force of fuch delegation have power {e) to reverfe or affirm the as weitiay- fentence of the inferior court ; and this the king, as is faid, may men as ec- do by virtue of an original iurifdiclion, which was always inherent ';{«"»'t"-"'^5» ,' o J •» 4 Cdiko. In- m the crown. ^^^it. 56-. But by Gibfon's Codex, icSz- they were formerly only ecckfiafticks. [d) The commiflion Dcini^ jiawn by the clerks in Chancery, who were ufoally civiliani ; or by the chancellor, who was uluaiiy a cilliop j they obtained the name of delegates, bein^ a name peculiar to that profelJion. Comp. i:jcu;iib. 37. (;) They have power only to aUirm or reverie, but have no jurildiClijn in the ."ir.l initance, as to g.anj adroiniiliaiion, &c. Latch. S5. M 3 And iGG £>^ t!)c ^cchftaSical Coart0* And by 25 //. 8. cnp. iC).for rejirahung appeals to Rome, it \% enacted, "That for lack of juftice, at or in any courts of the " archbifnops of this realm, or in any of the king's dominions, it «' fhail be lawful to the party grieved to appeal to the king's ma- *' jefly in the king's court of Chancery, and that upon every fuch «' appeal a commiirion (hall be direiSled under the great feal to <« fucJi perfons as Ihall be named by the king's highnefs, his heirs. *' cr fucceflbrs, like as in cafes of appeal from the admiral's court, << to hear and definitely determine fuch appeals and the caufes *« concerning the fame, which commiflioners, fo by the king's high- ** nefs, Ins heirs and fucceflbrs, to be named or appointed, Ihall ** have full power and avithority to hear and determine every fuch ** appeal, with the caufes and all circumitances concerning the *' fame; and tliat fuch judgment and fentence, as the faid com- ** millioners [h;ill make and decree in and upon any fuch appeal, " fliaJl be good and eiicdlual, and alfo delinitive, and no further *' appeals to be had or made from the faid commiflioners for the «« fame." 4lnn. •J40. No appeal lies to them from a local vifitor, nor in any cafe of a IViooi, 7S2. temporal nature, nor did it lie from the high conimHrion court, wiic-n in being, becaufe they themfclves were only delegates adling by immediate comniiilion from the king. Vent. 153 A fuit commenced before the delegates does not abate by the a Lev. 6. death of either of the parties. 2 Keb. 768. 775). S.C. Hetley, 107. Cro. Jac. 403. Leon. 277-8. IWnor, 4^2- Jf the delegates exceed their authority, or proceed in matters 3- ^^^^\' r»ot properly within their conufance, they may be prohibited by "■^^ " " " the king's temporal courts. 10. Of the Co\irt of Commiflioners of Review. Put for 'his, After a fentence by tlie delegates the king may grant a com- "^"t' \lo''^* "^'^'"'^ of review, and fuch commiflioners may rcverfe the fen~ 46;?. 7?i. * tence of the delegates; for the king's power is not reflrained by Lye'. -173. the fhatute 25 R. 8. cnp. 19. fupra^ which fays, that fuch fentence ,K. ep. {[x^w ije definitive ; alfo the pope after a definitive fentence by the canon law ufed to grant a commiiRon nd revidendum.y and fuch authority as the pope had, claiming as fupreme head, doth of right belong to the crown, and is annexed thereto by the ilatutes of 26 H. 8. cap. I. 1 Eliz. cap. 1. (B) Of appealing from an inferior to a fuperior Court. 4lnft. 340. p VFRY fubje£l has a right to appeal, and every fuperior court, '^ ' enabled by law to he.ir and determine fuch appeal, is obliged to rtccive the fame, and after fuch appeal duly made, the inferior court is tied up from proceeding any farther in the caufe. « By Of tlje (JBcclc^'afiical Courtsr^ . 167 « By 24 H. 8. cap. 12. from the nrchdeacon's court the appeal *' is to the bifhop of the diocefe ; but when the caufe is cora- " menced before an archdeacon, or any archbifiiop or his com- " miflary, the appeal muft be to the court of arches. *' And by the faid ftatute, from the bifhop of the diocefe, his ** chancellor or commifTary, the appeal is to the archbifnop of *' either province refpedtively. " By 25 H. 8. cap. 19. the appeal from the prerogative court is " to the king in Chancery, who appoints delegates by commiinoa " to hear and determine the appeal." And itfeemsby the fald ftatute that an appeal from the arches (^) But by is to be to the (a) kinij in Chancery. ^-^ ^* ^, *^* ^ ' ° •' 12., luch appeal is to be to the archbifliop; and fo is 4 Inft. 341. But mJe Carth. 169. That an appeal doe* not lie from the dean of the arches to the archbiftioj) as vifiror, becaufe they aic one and the lame ; at kafl it would be but appealing from the deputy to the principal. *' Alfo, by 25 H. 8. cap. 19. appeals from the court of pecu- ** liars, or places exempt, which were before to the fee of Rome, " {hall be henceforth into the Chancery, and ihall be there de- *' termined before commiirioners of delegates under the great « feal, ^.■." If the matter concerns the king, the appeal mud be to the 4 Inft. 339, higher houfe of convocation of that province. 34o- " By 24 H. 8. cap. 12. and 25 H. 8. cf:p. rg. all appeals from 4 Inft. 339. *'* a definitive fentence muit be within 15 days. " By 25 H. 8. cap. 19. there fhall be no appeal to the fee of 4 Tnft. 340. rt n ) • r i • » Vide title " Romey under pam of a pr.tmumre. Pramumru (C) Of citing one out of his own Diocefe : And herein of the iioundaries of their Jurifdidlion. "DY 23 H. 8. cap. 9. it is enacted, "That no manner of perfon -^ " {hall be from lienceforth cited, or fummoned, or otherwife *' called to appear by himfelf, or herfelf, or by any procurator, " before any ordinary, archileacon, commifFary, ofhcial, or any " other judge fpiritiial, out of the diocefe or peculiar jurifdiftion, ** where the perfon which fhall be cited, fummoned, or other- ** wife (as is aforefaid) called, {hall be inhabiting and dwelling at '* the time of awarding or going forth of the fame citation or fum- ** mons, except that it {liall be for, in, or upon any of the cafes *' or caufes hereafter written, that is to fay, for any fpiritual " offence or caufe, committed or done, or omitted, followed, or ** negle£led to be done, contrary to right or duty by the bifhop, *' archdeacon,commiflary,official, or other perfon, having fpiritual *' jurifdiftion, or being a fpiritual judge, or by any other perfon *' or perfons within the diocefe, or other jurifdiclion whereunto ** he or {lie fhall be cited, or otherwife lawfully called to appear '* and anfwer ; and except alfo it {hall be by or upon matter or ** caufe of appeal, or for other lawful caufe, wherein any party ^' fliall find himfelf or herfelf grieved or wronged by the ordinary, M 4 " judge. i68 £)f tge ^ccIeCfadical Courts* *' iud^c, or judf;es of the diocefe or jurIfdi£tion, or by any of hIS «' fubflitutes, officers, or minillers, after the matter or caufe there ** firfl commenced, or begun to be fliewed unto the archbifliop or '* bifliop, or any other having peculiar jur4fdiclion, within whofe *' province the diocefe or place peculiar is ; or in cafe that the •' bifliop, or other immediate judge or ordinary, dare not, nor will •* not convene the party to be fued before him ; or in cafe that *' the bifhop of the diocefe, or the judge of the place, within ** whofe jurifdi£lion, or before whom, the fuit by this aft fliall ** be commenced and profecuted, be party diredtly or indirectly •* tb the matter or caufe of the fame fuit ; or in cafe that any ** bifhop or any inferior judge, having under him jurifdiftion in ** his own right and title, or by commiffion make requeft or in- ** fiance to the archbifhop, bifliop, or other fuperior ordinary or *' judge, to take, treat, examine, or determine the matter before " him or his fubflitutes ; and that to be done in cafes only where •' the law civil, or canon, doth affirm execution of fuch requeft *' of inflance of jurifdi£lion to be lawful or tolerable j upon pain *' of forfeiture to every perfon, by any ordinary, commiffary, of- *' ficial, or fubflitute, by virtue of his office, or at the fuit of any '* perfon, to be cited or otherwife fummoned or called, contrary *' to this Tide, of double damages and cofls, for the vexation in ** that behalf fuflained, to be recovered againfl any fuch ordinary, ** commiffary, archdeacon, official, or other judge, as fhall award *' or make procefs, or otherwife attempt or procure to do any ** thing contrary to this a£l, by a &«• trary may be reftrained by prohibition. If a perfon inhabiting within one diocefe doth fubftraft and Lev. 96. St with-hold his tithes within another diocefe, a fuit may be com- '^°^^- '9'* menced and profecuted in the court of the biftiop, in whofe i^ ^7. diocefe the tithes are fo fubftrafted, and the party fo fubftra£titig Hard 4-1. his tithes may be there cited and fummoned, although inhabiting ^q^^"*^"'" within another diot' fe. Cio. Car. 97. Roll. Re;'. •51.... C^rth. 476. Machin and Moulton, S.P. a'judged, for diocefe in this As- tute figoiiitfs jurifaiAlon, and it :s the locality of the lands which gives jurifdiftion, although the maxim la tYitcvvAUw \ifcrumfequitur rcum. 5 Mod. 450. S. C. 2 Salk. 549. pi. 9. S.C. So, a fuit for a legacy may be in the diocefe where the will is Vent. 233. proved, although the defendant lives in another diocefe, and the ^^^^ ^^^' citing of him out of fuch diocefe is not within the ftatute. Like point.* So, where -(^., and others, who lived in the diocefe of Litchfield Silk. 1.4. and Coventry f but occupied lands in the Aiocck oi Peterborough ^ ?'•'• ^ were taxed in the parifh where they occupied lands for the new s. c. And* cafting of the bells of the church ; and, upon refufal to pay, a fuit there faid, was commenced agalnft them in the diocefe of P^ffr^orc?//?^ ; it J^.^^^P"^"- III 1 -11 11 • 1 1 • 1 L nibition was was holden, that occupymg lands made them mhabitants, and that granted, be- the citing of them into the diocefe where the lands lay, and in 'aute but * refpeft to wlilch they were chargeable, was not within the ftatute j ^"3°" • alfo, that bells were more tnan a mere ornament, which the inha- noti ke the bitants were bound to repair. '""P^' '"g of thr cnurch, which is a real charge upon the land, let the owner live whe.e nc wilL My Lord Coke fays, that by this ftatute the archbifhop is reduced 13 Co. 4. to a proper diocefe, or peculiar jurifdiftion, uulefs it be in five ^"'■^"'*"'^ cafes ; as \Ji, In default of the ordinary, idly^ In cafe of appeal. <.a(e_ 3£//y, Or in cafe the ordinary dares not, or will not, convene the (a) On fug- party, ^thly^ Or if the ordinary be party to the fuit below. J/Zj/j', s^'""^ ^^i" In cafe [a) of inltance and requeft by the ordinary. (^Idluloe the diocefe, the court grdnc a prohibition ; but if it appears upjn proof that it was upc-n requett to th* archbiihop, accordinj; to the exception, the prohibition will be ftayed. 5 Mod 71. Gcdb. 144., Latch. I So. The ljar;y in alleging luch requeft need not fljew the mittsr I'^ec jily, that it might appear to have been of a Ipiiituai nature, nor thit the requeft was under leal. Cro. ( ar. 162 — The requeft may be from a peculiar to the ordinary of tne d ocele Cro. Car. i5z. — But whether from a peculiar court, or from the archdeKon's court immeaiaiciy to the archbiihop, vUe Hob. 16. (36. Syd. 90. 5 Mod. 13-:, t ] J. The party who is cited out of his diocefe muft move for a pro- 12 Co. 76. h bition before fentence, for by litigating the matter in that court ^^''' '9- V i- 1 ■ 1- • rj- -L- i O 9 Cr0.Car.9y. he lubmits to the lunldiaioa. But i^o iDf tfje (2Bccl£{r'dGical Courti?. Cartb. 34, But if upon the face of the Ifoel it appears that the party is an 35- inhabitant at a place out of the diocefe, there the libel isfelo defe, and in fuch cafe the fentence makes no alteration. Carth. 34. Yet in a cafe where -(^., in the libel was named of Z>., in Hamp- Jhite, which is known to be witiiin the diocefe of Wwcbejiery was cited into the diocefe of Lcr.ilaiy though afFidavits were offered of that matter, yet being after fentence, the court held, that they could not take any notice within what diocefe D. in HampJI.nre was, for they could not ex officio take notice of the limits of biihop- ricks, but they fhould not take it to be within the proper diocefe. s RoU. The boundaries of all jurifdiclions fhall be determined in the Abr. 291. king's temporal courts ; fo, if the queftion be, whether in fuch 3 tothis'pur-' place there be a peculiar jurifdi£lion exempt from the ordinary, pofe. this ftiall be determined by the king's temporal courts; for it v/ould be unreafonable that the archbifliop, or bifliiop, fnould be judge in his own caufe, and if they take upon them to determine any of thofe matters, a prohibition will be granted. (D) In what Cafes the Ecclefiaftlcal Courts are allowed to have Jariidid\ion. ^riE ftatute 13 -E. I. called the ftatute of circumfpeSle agatisy •* and g E. 2. called orticuli cleri, are the moll antient, as well as the principal ftatutes, which declare in what cafes the eccleli- aftical courts (hall have jurifdi^tion. {a) The The words of the firft are, " The king to his judges fendeth Bifhop of u greeting : ufe yourfclves circumfpc£t!y in all matters concerning onirputfor " ^^^ Bifiiop oi \a)Noru'ich and his clergy, not puniQiing them if an example, " they hcld plca in court chrillian, of fuch things as be (^) merely foriiex- <( fpiritual, that is, to wit, of penance enjoined by prelates for all the bi- " deadly fin, as fornication, adultery, and (f) fuch like, for the ihopsvviihin " which, fomctimes corporal penance, and fometimes (^)pecuni- the r^alf"- u ^^y jg enjoined, efpecially if a freeman be convi£l: of fuch things: (i)'Ashe-* " alfo, if prelates dapunilh for leaving the church-yard unclofed,or Tefy.fchifm, '« for that the church is [e] uncovered, or not conveniently decked ; holy orders, n jj^ which cafes none other penance can be enjoined but pecu- and fuch . . ^r r ^ \ r 1 • • n • li- like. " niary. Item^ it a parlon demand 01 his paruhioners oblations or ilnit.^SS. « (y") tithes due or accuflomed, or if any parfon do fue agaiaft ^cft'^fi'V *' ^"•^^'^^^ parfon for titlies greater or fm.aller ; fo that the fourth atio'n of *' p^^t cf the valuc of the benefice be not demanded, Itenif If a chaftUy. « parfon demand mortuaries in places where a mortuary hath L'l^Mulf b" " ^'^^^ ufed to be given. Item^ If a prelate of a church, or patron, intended by *' demand of a parfon a penfion due to him ; all fuch demands wayofcoir- «' are to bc made in a fpiritual court, and for laying (^) violent niutancn of 44 Ji^^ds on a clerk : and in caufe of defamation it hath been granted penance. % n ^ ■> r 1 (f t\)t (JBcckfiafiical dEoartie:* 171 «' fpiritual judge (hall have power to take knowledge, notv/ith- chapel '' Itanding the kind's prohibition." which a man ^ '^ ^ . has to his own ufe, nor to the chancel, which ;s to be repaired by the parfon. 2 Inft. 4S9. (f) For this -viJe title Ti.-hes. (g) The fuiC rr.ult he fro Jaluie amma •■, and therefore, if the clck fue in the court ichriAian r'ordjmages fur the battery, he incurs a /.r^ywi//;;/-;, for the ccciefiafticaJ juogeouLht to crocked only to correal the fin. 2 Intt. 492. If a cierk. b; arrefted by procefs of la.v, he cannot f . r this fue in the ecdeiiaftical court. 2 Ir.ft. 492. If a clergvmari be only a!raulttrd, no remeay is to be bad in the fpiricual court, but in the common law courts. Cio. £liz. 753. Pryn's cafe. The (latute nrticuU cleriy or g E. 2. enumerates feveral cafes in For the ex- which the fpiritual courts fiidll have juriftli<£lion ; particularly as t'.^^^'O" °f to tithes, ohventions, oblations, mortuaries, redemption of penance, 1^;/^ 2*i"ft' violent laying of hands on clerks, defamation j in which cafes the 599 to 639. king's prohibition fliall be of no force. Matters teftamcntary, as the granting probate of wills, granting (a) Matter? of adminiftration, ^'c, are of ecckfialtical (a) conufance, and in '^ftamemary thefe they may proceed according to the ecclefiaftical law, and ihejurifdlc- thcir fentences (liall be prefurned \uii and agreeable to fuch law, tionofthe though (l>) contrary to the rule and reafon of the common law. fp'ntuai ° ^ ' ■' courts by the cufl-om of England, and not by the ecclefiaftical 1-nv. Lynwood, 174. Verio appnia! is, -vide Salk. 37 Antiently the probate of tei^aments f.'zs in the county courts. Laa.o. Saxon Laws III. Where the bi/hop and fherift' fat together. Wilkins, •;'>. Lamb. Saxon Law<, 64. Wilii K 'J.^8. ^^^ courts may hold pita thereof j for the term for years being s. C. ' pr/iy £)f tU CBccIetiaGical Courtjef^ 173 cnly a chattel, is teftamentary, and, confequently, the rent devlfed thereout. If a man makes a will, and appoints A. and B. his executors, to Petit v. tfach of whom he gives five pounds, but makes no difpofition of Smith, Ld. the refidue of his eftate, the ecclefiaflical courts cannot compel a j p^. w^j^* diftribution of (^) fuch refidue, for they have only a jurifdi6tion to 7. S. c. order a dift:ribution where the party dies intellate. o*'^'''J'''* * ' 3. C. Com. R«p, 3. S. C. 5 Mod. 24.7. S. C. and a prohibition granted accordingly, (a) Where the courts of equity in fuch cafe confider the executors aj truftces only, and compel a diftribution, -vide tit. Execu- tors and Adir.irijlratcri, and where they have a concurrent jurifdidlion with the ecclefiaflical courts, -vidt Chan. Ca. 2C0. 2 Chan. Ca. 85. 95. 2 Vent. 563. 2 Vern. 47. 76. Preced. Chan. 546. Matrimonial caufes, as marriage contracts, confanguinity, dl- Cut for this, vorces, alimony, ^c, are within the jurifdiftion of the fpiritual "V^' ^I^* court. '^^^ Tithes, oblations, mortuaries, and penfions, are of ecclefiaftical ^/) others, muft be determined in thechurch- the temporal courts ; and if the ecclefiaftical courts take upon wardens them to determine it, a prohibition will lie. lihsi agamil ' ^ J. S, for not repairing part of the church wall ; wherein he fets forth, that y. S. was feifed of fuch a manor, fcff. and that the lords thereof, for the time being, were by cuftom immemorial bound to repair part of the wall ratkne tcnura; if if this cuftom be denied, a prohibition wiil be granted, although after icn~ tence, for on the fac: of it, it appears that the fpiritual court had not jurifuiftion. Carth. 33. ViJe Carth. J 5 1. But if A. fues for fubftratSlion of tithes in the fpiritual court, and Carth. 70. the defendant pleads a verbal compofition for two years, no pro- B"<|5'^^ hibition will be granted : and where the ecclefiaftical courts refufe t^n^ a^-' a plea of compofition for life or years, there is no remedy but by judged. appeal to the arches. The ecclefiaftical courts have no jurifdiction to hold plea of a 2 Roll, matter of record ; therefore, if the parfon of a church be outlawed, ^'°^' 3°7' and the benefit of the outlawry be granted to J. S., who receives the tithes from the pariftiioners, and afterwards the parfon fue the parifliioners for tithes, who plead the outlawry and the grant to J. 5., a prohibition lies ; for the outlawry is a matter of record, of which they have not conufance. The fpiritual courts cannot hold plea pro reformat'ione morum^ in Lev, 13S. a caufe that is criminal and (r) triable at our law ; and, therefore, S"^-2i7. they cannot hold plea/)ro reformaUone morum for a legal perjury j (f)BJt^her but for perjury in their own courts they may punifli. mayd.p.j»c for a tem- poral crime. Dytr, 293. But not after the crime is pardoned. Hob. Seatl's Cafe. Comp. In* camb. 53. So, if the fpiritual court proceed againft a man for writing a Comb. 71, libel, a prohibition lies j for this is an oft'ence indiclable at com- mon law. If the goods of a church be ftolen, it is facrilege antl robbery, (^OBro. Ap- and the churchwardens fliall have an {d) appeal of robbery ; alfo, P<^*'» 3'-45' (f) the offender may be libelled againft in the fpiritual court pro (^^Sid. zi'i! fidute anima is" reformaUone tnorumf but not to recover damages. 2 Keb. 27. 2 inii 4.91. 4Kcb. 743. An a£lion at law lies for a battery on a fpiritual perfon, as .lifo a luit lu ihe fpiritutl court for iir.vcrince to his charaflet. 6.Mod. ijo. ^i 11. But £f t!)e Court of attmirait^» 177 ^nt It hntli been refolvcd, That between the high and low wa- 5 Co. 107. ter mark, the common law and admiralty have imperium divijum^ ^''' ^^^"'■y fcUicety the one when it is not, and the other when it is covered c;,rc. ""' with water; and that ( ° pediment to *• luch voyages only, laving to lords, (dc. their liberties. navigation, and may try contrafts and injuries done there wHiich concern navigation at fea; but £>^ (ric/fffj iox prAnts, as the lands end. [The words in the act ire, *' paravallespourtx.'' In the old abridgment it is ^;r;/j ; In the A^ova Statuta'itis pointz.l By the 2 H. 4. cap. 11. reciting the 13 R. 2. cap. 13. It is en- {e) Theac- a£led, "That he that [e] finds himfelf aggrieved (/) againft '■"" "J^y be " the form of the ftatute, fhall have his a6lion by writ grounded one"part-^ ** upon the cafe againft {g) him that fo purfues in the Admiralty, owner, for *' and recover his double damages againll him, and lie Hull incur 'f 'sgrf^n-^d. ** the pain of 10/. if he be attainted." atort.*^^°^ Carth.295. [Ca. temp. Hardw. 271. zStr. 1075.] (_/") If upon pe'i.ion to the judge of the Ad- miralty, a (hip is ftoppid in the harbour till caution given not to trade within the limits of the Ea(l In- dia Company, this is a profecution within the (lature, though there is no formal plaintiff" or defendant j and in many cafes the fuits there are againft- the rtiip itf,-if. Carth. z^^ Skin. 561. pi. 3. 4 Mod. 176. Salk. 31. pi. I. 3 Lev. •;5-;. S. C. between Child and Sands. [g] Though the pr )recution be by the command of the king, and in the name of his proiStor, yet if it was upon the fo icitation and by the procuration of the parties, and they pay the kei, they purfue within the intention of t'ne aft. 3 Lev. 353. [The above ftatutes, it hath been folemnly determined, are in- Lindov. tended to check the ufurpations of the Jnjlance court only, and p^jT'^j, Vol, II. N do •' 178 €>f t!}c Court of aDmiraltp, do not at all relate to the Prize court; for tlie jurifdldion in cafes of prize does not depend on the locality, but the nature of the queftion, which is not governed by the rules of the common law, but by the jus belli. Hence, the prize court have exclufive cognizance of all captures made at land by the aihftance of a fleet.] (B) To what Thinp;s its Jurifdidlon extends : And herein of fuch Matters as arife partly on Sea, and partly on Land. 5C0. 107. 'T^HE Admiralty court has jurifdiftion, where a fhip founders, a iniK 167. 1 (jj. jg fpjjf at ft^-i^ Qver the goods which become {a) Jlotfnifty Palm, oe'.*** y^{/^'^> o''" fig^^^i" : ^'i*^ ^ f"^t ff^r thefe mud be in that court ; but Sid 178. for goods wrecked they {b) mail be claimed by atSlion at common Roll. Abr. j^^^ 531- lii) There are fpur forts of ftiipv-rccked goods, in'z; jl'>tjam, jetfurn, I'lgam, and wjvci. F/o.'/iw is when the (hip if f^l t, and the goods- fljat upnn the water between high and I jw water maik ; j'tfances) efcape alive, the riijht owner ftiall have them again, if he claim them within a year and a d.-y af'er the feiz.ure. 2 In(t. i67» 5 Co 106. Hraft. lib. 3. f. iic. Molioy, 2'^7. See the ftat. iz Ann. -ftar. 2. c. 18. and 26 Geo. 2. c. 19. {!>) By the exprefs words of 15 R. 2., ihey have no conufance of goods wrecked. Sid. 17S. And although the Admiralty court has jurifdi'^ion oi jlotfam, Keb. 657. y^^ jjj^ij (}.,.^]j determine what it is by the rules of the civil law, yet that muil be undcrftood where the thing hfuper oltttni mare ; and, therefore, if a iliip, which becomes flotfom and derelitt, comes into the body of a county, they have no juriftliftion. 2 Mod. 294. So, \i Jlotfam comes to land, and is taken by one that hath no title, an aftion lies at common law, and no proceedings Ihall be thereon in the Admiralty \ for it need not be condemned as a prize. 4 in'^. 14S. At (c) common law, none but tlie king onlv could ereft bea- U) Hut by cons, lieht-houfes, and fea-marks ; but of later times, bv letters SEliz CIV ' o 1 1 I 1 1 • 1 1 1 1 r% , IV the matter, patents gmuted.to the lord adnnral, he hath power to erect [a) wardens bcaco!!?, fca-m^rks, and figns for the fea. p-fTirtants of the Trinity Houfe atDeptford Strond, had power given them to eredl beacons, marks, and figns for the f^a, (Sc. -vidf 4. Iiift. 140. {d) A fuit for the profits of the beaconage of a rock in the fea, near • in Cornwill, may be in the court Of Admh-aliy. Crofs and D^ggs, Sid. ii;8. adjudged ; and it was faid, as the pior:t<; of the beacoii? belong to the admiral, fo the f lir for them ought to be in his court, though the rock be the freehold of anochvr, and part of his inheritance. Vent. 173. If the original caufe arifes upon the fea, and other matters hap- a Lev. 15. pgj.^ upon the land depending thereupon, yet the trial fliall be in ' ' ^ ' the court of Admiralty. R/)il. Abr. As, if a man takes a th.ing upon the fea and brings it to the 533- ^ land, and afterwards carries it away, the fuit for this fliall be itt ti Co.* 07'. ' t^""^ Admiralty court, for this is a continued a6l. 12 Mod. 1 35. Like point. ^ So, €)f tt)e Court of ^t)miratt54 179 So, if goods are taken piratically out of a (hip, and afterwards March,iio. lold upon land, a fuit may be commenced in this cafe in the Ad- ^g°' ^^^p^ miralty court, againft the vendee. aajudged; unlcfs the fale had been in a market overt : But v:de Hob. 7?. Roll. Abr. 531, 53Z. And that in fuch cafe the party imy have an adtion of trover and converlion at common law. So, if a fliip be taken by pirates and carried to Tutiisy and Vent. 30S. there fold, it being originally within the jurlfdiction of the ad- miral, it fo continues, notwithflanding the fale afterwards upon the land. But if the owner of a fiiip fends her to the Indies to merchan- Roll. Abr. dize, and the crew commit piracy, by which, according to the 5^^^*' ^^f^' nd'.niral law, the fhip becomes forfeited, and the admiral feifes s. c. ad'." her accordingly, if afterwards the owner takes the fails and tack- jud^cd, ling out of the fliip, lying infra corpus com.^ no fult for this can Jg^j y^^* be in the Admiralty court j for the admiral hath his remedy by ihipbear- adion at common law, '■^'^^J ^v procefs out of the Admiralty couit for a matter arifing within the'r jurifJiiflion, and flie be refcued at', ei wards at land, the cognizance of the refcue belon^js to the Admiraky jurildidtion. Rigden v. Hedges, i Ld. Raym.446. Per Holt, C. J. ] If a fuit be in the Admiralty court for making a lighter for the Roll. Abr. carriage of mud, or the Hke, within the body of the county upon 533' the Thames^ and not for navigation, a prohibition lies. If a fhip is taken by pirates upon the fea, and the mafter to re- Hard. 1S3.. deem the fhip contrails with the pirates to pay them co/. and Sparkand , . ^- ^ . , , .^ \.' 1 -n r p Statfjrd, pawns his perfon for it, and the pirates carry him to the ille ot o. adjudged. and there he pays it with money borrowed, and gives bond for the money, he may fue in the Admiralty for the 50/. becaufe the original caufe arofe upon the fea, and what followed was but ac- ceffary and confequential. If there be wars with the Dutch, and one having letters of Lev. 243. marque take an Ofender for a Dutch fhip, and bring it into an ^."^""g^^'* haven, and libel againfl it to have it condemned as a prize, but 367. s. c. fentence be given that it was no prize ; tlie OJlender may libel in adjudged, the Admiralty againft the captain, for the damage the fliip re- ceived while it lay in the port ; for the original taking being at fea, the bringing it into the port, in order to have it condemned, is but a confequence thereof. If an Efiglijh fhip takes a French (hip richly laden, the French Carth. 499. being in enmity with us, and fuch fhip is libelled againft, and af- ^-^^ "• r • 1 T- » f 11 1 / ?i r 1 • Broom, Ld. ter due notice on the Exchange, tffc. declared a [a) lawlul prize, Raym.:7i. the king's prodlor may exhibit a libel in the Admiralty court, to adjudged; compel the taker (who fent the fhip to Barhodces, and converted ^^'J^J^j''."^ the lading to his own ufe) to anfwer the value of the prize to the and that the king ; although it was objefted, that by the firft fentence the pro- f^cond libel perty was vetted in the king, and that this fecond libel was in na- ^^ontin"uar.ce ture of an action of trover, of which the court of Admiralty can- of the fini not hold plea. ^"'f- ^""^ ^ a charge f rounded upon the firft fentence by way of execution thereof. Salk. 32. pi. 3. S. C. 6f -vJc Carth. 423. (tf) That prize or no prize is a matter altogether appropriated to the jurifdi^ion of the Admiraky, *ai not triable at common hw, ildc Caith. 47':, 4-76. [And that «ourC having exclufire jurifdiftioa N ^ •▼» iSo £Df tfie Court of ^timfralt^, over all qucftions of prljr; hath the fame juiifdi£Vion over all matters that are confequcntisl to it, Le Caint v. Eden, Doug. 504. (^c. Lindov Rodney, 1./. 591,11.1. Liying(lr.ne v lVl«K.ei;zie, 3 Term' Rep. 332. Smart v. Wolfi, id. xii- or aiilc incickntally in the conftiuftion of »&% of parliament or prociamarions. Heme v. Earl of Camden, 1 H. Bi 4'6-. cB)!tr. but revcrlfd in K. ?>. 4 Term Rep. 38a. and thatreverfal affiiitieJ in pilanvjnt. Printed Cafes of the Lords, June 22d 1795.] (C) To what Contradis its Jurifdidion extends : And herein of Contracts niade on Sea. 4lnft. lu- 'T'HE court of Admimlry hath no jurifdidion as to contra(fts 139- 12 Co. 1 ^i^^Q at (a) land, whether fuch contrail be made here or in ic-i. Hob. r • \ I ' 79:212. foreign parts. {a) If a contr.ift be r.i.'-Je upon the fea, which is afterwards feaied upon the land, the court of Admiralt/ cannot held plea thereof. Hob. 79. 212. Latch. I r. If a fliip, lyuig at anchor wants victuals, and fends to land to fer Dod. y 5^ jQ bring vitluals, and fo the contraft is made in the fhip, the Admiralty iiiall have conufance ; fecus^ if the contratt is iftade entirely at land, and the victuals after fent to the fhip. Hob. ta. If a conrraQ or obiig?tion be made upon the fea, yet if it be Br_dgman'fr j^qj f^^ ^ marine caufe, the fuit upon this contra-fl: or obligation Roll. Abr. ihall be at common law, and not in the Admiralty court ; for if 552. S.C. a man makes an obligation for the fecurity of a debt growing before upon the land, or if he makes a promife to pay it, this cannot be fued in the court of Admiralty, but at common law. Roll'. Abr. If a man contracts with me in London^ in confideration of 3"5- _ 100/. to tranfport certain commodities into Ttirhey, if he docs not perform it, I cannot fue him in the court of Admiralty, becaufe the contract was here, and nothing done upon the fea. RoM. Abr. If a charter-party be made in England^ to do certain things in 55*' S"3- feveral places upon the fea, though no z€i. is to be done in Etig- +86. S. C.' land^t but all upon the fea, yet no fuit can be in the Admiralty 4 Inft. 135. court for the non-performance of the agreement ; for the contracl: 139. 142. j^g jj^g original, [h) without which no caufe of fuit can be, and this- (/') Both^he contracSt is out of their jurif°- fhip or goods, and (erHolt, jointly and feverally to the difagreeing parties, in a fum propor- ow r^'wh ^'°"^^^^ *^o ^^'^^^^ Ihares, according to the value fet by the ap- arethe'ma- praifers, to fecure the fhares in the Ihip of thofe who difagree to the voyage, againft all adventures ; there can be no fuit on this agreement or fiipulation in the admiralty court ; for the con- tract was made on land, and therefore the temporal courts muft for a fpecial have conufance of it. adllon on the cale may be framed at the common law. Hard. 4." y S. P., but no refoUition. 6 Mod. 162. S. P., but no refolution. [The whole doftrine heie advanced hath teen over r-jlfd, and :he right of the Admiralty court to rompel fecu'ity in fuch cafe as ueh fi: the freight, as fcr the v.tlue of the re- fpeftive fhares in the fliip, in the event of her being loft, and to do execution uion it, hath been recog- nized in feveral fubfequent caf^s. Dimmock v. Chandler, fitzg. 197, 2 Str. 850. S. C. I Ear- uardirt 415. S. C. Lambert v. Achetiee, i Ld. Ra\m. 227- Blacket v. Anfley, id. 235. De Grave V. Hedge;, 2 I,d. Raym. 12^5. Oufton v. Hebden, i Vvilf 101. Such right had indeed been allowed in preceding cafes. Anon. 2 Ch. Ca. 36. Shelly v. Winfon, 1 Ve.n. 297. Anon. Skiii. 230.J jor parr, are not without remedy in fuch cai'e j (D) To what Crimes and OfFences its Jurifdidlion extends. See 2 H. H. P. C. 12., &c aHawk. P.O. c. 25. ^43. How piracy, and offences committed on the fea, werepunifli- ed before this ftatute, •vUe 4 .^fl". ^5. 3lnrt:. 315. S.P.C. 30. b. H.P. C.77. 3 Inft. 112. (a) This muft be in- tended be- tween the high water and luw wa- ter-mark, where there is dl-v fum inpcrium at feveral times. 3 Inft 113. But if done in fuch crccK or haven where the admiral B Y the 28 H. 8. cap. 15. it is enafled, " That all felonies and " robberies, ^c. upon the fea, or in any haven, river, creek, ** or place, where the admiral or admirals have, or [a) pretend to *' have power, authority, or iurifdiQion, ihall be inquired, tried, *' heard, determined, and judged in fuch fhires and places in the " realm as fhall be limited by the king's commiflion or commif- " fions to be directed for the fame, in like form and condition as " as if any fuch offence or offences had been committed or done " in or upon the land ; and fuch commillions fhall be had under *' the king's great feal, directed to the admiral or admirals, or to " his or their lieutenant, deputy or deputies, and to three or four *' fuch other fubftantial perfons as fhall be named or appointed by " the lord {/') chancellor of Englavd for the time being, from ** lime to time, and as oft as need fhall require, to hear and de- " tcrmine fuch offences after the {c) common courfe of the laws *' of this laud, ufed for felonies and robberies, ^c. done and " committed upon the land within this realm : And it is further " enactedy That if any perfon or perfons happen to be indicled " for any fuch offence done, or hereafter to be done upon the " feas, or in any other place, above limited, that then fuch or- " der, procefs, judgment, and execution (hall be ufed, had, done, ** and made to and againfl every fuch perfon and perfons fo be- " ing indicted, as againfl felons, l2)c* for any felony, ^c. upon " the land, by the laws of the land is accuflomed -, and fuch as " fiiall be convi6l of any fuch offence, by verdi6l, confefFion, or " procefs, by authority of any fuch commiinon, fhall have and *< fuffer Of tfje Court of HDmiraltp. 183 ** fuffer fuch pains of death, loflcs of lands, goods, and chattels, hath no ju- *' as if they had been attainted and convicted of fuch offence "f^'"^*'^". ** done upon the land ; and alfo, that they (hall be excluded from fionrrs can- ** the benefit of the clergy." not meddle with it. Owen, 122. Moor, 756. Roll. Rep. 1-5. H. P. C. 77. (i) Hob. 146. (<■) Yet it (liU remaini an offence of a fptc.al nature ; and the efore the indidtment muit allege tbe fjdt to be done upon the fea, and mult have both the wordj_/"c..'o'.i. i and pirarhe ; and noofijnce is punifliable by v.rtue of this a& as piracy, which would not have been fViony if done on land ; co ifequently, the taking of an enemy's (hip b> an enemy is not within the ftatute. t, Inrt. 112. S. P. C. 1 14. Roll. Rep. 175 And although the ftatute ordains, that it ftiall have the like trial and punilhment as are uieJ for felony at common la*, yet this ihill not be carried I'o far as to make it alfo .agree with it in other particulars which are noi mcntion>.-d; and therefore it ihall n>.t be included in a general paidon of all ielonies. Moor. 7^6. 3 I:ift. I 12. Co. Lit. 3,1. H. P. C. -7. Z Hal. Hil> Plac. Cor. 370. — Nor fliall an attainder for this offence work any corruption of blood. 3 Inft. iii. H. P. C 77 — l.ut it hath been relolved, that an offender (landing mu'.e on an arraignment, bv force of this flatute, ihall have judgment of p.:^ fort i^ aure. 3 inft. 114. Dje", 2*.!. [But by 1 2 Geo 3. c. 20 *• Sunding mute in piracy " am^/UiUs to a conviction, and the c ,uf[ fhali avvaia the fame feutence as on a convidtion by verdict or " conftJlion."j It was {a) held, that by force of this ftatute acceflbries to this (-^^ ^''^' offence could not be tried; but this is remedied by ii ^ 12 IV. -3,. ^^'^" '^** cap 5, by which their aiders, and comforters, and the receivers of their goods, are made acceflbries, and to be tried as pirates, by 28 H. 8. cap. 15. [And by 8 Geo. i. c. 24. made perpetual ; by 1 Geo. 2. c. 28., perfons rpade acceflbries by_ 11 ^12 W. 3. are to be deemed prmcipa! pirates, felons, and robbers, and to be proceeded againil accordingly.] Alfo, the faid ftatute \\^ \l]V 3. di- rect;) how pirates may be tried beyond fea, according to the civil law, by commifhon under the great feal of England. By the 1^ Eliz. cap. 5. § 30. feveral offences in the act men- tioned, if done on the main ita^ or coafls of the fea, being no part of the body of any county, and out of any haven and pier, fhall be tried before the admiral or his deputy, and other juf- tices of oyer and terminer y according to the ftatute of 28 //. 8. cap. 15. By I Ann. fe(f. 2. cap. 9. § 4. captains and mariners belonging to fhips, and deftroying the fame at fea, fhall be tried in fuch places as ftiall be limited by the king's commilhon, and according to 28 H. 8. cap. 15. And by 4 Geo, 1. cap. 11. § 7. all perfons, who fhall commit See4G. i. any offence for which they ought to be adjudged pirates, felons, ^ iV ^ ^" or robbers, by 11 («f 12 IV. i- cop. ^. may be tried and judijed c. 24^,made for every fuch offence according to the form of 28 H. 8. ccp. 15. perpetual by and lliall be excluded from their clergy. ^ ^^^- *• and II Geo. i. c. 29. § 6. z% Geo. 2. c. 30. [Byy?fl/. 33 Geo. 3. c. 66. § 70., which is to continue in force during the prefent hotlilities with Francey a fellion of oyer and terminer and gaol-delivery for the trial of offences committed on the high feas, within tlie jurifdiction of the Admiralty oi Eng" lamU is required to be holden twice at leaft in the year. And § 71. any commiffioner named in the commifBon for trying fuch of- fences, or any juftice of the peace may take informations upon oath touching the faid offences, and caufe the parties to be appre- hended and committed i and ihall bind over all perfons, whom § 72. N 4 they 184 9f tl3C Court of ^Dmiralti?, they fhall refpeclivcly judge neceflary, to appear, profecute, and give evidence againlt the offender at the next Admiraky fefiions, which inforination and recognizance fhall be tranfniitted to the §73* regiil:rar to be laid before the court: And the marlhal, his de- puty, all flierifFs, and other officers for keeping the peace are re- quired diligently to obey and execute the precepts, warrants, and orders of the court.] (E) By vihat Law it proceeds, and the Form of fuch Proceedings. Roll. Abr. 5-.C. ; buC t.'ide Rr.i!. Rep. .25. Sid. 179. Mod. 93. ■Vent . 146. ^z h. h.d. 4c8, 409. Oodo'ph. A LL maritime affairs are regulated chiefly by the civil law, the "^'''"■/Tc^' J^kodian laws, the laws of [a) Oleroriy or by certain peculiar caiieii, 10^ ^'^"-^ municipal laws and conllitutions appropriu.ted to certain ci- tliat they tics, towiis, aiid Countries bordering on the fea. were iTiade hy K.n;j Richard i. when he w^s there. Co. Lit. 11. b. 260. b. If the owner of a flilp victuals i*, and furnifhes it to fea with letters of reprifal, and the mafter and mariners when tliey are at fea commit piracy upon a friend of the king, without the notice or aflTent of the. ov/ner, yet by this the owner ftutU lofe his fliip by the admiral law, and our law ought to t..ke notice thereof. By the civil law and cullom of merchants, if the ftiip be (b) caft awav, or perifli through the mariners' default, they lofe their wages ; fo, [c) if taken by pirates, or if they run away \ for if it were not for this policy'they would forfake the fliip in a ftormj 442. (Z')But 3j^(_| yield her up to enemies in any danger. executors of thofe mariners who died before the carting away of the fbip may recover the wages due to ti)eir teft.it;is, ^ fef njide Sid. 179. Keb. 634. [c) For refufing Co fight when commanded by the mafter, -v.de 21 Sc 23 Car. 2. c. i .. Roll. Abr. If a man of Friczland fues an Englijhman in Friezland before ^a^f°' )^*s'^ ^^ governor there, and there recovers againll him a certain fum, uponajuj^.' upon wliich the Englijbman^ not having fufficient to fatisfy it, inent given comes into Euglandy [d) and the governor fends his letters miffive of *d'^"'"^\ '^^^^^ England, oinnes viagijlratus Infra regnum Anglic rogans to ty, execu- make execution of the faid judgment, the judge of the Acimiralty tionmaybe may execute this judgment by imprifonment of the party, and he rei^en'"a?t" ^^'1^^ "ot be delivered by the common law j for this is by the law Godb. 260. of nations, that the juftice of one nation fliall be aiding to the' arguendo. -~ juflice of another nation, and for one to execute the judgment of !i^'^i^J!j the other; and the law of Enoland {e^ takes notice of this law, cotioemned 1 t • r o> \ / ' a-thekirg's and the judge of the Admiralty is the proper magiftrate for this l-rizsina purpofc, for he only hath the execution of the civil law within foreign ad. ^l^jg reahn. miralty, fjch fertence may be executed here. Salic. 32. pi 3. 33. (e) If a (hip is fold by virtue of a fen- lence in the court of Admiralty in France, (being then in amity with En|il.it.d,) the fentence fiiall not be examined in an adlion at common law ; for we ought to give credit to their lientences, elfe they wili not give credit to the fc-ntcnces of our c.ju.-t of Admiia.ty. 2 Ld. R.iym. 893. 936. but the way to be rcl fved is to petition the king, who wi.l ex.imine the cafe, and, if he fimis ciule of complaint, fend to his ambaflTaJor ref.dipg iheie, and ufon failure of redrcfs will grant letters of marque and reprifal, Haym. 473. Skic. yj. pi. a. £? I'uic Veui. 32.— —But where the ccuit faid they would give no Iigar.l €)f t\}t Court of aomiralc?* 185 regard to a fentencein the court of Ailmiralty of Scotland, "vUeRudly anJ Egglesfield, 2 Sand 259, 260. Vent. 174. But it vvao agreed the fenttnce in Scotland was pleadable in the court of Admiralty bsrc- Vent. 274 z Lev. 2;. and a Sand. 260. Thj validity of the fenttnce of the Admiralty in Scotland is determinable by the iiw of the Admiralty here. The (a) mafler of a fhip may hypothecate or pledge the fliip Hob. 11. \j'ithout the coiifent of the owner, for tackling and victuals, or Moor, 9:8, he (b) may borrow money for the necefTaries of the fhip, and in r^^' fuch cafes the party may in the Admiralty court (of whjch our (a) Or he law will take notice) (c) either proceed againft the owner or aeainft: 'hatisre- 1 n • ^ ^ ' ^ ° b • puied maf- fj^e ihip. t„ N^y^^5_ But n')t bcf ire the voyjge begins. Stra. 655. See 12 Mod. 406. (/') Though in faft it be not em- plo)ed acc)idingly, and the owner niuft take his remedy againft the niafler. Noy, 95. U) 2 Sid. 161 , (aid to have bcea fo latCiy agrt-ed. But -rj'Je Sz\k.. 35. pi. 9 Ld.Raym. 982. 6 Mod. 79. II M'ld. 30 pi. 1.^ That the nialter cai;no; by his contrjdt make the owners perfonaily Table, al- though he may bind the (hip, without which the naalter can have iij crsdit abroad without fuch fecurity by hypothecation. But the mafter cannot fell the fliip and broken tackle, though Sid. 453. there is no probability of its being faved, partly in refpetl of the /f'''^^e> temped, and partly in refpetl of the barbarity of the inhabitants, "' "^'^' who took away every thing that was cart upon the fliorc. It a merchant's fliip is taken by an [cl) enemy, and a month 2 Brownl, after is retaken by an EiigUp rtiip, [e) the firft owner (/) flvali not ^'•, ^«'- have reilitution, for the Ihip was gained by battle with an ^-^ o"her- enemy. wife if by a pir.ite. Vent. 174. (f) Where the property 15 not altered until the prize is brought rr.fra praJHia of that king, by whofe fubjedt it is tak-n. March, no, 11 1 . [(/) Hut the property is not completelv veiled fo as tj bar ihf f.jrnoer o^ner, in fav'iur of a refcuer or vendee, till there hjs been a fentence of con- demnation in fj'me, foreign or domeilick, Admiralty court. 10 Mod. 79. 2 Burr. 694. 1208-q. Dcug. 617. And It is ufuai in the prize adls to preferve the right of the original owner, even after condemnati >n, paying the falvage thereby fixed.] If two fhips meet at fea together, though they went not forth 2 Leon. 182. conforts, and one of the (hips in the prefence of the other takes f^r Curiam. a prize, t.'ie other fhip which was prefcnt (hall have the moiety, for the prefence of this Ihip was a terror to the (hip taken. If an intant, being mailer of a rtiip at St. Ckrijlophers^ beyond Roll. Abr. fea, by contra£t with anotlier, undertakes to carry certain goods 53°/'^'"" from St. Chr]J}Qpker\ to England^ and there to deliver them ac- adiudgeu. cording to the agreement, but waftes and confumes them, he may be fued for the goods in the court of Admiralty, though he be an infant ; for this fuit is but ia nature of a detinue or trover and converfion at the common law. If goods are thrown over-board in ftrefs of weather. In danger Moiloy, or juft fear of enemies, in order to fave the (hip and the reft of '^'^^• the cargo, that which is faved (hall contribute to a proportion of that which is loft ; and this average, which by the civil law and cuftom of merchants binds the owners, may be (j-) pleaded to an (^) ^Buift. adlion at common law. ^9°- But average is not due, unlefs the goods are loft in fuch a man- ^l 297* ner that thereby the refidue in the (liip are faved ; as if goods are thrown over-board to lighten the (hip, or by compofition part is given to 3 pirate to fave the reft ; but if a pirate takes part by violence, average fliali not be paid for them. So, 1 86 £)f t^e Court of aDmi'taltp* Show, Pari. So, where A. being one of the owners of a flilp, loaded on Ca. It, 19, board her 210 tuns of oil, and B. loaded on board her 80 bales of filk upon a freight, by contrail both to be delivered at Loudon ; the Ihip was purfucd by enemies, and forced into an harbour, &c. and the mafter ordered the filk. on fhore, being the mofl: valuable commodity, (though they lay under the oils, and took up a great deal of time to get at them,) the fhip and oils were afterwards taken, and the owner of the oils brought his bill in equity to have contribution from the owner of the filk ; but in this cafe, as the lofs of the oils did not fave the filks, nor the faving of the filks lofe the oils, the bill was difmifltd. Roll. Abr. By the civil law the Admiralty court may take a recognizance Ir 63"^°* ^" ^^^ nature of a ftipulation from the defendant to anlwer the Noy, 24. * a£lion ; and if he does not obey, they may take his body ; for it Hard. 473. is neccflary that every court fliould have a compulfory power of i^BrowvnL enforcing obedience to its decrees, and this courfe, having pre- a6. vailed there time out of mind, cannot be altered without an af t!)e S^ax&alita an33 ^aUtt Court* AT the time of the jufticiar, the difputes between the king's Fleta, !ib.i. fervants were determined before the fteward and marflral, ^- 3- and for that purpofe the court was held within the king's verge, ^rfij^'cl^' that his fervants might not be drawn away from their attendance on him -, the proceedings were by plaint without any original writ. This court hath dill a continuance, being holden in Southivnrhy Cromp. Tu- and is a court of record, exercifing a jurifdi£lion within twelve '''• ^°-- miles of the king's palace, or where his [a) ordinary refidence is. * Ynl' I'^o* 1 3 R. 2. ft. I. c. 3. 15 H. 6. c. 1. 33 H. 8. c. 12. (:m at home, and not be ':blii,ed to any attendance ellewhere, which might render them Icfs abie to defend theml'elves agaiiilt th>;ir neighbours' incurlions. Vent. 155. Arguendo, {d) Vide .j^lnA. zo^. Crorap. Jurif. 139. 4lnft. 205. By 27//. 8. <:«/>. 24. §3. it is eiia£led, ** That all original *' writs and judicial writs, and all manner of indi6l:me:Us of trea- " fon, felony, and trefpafs, and all manner of procefs to be made *' upon the fame in every county palatine, and other liberty with- " in this realm of England and WaJes^ fhall be made only in the " name of our fovereign lord the king, and his heirs, kings of *' England ; and that every perfon or perfons having fuch county " palatine, or any other fuch liberty to make fuch originals, ju- *' dicials, or other procefs of juftice, fliall make the tejle in the *' faid original writs and judicial in the name of that fame perfoa ** or perfons that have fuch county palatine or liberty." By 11^12 W. 3. cap. 9. reciting 22 and 23 Car. 2. cap.^, and its reference to /\-^Eliz. cap. 6. and that the claufc, That in. dclionx. Court]0i palatinate* 1S9 aBions of irefpnfsy affaulty and battery y and other perfonal aB'iouSy the plaintiff in fuch aFtionSy in cafe the jury Jhall find the damages to be under the value of 40 s. fJjall net recover or obtain more ajls of fait than the damage fo found pell amount unto, relates only to the courts at Weflminflery it is enaded, " That as well the faid claufc *' and all the powers and provifions therehy, or by any othej: law ** now in force, made for prevention of frivolous and vexatious ** fuits, commenced in the courts of Weflminflery ftiail be extended •* to, and be of the fame force and efficacy in all fuch fuits, to be ** commenced or profecuted in the court of great feffions for the ** principality of IValesy the court of great feflions for the county ** palatine of Chefiery the court of common pleas for the county ** palatine of Lancnftery and the court of pleas for the county " palatine of Diirhaniy as fully and amply as if the faid courts " had been mentioned therein." And it is further enabled by the faid laft mentioned (latute, <^ That no fheriff, or other officers within the faid principality or ** counties palatine, upon any writer procefs ifluing out of any of ** his maj city's courts of record at Weflminflery ffiall hold any ** perfon to fpecial bail unlefs an affidavit be firft made in writ- ** ing, and filed in that court, out of which fuch writ or procefs *< is to ifiue, fignifying the caufe of a6lion, and that the fame is « 20/. or upwards, and where the caufe of aftion is 20/. and Vide\^,\. " upwards, bail fhall not be taken for more than the fum ex- 3-6- ** prefied in fuch affidavit-." The palatinate courts are at this day three, viz. Chtfler, Dur- ham, and Lancafler, t I . Of the County Palatine of Chefler. This is a county palatine by prefcription, and according to ^Inft. sir, my Lord Coke is the mod ancient and honourable remaining at S^.^'^P- J**" / «> ri(. 137. this day. Within this county palatine, and the county of the city of 4lnft. an. Chefiery there is and anciently hath been a principal officer called the Chamberlain of Chefter^ who hath, and time out of mind hath had, the juvifdidion of a chancellor ; and the court of Exchequer at Chefler is, and time out of mind hath been, the chancery court for the faid county palatine, whereof the Chamberlain of Chefler is judge in equity : he is alfo judge of matters at the common law within the faid county, as in the court of Chancery at IVeflminflcry for this court of Chancery is a mixt court. There is alfo, within the faid county palatine, a juftice for mat- 4 l"ft' ^'z* ters of the common pleas, and pleas of the crown, to be heard and determined within the fa'd county palatine, commonly called the Chief Juftice of Chefler. All pleas of lands or tenements, and all other contrails, caufes, 4lnft. aii. and matters rifmg and growing within tliis county palatine are pleadable, and ought to be pleaded, heard, and judicially deter- mined within the faid county palatine, and not elfewhere ; and if any be pleaded, heard, or judged out of the faid county pala- 13" tine. I go dTouctiGf Palatinate* (a) T^iat tinr, tiie flune is (n) void, and corr.in non judice^ except it be 111 underiViod ^ ^^^^ °^ treafoii, error, foreign plea, or foreign vouclicr. where the plaintiff by his decarail'n (hews that the matter arofc wiihln a co'int) pi,atine; for as to a traiifitory ad:on, the pljintiff may allege that the caufe of adion accrued at any p ace. Vide Sid. 103. aa(ifuj>ra of couits in §■ neral. Roll. Abr. A man cannot fue in tiie Chancery of Chejler for a thing which 374- in intereft concerns the chancellor there, becaufe he cannot be 246.' his own judge ; and therefore he may in this cafe fue in the jBiiift.Tiy. Chancery of Enghuid ; for [h) otherwife there would be a failure ",^°"3- of right. S. P. {b) If a man hath caufe to complain in equity of a matter arlfing within the county palatine of Chefter ; if the defendant lives out of the coun'y palatine, he may be fued in tiie C ha.icery here ; otherwife there would be a failure of jufticc ; for proceeding in equity binding the pi rl'o]) only, if the peifon lives out of the jurifdidVion of the chamberlain of Chefter, there can be no reiicf there. 4lnft. 213. [In the cdfe ot td^woith v Davics, i Ch. Caf. 41. it is fta'.ed to have been leported, upon view of precedents, that the jurfuifiior. oj the counties palathie was allowable betiveen parties chvelltng in the Jame county y and for lands tkere, and for matters local.^ Fitz. Coro. Outlawry in a county palatine cannot be pleaded in any of the *33- courts at Wejlm'wjiet'y for the party outlawed is only oufted of his D.Plit. 396*. ^^w within that jurifdi61:ion, and it fliall not extend to difable a Vent. 157. nian in another county, where they have no power; for the aSid. 146. county palatine being a royal jurifdidlion within bounds, the lo- Hng the privileges of the law within that jurifdidlion can be no difadvantage to him in another county ; and if he does not live within the palatine jurifdidtion, he is not obliged to attend there j but it feems that outlawry in the county palatine of Lancajier may be pleaded in the courts of Wejlviin fiery becaufe that county was erecSted by att of parliament in Ediuard tho. Third's time, but Z)«r- ham and Chejjer are by prefer iption. 2. Of the County Palatine of Durham^ 4 Tnft. 216. This is alfo a county palatine by prefcription, and f.iid to have Cromp ju- ^ggj^ eredled foon after the conqueft, and is parcel of the bifiiop- Tif. 1 38. Se- . - n } r r 12 Mod. (8 1. riCK or Uiirbam. Roll. Abr. The jurifdiclion of the Bifhop of Durham U) extends to all 540. Roll, pi-jces between Tine and Tefe. Rep. 397. ^ J 3 Bu'.ft. 156. S. P. ^c) His jurifdiftion extends as well to the manors of other men as to the demefnei of the bilhop. Roll. Rep. 397. 3 Bulft. 1 56. 4lnit. 218. In this county pahitine there is a court of Chancery, which is a mixed court both of law and equity, as the Chancery at Wejlmhijler. 4lnft;. 218. If an erroneous judgment Be given, either in the Chancery upon a judgment there, according to the common lav/, or before the juftices of the bilhop, a writ of error fhall be brought be- fore the bilhop himfelf; and if he give an eiToneous judgment thereupon, a writ of error ihall be fucd returnable in the King's Bench. 2 Tnft, 219, If a man be furety for another to keep the peace, and, after he break the peace, and the furety have lands in the county pala- tine of Durham^ tlie king {hall command the bifliop of Durhaniy or 220. CoucW palatinate. 191 OF.lils chancellor, to do execution ; and fo it is in the other coun- ties palatine, and in the fame manner it is of a flatute ftaple, life: recognizances, (s'c. * The court of King's Bench will expedl a return of a latitat to z'^tn.xa^. the county palatinate of Durham.* Andr. 15,1. 3. Of the County Palatine of Lancajiery and the Dutchy Court. The county palatine and dutchy of Laticajler were ere£led by 4 Inft- 204- aft of parliament in the reign of Ed. Q. Pif tfic IRo^al jFraficf)ire of Ely. *« ufed and exercifed in the court of the dutchy of Laucrjlsry ^c. " is repealed, revoked, and made void." * By 4 Gfi?. 3. cap. 16. infants in counties palatine are enabled to convey by order of the refpedlive courts belonging to the coun- ties palatine*. iDf t!)e Jaopal fxmx^iit of Ely. 4 Inft. 220. 'f7LT is (a) not a county palatine, but a royal franchlfe, granted \a) 7. Inft. fi^ by //. I. to the bifhop of Ely and his fucceflbrs, [h) of hear- Ca^th. 109. '"g ^'^d dcterminhig as well civil as criminal pleas. So refolved. (i) This jui'fdidlion the b:flicp now excercilss by his ji.-ftices, by prelcription groundd on the faid grant. 4 Inft. 220. [The frar.chife is of much eai'l'cr date than the time ot Henry the Firft. The billioprick was founded by that prEnce in the tenth year of his reign, A. D. iic ; , and immediately after, the grant heie ?.i!uded to was mjJe. But the ftanchlfe itfelf may be traced back to the feventh centuiy, and Henry's charter refers to preceding grar;t?, and declares that the chjrch of Ely fhall c nUnut to have the fame privileges and liberties as it had diCy qua Edwardut vivus tt mortuui fuit. See hentham'sEly, 46. Appendix, 13.3 Carth, 109. And therefore the party, who is fued in the courts of Wejl- Cotton and fninjhr^ cannot plead that the lands lie, or that the caufe of aftion Saik.TsV arofe within Ely, but [c) conufance mutl be demanded, which is pi. I. S.C. all the jurifdidtion a franchife hath. adjudged. (c) Of the manner of demanding conufance, vide Sid. 283. Keb. 946. 94.8. [See the record in thii cafe, Bentham's Ely, Appendix, 26. Fidefufra, tit. Courts and their Jurijdifi'ion in general, D. 3.] 4 Inft. 221. If one be bailiff of lands in A. and B., and B. be within the {d) But if franchife of Ely, and A. not, the bailiff cannot be charged in [d) that in its ^ joint aclion, for this would oufl the franchife of its jurifdi£lion. nature is joint, rife partly within and partly without the franchife, the franchife cannot claim conu- iance. 4 Inft. 2ZO. Courts of t!)e jToreii* Manwood, It Foreft, as defcribed by Matiwoody is a certain territory of W^ The xX woody grounds and fruitful paftures, privileged for wild king only bcafts and fowls of foreft, chafe, and warren, to reft and abide can make a there in the fafe protection of the (e) king for his delight and ^"^'^'^"•^ pleafure, €ourt0of tU jfocefl, 193 pleafure, which territory of ground (o privileged is meted and therefore bounded with (a) unremoveable marks, meets, and boundaries, ^""'^'^ ^°^^^ either known by matter of record, or by prefcription, and alfo re- J^'be fuc" plenifhed (^) with wild beafts of venary or chafe, and with great by matter of coverts of (c) vert for the fuccour of the faid bealls there to abide ; f""^'^}- °^ for the prefervation and continuance of which place, together with tion which the vert and venifon, there are particular (d) officers, {e) laws, and fuppofes a privileges belonging to the fame, requifite for that purpofe, and 5^^""''°'" proper only to a foreft, and to no {/) other place. for that purpofe. Plow. 318. Braft. lib. 2. c. i. 4lnft. 300. Bro. S^uo Warranto, 7 But a fubjeft may have a foreft by grant from the crown. Dyer, 169. Manwood, 155. Befre the fta- tute of Charta de Forcjla, the king ufcd to convert the open anJ woody grounds of his fubjcfts into forells ; but though at this day he may make a fnreff, yet he cannot afforelt any of his fubje£l's lands. 4lnft. 300. [a) But need not beaiflually inclofed with hedge, ditch, &c. Manwood, 145. {b) Of the feveral beafts of the foreft, vide 4lnft. 316. (c) Thii word comprehends every thing bearing green leaves in the foreft. Manwood, 146. {d) The chief of wl-.om is the chief juftice in eyre, who was formerly created by writ, as other juftices in eyre; but by the fiatute 27 K. 8. c. 24- he is made by letters patent, and may execute his office by deputy. [The oflice is divided between two, one for the forefts on this fide of Trent, the other for thofc beyond.] 4lnft.29l. 314. The otiier officers are the rangers, ftewards, verderors, forefters, regarders, agiftors, and woodwards ; theie muft duly attend their refpedlive offices, and therefore are privileged from attending on juries in the county, &c, F. N.B.164. 2lnft. 291. I Jon. 266. {e) Which differ in many cales from the common law of England, for which i-lde 4lnft. 315. ( f) For although warrens and parks are civil inclofures, 2nd a chafe is a franchife differing only from a park, in that it is not inclofed ; and though thefe enjoy privileges by grant from the crown diftindl from other lands, yet are they not to be confidered as foreft, having neither particular laws, nor particular officers ; and, therefore, offences committed in ibefe muft be puniflied by the common law. 4 Inft. 308. Man.vood, 49, Co. LlL 233. There are three courts (2) incident to a foreft. (s^) p^p*'* ^^' 1,-0. Roll. 1. The Juftice Seat. Rep. ,91. 2. The Swainmote Court. 3. The Court of Attachments, I. Of the Juftice Seat. (?) 4 Inft. 2CO. This court is fo (/') incident to a foreft, that there cannot be a {h) 2 Bulft, foreft without it, but it (/) cannot be holden oftner than every ^^^-^ third year. It muft be fummoned at leaft 40 days before fitting, and one 4 inft, 291. writ of fummons fhall be diredled to the (heriff, ^c. the other cujlodi forejla vel ejus locum tetietiti, to fummon all officers, tScy and all perfons that claim liberties within the foreft, to fliev,- how they claim them. This court may inquire, hear, and determine all trefpafles within 4 Inft. 291. the foreft, Ik) according to the law of the foreft, and all claims of (*)Whether franchifes, ^c. \\ithinthe foreft. beimpri- foned for non-payment of a fine fet there, Webb's cafe. Roll. Rep. 41 1. 2 Bulft. 213. duLuMur. By the 7 i?.3. cap. 3. it is enaded, "That (/) no jury fhall be f(/) In a « compelled by any officer of the foreft, or other perfon, to travel {■.'^■;,^^"^g " from place to place, out of the place where the charge is given, atfend.^nt, •* but ftiall give their verdidt in the place where their charge is r'"" "'^ «« given." ff^ct^ b"'^"* fine let up ;u li\tn at the jgftice feat in the foreft of Dcane, the plea was, that the juftice was at Clouc«flcr, whicn Vol, il. O is 194 Court;e( of tje jToreG* is out of the forcil ; aird thereupon 5t was demurred, becaufe the beg'nning of the jurtice feat was at fuch a pl.ce within the r'"ie(l, iuui atij.uined to Gloiicefter. All the court held it good enough, al- though ihe jiiftice iVat were brgi.n in a place out of the foieit, and gave judgment ror the king.] Roll. Abr. 534. Cro. Car. 409. Jones, 16S. The proceedings in this court are de hcra in horam^ and there- (,2) Where f-Q^.^ jj,g defendant mull plead to an indi£lmeiit there ia) prefently. the ind:d- ^ \. / r ; ment was removed in B. R., and the defendant there put to anfwer. 4 Inft. 295. By p H.-i^. cap. 2. ** Dwellers out of forefls fiiall not come be- *' fore juRices of the forefl by common fummons. unlefs emplead- *' ed there, or fureties f"or others attached for the fortil." By 34 £■. i.y?^'/. 5. cap. 6. "The judice of th.e fovcft, or his *' lieutenant, in prefence or by aflent of the treafurer, may take *' fines and amercements of indictees for trefpalTes done there, and *' not tarry for the eyre of the juftices." 4lniT. 315, A felony committed within the forefl mud be inquired of, ^c. before the judges of the common law, and it belongs not to the conufance of the chief juftice of the foreft. 41011.317. A receipt of an offender in hunting, ^V., or of the king's venifon, out of the foreft, cannot be puniflied by the law of the foreft, becaufe the jurifJiclion is local. 4 In*^. ?oo. This court may proceed upon the [h) prefentments or verdicls in (i) Ey 9 H. tj^g fwainmote. -. c. i5-, Fr-,Te!iimcnts of the forertfrs, when errolled and cnclofcd under the fcjls of the verderors, fhnll be ■piefentcd to the chief jurtices, &c. and be dcccrniined before them. How the truth of luch prefentment fliall be inquired of, and afte.-' by affent of the fc>reftcrs, verdero.'s, regarders, &c. and confirmed and fealed with their fcals, -v'tde 34E. ]. c. i. And indiftmcnts taken in other manner Iha'l be void. — And by 34 E. i. ftat. 5. c. 2. If any officer is dead, or fick, fo that he cannot be at trie fwainmote, the julHcs of the forcit (hall put another in his place, ii> that the indictment may be by ai), in fomi. If fciled with the fcal of one officer only, hy aflcnt of all the verderors, &c. it is wehenc .gli. Jones, 26S. Jones, 279, If, upon the firft fitting of the juftice feat, the four men and reeve of any town make default, the whole vill fliall be amerced \ but if after appearance they make default upon an adjournment, the defaulters only ftiall be amerced, 4 Inft. £50. If at the fwainmote the prefentment of the forefters concerning (il^jones, ^.^,j.j jj,^j venifon is found true, the offender is convicl in law, and (J.' Nothing (c) cannot traverfe ; but a prefentment at a juftice feat (fi?) not car. be rtone found at t]\e fwalnmotc may be traverfed, becaufe prefented but but upon bvonejurv. their pre- - J < fiffitmcnts. 1. Buift. 197. 4 Inii. 313. If the king pardons a trcfpafs in a foreft, and an offender at a juftice feat pleads it, by the law of the foreft, before any allowance tliereof, the juftices muft charge the minifters of the foreft to in- quire whether the delinquent hath done any trefpafs in vert or venifon fince the date of the pardon, and when the pardon is allowed, the entry is cinod inveuit manucaptores quodammodo non forJsfac. tsfc. 4 Inft. 313. If an offender be convicled for a trefpafs in the foreft in hunt- ing, ^c. and adjudged to be fined or imprifoned, though he pays the fine, yet he muft find fureties for his good abearing. 4 If Courtjei of tbt JTocca. 195 If a claim is allowed there which (n) ought not, the party 4ln{t. 294. grieved may, by certiorari^ remove the record in B. R.y and there- ^^^ ^°* ^^^ upon have z/cire/acias, ^c. ch-jurtice r J J ^ may inquire of the truth cf fuch claims per mimjiroi fjrcj^a, or tarn per mi-.'.jlr^s quum per aass, at his difcretion. 4lnft. 294, 295. But if refufed to be allowed where it ought, the pnrty fhall have 4 In.l. 297; a writ de libertatibus nllocandis to the juftices of the fureft. But if upon fuch ch\im a difficulty arifes, or a demurrer is joined, 4 Inft. 295. the chief juftice may adjourn it in B. R., iifc. A certiorari was prayed on behalf of the Duke of 'Norfolliy to Sid. 256, remove a prefentment taken in the foreft oi Pickering, to be di- Duke of reeled to the chief juftice in eyre; the judgment was, becaufe there D^ke'cff '' was a queflion of right, to whom certain woods there did belong, NewcaiHe, whether to the Duke of Norfolk^ or to the Duke oi Neivcq/lle; and ^ K^^''-*!. the Duke of Newcajlle, being chief juftice in ey.e^ would not let ^^* ' * the woods be cut, to the pi-ejudice of the Duke of Norfolk's right, but caufed them to be prefented; whereas in truth thefe woods had been deafForefled : it was holden by the court, that in this cafe no certiorari (hould go, for the right of the woods is not in queftion; for a man [b) cannot cut his own woods to defcroy the vert, but (i) PiJe fhall fine for it ; and fo the chief juftice \x\eyrc may be a judge for Wanwood, the king, though not for himfelf ; and if it be deafForefled, tref- ^"'^■' *'^* pafs lies, for the proceedings will be coram non judice; but if they fhould be removed, there will be a failure of juftice ; for the K. B. cannot proceed to convicl, not having their laws nor their officers; but after a conviclion it may be otherv.-ife. The chief juftice in eyre cannot, upon an information that fucli Carth. 77. and I'uch perfons have killed does and felled trees in the foreft, ifllie ^°'^'\ Love. his warrant for apprehending fuch perfons; for it is (c) exprcfsly andfever'ai provided, that no man fliall be taken or imprifoned by any officer perfons ap- of a foreft without due indiclment, or being taken with the (d) P'^hended » ' on his war- charged on abaheJi ccfpus. (c) As by I E. 3. c. 8. 7 R. 2. c. 4. & SJi Reg. f. 8. F. N. B. 67. 4lnft. 289. (ra being dire£led to a mefTenger, for this rea- fon, principally, the perfons were difcharged. 2. Of the Swainmote Court. The fwainmote is holden by the fteward before the verderors . i^ia 280. as judges, [c) thrice in the year, and the {/) forefters are to pre lent (0 --Ud at their attachments at the next fwainmote, where the freeholders ^''^^^^""«» witliin the foreft are to appear to ferve on juries. ^un"^ t° ,p. pear there, i;^f 9 H. 3. c. 3. (/) 9 H. 3. c. 6, O 2 This 196 £)f tfje ^teriff'jei Corn, 4 Inft. iSg. This court may inquire de fuperoneratione forejlarum l^ aliorutrl & -vide mm'tJJrorumforeJIx ^ de eorum opprefftonibus populo i/Iat, flat. 5. C.4. 4 inft. 289. This court may not only inquire, but convi£l, but {a] not give (j) And judgment. therefore •' ^ « fwdinmote without a juflice feat is of no force at all. zBuIIl. z^S. per Coke. 3. Of the Court of Attachments. 4 Inft. 189. The court of attachments or woodmote court, is to be held be- (i) Taking e^^^ ^]^g yerderors, every forty days ; and at this court the foref- utr is when ^^^s bring in their attachments de viridi ^ venationey and the pre- a man is fentments thereof, and the verderors receive and enrol them : but *^'''=" '" '^* no man ought to be attached by his body for vert or venifon, unlefs «"dy\odo taken with the (^) manner within the foreft, elfe the attachment it, as with muft be by his goods. his bow bent, or ready to flip his dogs, or with his hands bloody ; alfo taking upon a frerti purfuit, is a taking ill the manner. Carth. 79. Agreed fer totam Curiam. But finding timber of the forell in a man's poirelTion, as in his yard, is not a taking in the manner. Carth. 79., fer three juftices againfi the chief juftice, who doubted. [By fome late a£ls of parliament for the punifhment of deer- ftealers, the accufations are to be judged and fentence is to be given in the ordinary tribunals. % Wilf. X04. It is to be obferved, that as the foreft law is not the general law of the land, the king's courts are not bound to take notice of it, unlefs it be pleaded.] m tl)e S)l)crtff's Xotn. it Tnft. 70, 71- Braft. 124. Preface to 9 Co. a Inft. 70. {c) Hence the ftile of this court is Curia y.fii THE inhabitants of every county were formerly divided into decennaries, i. e. ten families living together in the fame precindl, the mailers whereof were every one them mutually bound for each other, and punifhable for the default of any member of any fuch family, in not appearing to anfwer for himfelf on any accufation made againft him. Over every county an earl prefided, and he, or the {hire-reeve, arrayed the feveral perfons within the county -, and for this pur- pofe the perambulation was through the county twice every year, and (f) if any perfon was found that had no compurgators, he was put into prifon until he could procure fome decennary to admit him ; on the law-days the Iheriffufed to give in charge the feveral 10 articles £Df tfte @)6enri9f Cjorm 197 aTticles of the crown law, and if any perfon was guilty of the Franci PU- breach of any of them, he was delivered up by his compurgators. ^" ^'"""" apud C coram vicecom. tent, in turro fuo tali die, &c. But the law lakes no notice of any fuch court, under the llile of tern vicecom. tent. &c. for t}ie word tern does not properly fignify the iheriff's court, but his perambulation, zlnit.ji. Dalt. Sheriff, 385. 391, Fit*. Lect, 11. 2 HawJt. P. C. c. 10. § 3. But though the cuftom of the decennary be now worn away, yet Finch, 241. the fheriff's torn ftill fubfifts, which is the king's court of record, ^ -N.B. 82. holden before the (heriff, for the redreffing of common grievances ■within the county, to which all perfons, above the age of twelve years, not fpecially privileged, arc bound to attend ; not only to make proper inquiries, but to take the oaths of allegiance, ^c. But for the better underftanding hereof I fhall confider, (A) The Manner of holding this Court. (B) What Perfons owe Suit to it. (C) In what Cafes it has a Jurifdid:ion, (D) Of the Form of its Proceedings. B' (A) The Manner of holding this Court. >Y the common law the fherifF might hold his torn at what 6H. 7. i.b. place, and as often as he thoudit fit; but this proving incon- ^''* ^'^' venient, m givmg the ihenit too great a power 01 oppremng the fubjedl, By the ftatute oi magfia charta, cap. 35., it is enacted, " That *' no (herifF, or his bailiff", (liall make his torn through a hundred *' but twice in a year, and at the place accuftomed, viz. once ** after Eajier., and again after the feaft of St. Michael ; and that " the view of frankpledge (hall be at the term of St. Michael." Alfo, by the 3 1 £. 3. cap. 15., it is enacted, *' That every (herifF *' fhall make his torn yearly one time within the month after *< Eajler^ and another time within the month after St. Michael : ** and if they hold them in other manner, that then they fhall lofe " their torn for the time." It is agreed, that fince thefe ftatutes, if the {herifF holds his Dyer, 151. torn at a different time, or at an unufual place, he mav be indifled *^ei'w. ,93, . ' r » ^ 2 Hawk. for It. P. c. c. 10. § 6. Alfo, it hath been holden, that in every caption of an indi<£l- Vent. 107. xnent taken in a Iheriff's torn, or court-leet, the day whereon it ^^^"''•^p^' was taken ought to be fet forth, that it may appear not to have ^ Kawk.^ been on a Sunday . P.C c. 10. The (herifF is to hold his torn in each particular hundred ; yet, [2 Hawk, as he lias a jurifdidlion in the whole county, he may receive pre- ^r^- '• '°* O ^ fentments ^ '*-' fentments in one hundred, of offences committed In another ; but the jury cannot be charged on oath to prcfcnt any offences but thofe which arofe within their particular hundreds. Alfo, by the flatute of IVL'.rlbr'idgCy cap. lo. it is provided, that thofe who have tenements in different hundreds, (liall not be compelled to come to any torn, but only in the bailiwick wherein they iliall be con- verfant. (B) \Vhat Perfons owe Suit to it. a Hawk. A LL perfons, as well maflers as [a] fervants, above the age of p. c. c. 10. JrV twelve years, are by the common law bound to appear at this (a)°That court in their {b) proper perfons. every mafti^r may be artieiced for fuffiring a ferv.int to continue with him a year and a day without be- ing puc iiito the decennary. 41 E 3. 26. b. 45 E. 3. :6. b. (/) And theretoie no perfons fo bound 10 appear, are within the benelit of the ftatutc of Mertci:, c. 10. whith allows fuit fervice to be performed bj attorney, a Inft. 99. r.N.B.161. But tenants in antient demefne are privileged by the common - Inft- i^'i. law from coming to this court, unlefs they and their anccllors have P. cl^c'io. time out of mind ufed to come to it : alfo, parfons of churches § IX. have the like privilege by the common law, and all peers of the realm, and women have tlie fame privilege by the ftatute of Marl- bridge ^ 52 jff. 3. cap. 10. unlefs their prefence be required forfome particular caufe. ft Hawk. Alfo, by the common law, as well as the flatute of Marlbridgey P. c. c. 10. j,2 j{^ -^^ (-^p^ iQ_j ijo one is bound to fuch fuit to a torn, wdthin * * the jurifditSbion whereof he doth not refide. a Hawk. And if a man has a houfe which flands within the precinfts of P.C. ub'i ^^^ j.^Q leets, he (hall do his fuit to the court in whofe jurifdidlion (0 Tf one ^is bed- chamber lies. have a houfe and family in two leets, he ought to do his fuit to tliat wherein for the moft part he pcr- Youally ttfides. 2 Hawk. 1'. C. ubijufra. •z Hawk. But no man can be of two leets ; and therefore one, w^ho lives ^fi^' "^' within a private leet, fhall owe no fuit to the torn or other leet, unlefs the private leet be feifed into the king's hands, or unlefs the lord negle6l to hold his court. /*/»tf (C) In what Cafes it has a Jurifdidlon. a Hawk. 'T'HE jurifdidion of the fheriff's torn is confined to offences at p. c. c. 10. A common law, and cannot take conufance of any crime made \d)Vide ^° ^y ^" ^<^ of parliament, unlefs {d) enabled to do fo by the a£l a Dan. 291. itfelfj (f) nor can it inquire of any offence, unlefs it arofe fmce Seveial ita- ^j^g holding of the lafl court. tutes men- ° tioned which give the Iherifi''s torn and court-leet jurifdiftion. (..•) Keilw. 66. Cromp. All capital offences being of a publick nature, as (/) treafons, ^^u k ^* ^^^ felonies are properly inquirable of at the fheriff's torn. P.C. ubi Juiira. (/) Except againft li.e king's perfon. 9 H. 6. 44.— -But a Hawk. P.C. vl>i Jup-a £Df tfje 8>&eriff'jGf Corn* 199 Jupra cont., and yet it feems ftrange, that the highcft offence jhould be exempted ; however. It Is clear, that the flieritJ" has no power to inquire of any ot^'snce made trejlon by Itatutt^, as of a "Lrtiafon, but only as it was an oftence at common law. (g) Except rape, be;;aufe, as the law now (tjnds, ic is a felony only by fta'ute z Hawk. P. C. c- lO. § 51 And ex^ej)i; the deaili of a m-nn, bccaufe no common nu.fance. But ^ & fide 2 Hawk. P. C. Ibid. It may inquire of aflauks and batteries, if accompanied with 2 Hnvk. bloodflied, but othervvife not ; becaufe without bloodlhed they are ^■^- -• ^°' not accounted common grievances. ^ Aifo, it may inquiie of all aflrays, as being in tcrrorem popidi. ' z Hawk. p. C. c. 10. ^ 54. Alfo, it may inquire of the common breaking of hedges, dikes, /Vf or wrdls, zr.d of all pound breaches, as b-nng common grievances ; ^^.^^'^' alfo it may inquire generally of inferior offences, touching the f.'.. 57. king's intereft, as of all purprcfturcs or incroachments upon the and the fe. king, and alienations in mortmain, and (a) felzures of trcafure- ^."''' »"^'io- o' ^ ^ . • . nti-.'S there trove, or of waifs or eitrays, or wreck belonging to the king. cit;i. (a) But i^ Whether i: can prefciibeto inquire of the leisure of I'uch things belonging 10 ihc lord, being a l"ubjc£t. 2 Kaivk, P. C. ihid. It may inquire of all common nuifances, as all annoyances to a iiawk. common bridges, or highways, bawdy-houfes, cs*r., and alfo, of all ^•^' *^" '°- other fuch like offences, as felling corrupt vi^luals, breaking the and the au- aihfe of beer and ale, negle£ling to hold a fair or market, keeping thorities falfe weights or meafures, ^c. Alfo, it is laid, that ic may in- 'hare cited. quire of all common dillurbers of the peace, as barrators, eves- (Iroppers, and of all common oppreflbrs, as ufurers, iEfc, and of all dangerous perfons, as vagabonds, night-walkers, t^c, and of all fuitors to tlie court who fhall make default, and of thofe who fhall levy hue and cry without caufc, or fliall negledl to levy one ' where they ought, i^c, and of the negle£l of keeping a pair of flocks in any vill within the precindl, for which every fuch vill {hall forfeit 5 /. But a man cannot be amerced in a leet for furcharging a com- Roll. Abr. mon, becaufe this only concerns the private intereft of the inha- S4i- ^ Roll. , . ' ^ * Abr. 53. bitants. But it hath been holden, that (a) a by-law made at a leet, in Roll. Abr. purfuance of a cuftom to make fuch by-laws, that no one, under a 542- n L 1 • 1 Lane, 1:5, certain penalty, (hall receive a poor man to be his tenant, who (a)Ofcom-. afterwards (hall become chargeable to the town, is good. mon right, any 1 er, with the aflent of the tenants, may make by-laws under cert.iin penalties, in relation to matte.s pro- perly cognizable by the court, as the reparation of highways, &c. But by-laws of a private nature are moll proper for a court-baron. 2 Hawk. P. C. c- 10. § 6i. Although the above-mentioned offences are properly inquirable 2 Hawk, of in the Iheriff's torn, yet is his power, as to the punifhing of fuch ''• *■-• ''• '°- offences, much reftrained by feveral ftatutcs •, 7iS hy magna charta, (^)Asthis cap. 17. which emcis^ that no fie riff, cotijiablcy or {b) other bailiff of itatutehi; the king, Jbali hold picas of the crown. nZ-Uo' extend to ftewards of courts, neither the torn nor court-leet can deliver any perfins indided before them for felony, but mult refer them to the juftices of gaol-delivery. 2 Inll. 31. 2 Hawk. F. C. itid. O 4 But •2. Hawk. P. C. c. 10. h 14- (j) Not only the judge of the cou; t is puniihable for award- ing luch procefs, but alfo the offi- cer for obey- ing it. Jones, 301. Cro. Car. S Hawk. P. C. c. 10. §13.76. 2 Hawk. P. C. c. 10. ^ Med. 138. fentmer.t is not trjverf- ahle in a court kct \ but in or- der to give the defend- ant an op- portunity of But this flatute of magna charta doth neither reflrain the torn nor leet from taking indi£lments, or awarding procefs thereon as before ; but this power of awarding fuch procefs is taken from the fheriff's torn, but not from courts-leet, by i E. 4. cap, 2. By which it is enacted, " That on indi£lments and prefent- ** ments before any of the king's (herifFs, in his counties, except '* in London^ their under-flieriffs, clerks, baihfFs, or minillers, at " their torns, or law-days, they nor any of them {hall have (a) " power to attach, arrell, or put in prifon, or to levy or take any " fine or amercement of any perfon fo indi6led or prefented, by *' reafon of any fuch indictment or prefentment ; but that the faid " flierifls and under-fherifFs, clerks and bailiffs, and their minif- " ters, fliall deliver all fuch indictments and prefentments to the '* juftices of the peace at their next county feflions, on pain of *« 40/. and that the faid jullices of the peace fliall have power to ^' award procefs on all fuch indictments and prefentments as the " law doth require, and in like form as if the faid indiclments *< and prefentments uxre taken before the faid juftices of peace; *' and alfo to arraign and deliver all fuch perfons fo indiCted and «' prefented before the faid flieriffs, ^r., and fuch perfons which *« fliall be indlcled or prefented of trefpafs, fliall make fuch a fine " as fhall feeni lawful by their difcretions ; and the eftreats of the " faid fines and amercements fliall be enrolled, and by indenture ♦' be delivered to the laid flieritTs, under-flierifFs, their clerks, »* bailiffs, or minifters, or feme of them, to the ufe and profit of *« him that was flieriff at the time of fuch indictments or pre- *' fentments taken ; and if any of the faid flieriffs, their under- " flieriffs, clerks, bailifls, or their minifters, do arreft, attach, or '* put in prifon, or caufe any fine or ranfom to be taken, or levy " any amercement of any perfon or perfons fo indiCted or pre- ** fented, by reafon or colour of any fuch indictment or prefent- •* ment taken before them, at their terms or law-days above re- ** hearfed, before that they have procefs from the faid juftices of ** peace, or eftreats delivered out of the faid IndiCtments or pre- *' fentments fo brought, delivered, and prefented to them ; that '* then the flieriffs, which fo do, fhall forfeit an hundred pounds." It feems agreed, that, at this day, neither the torn nor leet have any power to try any perfon indicted before them, of any offence whatfoever, and that there is no remedy for fuch prefentments as are traverfable, but by removing them into the King's Bench. But a prefentment by twelve or more, in a torn or leet, of any offence within the jurildiClion of the court, being neither capital, nor concerning freehold, fubjeCts the party to a fine or amerce- ment, without any farther proceeding, and binds him for ever, after the day on which it is found, and admits of no traverfe (^); but if it concern life or freehold, as if it charge a man with not repairing a highway as he ought to do by the tenure of his lands, it may be removed into the King's Bench, and there traverfed ; but not if it barely charge his perfon, as for not cutting the branches of his trees hanging over the highway, ^ ^^ ' * removed by certiorari into the King's Bench, and there traverfed. Rex v. Roupell, Cowp. 458. But the court will not grant a certiorari for fuch purpofe, where the amercement has been eftreate>1, and the fine paid. Rex v. Ripon, 2 Term Rep. 184.] If a fine in a court-leet be unreafonable, it may be avoided by p!ea, and judgment of the court 5 for the judges are to determine the reafonablenefs of the fine. R. 1 1. Co. 44. Alfo, notwithftanding the above-mentioned ftatutes, the fherifF 2 Hawk, may, at this day, impofe a (a) fine on all fuch as (hall be guilty of ^ ^ *^* 'o* a contempt in the face of the court, and on a fuitor refufing to L) urmav be fworn, and on a bailiff refufing to make a panel, and on a award an tithingman refufing to make a prefentment, and on a juryman re- ^'^er'^ement fufing to prefent the articles given in charge, and on a perfon duly cre.ion. * chofen conftable, refufing to be fworn, but he (^) ought to fine 8 Co. 59. each offender feverally, and not all jointly, except where a vill is "^'t!^" ^^^' to De nnecl. But for this I'ide tit. Fines and Amercements. (i) 8 Co. 38* Alfo, on the prefentment of a nuifance in a torn or leet, the 2 Hawk, (heriff or fteward may either amerce the party, and alfo order him ^'^- *^' 'o* to remove it, by fuch a day, under a certain pain, or may order him and'feverd* to remove it, under fuch a pain, without amercing him at all j and authorities the party having notice of fuch order, (hall forfeit the pain on a there tiied, prefentment at another court, that he hath not removed the nuifance, without any farther proceeding ; and every pain fo for- feited may be recovered in like manner as a fine or amercement, by diflrefs, or aiSlion of debt j neither (hall it be affeered to a lefs fum than was at firft fet. (D) Of the Form of its Proceedings. N making prefentments, it is faid to have been the courfe, for- Keilw. 66, merly, to impanel, not only a grand jury, but alfo a jury of ^'^^ 1 .^^.,.p.. ,.. .„..,......,,.,, twelve men which was commonly called the petit jury, and to have ^t^. '-gs.' offences firfl prefented by the headboroughs, and the prefent- Cromp.212, ment affirmed by the petit jury, before they were brought to the 9^-6.44. b. grand jury. But however the practice might have been, it feems now agreed, 2 Hawk, that no exception can be taken to any fuch indictment, in refpe£l P- ^- <=• lo- of the non-obfervance of any fuch cuftom or ufage ; for that no ^"°* averment lies ag;iin{l the aci:i of a court of record, and every judge of fuch court fhall be prefumed to a£l according to the rules of it. By Wejli7i. 2. 13 £. I. cap. 13. «< The (lieriff (hall take no in- (0 In the *' quell (c) but by twelve men at the leait, who (hall put their ""^ruaion leais tne.eto. hath been holder), that if there be more than twelve jurors, and all agree, all muft put their feals, but that if twelve only agree, it is fulficient for thofe twelve to fet their feals. Dait. Sneriff, 3^9. By I i?. 3. cap. 4. " No officer (hall return or impanel any per- (ii«ry, not being brought W" ui it ; but txercifmg a trade contnry to > Eliz. c 4. is not within the aft, nor prefentsble in the Ieet. Sjld. 289. 2K.eb. 30. Raym. J54. S. C. a Hawk. No man can be within two leets at the (\ime time, and in the p.C. c. II. fanne refpe6l ; therefore, he who refides within the precindls of a levlral aul" Icct, the loid whcrcof doth duly hold his court, cannot be com- pelled €)f tl)e County Court 203 pelled to come to a fuperior leet, for any purpofe which may as thorltles well be anfwcred by his attendance at his own leet; but if a pri- there cued, vate leet be fpccially granted for two or three articles only, it fecms that the inhabitants mud; attend the torn for all other matters : alfo, a grand leet may prcfcribe to oblige a certain number of in- habitants in every town within its precin£l, to appear at every fuch grand leet, to Inquire of fuch oiTcnces as were omitted by the inferior : alfo, if a leet be feized into the king's hands, all who owed fuit to it ought to come to the torn, ^c, alfo the flieriff's / torn, as an overfeer of the leet, is to inquire whether the tithings be full, and may Inquire of the concealments of offences inquirabie in leets. A court-leet fhall be forfeited, not only by a6ts of grofs injuf- z Hawk, tice, but alfo by bare omilhons and negle6ts, efpeciaily if often ^c. en. repeated, and without excufe. ^ ^' The caption of an indidlment In a court-leet, nd cur. vif. franc. Saik. 195. pleg. cum cur. baron. y is'c. is good, for the words cufjj cur. baron. ^or.derJum a private perfon, (^ Mod. 10. 8 Mod. 22. 12 Mod. 666. Cb) But Sid, 166., it was faid by fome, that it had fcarce ever been known that a prohibition or habeas corpus went to the cinque ports. [But there can be no doubt, but that they will go there, j (>) A juo minus lieth thither. Hard. 475. a Inft. 557. The {k) lord warden is the Immediate officer of the court, and 4 Inft. 223. ^/^ ^^jjg flj^ji jjg direded to him (;?;) as in all real anions, ^r.,. (*) The for lands within the five ports. conftable or keeper of Dover Caftle is alfo warden of the cinqne ports, and the writs dire£led to him arc. Rex, Cf . corflahulario cajiri Jui de Dover Gf cuPudi qu'mque portuum, &c. 2 Inft. 5 56. 4 Inft. 223. (/) But writs of appeal muft be dire£led to the ftietlff. Cro. Eliz. 604. Becaufe the king is in a man- ner concerned. Vide Ych. ly Cro. Eliz. 91 1. 2 Inft. 557. [m) But if there be an indiftment before juftices of peace within the cinque port:, a cert'wari may be immediately direfled to them j for they proceed by virtue of their commiffion, and not their iujcient charters, ^c. CrO.Car. 253, »j4. bui t^,r iliis, *•(./« Roll. Abr. 395. By (Df tfjc Courtief of t!)e ^tannan'eier* 209 By the i IV. vS* M. cap. 7. " Whereas the late lord wardens ** claiir.j.i a right of nomination of one perfon to each of the ** cinque ports, the two ancient towns, and their members, whom *' they ought to elect to ferve in parliament ; it is declared and *' enadted, that all fuch nominations were and are againfl law, " and void." If a murder is committed at Sandwich, and an appeal brought Yelv.12,13. by original in B. R., directed to the ftieriff of the county of Kenty ^'^*- ^''«- and he brings in the defendant, who pleads that Sandwich is part (a)FoTths of the cinque ports, u!?i breve domini regis non currity ilfc, and cinque ports demands judgment of the writ, this is a bad plea -, for the defend- cannotaward ant having done the murder within the cinque ports, and after ou'tlawry, flying out, if this pleading fhould be allowed, [a) there would be a for that faUure of juftice. ,. ,. , ^°"s|ittobe J proclaimed in open county. Cro.El1z.9jo. But if the defendant by his plea (hews that at the time of the Ye!v. 13, murder fuppofed, and at all times after, he had been an inhabitant, and commorant within the cinque ports, and fo had given jurif- diclion to the judges there, and fliewed they might have proceed- ed, ^c.i it would be a good plea. €)f t\ft Courts of tlje t»tannaricff. THESE courts were (3) inftltuted for the conveniency of tin- 4 Inft. 249. ners, that they might be encouraged in the making of tin, ^f^ifchar"' one of the flaple commodities of the kingdom -, and therefore in ters.records, Comwa/I :ind Devori/hire, where the ore or mine of which it is made and afts of chiefly abounds, the workers herein were allowed the privilege of ^^|,'^^|^"' fuing and being fued in thofe places. the iianna- ries, and for an expoiition of the charter of E. I. and the ftatute 50 E. 3. which gave great privileges to the tinners, 1/fj/f 4 Inft. 252., 12C0.10, 11., Flow. 327., Roll. Abr. 547, 548. j &-vide 16 Car. I. c. 15. by which their privileges are declared and circumfcribed. ' The jurifdi6lion of the (r) court is guided by fpecial laws, by 4 Inft. 229* cuftoms, and by prefcripcion time out of mind. ftyJofrtie court, "vide 4 Inft. 299.— And that the lord warden hath jurifdiftlon of all the tia in Cornwall and Devon. 4 Inft. 229. No writ of error lies upon [d) any judgment in thefe courts ; but 4 In*- 233- the party grieved muft be relieved by appeal in feveral degrees; y, ^od- firfl: to the fteward of the ftannary court, where the matter lies; ridge's Hift. then to the under-warden of the flannaries ; and from him to the of Cornw. , Vol. II. P lord 54-3 (-/)?« ^10 £t ttc CoiirtjGf of tit ^tm\mtit0. any mjttc- loul waulcn of the fame ftatinaries ; and for want of jufticc there, touching the ^q jj^g pvivy council of the Prince of IVales, [as duke of Cornivally ^hmS' >^''^e'i ^^c hath had livery and invediture of the fame. And from uponjjuJj;- thence the appeal lies to the kinghimfelf, in the laft refort.] mem there given upon collateral matters. 3 Bulft. 183. Per Coke, Ch. Juftice, faid to have been (0 refolvei upon a "conference by all the judges, as is to be feen recorded in Chancery in the petit-bag office, Q^Ow. S. Sid. 233. 4 Tnft. 231. Blowers, and all other labourers and workers, without fraud or Refoived covin, iu and about the ftannaries in Cortiiuall znA Devon, have the M^-es!^ privilege of the ftannaries during the time they '\Vork there. Fide z Roll. Rep. 44. and the ftatute 16 Car. i. c. 15. 4 (nft. 231. All matters concerning the ftannaries, or depending thereupon, j:inarie5. Fared. 103. {d) They have no court of equity, and therefore a fuk coijv. Ccrning an agrtcrncnt rclaiing to mines, &c. proper here. 2 Vern. 483, 4?4. [See further upon tlils fubje£l P^arccs Laivs and Cujiomt of tVt 211 £)f tl)e Court of Commiflioners; of BY the (rt) common law the king ufed to grant commlfllonsfor (a) R?g, inquiring into the want of reparations of fea walls, ditches, 'J-7- gutters, fewers, err. 113. 4W. 27^. But as thefe matters are now to be regulated according to (b) {b)MMag^ feveral acts of parliament, it will be neceflary to fet down the pur- "" Chana, port of fuch as are moflly in ufe at this day. 2 V ^For' which -vide z Inft. 29, 30. 25 E. 3. c. 4. 45 E. 3. c. 2. 1 H 4. c. 12. 6 H. 6. c. 5. 5 H. 6. c. 5. i3H.6. c. JO, 23H.6. c. 9. 12E.4. c. 6. 4H.7, CI. 6H. 8. c. lo. The chief ftatute relating hereto, is 23 H. 8. cap. 5. which or- 2',H.8. cj. dains that the lord chancellor, treafurer, the two chief juftlces for which t/y« the time being, or any three of them, whereof the lord chancellor made^iferpe- to be one, {hall, as often as need be, direct commiflions, tmd ap- tuai by point commiffioners *, the form of which commilTion is fet forth in 3 &4E- 6. the ftatute, which fully declares the duty and authority of the faid ^Ue i m. commillioners, viz. That they do inquire by the oaths of the honeft § 3 c. n. and lawful men, ^c, through whofe default the hurts and da- i^'^ ftatute mages have happened, ^r., and who hath or holdeth any lands GUmorgan, or tenements, ^r., or hath or may have any hurt, lofs, or difad- &c. vantage, ^<:., and all thefe perfons and every of them to tax, (5*^., and to make and ordain ftatutes, ordinances, llfc.y after the laws and cuftoms of Rumney MarJJj in the county of Kenty or otherwife after their own wifdoms and difcretions. The 25 //. 8. cap. 10. enadts, " That no perfon (hall be compel- 25 H. 2» *■* led to take upon him the execution of any fuch commiffion, ^- ^°' *' unlefs he be a dweller in the county wherein he is appointed ** commiffioner ; alfo that every perfon refufing to take the oath ** of commiffioner, as appointed by 23 H. 8. cap. 5. fhall, as often *' as fuch refufal (hall be certified into Chancery, forfeit five " rnark-^." ** The 2^4^-6. cap. 6. directs in what manner the king's 3&4E. 5. ** lands (hall be liable, and taxed by the commiffioners, and his *^- ^' ** tenants difcharged and indemnified in their payments of fuch ** taxes, and that every fuch commiffion fhall be jn force for five *' years from the telle, unlefs fuperfeded." " By the 13 £//z. cap. 9. all commlffions of fewers fhall conti- 13 ^'''* *' nue in force for 10 years after the date thereof, unlef*s they be ^' ^* *' repealed by a new commiffion ox fuperjedeas ; alfo by this ftatute ** all laws, ordinances, and conftitutions duly made, according to •* tie (latut* 23 H, 8. (ap. y and written in parchment, indent- P 2 «« ed 212 £Df tijc Court of CommiGjionecief of ^clon^ *' cd under the feals of the commiffioners, or fix of them, (whereof ** one part Hiall rc-main with the clerk of the commiirion, and the •* other in fuch place as the commiflioucrs or fix of them Oiall " appoint,) fliall without any certificate to be made into the ** Chancery, and without the king's afient, continue in force, not- ** withllnnding any determination of fuch commiffion hy fuper- ** fedeas^ until the fame laws, ordinances, and conftitntions fhall " be altered, repealed, or made void by coaimiirioners afterwards " afiigned : alfo, by this acl there (hall be no certificate or return " of the commifuon, or of any of their laws, ordinances, or ** doings by virtue thereof." 3 Jac. I. " By 3 jac. I. cap. 1 4., all walls, ditches, banks, gutters, fewers, c. 14. 6f tc gates, caufeways, bridges, ftreaiyis, and water-courles within rX^By " " '^'° miles of /.oWo//, having their fall into T/;'i7Wi'j", fhall be fub- which power *' jeCt to the commiiTion of fewers, and to all ftatutes made for is given to tc fewers, and to all penalties in the faid ftatutes contained." the lord ' * mayor of London to appoint commiflioners. 7 Ann. By the 7 Arm. cap. lo. reciting the power of the commlfnoners c. 10. ijy ft;;-.-i-.er ftatutes, as to felling the lands of iliofe who lefufed to pay the taxes and proportions with which they were charged, and that thefe laws did not extend to copyhold lands, it is enacled, that the commifTioners Ihall have the like power as to copyhold lands, and that the lords of fuch copyholds finall admit the ven- dees, ^c. Alfo, by this a£l it is enabled, that it may be lawful for the commiffioners by warrant to authorize any perfon to levy the funis of money adcfied upon the lands, ^c, by diftrefs and fale of the goods of the party refufing, returning the overplus. 4 inft. 276. Notwithftanding the ample powers by the above-mentioned ftatutes given to the commiffioners of fewers, yet are their pro- ceedings ftill examinable in the courts above, and accordingly we find feveral refolutions 'in which their proceedmgs and fcntenccs have been controuled by the courts at Wejlm'uijlcr, 5C0..99. b. As where the commiffioners, on the iinding of a jury that "J. S. Kook's j^g(j feven acres of land next adjoining to a bank on the river Thafties, and th;it the occupiers of thofe feven acriea ufed to repair, but that there were befides 800 acres within the fame level liable to be fur- rounded, having taxed each of the feven acres at 8/. it was held ^ ly?, That the finding that the occupiers of thefe feven acres ufed to repair, was not material, becaul'e that fuch occupiers might . have been tenants at w.ill, whofe acls could not bind him who had the inheritance. 2^/j, That though thefe feven acres lay next the bank, yet ought the commiffioners to tax all thofe lands which were in danger of being damnified by the overf.owing of the waters, and confequently received benefit by the repairs ; for (tf) Hard, though they are to a6l (a) according to their difcretion, yet fuch *46. difcretion muft be governed and direded by the rules of law and reafon. {i>) fnde ^ The commiffioners of fewers cannot make any (^) new Inven- 10 Co. 137, tjojjg to charge the people ; (r)but If there were an old wall, they 13 Co. 35. "i^y '^"il^ another (if that be decayed) on the iufidc, or fome fmall way jaDf tlje Coutt of €ommiOQ[oneriSf of ^etoersr. 213 way (liftant, if It be neceflary, and may compel them that re- Moor, 825. paired the former to repair it, if they have no damage by the ^'^- '45- remove. \l^_ If one be bound by prefcription to repair a bank, which by fud- 10 Co. 139. den violence, and without the default of him who is fo bound to ^«'S^'«y's 11 1 • . P. on J. iS., whofe cattle being dlflrained, he brought his adlion, and h^d judgment ; and afterwards the fald J' S. refufing to relcafe the judgment, he was committed by the comniiflioners ; but upon complaint thereof the court of King's Bench committed and fined the commllfioners, and held that by fuch proceeding? after a judg- ment at law, they were guilty of a pramunire. ■ It has been holden, that, though the comniiflioners of fewers Sid. 145. are not a court of record, and may thus commit for a contempt ; ytt that muft be underftood of a contempt in the face of their court, and not to imprifon a perfon for difobeying their orders. There was a complaint of the inhabitants of JVhitecbapel at the I.cv. 2S8. council-board, that the comrninioners of fewers had taxed the faid ^J^e ".-afeof inhabitants for a repair of a fewer in Wapping, whereas they were miirioners not within the level ; thereupon the council ordered a certiorari oi Sewers out of B. R.y and that the matter in queftlon iliould be tried there 5 fi,^^^^/"'^* which was accordingly done, and the ri?r/?oro/7 delivered j notwith- Ra^m^iSe. ftanding which they iliued out their warrants for putting the or- Vent. 66. ders in execution, and the officers refufing to execute the fame ^Keb^l'ic. were fined 10/, a man ; thereupon a fecond certiorari was delivered s. c. to return all proceedings and all orders, ^c. concerning the fame; ^aik. 145. this being alfo difobeye-d, and new orders made for fining fome ^'q'^ ^.j^^^^ of their officers for their contempt ; whereupon they appeared, and though they alleged the advice of counfel in what they did, yet they were committed for the contempt ; the next day the re- turn was brought into court, and upon the feveral certioraris the returns were feveral, which the court difallov/ed, and ord'^Ked them to return all their proceedings upon the return of the firft writ, and to return, upon the laft, that ante adveuium brevis they had returned the whole matter, which was accordingly done, and filed -, and after they continued a week in prifon without bail, they were fined 40 marks a piece, and difcharged, and the matter ordered to be tried at the B.R. It was here moved In behalf ot fome of the conimlifionevs, that thefe orders, whereby the contenipt of the commifiioners appeared, thoug^h they were rccurned, might not bp filed upon a clauie in 13 Eliz. cop.i). which excufes them from returning their orders, and exempts them from penalties: but it was refolved that that, and other provifoes in the fame ftatute, did only extend to the court of Chancery, to abridge the power v/hich the court of Chancery liad over the faid commillioners, and the P 3 « orders 214 Court of pipototietjef* {a) That ordcfs by 23 H. 8. cap. 5. and that it did not at all (a) reflrain the thecommif- court of ^. R. from proceeding by certiorari. lioners or 10/ Cambridge Fenns, by r5 Car. 2. c. 17., have an abfolute jurifdiftion, and are not to return their pro- ceedings on a certiorari ; but if they obferve not the llatute, their proceedings will be void, C>° coram noi* judice, and the parties may examine the fame by an adtion at law. Sid. 296. Sid. 78. If it be found before commiflioners of fewers, that fuch a one Lord Dun. o^ght j-q repair a bank, and he removes the proceedings into B. R., the court will neither quafh the inquifition, nor grant a new trial, unlefs he, who is found to be the perfon that ought to repair, will firfl: repair the bank ; after which, if it be otherwife found, they will order him to be reimburfed. a Hawk. There is a rule in the court of King's Bench, that no order of P. c. c. 2j. commilRoners of fewers ought to be filed without notice given to Saik. 14.5. the parties concerned ; alfo it is every day's practice of that court, pi. 6. [See before it will futFer the return of a certiorari for the removal of the thrDra6li°ce orders of fuch commiflioners to be filed, to hear affidavits concern- of tiie court ing the fa£ls whereon they are grounded ; and if the matter fhall withrefpeft ftji} appear doubtful, to dire£l: the trial of feigned iflues, and either ofthe^ordm ^° ^^^ ^^^ rctum, or fuperfede the certiorari, and grant a precedent Anon, z do, as fhall appear to be moll' reafonable for the trial of fuch ilTues, Barnardift. ^^d to givc [b) cofts againft the profecutor of the certiorari, if it v.^Cann " appears to have been groundlefs. s Str. 1263. A certiorari to bring up an order for the removal of their clerkj is of common right, and not difcretionary, i Str. 609. Fortefc. 374. 8 Mod. 331.] {b) z K.eb. 500. 2 Str. 1127. An order of fewers was made for levying ^d. per acre on 13 12 tiwana ^^^^s, to be paid to the clerk, to be applied towards defraying of tax be a charges in and about the execution of the commiffion, which was right afleff. confirmed by the court of ICing's Bench. ment ? '' ° whether the right way be not to aflefs the particular lands according to the danger they lie in. Com- miflioners of Sewers v. Newburgh, 3 Keb. 827. Bow v. Smith, 9 Mod. 94.] a Str. 1127. [^ rate may be made to re-imburfe charges.] Court of iBipotoDerfif^ (0 Incident npHIS court is incident to every fair and (c) market, and is ina'rkf7as . -■- ^^^^'^^ curia pedis pulverifati {d)', becaufe for contrails or in- well as fair, jurics done concerning the fair or market, juftice fhall be done as 4inft. 27a. fpeedily as the dull can fall from the foot(^). Keilw. 99. * ' Browi 1. 175. Bulft. 55. Cro. Eliz. 773. That there may be a court of pipowders by cufloin Without fair or market, and a market without an owner. 4 Inft. 272. {d) Mirror, cap. i. §3. Braft, lib. 3. fol. 334. 4 Inil. ^^^, [(<) A more ingenious and fatisfaftory etymology is given by i * kar:iei Of tf)C €omt0 in London. 215 learned moJern writer, who derives it from f>ied puUneux, a pedlar, in old French, and therefore figni- fying the court ot Inch petty chapmen as refort to fairs or maikets. Barrington's Obfervat. oa the Stat. 337.] It is a court of record, of which the fteward is judge, there being 4 Inf^- ^7'^' no fuitors. ^S?','f' 2 Built. 23. Its jurirdi(9:lon confifts herein, that the («) coritrad or (I') caufe 4inH:. 272. of a£lion be in the fame time of the fame fair or market, ^nd not ^'') '-'^nnoc before, or in former ; it mull be for fome matter concerning the obigafions^ fame fairer market, done, complained of, heard and determined the fr tliis (c) fame day within the precintl of the fame fair or market. cuurt isor- ^ ^ ' * djined for things arifingvvichln the fair. Roll. Abr. 545. MoorS^o. Cro. Jac. 313. 2Buift.2i. (/')ifone flanders anoiher who trades in the market, in any thing which concerns his.traite, as b> difp.iraging his goods, which iie expoles to (ale there, an adlion lies ; Jeciis, if tlic words do liOt concern a;iy thing touch- ing the market. JoCo. 73. Hall and Jones Aijud^ed; Crp. Ellz. 773. Moor 613. S. C. adjudged. 4lnlt. 2"Z. Roll. Abr. 5^4. S. C. cited, (f) The proceedings being lit^ bora in huiam. 2 Init. Z72, This court continues during the time of the f;!ir, and no longer. 2 KuKl. 23 It may bi ad- journtd horn market to market. Keilw. 99. The continuance rrtay be entered by an idem dies, £ff. Moor45rj. By the 17 £.4. cap. 2., reciting, th:it divers perfons coming to Madep?r. fairs be grievoully vexed and troubled in the court of pipovvdcrs, i"^'''^' ''/ by feigned actions, and alfo by adlions of debt, trefpalles, feats g g' ^' and contrafts made and committed out of the time of the faid fair, (rf) Though or tlie jurifdidilion of the fame, contrary to equity and gi^od con- '^^"^'^o^'h fcience, ^c, it is enatled, " That no minifter of any fuch court made'if''the ** of pipowders fhall hold any plea [d) without (e) oath made by" dcfondmc ** the plaintitf or his attorney, that the contradi or other feats ^"' '"*''* " contained in the declaration, was made within the fair, and it /hail not ** within the time of the fair, and within the jurifdiclion ahd bernadc *' bounds of the faid fair." partof the record. 4lnft. 271. {>:) Yet this concludes not the defendant, but notwkhftanding he may plead to tlic juri.''- didion of the ccurt. 4 Inil. 272. 2 Bulft. 22. [From this court a writ of error lies, in the nature of an appeal, Howell t. to the courts at Wejlminjicr^ vvhich are n6\^ bound by the Itatute J"hns, Cro. of 19 Geo. 3. c. 70., to ifl'ue writs of execution in aid of its procefs * ^''^' after judgment, whe.e the perfon or efiedts of the defendant are not within theUmits of this inferior jurifdidtion.J M t!)e Courts in London. THERE are feveral courts within the city of London^ which 4 Inft. zeji exercife a jurifdidlian according to their own ilated rules and forms, but yet are fubjedl to the controul and correclion of the king's courts at JVe/Imi/i/hr, whenever they exceed their jurif- di<^ion i the chief of tliefe are, r 4 I. The 2 1 6 S)f tf)e COUCtjGf in London, I. The Court of Huftings. h ' ordaining the reception of it in Ireiatidy are, 5/ aliquis defponfaverit Ten? 193. aliquam mulleremyfive vidtiam, five aliamy hsreditatem habetiteWy et "• 9- ipfe poftmodum ex ea prolem fufcitaverit^ ciijiis clamor audit us fuerit HalesHii^. i,^fgy qi^atuor parietesy idem nnryft fupcr vixerit ipfam uxorem fuamt habebit tot a vita Jud cujlodiam hizreditatis uxoris fue licet ea forte habuerit hxrcdem de primo virofuo qui fuerit plens atatis.'] (A) What Perfons may be Tenants by the Curtefy ; what not. (B) Of what Sort of Inhci-itances this Eflate is allowable ; of what not. (C) What Eftate the Wife muft have to let in the Hufband to be Tenant by the Curtefy : And herein, 1. The defcendabk Quality of fuch Eftate. 2. The Seifm of the Wife thereof. 3. When this Eilate and Seifm is to begin, and how long It mud continue. (D) Of C.L. iSo. Curterp of England, 119 (D) Of the Hufband's Title being initiate by having of IflTue, and to what Purpofes : And herein, 1. What Sort of Iflue this muft be. 2. When it muft be born. 3. What it muft do to entitle the Hufband to be Tenant by the Curtefy. (E) The Nature and Quality of fuch Tenancy by Curtefy : 1. With refpefl to the Eftate itfelf. 2. With refped to the Privity between him and the Heir. (F) By what Means this Title may be prevented and deftroyed. (A) What Perfons may be Tenants by the Curtefy; what not. I. ^HE words of this law are general, and feem to extend to all l{a)'Bxit the "*• forts of perfons without diftindion; therefore (a) idiots '"^"lagc of and lunaticks, and {i>) villains, may be tenants by the curtefy. this unhap- py Rate is merely void, by rcafon of their incapacity to contraft, and one of the circumftances neceflarf to the completion of iheir title to the eflate is therefore wanted.] (A) The lord, if h« will, may eatet aod hold thofe lands againit the villain and his ilTue for ever. Cu. Lit. Ii8. 123. a. 2. Perfons convid only of (c) felony or treafon, perfons (^ out- (e) Forthey lawed in any civil action, may be tenants by the curtefy. forfeit only •' ' ^ ■' ' their goods and chattels abfolutely, for of their lands the king gains but a pernancy of the profits. 5 Co. 1 10. Co. Lit. 92. b. 391. a. Stanf. 192. [d) Bro. tit. Outlawry 26. 36. 59. Co. Lit. J28. For fuch procefs of outlawry might be cafily fuperfeded, and thereby the king's pernancy of the profits difcharged. 3. But perfons attainted of (f) felony or treafon ihall not be (^) Bro. tit. tenants by the curtefy; for they being thereby extra legem poftti, ^'"^^^^' and their perfons forfeited to the king, they are thenceforth be- ,^5. come incapable of our laws in general, and, by confequence, of Godb. 52 j. this in particular, which intended to give the inheritance only to ^f'> ^"^ ^'^ thofe who were capable of holding it tota viiafua : alfo, perfons 3 inft. 43, attainted in {/) z pramtimre are excluded the benefit of this law, (g) But if and alfo (p)a/iens, be they friends or enemies; and in thefe cafes ^^^f-"" ^^ their title fhall never arife, even for the benefit of the king, but zen, or the the wife's eftate fhall be difcharged of it for ever. P«.'f'>" »t ° tainted par- doned, and hare iflue after, they may be tenants by the curtefy, in refpeft to that iflue had alter, but not in refpedl of any iflue had before, 7 Co. 2 j«— — Popiih recuiianu were difabled from being tenants by the curtefy, jjac.i. c. 5. ^ 13. 4 r^Q CUCtef^ of England. (B) Of what Sort of Inheritance this Eftate is allowable ; of what not. Pr. &Scud. I. t\F a ufe at common law, or what Is now called a truft, it is ao-,. Perk. V^ exprefMy rcfolved, that a man fliall not be tenant by the t)yer, o. cuftcfy J (a) and DoBor and Student afligns this as one reafcn, why pi. 25- fo much land was put in ufe to prevent this title ; and the 27 H. 8. *-"• \^l}' cap. 10., in the preamble recites this as one of the mifchiefs that [(a) iJut' ft:;tute intended to remedy ; the reafon fcems, that of a ufe there cjrrefyof \yas neither tenure nor wardfliip, nor any cfcheat nor benefit to trufts isnow ^j^^ j^^^.^^ ^^^^ therefore not within the reafon of this law ; befidea sjiowcd in equity, tho' that the feoffees were tenants to the lord, and the land in their dower is hands the proper fubjedl of fuch titles, and therefore could not be !!l["'^ ■ double out of the fame lands. Another reafon may be, that the Hudfor, ufe conftfting merely in privity between, the feoffor and feoffees^ iy^f" 5^3- and being in the nature of a, thing in a£lion, for wliich no remtdy WraY^"lv/.^ lay but h)' fubpceaa in Chancery, and therefore none could have any 681. Chap- remedy for it but thofe who were parties or privies to the feoff- linv. Chap- ment, or within the words or plain meaning thereof, and, confe- ■Wms^zzQ. que"tly, the hufband could not be tenant by the curtefy, nor his And there- wife be endowed thereof, they being ftrangers and collaterals to fore of mo- ^^q feoffment ; and the denying them the rents and profits^ could inveftcdln ^^ '^'^^ breach of truft in the feoffees, they not being originally land. Sweet- truftcd for any fuch purpofe, nor compellable to account to them, apple V. " • " Biriden, z Vern. 536. Cunningham V. Moody, iVez. 174.J 4C0. 22. 2. A man fhall noi be tenant by tlie curtefy of a copyhold un-t c^^'eu'^' ^^^^ there be a fpecial cuffom to warrant it, for the freehold and -6,. ' inheritance being in the lord, and the copyhold being only a cuf- tomary right of taking the profits time out of mind at the will of the lord, this cuftom, like all others, mult be a law to itfelf, and all eftates derived thereout are fo far good os4:hey are warranted by that law, and no farther ; if, therefore, there be no cullom for a man to be renant by the curtefy, of his wife's eltate, there is iio law by which he can claim ir ; and if there be no law, he can liave no more ri^ht than to another man's property ; and this llatute cannot operate upon copyhold, nnce tiiis ilatute, like other flatutes, was made within time of memory, and fo falls fliort of any fliare in the original conftitution, or governing of copyholds j :tnd for this reafon, where fuch cullom of holding by the curtefy has pre- vailed, ;t has yet been taken literally flricl, and not to be extended in the lead btyond thofe bounds the cuffom has allowed of. 3. As where J. S. fet forth, that within fuch a manor there was a cultom, that if one took to wife any cullomary tenant of the faid manor in fee, and had iffue by her, if he outlived fuch wife he fhould be tenant by the curtefy -, and the cafe was, that J. S. married a woman, who at the time of the marriage had not any copyliold, but afterwards, during the coverture, a copyhold de- Sir JohnSa- fcended to her j it was adiud'Tcd, that he fliould not be tenant by. <2:utterg of England. 2 2t. the curtefy by this cufcom, for that his wifi was not a cuftomary tLeon.iog. tenant at the time of the marriage, which by the ftridt and Uteral ^°^^ ^•^• meaning of the cuflom {lie ought to be. 4. Of an annuity to a woman and her heirs, after a writ of an- Co. Lit. tiuity brought, a man (hall not be tenant by the curtefy any more i44- ^^ than a woman fliall be endowed thereof, for thereby it becomes a ^^^^^^ g^* perfonal inheritance. 5. A man may be tenant by the curtefy of lands held in antlent Alden'scafe. demefne^ and a woman may claim dower of fuch lands : alfo, of Qro.'E^z.' lands in Borot/gh-efigli/h. 826. [S.C. a And. 17S. S.C. ; but this point does not appear in any of the reports.] 6. Of lands In gavelkind^ (a) a man may be tenant by the curtefy Co. Lit. without having iflue by his wife, by the cuftom ; and herewith our '^^^'' ftatute has nothing to do, fince cuftom, a law of much longer l.p.R.6z7. ftandino;, had aheady provided for him, and prefcribed the terms [(«) But of V , • *'. - c • ^ fuch lands of his enjoymg of It. ^ of the wife the tenancy by curtefy extends only to a nnoiety, and It ceafeth if the huiband marries again. This at fcaft is the cuftom of gavelkind in Kent. Robins. Gav. b. 2. c i.] 7. There are fome kinds of inheritances whereof a man may be Prirog. Rc- tenant by the curtefy ; though a woman, in fuch cafe, fhall not be ^^Q^^^y endowed ; as if lands holden of the king by knight's fervice de- fcend to a woman, and after office found (he intrudes and taketh hufband, and hath iffiie, in this cafe the huiband fhall be tenant by the curtefy j yet if the heir male, after office found in the like cafe, intrudeth, and taketh a wife, flie fhall not be endowed, by the cxprefs provifion of Prarogat. regis, cap. 13. But this ftatute doth not alter or abridge the ftatute that gives a man a title by the curtefy. 8. So, if a man marry the nief of the king, by his licenfe, Co. Lit. (which amounts to an enfranchifement, at leaft during the cover- 3°' ''• ture,) and after lands defcend to the wife, and the hufband hath ifTue by her, and then fhe dies, the hufband fhall be tenant by the curtefy : but if a woman marry the villain of the king, by his licenfe, fhe fliall not be endowed ; for notwithftanding the licenfe, he ftill remained a villain to the king, who may enter at his plea- fure, and defeat the wife's title of dower by his own title para- mount. 9. A man fhall be tenant by curtefy, of a c?.ftle, of a {b) houfe Co. Lit that is caput bnronia, or coniitaius, becaufe able to defend the realm, ^°- ^- and of a common without number j but of thefe a woman fliail thi's -Ade llOt be endowed. headDsw^r, and that by a late refolut'on, a woman fliall be endowed of fuch a houfe. 10. Of offices of profit a hufband fhall be tenant by the curtefy. Plow. 379. My Lord Coke cites fome ancient records, wherein tenancy by the curtefy was allowed of dignities and offices of honour, as to carry a fword before the king at his coronation, to be his carver upon that day ; and tto the harlof SallA)ury by the curtefy ; Lut thefe being offices, as appears, annexed to particular dignities, Qr being dignities thenifelves, and capable of being entailed, may wiihout any inconvenience be j'iowed ^e privilege of this hw. Co. Lit. 23. But fee note ' i ; inthe ijtheci:. [II. Where 222 Roberts ▼. Dixwell, ■ Ack. 607. (Curtef^ of England. [ri. W^i?re a teftator dlre a, Bro. tit. Curtefy, J. * Perk. 470 l{a) But always ne- cellary to give lei (in in fa (ft ; for if the land be in leafe for years. be without entry, or even receipt of rent, the pofleffion of the leafe for Co. Lit. 29. Perk. 46S, 469. yEd. 3. 66. Keilw. 104. Co. 97. 6C0. 68. F. N. B. 149. Bro. tit. Curtefy, 5- 9- 2 Sid. no. n^) But if the advow- fon be ap- pendant to a rr.anor, and the wife die before entry into the the advowfon Calborne v. Scarfe, I Atk. 603. Vin. Abr. Curtefy, E. pi. 23. S.C. More fully reported. Iwerv. Art- wike, I An- dcrf. r92. Moor, 272. Hejrle v. Grcenbank, 3 Atk. 691;. I Vej;. 2f;S, CUttefg of England. 225 v'lfcd eftates to truftees in truft to apply the profits for tlie fole and See Mr. feparate ufe of his daughter (a feme covert) during her life, and ^^^^'^y not to be fubjeft to the debts or control of her hufband, with on thirc^c power to difpofe of them by will, notwithftanding the coverture •, in his chap- Lord Hardivicke held, that the hufband had no feifin either in law 'f "P°nthi« or in equity, and therefore was not entitled to be tenant by the onEftate*.* curtefy : that the legal eftate was in the truftees : that the father had made the daughter zfeme fole^ giving her the profits for her life, but not fubjedl to the control of her hufband ; the hufband then had no feifin in equity during the coverture : and further, the tenancy by curtefy in this cafe would be diredlly contrary to the intent of the teftator.]] 3. When the Eftate and Seifin Is to begin, and how long It muft continue. 1. The eftate and feifin of the wife ought to begin fome time Co. lit 29. during the coverture; fo the words of the law \m^oxX.y ft aliquls ^- 3o-a- defponfaverit aliquant hareditatem hahenteniy ^c, and therefore if a ^^ '^^ ' woman be diffeifed and marry and die, leaving iffue before any re-entry made, the hufband fhall not be tenant by the curtefy; for here fhe had no inheritance, but only a right to an inheritance, which is out of the words of this law ; but if the hufband Or wife had entered during the coverture, there, after the wife's death, he ftiould have it by the curtefy, becaufe fhe had hareditatem durmg the coverture. 2. If a woman feignorefs intermarry with the tenant, and have 31^011.547, ifTue and die, the hufband fhall not be tenant by the curtefy of the P^k. 460. feignory, becaufe by the intermarriage the felgnory was in fufpence, ^' j,^ * and fo fhe could not be faid to have it, or if fhe had, it is liice the feifin of an inftant, whereof a woman fliall not be endowed. 3. A woman tenant in tail, apres poffibillty, tsfc. takes hufband, Bro. tit. and hath iflue, and the fee-fimple defcends upon the wife, be it ^^^^^^Y* 4» before or after marriage, the hufband fhall be tenant by the cur- tefy, becaufe by the defcent of the fee the other eftate was merged and gone, and fhe became tenant in fee-fimple executed. 4. In trefpafs, the defendant fays, that one A. was feifed of KeiJw. 2. thofe lands in her demefne as of fee, and that he took her to wife, which piain- and they had iffue between them, and after A, died, and he held |ha?fdfin himfelf in as tenant by the curtefy, and {intei- alia) it was moved, in the wife that he did not fhew that after the marriage he was feifed in his ^°^^ ''""^ demefne as of fee in right of his wife ; and though it was anfwered, covmure 1$ that his fhewing that A. was fo feifed, and that he took her to efTentiaj to wife was fufficient, fince it could not be intended but that the de- ^^^ ^'^^ fendant was feifed in fee, as in right of his wife ; yet, fays the nantTy tlw book, the defendant videtis opittionem curia: amended his plea ac- curtefy, cording to the exception taken by the plaintiff. 5. If a woman feifed in fee makes a leafe for life, or endows But in the her mother, and after has iffue and dies, leaving the lefTee or mo- "fe of ths ther, the hufband fliall not be tenant by the curtefy of the re- '"'^' '^* ' i J rent were Verhon. referved to V.ijr and her heirs, i^. if the hultand fhall not have tlie rent during its contin\^3nce, and after the death Yoi-.il. ' * (i_ of 226 Cumfg of England. of the leflee, the hnd itfelf, as tenant by the curtefy ; and -uide Perk. 4.67. Co. Lit. 49. a. Bro. tit. Curtefy, 10. Co. Lit. 15. a. 31. a. Keilw. 104. pi. 12. Bfo. tit. 6. In a quare impedit by the king againfl divers, the defendant Curtefy, makes title that the advowfon defcended to three coparceners, who '*'* made partition to prefent by turns, the eldelt to have the firfl, the middle the fecond ; and that he married the youngeft, and had ilTue by her, and (he died, and the church became void, and fo it be- longed to him to prefent, and doth not allege that ever his wife prefented ; yet he was allowed tenant by the curtefy by the feifin of the others ; the reafon of which cafe feems to be, that the ad- vowfon being in its nature entire and indivifible, and defcending upon all the daughters as coheirs, though they agree to fliare the fruits of it in fiich proportions amopg themfelves, yet the in- heritance remains entire in them all, and they all have a feifin in law before prefentment by either, which, according to the rules before laid down, is fufTicient to entitle the hufband to be tenant by the curtefy. zSid. 110. 7. A rent-charge is granted to a woman and her heirs, payable 117. De- at t^o feafts of the year, the firft payment to begin at fuch of the BraVbum. ^^^ feafls as fhall happen after the death of J. S. The feme Jn this cafe takes hulband, and hatli iiTue and dies; then J. S. dies; and one no judgment queftion was, if the hulbaud fhould be tenant bv the curtefy of IS given, \ . ' ' buttbeopi- this rent. Dion of Clyn, Ch. Juii. was, that be fliould ; for though this beg'ns in ftituro, yet it Is grant.ible over prefently, which proves it to be in cjjc, and then flie may be well laid habere b a r edit at cm ^ and the feilin is not material, efp.ecially in the cafe of a rent. The time when this eftate and feifin in the wife is to begin, whether before or after marriage, is not material ; and therefore if a woman marries, and hath iflue, v/hich dies, and after lands defcend to the wife, and the hulband enters, and then the wife dies without other iflue, yet the hulband fliall be tenant by the curtefy, for the time of the defcent is not material, fo it be during the coverture. The fame law is, if lands had been conveyed to the wife mutatis mutandis. Co. Lit. 40. As to the continuance of this eftate and feifin in the wife, in a. 351. a. fome cafes it is neceflary it fhould continue in her till iflue had, and Curtefy ,'(3.) "^ fome not ; and in fome cafes continuance both before and after But ^._ If will not ferve : for the firft, if a woman feifed in fee of lands hath in thisca^e iffue, and after commits felony, and is attainted thereof, yet the had, ti.e hufband fhall be tenant by the curtefy, in refpe£l of the iflue had feme had before, and which by polTibility might have entered ; aiit'hr^ if the t-"" d^'of ^^^^ ^^^^ ''^ttw attainted before ifl'ue : but in the other cafe, the treafon, if hufband's title, by the having of iflue was fo far initiate, that the the huf- lord might avow upon him for homage without the wife, ar>d then band's ini- j^^^. crimes after fliall not defeat him of it ; befides, this is within tiate title 1 1 r 1 r., fliaij prevail the letter ot our law, ISc •gainft the king ? ^ Alfo, in the c.ife of the felony, if the hufband may enter prefent'y upon the attain- der during the wife's life, who is "h reby n-v'ilitlr mortun, as he might, it the w f e Iiad abjured the realm, which is one kind of attainder j lor whith -vile Co. Lit. 1 33. Ai.ii that the abjuracion i$ au attainder, vide L'o. Lit. 13. a. 390. b. In Curtef^ of England. 227 In fome cafes It is not neceflary that the felfin fhould continue Perk. 472. till ifnie ; and therefore if a man, feifed of lands in fee in right of ^°- ^'^* his wife, isdilTeifed before iffje, and afterwards he hath iffiae, and ^°* *' the wife die before any re-entry made, yet the hufband may re- enter and hold the land as tenant by the curtefy, for the difTeifm left a right in him to be tenant by the curtefy, if he had iffue, as it did in the wife and her heirs to the inheritance. So, in fuch cafe, if a recovery had been had againfl: the baron Perk. 475. and feme by erroneous procefs, or by faife fwearing, and after ex- ecution fued thereof they have iffue, and the wife dieth, yet the hufband Qiall have error or attaint, and upon reverfal (hall enter and hold as tenant by the curtefy, for being party to the record he may well have thefe writs, and when the recovery is reverfed, it is fo ab initio as to him. In fome cafes continuance of feifin before and after Iffue will Co. Lit. not do, therefore, if a woman makes a gift In tail, referving rent so-a* in fee, and marries and hath iffiae, and then the donee dies with- out Iffue, and then the wife dies, the hufband (hall not be tenant by the curtefy of the rent, for that Is determined and gone, but he fhall have the land. If a woman marries and hath iffue, and lands defcend to the wife. Plow. z?^. and the hufband enters, and after the wife is found an idiot, by ^°- ^'^ '°' office, the land (hall be feifed for the king ; for when the title of ^^^ofthis* the king and a common perfon begin at one inftant, the title of cafe, ba- the king fhall be preferred; ?l fortiori, in this cafe, if the woman '=3"''«t'i« had lands before iffue, and after iffue had been found an idiot. ca'n^nnt'inue no longer than during the idiot s life. If a daughter Inheritrix marries and hath iffue, and after a fon Bro. tit. is born, who enters upon the hufband and wife, and then the wife ^'"''fy* dies, the hufband's title is defeated; but if after the fon had died ' *^'' without Iffue, and the hufband had re-entered, it feems he fhould be tenant by the curtefy, whether he had Iffue by his wife after or not, and though fuch firfl iffue was dead before his re-entry : fo, if the daughter in fuch cafe after iffue had endowed her mother, and after the mother dieth, and the hufband re-enters, and his wife dieth without other iffue, yet it feems reafonable the hufband fhould have it by the curtefy : otherwife, In thefe cafes, if the fon or the mother had not died till after the death of the wife, for their title in both cafes was paramount the wife's, and difaffirms her title ab initio from the death of the father ; but when the fon or the mother dies, living the wife, then the eftate comes to her again, and whether it come before or after iffue, fo there be an entry made, is not material, as before appears. If a woman tenant in tail generally makes a feoffment In fee, Co. Lit. and takes back an eftate in fee, and marries, and hath Iffue and ^9" ''• dies, yet the iffue may recover in Tiformedon againfl his father and then he (hall not be tenant by the curtefy ; for the eftate-tail he cannot have, that being difcontinued during the whole coverture ; the fee he cannot have, that being defeated and gone, and the iffue reftored to his r)ght per for mam doni -, and as the eflate of t]:e 0^2 Wife, 22§ (turtcCg of England. wife, during the coverture, was tortious, fo mud the hufband's bft too after her death, and Uable to be defeated by the iflue. (D) Of the Hufband's Title being initiate by the having of Iffue, and to what Purpofes ; And herein, 1 . What Sort oi Iflue this mufl; be. 2. When it muft be born. 3. What it muft do to entitle the Hufband to be Tenant by the Curtefy. SCO. -35. A -^ t° ^^^^ ^'^^» ^^ * woman be delivered of a monfter, which rain'sc-ic, .i\ Yi^ili not the fliape of mankind, this is no iflue in law 5 but b"s. P "^ however deformed it may be, or if it be born deaf and dumb, or an idiot, yet this is fuch ifliie as will entitle the hufljand to be tenant by the curtefy. 2 Co. 35. 2dly, It muft be born during the life of the wife*, therefore if Co. Lit. |.]^g ^.jfg (ijg jn child-bed, and the iflue is ript out of her womb, "^* ' the huihand (liall not be tenant by the curtefy, becaufe he hath no iflue during the marriage, and therefore he cannot be faid ex ed pro/t-ii! habere, and in pleading he nittft allege that he had iflue tluring the marriage. 3 Co. -r^. .'^di.y, The ftatute f^iys, cnjus clamor niiditus ftierlt ; but this is put Co. Lit. '[j^^ £jj'j. 2n inftance ; for if it be born alive, though dumb, and could rncr'z-. J'O^ ^^T? i^ is within the meaning of this ftatute; and there are pi 159- other figns of life betides crying, as motion, ^r., but fome books Bendi. 21. ^^^^ ^Q incline, that it ought to be baptized, and if it be not, Ktexui!':x. through the hulhand's neglect, he ftiall not be tenant by the cur- Eut in Scot- tefy ; but the ftatute requires no fuch thing, and therefore it feems ''"'^.'^'f no eflential part of his title. rfquire that * the child flioulJ cry. Co. Lit. 30. A3 to what purpofes this title is initiate In the hufband by the ^' -^V ^' having of iflue, it appears before, that after iflue had he fliall do ' ^^^' homage alone, and receive homage alone during the life of his wife, and avowry ftiall be made only upon him; for the ftatute fays ft ex cd prolem hahiierit^ i^c. hahehit tota vita fua atflod'uim hitreditahs ; b\it homage done by the huftjand before iflue fnall not bind the wife. ntfi.'i,. <;i. Therefore if an eftate be made to two women, and the heirs of Co.Lii. •}o. tiicij- tv/o bodies, and one of them marry, and have iflue and die, acccrd.' " the hulbr.nd fhall be tenant by the curtefy of her moiety ; for this a Roil. ftatute fevers the jointure between them by giving the huft)and ^'"": ?J^'o the cullodv cf it in the life of the wife ; but if fuch limitation had Co. i^lt 1S3. ■' •!• 1--/111L a., ant. been to two men in this manner, their wives Ihould not be en* dov»'ed, for the jointenancy takes place of the dower. Co. Lit. -o. If tlie huiband, after iflue, makes a feoft'ment in fee, and tlic r^^^^'J' ""^'if^' ^i*-'^' ^''^ fcoflee fliall hold it during the life of the huftjand, pl.a6.^ 3''^ ^^^ l^ci''' of the wife ftiall not, during his life, avoid it h-^ fur cut CUttefj? of England. 229 cut in vita, for it could not be a forfeiture, becaufe the eftate of 8 Co. 72* tenant by the curtefy was but initiate, and not confummate ; and ^i} ^"^ ^ now fince 32 H. 8. cap. 2B. the iHue Ihall not er^ter \i\ iuch caie mentorleafe till after the hulband's death, which flievvs, that in this feoffmer^t before iffue his interefl and title to be tenant by the curtefy is involved, and ^^^^c^^-^ pafles by it to the feoffee, though not to fuch purpofe to make him iit{. by iiTae tenant by the curtefy, which none but the hulband himftjlf can be; ^■^^ after.— for the fame reafon, it feems, that after iffue he may leafe the lands l'" ■*"''^'" lOr his own [u) lite. tion, ano- ther may be ^iked, -viz. who is to avoid the leafe, if the tenant choofes to hold the land. ?J Baron and feme haye iflue, and after join in fuipsring a reco- Hob. ^n^. very, tl:ie feme was within age and appeared by attorney, yet after \'^l^'^ ^* her death it feems the heir could nqt alBgn this for error till after tlie hulband's death. (E) The Nature and Quality of fuch Tei^ancy by Curtefy, 1. With refpea to the Eftate itfelf. 2. With refpe£t to the Privity between him and the Heir. A S to the firft, this eftate, in feveral refpedls, is looked upon as 3 Co. aa. "^^ a continuance qf the eftate of the wife, and therefore if three ^'o-Ut-ife. coparceners are of an advowfon, and they agree to prefent by ^'intt. Vo-. turns, the eldeft firft, and fo on, and the eldelt die, her hufband, Cro. Eli/, tenant by the curtefy, fhall prefent as ftie fhould have done; and '9- ^•^•?- fo of any of the other fifters. ctrtfy^lx.) So, a writ de partitione faciendd lies agalnft tenant by the curtefy, Co Lit. 174, becaufe he is in in continuance of the eftate of coparcenary, thoujjh ^' ^75- a- ^,. • c CL\ 1 r -L ■ ° Keilw. 118, not being a coparcener in lact he cannot have iuch writ. If baron feifed of an advowfon in right of his wife prefcnts, and 2 Roll, after hath iflue, and the wife dies, and then the church becomes t^^.' 3^- void, the hufband fliall not have aftife de darrein prefe?itment^ be- o). But it caufe he is in of another eftate than that upon which he prefented feems clear, before ; for before he had no eftate but in right of his wife, and '^ ^|.'^ ^"^'^ Xjow he is feifed for his own life, as tenant by the curtefy. had been^" after iflue, he ihould have had this writ. The wife's heir (hall not be in ward during the life of tenant by F. N. B. the curtefy, becaufe by his continuance oi his wife's eftate, the '4V defcent to the heir is interrupted. If a woman, tenant in tail, acknowledge a ftatute and marry. Dyer, 51. and have iflue and die, the land may be extended in the hands of '" ^^•'Z'"'* her huftjand, tenant by the curtefy. So, the entry of the difleifee is congeable of the tenant by curtefy, 9 H. 7. 24. but not on the heir after his death. If tenant by the curtefy alien in fee, in tail, or for life of the a Inft. 305. leflee, he in the reverfion ftiall have a writ of entry in cafu conftmili prefently, by the ftatute of Wejlm. 2. cap. 34. 0^3 H 230 CUltefg Cf England. Hob 21. If tenant by curtefy grant his eftate with warranty, find come a Jones, 8. jj^ 35 youchee, he fliall have aid of him in the reverfion for the ie-." * weaknefs of his eltate ; fo, if he himfelf be empleaded. 3 Co. 27. As to the privity between him and the heir, this is fo infeparable, 9 Co. 142. ^1^3^ ^j. common hiw, although both had, as it were by confent, 4 Co. 6i.' granted away their ellates, yet no action of wafte lay againll any Co. Lit. 54. other than tlie tenant by the curtefy, nor agiinft him by any other, f^n'b^^6" *^'^" ^^^^ ^^^^ '^^ law; but now by the ftatute oi Gloucejlet-y cap. 5. Cro.'car. remedy is provided for the grantee of the reverfion againft tenant 430- by the curt^-fy, fo long as he continues his eftate, or againft his aflignee, if he aflign it over ; but ftill fo long as the heir keeps the reverfion. tenant by the curteiy is liable to his a£lion of wafte not- withftanding any aifignment, that ftatute having provided no re- medy for this cafe j and the fame law of tenant in dower. (F) By what Means this Title may be prevented and deftroyed. Dr. & Stud lib. 2. c I. Bro. tit. tF the hufband before iflue make a feoffment in fee, and retake Qtrtejy, (6.) 1 ^^ eftate to him and his wife, by which the wife is remitted. Hob. '■x%. ^^^ after he have iffue, and the wife die, yet he fliall not be tenant Moor, 3T, by the curtefy, for the law gives him cu/iodiam htzreditatis ; and if 3*- ^"' he part with it in fee, fo that it is once out of him, there is no law ^. as to the , ' . . , . ' . _ , , , . ■ n i • i l • firii cafe, that givcs it to him again, fince he hath extmguuhed it by nis un- becaufe the juft alienation ; a fcrtioriy if after iflue he hath made this feoff- . . , r ment. being before iffue, tl,e hufband hath not title either initiate cr confummate, but his title began wholly afterwards by tie having of iflue, and then the wife was in aflual feifin by the remitter, Co. Lit. So, if after iflue he make a feoffment in fee upon condition, 3°- ''• and re-enter for the condition broken, and then the wife die, yet be fhall not be tenant by the curtefy, for that title was inclufively paft and given away by the livery, and the condition was not an- nexed to his title but to the feoffment ; and yet if fuch feoflinent {a) Perk, were before ilTue, one {a) book makes a q. of it ; but it feems clear 474- in this cafe he fhall not, becaufe, upon his re-entry for the con- dition broken, he is not in of an eftate in right of his wife, but cf the tortious eftate gained upon the difcontinuance of his wife's right. Bro. tif. y^ woman, tenant in tail general, marries ; flie and her hufband Cumjy,{i.) ]g^y ^ £j^^^ ^^^ ^,^j^g j^^^j, ^^ eftate to them and the heirs of their two bodies, and have iflue, the hufband dies, fhe marries another, and hath ifl'ue and dies, and the hufband claims to be tenant by the curtefy, upon pretence, that by the eftate taken back upon the fine his wife was remitted to her general tail, and fo every iflue inherit- able, and he tenant by the curtefy ; hwtcpthna opinio ^ that as his wife was eftopped, fo fnall the fecond hufband who claims by her. Cro. Jac. Baron and feme feifed of lands in right of the feme (whereof E^it 12H?* ^^^ hufband was entitled to be tenant by curtefy) levy a fine, Charnock whicli was after revcrfed as to both, for the nonage of the feme, the €:u{lom0, 231 the hufband fhall have it again, as tenant by the curtefy, becaufe andWorlley, the fine was utterly avoided. aJjudged. [The hufband leaving his wife, and living with another woman, 3 P. Will. does not forfeit his tenancy by the curtefy. Rep. 269. •' 276, 277. If by articles previous to marriage a woman grants to her in- Steadman v. tended hufband, during their joint lives, the intereft of her money, P^li'^ig. and the rents of her eftate, to maintain the houfe, ^c, this does ^ '^^^' not abridge his legal rights, but he is entitled to curtefy both in fuch real eftates as fhe had at the time of the marriage, and ia what came afterwards.] '" CuCcms. (A) Of the Commencement and Length of Time neceflary to eftabhfh a Cuftom. (B) What Perfons are affeded with, or bound by a Cuftom. (C) Of fuch Cuftoms as are againft the Rules of the Common Law, yet, not being unreafonable in themfelves, are good, and, from the Convex niency of them, bind in particular Places. (D) Where, from the Benefits accruing from them, they fhall bind. (E) Where, from the Certainty or Incertalnty of them, they fliall be deemed good, or void. (F) How to be conftrued ; and to what Things a Cuftom (hall be faid to extend. (G) Cuftom, how deftroyed. (H) Of the Manner of alleging and pleading a Cuftom. -a1 0.4 232 CuQomjgf* (A) Of the Commencement and Length of Time neceflary to eftablifh a Cuftom. Co. Lit. rTTHE frequent repetition of an aft, which at firlt was (a) af- 1 10. b^ I fented to by the people of a certain place (b) for their mutual (a/Tnatall convenieucy and advantage, is called a cuftom, and every fuch laws bir.o by cullom, being Certain and reafonable in itfelf, and commencing ^h^^eo^L*^* time immemorial, and always continuing without interruption, and fuchaf- has obtained the force of a law, and in fuch places fliall prevail, fenr may be though [c) Contrary to the general laws of the kingdom. C)r;>re()ed as we 1 bv {a£l^ as by wrting or word. 44E. 3. 19. Dav. ■^s. (/>) The difffrence between cuftom and prefciiption Is, that cuftom is local, as prevailing in a certain province, county, hundred, &c. but pre- iicription is for the moft part perfjnal, being mide in the name of a certain perfon and his anceflors, or th'jie whofe eftate hi has, or of a body politick, and their predccefVors. Co. Lit. 13. b. 6 Co. 60. 8 Co. 63. & 'vide 2 Bulft. 206. Roll. Rep. 46. [But a prefcrption may be hid by way of cuftom, where the neceffuy of the cafe requires it; as, in cafe a copyholder cbiras .1 right of common out of the manor, he muf: iay a prefcription in the lord ; but where he claims common in the wafte of the ioid, as he hath llriiifly no inheritance ip the land, but is only tenant at will, and as a prefciiption muft always be laid by way of a que ejlate, which he cannot allege, n >t being tenant in fee, for in ftriclnefs the fee- iimpie is in the lord j therefore, the law allows him to ahege it as a cuftom in the occupiers of fuch an eftate. 6 Co. 60. b Ca. temp. Hardw. 293. So, where a man claims only a difcharge in his own foil, or a mere eafement in the foil of another, he may lay it by way of cuftom. Ibid. So, matters of peifonal privilege or exemption may be laid generally to cxprefs the nature and extent of fuch privileges ; either as having rt\\it&. to place, as, all the citizens of London, Kob. So. or to condition, as all ferjeants at law, all attomies, ^c. i Ventr -5X6. Another difference to be remarked between cuftom and pre- fciiption, is, that the latter muft always have a legal origin ; it muft be of luch things as may be created by grant, referv.ition, or deed : whereas it is not always neceflary that the caufe or confideration on which the former is. founded fhould appear. 6 Co. 60. b. i Ventr. 387. Cowp. 47. Dougl. 126. Hence, the corporation of London having a cuftomary duty on corn imported, it was holden to be a good cuftom, that fadlors free of the corporation ihall receive to their own ufe that part of the duty which arifes from corn configned to them as (a^ors ; though neither the commencement, nor conriJeration of fuch cuftom could be tr.iced. Cockfec!ge v. Fanihawe, B. R. Dougl. 1 19. affirmed in the Excheqaer-chambsr, .anxi afterwards in the Houfe of Lords. Printed cafes of the lordi, 15th June 17S3.] (f) Ccvjuettido ex certa. caufa ratwiiai'di ufitata pri'vat comt:ru:ie!n hgcn:. Lit. ^ 37. [Kut no man can allege a cuftom or pre- fcription againft an a£t of parliament; as, that every pound of butter fold in a particular market fliall weigh eighteen ounces. Noble v. Duiell, 3 Term Rep. 271 . However, a man may prefcrihe againft an aft of parliament, when hi^ piefcriptionor cuftom is (aved orprefeived by another adl of parliament. Co. Lit. 115.3. Aid Lord Coke makes a difference between adls in the negative and in the affirmative ; for a ftatute made in the atfirniative, without any negative exprefled or implied, doth not take away the common law. 2 Inft. 200. And he obfervcs a difl'erence likewife between ftatutes that are in the nega- tive, for if a ftatute in the negative be declarative of the antient law, a man may prefcribe or allege a Cuftom againft it, as well as he may .igalnft the common law. Co. Lit. 115.3. See Mr, Haigia\e's annotations on this part cf Lord Coke's commentary. See alfo 2 Mod. 39.] Co. Lit. Time and ufage are efTential parts of a cuftom, and therefore no \\?'^{. cuftom is {d) allowable but fuch as hath been ufed by title of pre- continuance fcription, v'fz. time out of mind. of an ufage from the reign oi K i. which being the time of a limitation of a writ of right, is faid to be a good title of prefcription. Co. Lit. 113. That laying a cuftom for forty years is naught though it was laid thu it might have been for mne years, and fo time out of mind.' Skin. loS. pi. 8. 109.— That cuftonis may be time out of miud, though not coeval. Salk.203.pl. i. 46 E. 3. 1 6- Hence it is, that though a lord of a manor may have waifs and Bro. Eftray. f^^ays by prefcription, yet he cannot have the bona felonum ^fugt^ Co. Lit 114 ti'vonnn without grant from the king; becaufe no man can pre- [{e) This fcrlbe for them, for every prefcription muft be immemorial, and dottrneis jj^g goods of felous and fugitives cannot be forfeited without re- controverted by a late cord (f ), which prefuppofes the memory of that continuance. writer, a Wouddef. 51.] (B) What Perfons are afFe'- things which {a) highly touch the king's prerogative, no title can (j^ Acuf, be gained by cultom or prefcription, as conufance of pleas, to have tomthacex- a fan^tuary, to make a corporation, coroner, confervators of the ^'" "'^!^ peace, tsr'c king's pre- rogative is void. Dav. 33. [The objeftion to a cuftom, that it Interfered v.ith the king's prer.'gatiTre, was grounded on the maxim " nullum teir.pus occurrit regi,'''' and as that maxim is now abrogated by &. 9 Geo. 3 c. 16. ti^f objedlion feemeth to be atan enJ.j But treafure trove, vv^aifs, eflrays, wreck, to hold pleas, courts- Co. Lit. leet, hundreds, infangthef, outfangthef, a park, warren, royal fiQi, "4* *»• fairs, markets, frankfoldage, keeping of a gaol, toll, i^c.y may be claimed by prefcription, without any matter of record j and a county palatine may be claimed by prefcription, and, by reafon thereof, bona felommiy ^c. Alfo, a corporation may be by pre- fcription. Alfo, cuftoms that bind private perfons do not extend to the Plow. zoj. king •, therefore, if lands in gavelkind defcend to the king and his ^•. ^°- brother, the king fliall take one moiety, and his brother the other -, R^yl^l'^j, but if the king dies, his moiety (hall defcend to his eldeft fon, and Sid. 138. not according to the rules of defcent in gavelkind ; for the king was feifed of his moiety j«r^ corona ; therefore it fliall attend the crown, and confequently go to the eldefl fon. So, the cuftom of London, as to retaining goods mortgaged till ^5^.6.26. fatisfadion be made of the money lent on them, extends not to j^^y' '^^^' the king's jewels. 566. a And. 152. So, if a man hath toll, or wreck, or ftrays, by prefcription, this Div. 33. b. extends not to the king's goods. A cuftom may extend to and give an (h) infant a power of doing (^) Dr- & that which by the rules of the common law he could not do, as an "^ ^^' ^ infant at the age of fifteen may make a (c) feoffment of lands of the Fitz. Cuf- nature of (cl) gavel-kind ; but this, like all other cufloms, is to be to'"* 9- conftrued ftridlly, and in fuch manner as that no prejudice may ?^\ By^thc' accrue to the infant thereby; and therefore fuch feoffment muft cuitomofa be for (e) valuable confideration ; muft be made in (f) perfon, and 'o^n anin- not by attorney; cannot be with (^) warranty ; muft be of lands btndWmfelf which (/j) defcended to him in gavelkind, and not of lands by pur- apprentice. chafe; and muft be of lands in (z)poireirion, not in remainder or 9^.6,7,8. r Bro. Cuf- rcverfion. t^m, 63. (f/) Lamb. 624. (0 And, 193. Lamb. 625, (/) Lamb. 6a2. (f) Roll. Abr. 568. (i)) Beudl. 35, pi. 52. Lamb. 627. (/) Bcndl. 33. pi. 52. Lamb. 627. It is a good cuftom in a copyhold manor, that a feme covert. Moor, 123. with or without the confent of her hulband, may devife her (X') q^^^^* copyhold land to her hufband, or whom fhe pleafes. 143. 3 I. eon. 81. 83. a Brownl. 218. [Vldcfufra, Vol. L 726.] (*)But of fuch a cuflom as to freehold lands, ^ fi? I'iJt.' 4C0. 6j. b. And. 151. Roll. Abi. 563. pi. 6. 234 Cutlomjef* (C) Of fuch Cuftoms as are againfl: the Rules of the Common Law, yet, not being unreafonable in themfelves, are good, and, from the Conveniency of them, bind in particular Places. Dav. 32. b. Tj^VERY cuftom ought to appear to have had a reafonable com- Vide of the Hi mencement, and that at firft it was voluntarily agreed to, for Gavelkind, "le better promotnig or trade and commerce, the fuppreflion of Borough- fraud, the greater fecurity of men in their eftates and poflefiionsi Co^'hoids ^'^'^ ^"*^ ^^ ^^^^^ cafes, though the cuftom be contrary to the Regulation commou law, or againft the intereft of a particular perfon, yet it of Corpora- ftiall be good. tion?, Corn- nuns, chufing conflables, church-wardens, &c. the feveral heads. 21 E. 4. 28. As a cuftom that a man, in ploughing his ov^n ground, may fom ^c"i^' *"^" ^^^ plough on the ground of his neighbour ; for this is for Rou'.Abr. the general good, being in favour of huftjandry and tillage, al- 560. Dav. though a particular perfon receive prejudice thereby. 5 Co. 84. So, a cuftom to dry nets upon the land of another ; for this is in favour of fifliing and navigation. Dav. 32. b. So, a cuftom to build bulwarks on the lands of another for the Dyer, 60. b. f^fgty q£ jj^g kingdom, is good. Dav. 32. b. So is a cuftom to pull down the houfe of another, to prevent the fpreading of fire. Wigglef. [It is a good cuftom, that tenants, whether by parol, or deed, [a) Daliifon* ^'^^^ )^2i\Q the away-going crop after the expiration of their term ; Dougi 201. for it is for the benefit and encouragement of agriculture. («) For the cuftom in fuch cafe does not alter or contradict the agreement in the deed : It only f.iperadds aright which is confequential to the taking. Ibid. In Doe v. Snovifden, 2 Bl. Rep. 1225. it is faia by the court, that if there is a taking from old Lady-day (5th April), the cuftom of moft countries would entitle the leffee to enter upon the arable at Candlemas (ad Feb.), to prepare for the Lent corn, lulthout any ffecial -words fcr that furpcje in the ieafe. • Lewis V. So, a cuftom that the tenant may leave his. away-going crop in Skynner '"^' ^^'^ barns, ^f., of the farm for a certain time after the expiration c. B. Here- of the Ieafe, and his quitting the eftate, is good. ford. Summer Affizes 1778. Beavan v. Delahay, i H. Bl. 5. ^ftconrt V. A cuftom, that the executors and adminiftrators of every cuftom- I Lutw.'jog. ^'"y t^n^nt for life, if he ftiould die between Chrifimas and Lady-day^ fliall hold over till the Michaehnas ioWov^ingy feemeth to be good.] Mod. 202. It is a good cuftom in a manor, that the homage have ufed Vaugton liLr r t 1 -r. 1 and Atwood, y^^i^'y to chule two lurveyors, to take care that corrupt victuals are a Mod. 56. not fold within the manor, and to deftroy fuch as they find ex- S' C. pofed to fale there ; for the prefervation of men's health is defign- ed thereby, and it is at the peril of the furveyors if they deftroy any meat that is not fo. Cro. jac. A cuftom in Ipfivich to chufe yearly two burgefles, who ufed vvaiiis's yearly to make a feaft, and to fine thofe who refufed to make a "re, y. feaft, feallj and to imprlfon them till paid, was allowed a good cuftom, i Bur.ajj. upon an habeas corpus^ and the prifoner remanded. It is a good cuftom, that every man of the town, that hath an Roll* Abr. houfe next adjoining, and abutting to the high ftreet, may fell all ^^;j\q'^^ merchandizes in his {hop within the faid houfe in the time of the ,27. market, wliich is held in the high ftreet. A cuftom in Exeter, that every woman taken in adultery fhould 8 Co. 126. be (a) whipped, is good. [No men- ^ ' rr » cj tion is made of fuch cuftom in the book referred to.] (a) That a fkimington, or riding, where a womari cuckolcs her hulbir.d, is a cuftom igiinit law, iiide 3 Keb. 578. Raym. 401. And note thac fuch tiding has beea held b> Hoh, C. J. a libel, -v-Jc tit. Libel. A cuftom, that a feoffment by tenant in tail with warranty fhall 50 AfT. pi. not be a difcontinuance, is good; although this is againft the ((J) 'v'* (^)S^» ,,.,,'°, ° '^ *■' that a wo. rule and maxim or the common law. r^an ihaii not have dower where ihe received, during the ccrverture, part rf the money for the fa!e of the Isnd Pr% Cuftoms, 53 So, thac a widow who marries lha'.l not ha\e dower. Ron. Abr. 5'i2. EuLa caft ra that ti.e wife of a tenant in fee fhall not have dower, is void. Dav. 46. b. So, that the wives of Irifli lords fhall, during coverture, have the fole property of certain goods, to difpufe of them without the affent of the hufband. Dav. 30. b. Roll. Abr. 563. But every cuftom which appears to have been unreafonable In Dav. 32. b. {c) itfelf, as being againft the good of the common we;4lth, or inju- ^ ',f.*"^*^^4* rious to a multitude, though beneficial to a particular perfon j or (cjThat a to owe its commencement to the arbitrary will and opprefllon of a cudom powerful lord (d) and not to the voluntary agreement of the par- ^^^^'"'* ^^^ ties, is void-, nor can any continuance of fuch a cuftom give it a fon, isvoid. fanction, or make that good which was void in its creation. ■^•'^e Mocr, ^ 5S8. Bridg. 11,12. 1 Leon. 217. 314. 3 Leon. 41. [(t/) Upon this principle, a cuftom for the lord of a minor, or the tenants of hiscoileries who had funk pics, to throw the earth and coals upon the land near fjcS pits, fuch land being cuftomary tenement, and parcel oft.e manor, there to continue, and to lay and continue wood there, for the necelTary ufe of the pits, and to take coals fo laid away in carts, and to burn and make into cinders coals laid there, at their pieafure, was adjudged to be void. It was alfo adjudged void for uncertainty the word near being too vague and loofe to fvipport fucn a ciaim. Wilkes v. Broadbent, 1 Wilf. 63. 2Str. 1224.] A cuftQm within a parifh, that all lambs fallen and bred upon Hob. 329. one tenement in the fame parifti, though belonging to feveral Barker ani owners, (hall be reckoned together, as if but one man's, and the adjudged. tenth, fo counted together, paid for tithes, is void and unreafon- able ; for by this means it might happen that a man might have but one lamb, and that ftiould be taken for tithe j and he tliat had more (hould pay nothing. A cuftom to eledl a fiipernumerary before any vacancy, to be Skin. 45. admitted upon the death of the next prebendary, is ridiculous and l*' /7- • 1 r J ' 2. Jon. log. void. S.C. A cuftom that no commoner fhall put his cattle into the land Roll. Abr. before the lord, is void ; for a cuftom that leaves it to the arbitrary ^°^- will of the lord, whether the tenant ftiould ever enjoy any benefit by the common, or not, can never be prefumed to have had a reafonable commencement. So, a cuftom that the lord of the manor fhall detain a diftrefs Lit. § 46. taken upon the demefncs till a fine at his will is paid for the da- ^■^*- 33- »• mage, is void, A cuftom, / 23^ Cuflomjef* T,rt. § 109. A caflom, that every tenant of a manor that marries his daugh- (.7) But that ter witliout the licence of the lord, (hall pay a fine, Is againft (though"his' reafon, and void ; for every («) freeman may marry his daughter perfon be to whom hc plcafes. tice) that holdi in bondage, the freehold beins in the lord, Ihall pay fuch fine, is good. Co. Lit. 140. a. Co. Lit. If the lord of a copyhold by cuftom claims to have a fine of the 45* y .. copyholder, upon every alteration of the lord, be it by alienation But for this ^ ■' , -r 1 • . ' • 1 n 1 , • ■^ , lUi tit. or otnerwne, this is a void cultom as to the alteration or change C-fjhild. of the lord, by the aft of the lord himfelf j for by fuch means the copyholders might be opprefled by the multitude of fines by the act of the lord. r-^im.2ii. A cullom, that the lord (hall have common in all the lands of S^xr^ad** liis tenants for life or years lying frefli, is void, for it is againft 'adged. ^^^^' t^i^^ t^^s leffor fhall have common againft his ovyn leafe, be- caufe it is part of the thing demifed ; a/iiety of an heriot, which is collateral. Roll. Afar. A cuftom, that the lord may take for his heriot (b) the beaft of a 561- (r) ftranger, levant and couchant upon the land of the tenant, is aAnd. ic;. ^ ' o ^ ^ j (/i>So,where nOt gOOd. the cuftom was laid, that if the tenant hath none, or the beft beaft is enoined, the lord has ufed to take the beft beaft levant and couchant upon the land. Moor 16. N. Bcndl. 112. adjudged. But that the cattle of a Itranger may be diftrained for an heriot, but not feifed, -vUe N. Bendl. 302. pi. 204. Dalf. 61. Ow, 146. March 165. (c) A cuftom that the lord fhall have the beft beaft of every perfon dying within his manor, which is found there, is naught j for between the lord r.nd a ftranger it could have no lawful commencement, though between the lord and his tenaats it may be good. Cro. Eliz. 725. adjudged. Roll. Abr. 266. 43 E. 3. 32. A cuftom, in a town, for a lord to enter into the (cI) lands of his f^l^But^f ^^"■'^"t till an agreement made for the arrears, when the tenant this cuftcm ceafes for two years, is not good ; for it is an ill ufage to ouft a, had extend- man of hls inheritance without a6lion or anfwer. ed itlclf into many towns it had been good. 43 E. 3. 32. Roll. Abr. 559. Roll. Abr. A cuftom, that the lord of the manor ftiall have 3 /. for every Dav 1. po'^r'd breach, of every ftranger, is not good ; [e) but it is good (c) So, of a againft the tenants of the manor. cuftom, that if a tenant makes a rcfcous, cr drives his cattle off the land when tlie lord comes to diftraun that he ihall be ameiced by the homage, &c. Godb. 135. Cort V. [A cuftom, that the inhabitants of a manor (hall grind all their Dou-'l 2 's. ^°^'^' graiiij and malt, which by them, or any of them, fliall be ufed or fpent ground within the manor — at certain mills, is good. But if it were, that they (liould grind — all their grain whatfoever by them fpent or fold — at certain mills. It would be void. Fryer v. A cuftom in a parifli, that every pariftiioner fliall bury his rela- l^Wii^zS. *-'°"^ ^^ ^^^^ church-yard as near as poflible to their anceftors, ' " * is bad.] Roll. Abr. As to particular cuftoms relating to the proceedings in Inferior Cro. Eliz. courts, fuch as have prevailed time out of mind, and are in further- ,i;<. ance of juftice, feem to be good ; but fuch as are in delay of juf- tice, and tend to opprelTion and Injuftice, and are againft the general rules of law and reafon, have always been held void. 4 Hence fiuaomiEfi 237 Hence it is, that a cuftom in an inferior court, that when any Roll. Abr. -man comes to the grand diftrefs in any plea, and it is returned 5^"^* '" that he is diftrained by his goods, ^ quod nihil kabet iilteriiis per \^ Kent. quad dijlringi potejiy that his goods fliall be delivered to the plaintiff, finding fecurity, that if the fuit pafies for the defendant, that he fhall have again, his goods ; and that if it paffes for the plaintiff, that he (hall have them, has been held good. So, a cuftom in the county palatine of Chejler^ that if judgment Roll. Abr. be given in a bafe court there, and thereupon a writ of error be S^^- brought before the chief juftice there, and he reverfe the firft judgment, cofts (hall be given to him at whofe fuit it is reverfed, is good. So, it is a good cuftom in an inferior court, that in an action of Roll Abr. debt, if the defendant does not deny the debt, but/>d'//V quod inqui- ^^Z^- ^*^' tatur de vero debito fecundum confuetudinem^ that a jury may be re- Rofj', p^p' turned that fliall try it, and if they find it to be a true debt, that 193. Mod. the plaintiff fiiall have judgment thereupon. 96- s^- P- and fald by Hale, Ch. Jult. that this caufe prevented a fuit in Chancery. But a cuftom in an inferior court, upon a judgment in the fame Roll. Abi-. precept, in the nature of a capias ad fatisfaciendumy to give a war- ?^,'- rant to the bailiff to take the principal in execution, if he may be reafonace'fl found, and in his default to take the bail, is not good ; for it is tom ia an (i?) againft law to take the bail before a capias returned againft the '"^^'^'O'' principal, and {b) z fcire facias againft the bail. is not' within the fiatute of 31 H. 8. to grant a taUi de circumfiantihu:, is void. Roll, Abr. ^3. 564. —So, to award %cap'uii in debt before anj fummon5. Roll. Abr. 563. 780. (^) That the cuftom or London to take the bail without ayir.Tf /arias, is void. Cro. Car. 561. Palm. 567. Cro.Eilz.1S5. a Leon. 2 ;j. A cuftom in an inferior court to try iffues by fix jurors, is not Roll. Aor. good, though many courts have ufed it, and many jutlgments de- ^^'^'. ,'^^^' pend thereupon. Peryman, adjudged, in a writ of error upon a judgment in Bodmyn 'n Cornwall. Cro. Car, 559. S. C. adjudged; and faid by Jones, that although in fome parts of Wales there be fuch trials by fix only, it is by reaf^n of the ftatuteof 34 & 35 H. 8. c. 26. which appoints, that trials may be by fix only, -vhcre the cuftom bath been fo. i Sid. 2.33. S. P, J>er Cur. A cuftom in a leet, that if the petit jury make any (c) falfe pre- qH.6.44..b. fentment, and it is found falfe by the grand inqueft, that the petit {') B"t a •jury ftiall be amerced, is void 5 for this is againft common right ^^l;'^'^'" that, ' ; . ' ' «i rt ir they con- and extortion. ceai aoy thing that ought to be prefented, they fhall be amrrced, is gcod. 9 H. 5. 44.. RoU, Abr. 560. If there be a cuftom in an inferior court, that If a man brings ?.oiL Abr. aYi adion againft another there, and the defendant appears and 5H- Burgea pleads to iffue, and, at the day of trial, the defendant, being ajj.j^ged ■* (blemnly called, does not appear, nor find pledges qui eiim manii- and fuch capere voliierint^ to have his body from court to court, at every J':"'g"?^"J court there after to be held, till 'the plea be determined, as- he mou""re/' ought by the cuftom, but in contempt of the court recejjlt ^ dc- v-rfed ac jaltam fecit ; and judgment is thereupon given ; yet this is not a "■<^i"£':" good cuftom, but utterly unreafonable ; but they ought according to law to take the inqueft by default i for if he had appeared and ftald 238 CuGom^, ftaid in prllbn without finding pledges, yet they ought not to have given judgment againft him if he would have pleaded to ifTue. Moor, 603. It is no good cuftom in Sandiuich, that, if the goods of a free- pi. S34.. jyj^n of Sandwich come into the hands of a freeman oi London, the Paiamnir j^^y^^ of Sandwich (hall write to the mayor and aldermen of 2 And. i!;T. London, to call the party before them, and take order for the refti- S.C.&'vide tution ; and if they refufe, or return no anfwer to the mayor and Palm? U. ' jurats, the mayor of Sandwich fhall write alias ^ pluries, and after 2 Inft. -04. give judgment of Withernam againft the mayor and commonalty Sid. 355- of London ; which iliall be fignified to the mayor of London ; and if he make not reftitution in fifteen days, then thofe of Sandwich may retain the body oi zx\y Londoner th^it comes there, till reftitution. Cro. Jac. A cuftom in an inferior court, to give a day to one that hath [a) 557- ad- jnatie default, is void and againft law. judged. ° ^ (a) So, a cuftom to give judgment in a perfonal aftion upon four defaults before appearance, is void. Style 1Z4. (D) Where from the Benefits accrunig from them they fhall bind. 6 Mod. 134. "IT THerever the party bound by a cuftom has fome benefit by it, ^^ or the party, who claims the advantage of it, is at fome charge thereby, the cuftom is good. Cro. Eliz. Hence it is, that a cuftom, that the parfon of the parifli (hould 569- find a bull and a boar for the ufe of the parifti, and in confider- Roir'Abr^. ^^^°" thereof fhould have the tenth of the increafe, has been held 559. S.c. good. Cro. Eiiz. So, a cuftom, that whereas J. S., is feifed in fee of the manor of 20V Sir 2".j and all the tenements in the faid town are held of the faid FamiM and ""-^-"or, that he and all thofe, ^c, have had, time out of mind. Brook, ad- i^c, a bakehoufe, parcel of the faid manor, maintained at their judged. charge, and that this bakehoufe was fufficient to bake bread for all sTc.ltbzt- t^^ inhabitants, and for all paffengers through the faid town ; and ed. Owen, the bread there baked had ufed, ^c.y to be fold at reafonable 67. S. c. prices, and that no other perfon within the faid town had ufed to fjf! ^^ * hzke any bread to fell to any perfon ; this is a good cuftom, (/') 8 Co. 125. though it reftrains other men to exercife their trades within a cer- 3Biiift. 6t. ^gjj^ place, for this might have a reafonable beginning to bind his Roll. Abr. own tenants, as it only does. 559. S. C. cited, [b) A cuftom in Winchefter, that none fliall exercife a trade there who is not free of the city, or brought up apprentice there ; .S^._ if good. Salic. 203. pi. 2. & •vide 8 Co. Wagonner's cafe. * It may be good if founded o.i fome confideration. Vide Mo. 34.2. Sri, 1 1 1 . 2 Lev. ; 10. 3 Lev. 241 A cuftom, which reftrains trade Jub vicdo, may be good : and therefore the cuftom of foreign bought, and foreign fold, whereby a man not free of a city, &:c. will be reftrained from buying or felling goods to other foreigners within i'uch city, [^c. is good. Dy. 2"'9. b. R. Jon. 162. Adm. 2 Roil. Abr. 202. c. 45. A cuftom, that none ftiall ufe a trade there, unlefs he be free of the guild R. in London, 8 Co. 125. Dub. Whether good in another city, i Salk. 204. Mod.Ca. 21. [In the cafeot the city of Oxfcrd, it was ruled, upon the authority of Wagonner's cafe, S Co. 25. b. that a coHrom in that city, by which every perfon not being a freem.in of the city, who expofes goods to fale in the city, except in fairs or markets, is liable to a penalty, is good, notwithftanding theie were no excepti.n of viftuals j and that a cuftom to diftrain for the penalty was alfo good. Moir v. Munday, Say. Rep 181.] A by-law, that no one ftiall ufe a tr^de in a borough, not free there, where the by-law is founded upon a cujltn to fuch intent, though the cuftom be not confirmed by p.^rliamcnt, is good. Adm. Lut. 564. Adm. Ccdb. 254. 8C0. 125. a. Now every day's experience v.ariants this doctrine. * A cuftom. A cuftom, that every Inhabitant of an antient meffiiagc held of Roil. Abr. the bifhop in the city of S., have ground at the bifhop's mill all f''- ^"^ their grain fpent in their houfes, and that the bi(hops, in confider- F.N.B.271. ation thereof, have time out of mind kept fervants to grind and Rfg.153. carrv, ^c-., is good, becaufe mutual coiifiderations and mutual ac- ^f^- '^,?' •'' .,, ,. " Moor, 8 i- 7. tlOnS will he. Style, 421. Roll. Abr» 559. zBulft. 195, 196. Hard. 67. Lev. 15. Vent. 16S. a Sand. 117. 2 Lev. 27. Carch. 193. A cuftom, that the corporation of Litchjield have had a market Roll. Abr. there time out of mind, ^c, and that the corporation ought to ^^J'^^^^.'^i repair the way to it, and to appoint a bellman, who ought to fweep Moor, 835.' the market-place, and in recompence thereof, the faid bellman, s. c. ad- timc out of mind, ^V., from thofe that brought their grain to the {j^ftJ'^^"J faid market, and untied their facks tliere to fell it, had ufed to take tom was a pint of grain if it was but one bulhel or under, but if it was good, though above a bufhel, then a quart, to the ufe of the faid corporation ; ^^^^ "^^J^^ ]^^* this is a good cuftom, for the men that are charged by it have a broaght'm reafonable benefit thereby. ^" ^^ fold. 2 Bulft. toi. 2c5. Roll. Rep. 1, 2. 44. 46. S. C. adjudged. It is no good cuftom, that the city of Norwich hath time out of Vent. 71. m.ind maintained a quay for unlading goods brought up the river ^^r'^"^' , to the city, and that every veflel palfuig through the river by the wii^^'s^c. quay had paid a certain fum j for the vefiels that unlade not at the that there quay or other place in the city, have no benefit from the mainte- ^ouid have r -I htcn fome nance 01 the quay. reafonforit, if it had appeared that they cleanfed the river. Sid.454. If a lord of a manor, which extends itfelf upon the banks of 2 Lev. 96, part of a river only, hath time out of mind maintained a quay for 97- P"- the lading and unlading of goods, and kept a buftiel within the ^^T^^J^ manor for the mcafuring, and other merchandizes, he cannot pre- Raym, 232. fcribe rattone inde for a buftiel of fait, of every fliip fiiiling in the ^^'^^' ^°4' " river, for the repairing of the quay ; and keeping a buftiel within jJdged. See the manor, cannot warrant the taking of toll out of the manor, for zStra. 122S. goods not brought to the quay within the manor, though brought v/^'lp?'* to another place within the fame river. It is a good cuftom, that the mayor and commonalty of London 3 ^-^v- 37- have had of every fuafter of a ftiip 2,d. per tun, in the name of weighage, for every tun of cheefe brought from anyplace in E?ig- la?id to the port of Loudon ,- for the liberty of bringing it into the port, which is a place of fafety, is a fufficient confideration 5 and the mayor and commonalty have the view and corre£lion of the river Thames. The lord of a manor may prefcribe to keep and repair a wharf 3 r.ev. 424. within the manor, iS ratione inde to have toll of all goods landed i-S?'^'' \' within the manor, though not upon the wharf; for the landing coiwn v.* upon tlie foil is an eafement ; and all the lands in the manor Smith, were the lord's originally, and this is in nature of a (a) toll ^^^Pj'^^* traverse. ^^a) For this -viih 2 Roll. Abr. 522. [The corporation of Alalden in Ejre-< prcfcribed in a que ejlate c;r»d by " that thev and all thofe, ^i.-., time whereof, ^f.,had ufed to re- ^fl'^-h 6 " p^i' 3S6. 504 CuRoniiff. " pair the port, in confideration whereof, they had ufcd t\mt *' whereof, (s'c, to receive for all lands fold within the precin£l of •* the borough, a certain rate of lo/. in th(; pound outof thepur- '* chafe money:" it was adjudged a good cuftoni ; and this is what they call land-cheap ; for the land-holder reaps a benefit by the trade coming to the town, by reafon of the port.] 5 Lev. 307. It is a good cuftom within a manor adjoining to the fca, that m Simpfonaiid q-^(q of any fhipwreck of any (hip call upon the manor ifiter ad'^udeed.' fiu>:um 13 refluxum Wflm, the lord (hall take care of the fick and wounded, and burial of the dead, and keep the goods there caft for the ufe of the proprietors ', and in confideration thereof, fliallhave the beft anchor and cable of the fhip j for though charity obliges the lord fo to do, yet it is not unreafonable that he fiiould have a re- compencc of his charity and charge : — But <^. Hil. 34. Car. For where in trover the jury found a fpecial verdiifl, that within Bear and ^}^g manor of Beechi?ig in Stijfex, adjoining upon the fea, thqre was fliam,3Lev. this cuftom, that if any (liip navigating and floating upon the fea S5. S. C. {hould happen to ftrike upon the land, parcel of or within the ('^1' '^^^[^ manor, and ftiould there happen to periOi, or if a fliip fo flriking Iced by a Ihculd happen to get off, that in both cafes the lord of the faid lord, that manor ufed to have the beft anchor and cable belonging to the faid whoever ^- ^^^ ^\^^ cuftom was held unreafonable in both cafes ; for poundfhouid there is no confideration to ground fuch a cuftom upon ; for it pay him j /., there be a trefpafs upon the lord's foil, it is Involuntary, and by the isavo.dcui- ^£^ ^£ GoA^ where it is by ftrefs of weather ; and therefore not to t-om as to ^ ^ J ' itrangersj be punlflicd as a voluntary trefpafs j as if the houfe of my tenant for this, for years be burnt with lightning, I fhall never have an a6tion of reafoifs^^be- ^'^^'^^ againft him, for it is the a6t of God, which does no man an caufe there Injury; but befides. It Is very unreafonable for fo {a) fmall a da- is no pro- rnage done to the lord, as ftrlking upon his foil, that he ftiould have twixt°ihe^' ^° great a fiitlsf action as the beft cable and anchor*. «iamage and the iccompence. iiH. 7. 13. 14. 21 H. 7. 4.0, But a cuftom alleged in Bucks, that if any fwan cometh upon the land of any man adjoining upon the Thames, or upon any water running into the Thames, and thtre lays and hatches cignets, that the owner of" the land fiiall have one, was held a good cuftom ; aad yet the damage which the owner of the land fuftaiiis is but very fmall. 2R. 3. 15, 16. 7 Co. in the cafe of fwans. * This cafe is very diftereiit from the preceding. Carth. 357. By fpecial verdl£l It was found, that by a cuftom In Newcajiky V 'Ebdln"" ^'""^ "^^^ °^ mind, feV., a toll of five pence for every chaldron of adjudged.' ccals there fliipped off, was due to the corporation, in confideration 5 Moa.359. of their charge in maintaining the port, which they were bound to s!c! pf 4*. '^^^ ^"^^ ^^^'^ done time out of mind ; and that the cuftom was to diftrain (for non-payment of this duty) any goods of the owner of fuch ftiins, which were diftrainable by law -, and it was held, that the clrarge of maintaining a port was a fufficient confideration, and that the finding that the corporation are bound to repair, tV., wail fulncient, without finding that it was then in repair. (E) Where, from the Certainty or Incertainty of them, they fhall be deemed good, or void. TpVERY cufliom ought to be certain, or fuch as maybe reduced Roll. Abto ^-' to a certainty, for an uncertain thing cannot be fuppofed to 5'^5- have had a reafonable commencement ; alfo the uncertainty of a skin.\4q< cuftom deftroys the fuppofition of its continuance and duration time out of mind. Hence it is, that a cuftom that when an infant is of fuch an Dav. 33. a. age that he c?,n count twelve pence, or meafure an ell of cloth, 4Leon-?«.' that he may make a feofFment, is void for the uncertainty. S, q\ ^\^l and faid, that fuch cuftom is not good, but that it ought to be at a certain age, that it may appear to be an age of difcretion. So, a cuftom, that the tenant of the manor who firft comes to Roll. Abr. fuch a place, i^c, fiiall have all the windfalls there, is void for S^S* ^ ■ ^ Dav. 33. a. uncertamty. ^^ So, of the cuftom of tafinijlry in Irclandy which was, that the Dav. 28. b, lands of that nature of which a man died feifed, iliould deft end '" *^* feniori ^ dignijjtmo viro fangn'inis ^ cognomhns of him that died fo feifed ; and it was held void, both for the uncertainty of the perfon and the eftate. So, a cuftom alleged and found by verdi6l to pay ten pence to Firrgib. 1:5, the vicar at the ufiial tune of chtir chins: luofncn. was held void for ' Ld.Rayra. •'J Of 1558. uncertamty. So, of a cuftom for 24 parifiiioners, ^6-., to make a rate, and a 2Stra.ii45, certain proportion to be levied on fuch an hamlet. [A cuftom {or poor and i/idige/it houfeholders living in A.y tO cut Selby v. and carry away rotten boughs and branches in a chafe in A. is bad, f'^^'"^'^o' the defcription of poor houfeholders being too vague and uncertain. 758 A cuftom, that *' when a tenant took a farm, in which there Roev.Lees} was any open field, more or lefs, for an uncertain term, it was ^ ^'" ^^i'" confidered as a holding from three years to three years," was holden to be void for uncertainty, becaufe the quantity of open ground was not afcertained, and one rood might determine the tenure of 100 acres of land inclofed. But a prefcription for fo much money for fetting up a ftall in a Bennlngfon fair ; and for ground tiear the ftall, is certain enough, for the ^ ^*^^°.'^' * quantity of ground near a ftall may be determ.ined by the ufage of see wiiLs' the fair. v. Bto^A- So, a prefcription to take " three WbicheJIfr bufhels of barley Sar-enr v. out of and for every fhip's cargo of barley broight upon a quay to R'^^^'i^'*- be exported in anyjlnp" is fufliciently certain, for the word cargo , wnf. 91, is a mercantile term, and very intelligible when referred to a fliip.] The pic fcriptian in Mr. Nolan's MSS. report, omits the words in itallcks. See Nolan's edit, of Sir J.Strange's RspL-rt*. Vol. II. E 242 dluGcmiG^* (F) How to be conftrued ; and to what Things a Cudom fhall be faid to extend. Roll. Abr. T^ VER Y particular cudom, that is derogatory from the common 567, 568. SLt j^^^ jg tQ \jQ conftrued (lri6tly, becaufe as far as the particu- n.ieut. ^^^ cuRom hath not derogated from the law, the general cuftom Gavdkind. of the whok kingdom ought to prevail ; and we are not to pre- fume that the particular cuftom goes further than by notorious facts may appear. Roll. Abr. If the inhabitants upon a common have ufed time out of mind, 567. Cro. i^(.^^ to dig clay in the faid common of their lord, for the repara- Moo'r, 411. tion of their houfes ftanding upon the faid common, and a ftranger s. C. ad- digs clay in the common, the inhabitants cannot take this clay f flt^whe e f'^O'^ him, for this is not («) within their cuftom. inhabitants have ufed to have common to their houfes, this extends not to a new houfe. Owen 4. Roll. Abr. If the cuftom of a manor be, that if any copyholder in fee fur- 568. Cro. renders out of court, and he to whofe ufe it is furrendered, does YeL'. i.^' not come in at the court to take his copyhold after three procla- Noy,4.2. raations made, that then the lord may leize the copyhold as for- Raym. 404. £gjtg(^ . jjnd a copyholder in fee furrenders to the ufe of another for life, the remainder over in fee, and the tenant for life does not come into court to take his copyhold after three proclamations made, according to cuftom, upon which the lord feifes the copy- hold as forfeited ; and after cejhii que ufe for life dies, he in the remainder fhall not be bound by the not coming in of the leflee ; for the cuftom being in deftru61:ion of an eftate ftiall be taken ftriftly, and (hall be intended of tenant in fee in poffeffion, and not of him in remainder, as in this cafe. 2 Leon. 109. If there be a cuftom within a manor, that if a man takes to wife 2Leon.2oS, ^^y cuftomarv tenant of the manor, and has ifl'ue, and overlives his to have been wife, he ftiali be tenant by the curtefy -, and a man marry one, to adjudged, whom during the coverture a cuftomary tenement defcends, and becaufe the ]^^^,g j^^jg ]^y Yicx. and flic die, yet he Ihall not be tenant by the cuftom ex- , ■' ' ' ' leaded only CUrtCly. 1 where the wife was a copyholder at the time of the marriage. Cro. Eiiz. If there be a cuftom in Londotiy that none ought to intermeddle *°3- aJ- with the art of a weaver there, but only thole who are free of the guild ; if a ftranger receive filk in Lctidotty and carry it to Hackney^ and weave it there, and then bring it back again to London^ and receive his pay for it, this is not any intenneddiing in London againft the cuftom, though the contrail was made in Londo?i. Style, 409, If there be a cuftom in the town of Neiucajik^ that the owners ll^'^^^n' ''"^ of houfes there, but not tenants in tail, may devife them by parol, tion ; &f and a man be feifed of an houfe there in tail, remainder to himfelf ■L-.dc Roll. \\\ fee-fimple, he may devife the remainder j for the word owner Abr. 609. Jg general; and comprehends all ownerftiips. If Cufiotnjef» 243 If there be acuftom within a manor, that the wife fiiall be en- Ra>m. 5S. dowed of the moiety of all fuch copyhold lands as her hufband ^^'fr^j*^ was feifed of, and ?. copyholder -die, and his wife be endowed of a moiety, and his fon and heir having the other moiety die, the wife of the fon fhall be endowed of the moiety of this moiety ; for this is dire£lly within the cu(lom. If there be a cufiom within a town to have id. for every hide of Cro. Ell?, every (lieep, cow or ox, that is killed or fold within the faidtown, '''.^^ ,f"'^^'*' and for non-paym.ent thereof to feize the hides, ^c, the party that is to have the 2d. cannot by this cuftom juHify the tanning the hides and converting them into leather. * General cuftoms may be extended to neiv things^ which are LJ. Rayn, luithin the reafon oi thoic cu^oms. ... „ , „ '^^1' •' 12 Mod. 271. 5 Co. 82. See 2 JoiJ, 204. It is a general rule, that cuftoms are not to he enlarged beyord the iiMod,i6o. ufage^ becaufe it is the ufage and pradice that makes the law in fitzgib.243, fuch cafes, and not the reafon of the thing.* (G) Cuftom, how deftroyed. A Title gained by prefcrlptijon or cuftom cannot be loft by inter- Co. Lit. •'-^ ruption oi pojpjfwn ten or twenty years, unlefs there be an in- ^^4> t>. terruption of the rights as by unity of pofl'cflion of right or com- m.on, and the land charged therewith of an eftate equally high and perdurable in both. If gavelkind lands are held In focage, and the tenure is after D<)If. 23, changed into knights fervice, yet the cuftom is not altered, for ^'^: ^3^* that goes with the land, and not with the tenure. y^'47 Lands in Kent were difgavelled by 31 -f/^ 8. cap. '}. and a private Raym. 59. acl made 2 ^ 3 -£. 6. enadled, that the lands of Sir Henry If.es "^'77' Sid, amongft others, fhould be from thenceforth to all intents, con- Lev.yof ftru£lions, and purpofes, as lands at the comm.on law, any cuftom 2 Keb.288. to the contrary notv.'ithftand!ng ; and the queftion was, whether ^"^- 3^5* thefe lands loft by thefe ftatutes all their other qualities or cuftoms wifeman. belonging to gavelkind, as well as their partibility \ and it was re- Fof ci^e rea- folved that they lofe only their oartibiiity. . . . ^""'""",t°^» ' i i- i tjide tit. Gavelkind, If lands of the nature of gavelkind, or borough engliHi, efcheat to the crown, and be enjoyed in feveral defcents, and are after- wards granted out by the crown in knights fervice, yet they de- fcend in gavelkind or borough engliHi ; for the law of thofe places cannot be controlled by the king's charter, or altered without an ad of parliament. (H) Of the Manner of alleging and pleading a Cuftom. J\ Cuftom of deviling lands, borough englifn or gavelkind, may Co. Lit. ^^ be alleged in a city, borough, or manor, but not in an upland^ "'^' ^' to.vu, tnat IS neitner city nor oorough -, but a cuftom to have a the manner R 2 way of laying a ^44 €uflom0 of London. fuftom, and Way to tlic church, and to make by-laws for the reparation of the the difTer. cliutch, and wcll Ordering of the commons, and fuch like things, '""1'^^'^*"" may be alleged in an upland town, that is neither city nor thing by borough. way of cuftom, or by way of prefcription, "vUe 6 Co. 6o. Hob. 113. Cro. Eliz. 441. Poph. 20T. Stylc477. Lev. 176. Vent. 3^)6. 3Lev. 160. Carth. 19;. 4Mod. 342. 2Lutw. 1317. Supra (A.) Sid. 237. A cuftom for a way was laid quod talis hnhetur confuetudo quod Keb. 836. qii'iUbet inhah'itatis haberit, ^f., and the court held it naught, for it , ^_ ^ fhould be laid by way of facSl triable, viz. tempore cujus contrarium^ way would ^V., lift flier unt habere*. do in a declaration. '1 he latter is prcper in a pica, 5:c. Co. Lit. The law takes notice of the {a) cudoms of gavelkind and bo- ^"\'n' . rough cnglilh, and therefore it is fufficient to allege generally that lofuchcuf- the lands are of the nature of gavelkind, tffc. But othtr private tomsasaie cufloms muft be fet forth in pleading, that the judges may be ap- th """f b pi^'zcd of them, and where they obtain, and fo give their decifions ■merely col- with a pvopcr regard to them. la'eral, they muft be Ihevsn iji pleading, ai that the lands are devifable. Lev. ?o, Raym. 77. Sid. 77. 138. Cro. Car. 562. So, ifa man would enti lehim'elf to be tenant by the curtefy, without having jflue, or a woman to have dower of a moiety, it oui^;Iit to be fliewn fpccially, that time out of mind, &c. Sid. 77. 2 Sid. 154. Godb. 183. One prefcription or ciiftom may be pleaded againft another, aMc^d.io4.. ^}igpg tJ^ev are not inconfiftent, but a prefcription pleaded againft But tor this ,.•' ,-, r/;\ viJe Roll another is not good without a travevlc (^j. Abr. 558, 565. Yelv. 215. Bulft. 115. 3 Co. 127. Cro. Car. 432. Jones 375. [(p) One cuftom may be pleaded to another without a traveife, where the latter is not inconfiftent with, but only a qualification of the former. Kenchin v. Knighr, c'.zsd z V/ilf. loi. j 9 Co. 59. If one prefcribes to have a way over the land' oi B., to his free- hold, B. cannot prefcrlbe to Hop it. a Ld.Raym. =* A cuflom ought not to be laid in the negative. 869. 2 Ld.Raym. In an a6lion brought upon a cuftom, it fjould hefheivn nvhat the ii34>Ji25- cujhm iSi otherwife it is not maintainable.* CufiOmS of London. Co. 127. rr^HE ancient city of London being the metropolis and chief J|[ town for trade and commerce within the kingdom, it was necelTary that it fliould have certain cuftoms and privileges for its better government ; which, though derogatory from the general Uw of the realm, yet, being for the benefit of the citizens,, and for €uftomj8f of London. 24^ for the advantage of thofe who trade to, and therefromj have not (1) Magna only been allowed good by the judgments and refolutions in the C^^';'''. c- «• luperior courts, but {a) have alfo been confirmed by fevefal adls &c. — * On of parliament *. a certiorari to the mayor and aldermen to certify a cuftom, the recorder (in his purple cloth robe, faced with black velvet) certiiiea ere ter.uif and then, on motion, delivcs in the ceri'wrart, with a written copy of the return an nexed ; the writ is filed, and the return rec)rded. Piummer v. Benthdm, i Bur. 24^ — I'f it is not (urmiled in the pleadings, that a ciiftom ought to be tried thus, it fliail be tried by the county. Ibid. [When a cuftom has been once certified by the recorder, the courts mult tike notice of it. They cannot have it certified over again. Ptr Lord Mansfield, Dougl. 380. Hjw»ver, if they are diflatisfied with a certificate, they may fend it to be rc-confidcred. 2 Vez 552. As the-recordcr certifies the reuirn ore terras, he is, of courfe, not bound to fign the copy of it. 3 P. Wms. 17 \i the certificate be falfe, an adiion lies againft the mayor and aldermen, and not agaiaft the recorder j for it is their/^eruficate by eke recorder. Hob. 87. As thefe cuftoms are of various and diffsrent kinds, I (hall con- fider them under the following divifion. (A) Of the Cuftoms of Londoti In general. (B) Of the Cuftom of London in refped: to Orphans. (C) Of the Cuftom of London in refpedt to a Free- man's Eftate : And herein, 1. What (hall be efteemed fuch an Eftate as will be fubjeft to the Cuftom, and what Difpofition a Freeman may make thereof. 2. Of the Childrens Part, and herein of Survivorftiip, Ad- vancement, and bringing into Hotchpot. 3 . Of the Wife's Part, and what fhall bar her thereof. 4. Of the Legatory, or dead Man's Share. (D) Of the Cuftom of London, as it relates to Feme Coverts. (E) As it relates to Mafters and Apprentices. (F) As it relates to Landlords and Tenants. (G) Of the Cuftoms of London which are in furtherance of Juftice, and for the more fpeedy Recovery of Debts. (H) Of the Cuftom of Foreign Attachment : And herein, 1. Of the Nature of the Debt or Duty which may be attached. 2. In whofe Hands, and at what Time the Attachment may be made. 3. Of the Form of the Proceedings in a Foreign Attachment. R3 T/^S^ CTuSomiS of London. (A) Of the Cuftoms of London in general. Ven' The London and 1. 115. TF a freeman foreftalls fifli coming to a market within the city, City of" 1 3^,j upon complaint to the court of aldermen, he appears there Coafcs" ad- 9nd' confefies the facl, and they order that he fhall defill, and he judged. will not promife to obey, ^c. they may {a) commit him until (a) Cuitom j^g ficrnifies to the court that he will conform ; and this is a good to commit n '^ " forrefuling CUltom. to ferve on the livery good. 2 Lev. 200. Raym. 447. Mod. 10. 2Keb. 5^5. 5 Mod. 1 1;6. 319. . f So, a cu.iom to exhibit an information by the common Icrjeant for opprobrious v\ord5 fpoken ot an alderrnan, and on conviftion to iine and imprifon, is good, i Ventr. 327. 2 Lev. 200. 2Saik, 425. 2. Ld. Rayni. 777. 7 Mod. 28. But a cuftom to commit in fucli ced to wagc battle. Corora. 411. ° ^ Roil. Abr. It is a gocd cuftom in London, that the mayor of London may 557- take recognizances of any perfons, being of full age, or women Moor*87i unmarried, (/') (for he is a judge of record,) although the debt Chamber- was coutradled out of London. lain and Thorp; but -vldt Cro. E)iz. 186. and Leon. 130. S. C. [where Gawdy, J. held the cuftom not gooJ, becaufe it extended as v^ell to flraiigeis as to citizens.] (^) And the courts above will take notice hereof. Leon. 284. Roll. Abr. It is a good cuftom in London, that they, time out of mind, 557- (f) A j^^yg j^^^ j.j^g f^\ meafuring of coals infra bortum London, which cuitom that ^ ^ ^ ^ ' all foreigners (^) extends from Staines bridge to London bridge, and from thence ihall weigh to Gravejend, and from thence to Tenland and Tendale. at ti;e city be;im good. Lev. 14, i 5. And a by-law fo^inded on the cuftom of London, which direfts that no freeman Ihall under a certain penalty, fell his goods unlefs weighed at the city bt;am, is good. Salk. 352. pi. 13. 5Mod. 156. 6 Mod. 123. 177. i Ld. Raym. 498. (rf) f or this lit/f 4 Inft. 250. Sid. 148. Roll. Abr. By the cuftom of L^ondon whores are to be carted, and there- S50- fore if a perfon calls a woman {e) whore (y) in London, an aclion that it**ha' ii o" the Cafe lies in refpecl to tlic punilhment they are fubje£l to beenonen by the cultom J but the party [g) cannot be proceeded againft in acjudged of jj^g fpjfiiual court for defamation ; lor that would be punilhing calling one him twicc for the fame offence. baftard, or fon of a whore, or calling the hulband cuckold, was, by implication, calling the mother or wife a wtiore., ^f\ If laid in London, when fj'okcn elfewi.e.t, the cereno.;nt may plcaJ the words were fpoke at, &c., and traveifs the fpeaking in London ; and it tiic plea is rcfufed, may have a prohibition. Lev. 1 10.—^^ — Thjt the action mult be brought in the courts in London. Carth. 75. {g] Whether in luch a cafe a prohibition ni«y be granted aiiet fe.'jtence ? Caith. ^13. [it cannot, unlcls the want of jurifdiClioa Culiomsf of London. 247 jurifdidlon a^ipear on the face of the proceedings. Blacqulere v. Hawklru, Dougl. 378. In the cai'e of Argylc v. Hunt, the court could not judicially take notice of the cuftom in London, for an action to Jie for the word <* whore ;" probably, becaufe it had never been certified by the recorder. And in S:a;n- ton and wife v. Jones, which came on to be tried befj:e Lord Mansfield, at the fittings after M 23 G. 3. at Guildhall, in an adion on this cuftom for calling Stainton's wife a whore, the plaintiffs were non- fuited, not being able to prove the cui'tonn to cait whores in London. A book Irom the town clerk's cffice was produced, but it contained no account of fuch cuftom. Lord Mansfield laid, that he could not take notice of the cuftom unlefs proved. It was Hated on that occafion, that the cuftom had never been proved in fuch a manner as to maintain irn adion in VVeftminfter Hall ; that in the city court, the aftion is maintained, becaufe they take notice of their own cuftoms without proof. Doug. 380. notes (95, 96.)] There [a) is a cuftom in Londoriy that when a chaplain keeps 2H.4. i2.b. any woman in his chamber fufpicioufly, a man may come to his ^°''^, c*. chamber with the beadle of the ward, and enter the chamber and (j*) The fearch. cuftom of London, that if a villain abides in London for a year and a day, that he /hall not be taken nor put out by writ di native kaher.de, nor by any procefs thereupon ilfuing, is goodi 7 H« 6> 32. 8 H. 6, 3. Roll. Abr. 557. S. C. Moor. 2. pi- 4. S. P. adjudged. By the cuftom of London^ if a man commit a horfe to an hoft- Moor, 8-6. ler, and he eat out the price of his head, the hoftler {b) may take ^g.""*^^''^* him as his own, upon the reafonable appraifement of four of his Rqu. Rgp, neighbours 5 which is a cuftom arifing from the abundance of 4+9- (*)But traffick with ftrangers, who could not be known to charge them J^/^.^'^^^^^ _ with aftions. ral horfes with an inn-keeper in London, and takes them all away except one, the inn-keeper cannot retain the horfe lb left till he is fatijhed for the keeping of the other horfes, unlefs there was an agreement to that purpofe. Bulft. 207. So, if .^. commit the horfe oi B. to an hoftler in London, and he eat out his head, yet cannot the hoftler fell him ; for all cuiloms being derogatory to the common law, are to be taken ftrictly; and there is no cuftom of London that hath gone fo far as this cafe, to authorize one man to fell and convey the property of another, 2 Roll. Abr. 85. It was {c) anciently infifted upon, that by cuftom all indidl- (OCro.Car. ments and proceedings for any caufe, except felony, {hould be ]^^'^ tried and determined in London^ and not eifewherej but (^) it 7^'. feems to be now admitted, that a certiorari lies to remove any in- 3 Mod. 230. didment from London ; but {e) it is faid, that by the (/) city "^^j,'/°^g charters, the tenor of the indictment only fl;all be removed, and i^.jide^Si not the indidment itfelf. 6 w. & m. C. II. (e) Keb. 252. Sid. 155. (/) That by the city charters the mayor fliall be a principal in every com- miiiian. jlnft. 72. z Rich. 3. 11. a. Befides thefe and feveral other cuftoms, there is a general cuf- {g) What torn which is ufually fet forth by the city, when any of their pro- °'''^'"^"^* ceedings is called in queftion, viz. That {g) if any of their cuf- &<;_ ^l^^ toms heretofore ufed prove hard or defective, or if any thing by virtue of newly arifin mortgage cuftom. fha.l be paii out of the perfonal eftate, in preference to the cullomary or orphanage part ; bscaufe the cuftom of Lon- don cannot take place till after the debts are paid. 2 P. Wnns. 335. j But a leafe for years waiting on the inheritance fhall not be 2 Chan. reckoned part of a freeman's perfonal eftate, but fhall, together y^"^^°* with the inheritance, defcend to the heir at law. 104. S. P. deci'ceJ. [Neither fliall receipts in chemiftry, phyfick, ^c. be reckoned iVern.6i. part of his eftate.] Alfo, if a freeman of London agrees to lay out money in the Vern. 345. ' purchafe of lands, and to fettle the fame on his eldeft fon, i5fc. ^ ^^■^^' ^'* this ftiall not be reckoned part of the freeman's perfonal eftate. 2Vern, 665. S. p. aojudged ; for by the agreement the money is tg be looked upon as lands in ea[uity, and thtretoic Pc; fubjedl to the cuftom. On 2SO CuGomief of London. Abr. Eq. On the marriage of B.'s daughter with -4., a freeman of Lou- '5'- ^-, don^ B.j the father, fettles a term for years in trufl:, that ^., the and Good- huiband fhall receive the rents and profits till fuchtime as D. and ing, decreed. E.^ OX the furvivor of thcm fhould otherwife appoint, and then fuch perfons as they Ihould appoint -, and for want of fuch ap- pointment, for fuch perfons as the faid^. by will fliould appoint; and for want of fuch appointment, then in trufl for the execu- tors and adminiftrators of A. The truftees having made no ap- pointment, the queftion was. Whether this term fhould go ac- cording to that appointment, or be looked on as part of A.\ per- fonal eftate, v/ho was a freeman oi London^ and fo go according to the cuftom ? and the court was of opinion, that it was not to be looked upon as part of A.h perfonal eftate, becaufe it was never in him, but was fettled by his wife's father, and therefore not fubjed to the cuftom. Chan.Ca. If a freeman of London is made both executor and refiduary Lord Chan- ^^%^'^^^i ^"'l ^^ f'ics before he has made his election, whether he ceiior- "^^"111 take as executor or legatee, yet the legacy muft be confidered as fuch, and will be fubjedt to the cuftom of London. Lev. 227. By this cuftom a freeman could (^) not by will difpofe of fuch Chari"ca^^ part of his perfonal eftate as belonged to his wife or children ; 399. and {¥) even difpofitions by him in his life-time have been holden (fl)itisfaid void, efpecially, when they appeared to have been made in fraud cuftom'of ^^ ^^^ cuftom, and with a view to defeat it. the city of London, that a man could not give away any part of his eftate without the confent of his children, is the remains of the old common law, and is fo taken notice of in Bracion ; but it being found extremely inconvenient and hard, it was by the tacit confent of tlia whole nation abrogated and grown into dlfufe ; for what jaw has ever been made to repeal it ? but in the tity of London, where the mayor and aldermen had the care of orphans, they by that fole authority and power had preferved this part of the common law in London, which isdifufed every where elfe. Preced. Chan. 596. (^) But for this f(rfV zLev, 130. 2 Vern. 98. 202. 612. 6S5. Lev. 227. Pieced. Chan. 17. 5c. Abr. £q. 152. [(^) If there But now by the ii Geo. I. cap. 18. § 17. it is ena£led, "That it the'Vrft''^ °' " ^^^^ ^"^ "^^y ^^ lawful to and for all and every perfon and mairiage " ptYfons, who ftiall, at any time from and after the firft day of living a: the *« June 1 7 25, be made or become free of Z-fJw/oA^, and alfoto and for feccmd the *' ^^^ ^"^ every perfon and perfons, who are already free of the find dea;h of ** city, and on the faid firft day of June 1725 fhall be unmarried, luch lifue <« and not have iflue by any former marriage, (r) to give, devife, wiiiToTpre- ** '^^^i and difpofe of his and their perfonal eftate and eftates, to vent the ** fuch perfon and perfons, and to fuch ufe and ufes, as he or cuftom from t< {hey fhall think fit. attachmg, and bar the widow from claiming uuder it. Dan/en v. Halves, Ambl. 276.] Provided neverihelefs, " That in cafe any perfon, who fhall, at ** any time, or times from and after the faid firft day of June ** X725, become free of the faid city, and any perfon or per- " fons who are already free of the faid city, and on the faid firft *' day of June 1725, fhall be unmarried, and not have ilTue by ** any former marriage, hath agreed, or fhall agree by any writ- •' ing under his hand, upon or in confideration of his marriage, " or otherwife, tliat his perfonal eftate fliall be fubjed to, or to 6 " be Cufiom^f of London, 251 *• be dlftrlbuted, or diftributable, according to the cuftom of the *' city of London ; or in cafe any perfon fo free, or becoming free *' as aforefaid, fliall die inteftate, in ev.ery fuch cafe the perfonal *' cliate of fuch perfon fo making fuch agreement, or fo dying *' inteltate, (hall be fubjedl to, and be diftributed and diftri- ** butable according to the cuilom of the faid city ; any thing " herein contained to the contrary in any wife notwithftand- « ing." \_A. being about to marry an orphan of the city of London^ Frederick ▼. agreed with the court of aldermen, in confideration of the mar- Fredencic, riage, and of their giving their confent thereto, to take up his y,o'_ freedom within a certain time, which time he furvived, but died 4 Br. P. C. without performing his agreement. It was decreed, that he was ^* ^' ^' in equity to be taken as a freeman, and therefore his perfonal eftate was to be diftributed according to the cuftom, notwith- ftanding he had by will made a different difpofition of it. It was faid by the chancellour, that the agreement being entered among the orders and proceedings of the court of aldermen, and that court being a court of record, it became matter of record. If a freeman difpofes of his property in fuch manner as not to Smith v. take place till after his death, it is a fraud upon the cuftom, and ^^1'°^^^^' the property ihall be fubjedt to it. .,,,^ So, if, feveral years before his death, he purchafes a leafehold Coomes v. eftate for 40 years, in the joint names of himfelf and wife, it is ^^^^ ,^, a fraud upon the cuftom, and the eftate (hall be aj^plied as the '' reft of his property. A freeman of very advanced age, ill of the gout, two days be- Tcmkins v, fore his death, by deed of the fame date with his will, afiigned Ladbroke, part of his perfonal eftate in truft for the feparate ufe of his ^•^es'iSi' daughter, and direcled that fhe fhould not have power to give it to her huftjand. She had married without confent, but the father had been reconciled to her and her huftjand. The deed was not delivered to the daughter. Lord Hardwicke held it to be a tefta- mentary difpofition in fraud of the cuftom, and that it was com- petent to the huftjand to difpute it ; but he would not allow him to take the wife's cuftomary part, without making a fettiement upon her. J 2. Of the Children's Part j and herein of Survlvorfhip, Advaace- ment, and bringing into Kotchpot. It has been already obferved, that the children of a freeman of London are entitled to the third part of his perfonal eitate, in cafe he dies leaving a wife, and to a moiety in cafe he dies leaving no wife, but [a) this cuftom does not extend to grand children j and, {a) z SaJk. therefore, if a freeman of Lendon has two fons, and the eldeft f;^' dies, leaving a fon, the grandchild, though in law a rcprefenta- j,. p'/ ■* tive of the fon, ftiall have no part by the cuftom. But a pofthumous cliild ftiall come in with the reft of the Abi.Eq. children for a cuftomary ihare of a freeman of Liindou'i perfonal ^54- eftate. If 252 CufiomiS of London. ia) zSi]k. If a city orphan dies before twenty-one, his orphanage part 4^6. furvives to the other orphans, and he can make (a) no difpofi- Chan. 207. tio'^ (^) by ^^1^ to contradi£l it ; but if he dies after twenty-one. So certified at which time he might by will have difpofed of it, there, though Tordcr 'pre ^^^ ^^^ ititeftate, it fhall go according to the ftatute of diftribu- ced. Chan, tions, between his mother and furviving brothers and fifters. i;57. S. P a Vein. 559. S. P. S.ec 3 Will. Rep. 318. in a noie S. C. cited. Although he devifej it away at the age of 17. (i>) But if a man marries an or[)hai), who dies under twtnty-o;:e, her orphan- age part fliall not furvive to the other chiiJrcn, but /hall go to the hufbind. Vern. iS. But -vide Preced. Chan. 537. cent.. [If a man marries an orphan, and dies 5 his reprefentatives are not en- titled to any part of what was his wife's cu.lcmary /hare, but the whoie belongs to the wife. Vin. Abr. tit. Cujiomi of London, (B. 10.) 18. J Abr. Eq. But if a freeman of London dies, leaving two daughters and a 156. pi. «. vvife, and one of the daughters dies before twenty-one, though Lewen, ''"'^^ "^ divilion and partition ol the perfonal eltate, yet the lur- Ciib. Eq. viving fiflcr fhall have tlie whole of the orphanage part. Rep- 32. Prec. Chan. 370. 37a. Preced. .Bat this cuffcom of furvivorfliip holds only with refpeft to the Chan. 537. orphanage part belonging to fuch child ; and therefore if he by furvivorfhip hath the part of any other brother or filler, fuch part fhall go according to the ftatute of diftributions. Vern. 354. If the daughter of a citizen of London marries in his life -time, ch'^^c I'loT*^ againfl his confenr, unlefs the father be reconciled to her before Yetm Hill his death, (he ftiall not have her orphanage {hare of his perfonal V. Biacket, eftate j and it would be unreafonable to take the cuftom to be Cafes emp. othcrwife. Finch, li^a., it is faJd, the recorder certified that there was no fuch cuftom. iibr. Eq. By the laws and cuftoms of the city of London^ if any free- >54' 155' man's child, male or female, be married in the life-time of his accordingly or her father, by his confent, and not fully advanced to his or in the caie hcr full part or portion of his or her father's perfonal or cuftom- ^^rf^R*"^ ary eftate, as he fiiall be worth at the time of his deceafe, then iLdRa'ym. cvcry fuch freeman's child, fo married as aforefaid, fhall be ex- 4''4. s.c. eluded and debarred from having any further part or portion of Vern. 61. his or their faid father's perfonal or cuftomary eftate, to be had a^alk.426. at the time of his deceafe, except fuch father, by his laft will and S. P. Pre- teftament, or fome [c) other writing by him written, and figned ced. Chan. y^\[\^ i^jj name or mark, ftiall declare and exprefs the value of fuch [(c) It is advancement {d)\ and then every fuch child, after the deceafe of faid to be his or hcr faid father, producing fuch will or other writing, and the father' bringing fuch portion fo had of his or her father, or the value declare the thereof iuto hotchpot, (hall have as much as will make up the fame by any f^ime a full child's part or portion of the cuftomary eftate his or di'hM.and ^'^'^ ^^^^ father had at the time of l\is deceafe, notwithftanding althoiiiih it fucli father fhall, by any writing under his hand and feal, declare b.;inanal. t^a^ fy^j^ child was by him fully advanced le). manacle, or j j \ j fifewhcre. Green's Privll. of LonJ. 53. In Dean v. Deicvar, cited in i P. Wms. 642. it is faid to be fuf- ficicnt ; though written bf the fiiih£r''sbejk-ki'i'prr,or jcriiunt. But the reporter adds a qiiare. (d) The ground of requiring the value ot the advancement to appear in this manner, is, partly by reufon of the dif- ficulty of taking an artount after fuch a length of time, but principally becaufc itcannot be .Ivnown, what h to be broughtinfo hotchpot; and if it docs not appear what the fum was, the other child' en may he wronged. I'tr Lord Haidwicltc, j \'rz. 16. (f) Where tlie hulba;id and his wife, who was a city orpi:an. in coud- dciixUoa Cuflom^ of London. 253 <8eration of lOO /. executed a releafc of their cuftomary fljare to the father, it was holden, that they were barred from demanding any further ftiarc, and thit this releafe was no writing under the father's hand fignifying the advancement. Preced. Chan. 594. — —[So, where the daughter only, being of full age, had, upon her marriage^ for a valuable confideiatian, reKafed her cullomary lliare. Lockyer v. Savage, aStr. 947. So, if the wife be under age, and the hufband and flie, in confidfration of a marriage portion, covenant to releafe her orphanage fiiare, the hufb.ind's covenant is corifidered in equity, on a bill againft the hufband and wife for a fpecifick performance of the aiticles, as an abfolute rcleife, and will extinguifti the wife's right. By an old law in the city, called Jud's law, a hulband h authorized to agree with the wife's father, though (he be underage. Medcalfe v. Medcalfe, z Atk. 63. But the releafe extorted by a father from his fon, merely for the fake of maintenance, and not for his advancement in marriage or trade, is abfolutely void, as a fraud upon the cuftum. Heron v. Heron, Z Atk. 160. So, if a father who has children, fome of age, fome under age, take a releafe from thofe who are of age, the releafe is void, for if the infants do not confent when they come of age, they may engrofs the whole orphanage part in exclufion of the reft. Morris v. Boroughs, i Atk. 399, Wh-^re a daughter accepts a legacy of 10,000/. left her by her father, v, ho recommended it to her to releafe her right to her orphan- age part, which ihe does accordingly ; if the orphanage part be much more than her legacy, though fhe was told ihe might elecft which fhe pleafed, yet, if Ihe did not know fhc had a right, firlt to inquire into the value of the perfonal ellate, and the quanium of the orphanage part before ihe made her eleftion, this is ia material that it may avoid her releafe. Pufey v. Delbouvrie, 3 P. Wms. 316. A freeman of London having advanced his daughter with a por- Abr. Eq. tion, and intending to exclude her from any farther fhare (on ^^i'o^"?^ fome difpleafure taken againft her) made his will, and thereby re- decreed, * cites, that he had advanced her with 300/. and [a) upv/ards, Twheiea gives her 5 j-. and no more, and died -, yet after his death, the gj^'lf^'j^"'^* daughter on a bill brought to have the faid 300/. made up u child, 'ii moiety of his.eftate (he having no other child, and the cuftom advanced, not extending to grandchildren) had a decree accordingly ; for ""j^'l^^^^f the words, and upwards^ are certutn in incerto, and not to be re- tie advance- garded, though it was obje6ted it might be 1000/. or 2000/. or ment does any other fum above 300/. he AaiThe* deemed fully advanced. Cleaver v. Spurling, z P. Wms, 517. Fawkner v. Watts, 1 Atk. 406. Elliot v. Collier, 3 Atk. 526. 1 Vez. 15. S. C. i Wilf. 168. S. C. And advancement in marriage with a firft hulband who died in the father's life time, is a bar to a fecond hufband. i Atk. /106.J (a) Where the father by his will declared tiiat he had given icoo/. to one of his children, 1000/. to another, &c. in full of their orphanage part by the cuftom, fuch declaration is fufticient to let them into the'r full cuitomary fhares, on bringing thefe fums into hoichpot ; but it feems that the parties con- cerned are not fo far concluded by this declaration, but may give in evidence that more was received fay the children than thus expreffeJ. Preced. Chan. 4.70. 471. [Parol evidence of the father's decla- rations with refpedt to the advancement, can in no cafe be received : but declarations of the hufband, or of the wife during the coverture of the firfl hufband, are admifTible. 1 Atk. 407. J A [b) fettlement of a (c) real eflate on a child, is no advance- Chan. Ca. ment, nor to be-brought into hotchpot. jff • , .^ ' b r (i') A devife of the real eftate to a child, does not bar fuch child of the cuitomary fhare. 2 Vern. 7i;3. [But where a freeman by will charged 1500/. on his real ellare for his daughter ; and gave her a fhare of hisperfo- nal eftate J the court would not allow her to take the fum charged on tlie real eftate, and alfo claim an orphanage, but put her to abide entirely by the will, or by the cuflom. towper v. Scot, 3 P Wins. 119] (c) Or money agreed to be laid out in the putehife of lands. Vern. 345. 2 Chan. Ca. ii8. Abr. Eq. 153. If upon a marriage tre?-ty A. a freeman of London, covenants Abr. Eq. to leave his v.'ife 2000/. at his death, 2000/. to his eldeft fon, and ?.^'°" 1000/. a-piece to his younger children, and dies, leaving feveral Peait. younger children ; the 1000/. a-piece to the younger children being due only by covenant, is a debt on the perfonal eftate, and not being to be paid till after the father's death, is no pvovifion or advancement within the cuftom of London, to bar them of their cuftomarv or diftributory {hares. J [If 254 CuDomjEf of London. Weyland v. Weylaiid, jAtk. 632. Car V. Car, [If a frecmati by will gives 200/. to his fon, and in his lir i 21S. S. p. execution. (^) Need not be in a (hop. Show. Rep. i?4. {^) EutU'ihe ^\ife ufe' the fjme trade that her hulb.incl does, Ihe is not within tlie cuftom. Mod. io, (c) Put icmuii be in the courts ct the city. Moor 135, 136. Cro. l:liz.409. [4 Term Rep. 361. S. P.] If the wife of a freeman, who is a fole trader, contracts a Shnw. Rep. to. (F) As It relates to Landlords and Tenants. "D Y the cuftom of London a tenant at will under the yearly rent -'^ of 40J. fhall not be turned out without a quarter's warning ; and fuch tenant paying above 40 x. yearly rent, (hall not be turned out without half a year's warning. Moor, pi. But a cuftom that tenant for years fliall hold for half a year l^J' after his term ended, is not gooci. Palm. 212. » t> (G) Of the Cuftoms of London^ which are in furtherance of Juftice, and for the more fpeedy Recovery of Debts. Hob. S6. "D Y the cuftom of Louden a creditor may, before the day of pay- ^m'j^^- ment, arreft his debtor, and oblige him to find fureties to pay If vide ^' the money on the day it ftiall become due. Roll. Abr. 555. Cro. Eliz. If a contrail be entered into by two citizens, and oiie of them, 4°9- who is thereby obliged to pay a fum of money, die inteftate, his Roll! Abr. adminiitrator fhall be obliged to pay it in the fame manner as if 557- it were a debt by obligation. Leon. 166. If A. and B. are bound as fureties for and with C to Z)., and Moor, 136. i[) recovers againfl A. in London^ and has execution againft him, A. may there fue B. for contribution tit uterque eormn oneretur pro rata according to the cuftom of Londouy and therefore ■where fuch aflion was removed in B. R. by writ of privilege, the fame was remanded, becaufe otherwife the plaintiff would be without remedy, for by the courfe of the common law no a6lion lies. (H) Of the Cuftom of Foreign Attachment : And herein, I. Of the Nature of the Debt or Duty which may be attached. (a) Roll. "nY the [a] cuflom oi London, xi A. is indebted to 5., and C. is {^y'carth. indebted to A., B. upon entering a plaint againil A.^ may at- 45. tach the debt due from C. (who is called the garnifhee) to A., and (f ) For the this [b] cuflom of foreign attachment is to no other purpofe but V^ranomi^e' *^ Compel an appearance of the defendant in the a£lion ; for if debitum, he appear within (r) a year and a day, and put in bail to the ac- -bide Cro. tion, the garnifhee ii; diicharged. Eliz. 713. ° o Leon. 5Z. Roil. Rep. ic6. Roll. Abr. 551. Roll. Abr. The garnifhee may plead this cuflom of foreign attachment to c?o.' Eliz. ^" a(^ion brought againft liijai by his creditor, but then the plain- 598. 830. tifF CullOms? of Lojidon. 259 tifF mny traverfe the cnufe thereof, and that he was not Indebted to him who attached it. Such goods cannot be attached, of which the party had no pro- 17 E. 4.7.b, pertv at the time of the attachment. ^°'^- ^^^ So, if A. be indebted to Z?., and J. S. a ftranger, takes by tort certain goods of A. as a trefpaficr, B. carinot by the cuftom at- tach thefe goods in the hands of J. S. for the debt of A.y be- c'lufe the property is out of A. at the time, and he had only a right in him. A lesacv cannot be attached in the hands of an executor bv Roll. Abr. /- • • • ' "NT foreign attachment; becaufe it is uncertain whether, after debts 55'- „ °^* paid, the executor may have aflets to difcharge it. If A. be indebted to B. by obh'gation, and B. be indebted by Roll. Abr. contracl to H., and B. die, and his adminiftrator demand the debt 551- ^P'"'' upon the obHgation of -^., who promifes him tliit, if he will for- roII. Rep. * bear him for a month, he will pay him then, but he does not pay 106, S.C. him accordingly, and after H. bring debt in London againft the adminiftrator upon the contradt (as he may there by the cuftom) the debt of A. due by the obligation may be attached in the hands of the adminiftrator; for notwithftnnding the promife broken, yet the debt continued due by the obligation, and a recovery upon the obligation will be a bar of the aclion upon the promife, in which all fnould be recovered in damages. If A. lends B. 100/. to be repaid him upon the death of his Roll. Abr, father, and after the death of the father of B. this 100/. is at- ^^^^^^'^ tached by force of a foreign attachment;, and after A. brings an adjudged * adllon upon the cafe againft B. for this money, this foreign at- uponatb- tpchment will be a good bar thereof, though the cuftom be to ""eignat^aca- attach debts, and this is an aftion upon the cafe, in which da- Exeter, mages only are to be given, becaufe this is a debt, and he might where the liave an action of debt thereupon ; and therefore, inafmuch as fi^j'°J^_g\s this is well attached, he ftiall not defeat it by bringing an action in London, upon tlie cafe. If y^. fells certain ftockings to B. upon a contraft, for which B. is Roll. Abr. to {rive 10/. to A., and if he fells the ftockintis attain before Auguft, 55^- -"^- ti ', oo_ &> J ' and Haw- dfter that he ftiall give twopence more for every pair of tlie ftock- kins. ings, the 10/. is attachable by foreign attachment, becaufe an Action of debt lies for it, but the twopence for every pair of ftockings is not attachable, becaufe this refts only in damages, to be recovered by an adlion upon the cafe, and not by aftion of debt, becaufe it is made payable upon a poiftbiiity. If there are feveral accounts, ^c. bet\^'een A. and B., and A. Vent. T12. dies, and his executor and B. fubmit to the award of J. S., and ^^<'^^"^ hf. awards that the executor ftiall deliver certain goods, of which Ltv. •jgS.' A. died poftefled, to j5., and that B. ftv.iU pay the executor 300/. S.C.^ t.'iis money cannot be attaclied in the hands of B. for the debt of A. ; for upon the matter the executor being liable to dcvaf- tavity ought to have remedy in his own right for the fum awarded. \{ A. is indebted to B.^ w;io i^, indebted to C, and B. aligns ^]o■^.^^'L. the debt ox A, to C. in farisf.ad-tion of his i.?'':^^ \ nov,- the debt due '^"■'' ^""^ o X Irom 26o (Euftomis; of London. from A. is become the riglit and property of C-, and B. hath no- thing but in truR for C, and tlierefore it ought not to be attached for any debt of 7i., and upon the fpecial matter flicwn the lord mayor ought to give relief. Roll. Abr. In an aclion of debt for tobacco, in the detinet, a debt can- 5 53- not be attached within the cuflom, in f.itisfaftion thereof, be- thcvaluJof caufe it does not [a) appear of what value this tobacco was, the tobacco fo that it might appear that the debt is but a f;itisfaclion to the had been value, which cannot be fupplled by a plea in bar made in another aveiied in r-. • • /i i • • ^ r ^ i i i i ,.,.11 the record actiou agamlt hmi, m whole hands the debt was attached. of the attachment, t!ie debt might have been well attaclicd in this adion. Roll. Abr. 554. £f fUe Jon. 406. Roll. Abr. A debt due by fpeclalty may be attached by the cuflom of ^5^* London^ bccaule the attaclunent may be pleaded if an action be Cro^.°Er'z'!° brought for it in the courts at TFtJIviinJicr^ but a debt {h) reco- 63. Leon, vered in any court in IVtjlniinJht- by {c) a judgment cannot be at- *^' '^'^^- tached by the cuftom of London^ becaufe the party has then no (/') At>er .■',,. r 7 iiiue joined time to plead it. 5n an a 5 3* , ^ Over, 247. any remedy. 3 wiif. 297. 2, la CuQoniiQf of London, 261 2. In wliofe Hands, and at what Time, the Attachment may be made. If A. i-ecovers a debt againfl: B. in London, B. may attach this Roll. Abr. debt in his (a) own hands for fo much due to him. S';^- Cro. ^ ' E iz. 1S6. [a) Whether a debt owing to a company is attachable, for the debt of the company. Mod. 212. dubi- tiitur. By this cuftom a debt contra6^ed without the jurifdi£lion of Car-.h. 75, tlie city may be attached, if tlic debtor is found within the jurif- ^^'^ ^"',!/ diclion, for every debt foJlows the perfon of the debtor. rqH. ^'br. 55^. An obligee before the debt is due by obUgation cannot by the Roll. Abr. cuftom attach a debt for it, becaufe he cannot aftirm a plaint for 5S3j ^ the firil debt before it is due. s.c. But if B. is indebted to v^., and C. is bound to i?., but the day Roll. Abr. of payment is not yet come, A. may attach this debt in the hands 55^ ^ of C [b) before it is due to B. ^ ^,]d'e Cro. Eliz. 184. Roll. Rep. 105. Cro. Eliz- 71 3. Noy 6S, (i) But the cuftom fo to do muft be fpecially alleged. Roll. Abr. 1553. ^'^'i ^^' — -'^"'^ the judgment fliall be, that he ftiall be paid when it becomes due. Roll. Abr. 533. Sid. 327. So, if A. lends money to B. to be repaid upon the death of the Roll. Abr. father of B.y and after, an action is brought bv C. againft A. and 553- after, the father of B. dies, the money due by B. to A. may after be attached in the hands of B., though it was not due at the time the plaint commenced againft A., inafmuch as it became due be- fore the time that by cultom the procefs is to be granted againft him in whofe hands it is attached. If in debt upon an obligation of loo/. conditioned for the Sid. 327. payment of 50/. at a day, the defendant pleads, that before the s^^^^'a^d''"'^ day of payment of the 50/. it was attached in his hands by a t^c) if the creditor of the plaintifF, ^"r. and that after the day upon 2. fare attachment^ facias againfl him according to cullom he paid it ; this is a good ^ ^ ^^'j' "' bar of the (r ) whole, becaufe the attachment being made before it might ' the day of payment, it became a debt to the creditor, and the havebeea obligee could take no advantage of a breach of the condition \^^ ^^ f"' aiterwards. mucli. 510.317. S'-i^Wtf Godb. 196. Owen, 2. Moor, 598. 3. Of the Form of the Proceedings in a Foreign Attachment. By this cuflom the pluintiff mufl fwcar that the debt is bona Roll. Abr. fide due to him; but it is not fuflicient to allege that he fwore ^^^- f^'^^' that the debt was a true one by himfelf, or his attorney \ for the jon.^oo'.' attorney's fwearing is not according to the cuftom. If A. afiirms a plaint againft B. and upon nihil returned, it is Cro. Eliz. furmifed that C hath money in his hands due to B. Butforthis If, after a prohibition to the fpivitual court, the party proceeds D f';-''^ in fuch court, tlie plaintiff upon his declaration upon the prohi- and -vide uttion, or upon an attachment, (hall recover damages. Roll. Abr. 575. Jon. 477. Cro. Car. 559. zjon. 12S. Raun. 307. Vent. 3.48, 350. 3 Lev. ■360. (B) What Perfons are entitled to, or ihall recover Damages. i5H.7.4.b. tF lefTee for years be onfted, and he in the reverfion dilTelfed, = init. .-.S5. 1 3j.,^| ]^g j,^ ^Y\c reverfion recover in an affile, yet he fliall not recover dam.ages. Roll. Abr. So, i( after the oufter he in the reverfion enter upon the dllTcIfor, '^^^' (as he may by law, to fave a defcent), and after tlie dlfTeifor re- enter upon i)im, and he recover in an aflize, yet. he ihall not have any any damages ; for the re-entry of him hi reverfion reduces the ellate to the leflee, and then the damages for the profits belong to him. If tenant for Hfe, and he in reverfion join in a leafe for life, Co. Lit. they may join in an adion of wafte ; and tenant for hfe Ihall re- 4^- ^• cover the place wafl;ed, and he in reverfion damages. In debt by baron and feme, upon a bond made to the feme dtim Cro.Eliz. foby they fliall recover damages («) jointly. annffii'e'by" baron and feme, if it be found they were diflcifed, they ihall recover damages of the JlTues in common, ) I H. 4. 16. b. Roll. Abr. 570. — In trefpafs by ba/on and feme, far iinpiifoning the feme till a fine* paid, for ail the trefpafs, but the fine, tliey Ihall recover damages in common, Bro. Damages 51. Roil. Abr. 571. * Shi. As to the fine, that being to the particul.\r and exclufive damaije of the hufband, if it iti not the proper fubjedt of an adtion at his fuit alone ? So, in trover by baron and feme, executrix of ^. for goods of Styl. 4S. A. they fliall recover damages jointly ; for the pofleihon of the wife, as executrix, was alfo the poflefTion of her hulband, and the damages recovered (hall be to the eftate of the tellator, and fo may concern them both. If two jointenants bring an aflife, and the one is fevered, if it itH.4. 17, be found that the other had goods taken upon the land, he fliall ^''|'" ^^[^^ recover fole damages for them f . owner of the go ids may maintain an adlon alone, for diem. (C) Againfl whom Damages (hall be recovered. "DY the ft:atute of Ghuccfa-^ made^^E. i, cap.i. "Whereas (i) Owen, ^ " before damages were not avi^arded in aflifes of novel dijjl-iji?7y ''^- ^^''* *' [b) but only agauill the difleifors -, it is provided, that if dif- ir'ameired, ' " feifors [c) alien the lands, [d) and have not whereof damages for, by _ " may be levied, (^) they, to (/) whofe hands fuch tenements ^^^p^d'sJo " fliall come, fliall be charged with [g) the damages (/-•), fo that aiithatcome " (/) every {k) one fliall (/) anfwer (w) for his time, provided that "[""ier the " the dillcifee fliall recover damages in a writ of entry, Izfc. Sc'oJ''^ wrong. % Inft. 284. So, if the lord diftrains for rent, and a ftrar.ger refeui:?, though the ttrangeris only a difleifor in an afTife agaiuft him and tiie tenant ; if the ftranger is found infuflicicnt, the tenant ihall anfwer in damages, though he claims not from the diffcifor. alnlt. 284. {d) The tenant fliall be charged only where the difTeifor is infufticient ; but if able to pay part, but not the whole, both fhall be charged ; therei^ore, the judgment is always given generally againlt both. 1 Inft. iS:;. [c] I^ands held in capite were aliened to J. S., who died, his heir within age ; and the king committed his cuftody to B,, who t.'olc the profits, the heir was no tenant witliin the ftilute. 2 Inft. 284. Scci,r, if aliened to an infant, who took the profits, or if, coming in as heir, he had been out of ward. 2 In!t. 284. (/) Yet rhtfe general words fhall not charge thofe with damages who have an eftate caft upon tliem by law, unlefs they confent thereto, as the heir of the alienee, by refufing to take the profus, may dilchaige himfelf of the damages, i Inft. 284. So, if diiieifor enfeoffs A. and B., and makes livery to A. only, and A. dies, if .B. never afTented, he may waive the polieffi Jn, &c. Inft. ',60. 2 Inft. 286. [g) And where by fubfcquent fta':utes double or treble damages are given in an cffife, they (hall be anfwered by every mean tenant accordingly, and foi their infuffiiiency by the tenant. 2 Inft. 285. {h) In an alfife, but not in a writ of entry, f-.r ihat is to be brought ag.unft the tenant only, and this claufe refers only ct> the affile. 2 Inlt. 2S6, 287, (i) If named in the affife ; otherwife, if the difielfjr i'^ found infufticient, the tenant (T-.ali be charged with the whole. 2 Inil. 205. But if found, that the dilTeifor is infuflicient, and that he enfeoffed A. who en'eolfed B., wh-) cf'fsoffed the tenant, and that yl. bad it one ycarj and B. an.'ther, and the tenant another, the tenant Ihall be chargcH for his own time only, and the plaintiff fliall lofe his damage againft A. and B., becaufu not named in the wjit. 7, Inft, 285. (*) Tenant for yeajs, or by ftatute, &c. is no mcfne occupi.-r within the adf, unleGi the aliiU; is brought by tenant by ftatute, &c. 2 Inft. 284. (/) If they luve fulScient, otherwife the tenant muft anfwer for the wnoie. 2 inft. 2S5. (.V.) Yet loverr.! juig.lierits fhall not be given, but one jud^mcntentiiely againft all, .iccort!- ing ^66 jOamagcjef* }ng to the ufjgc ; but the IherlfFupon the execution may ufe fuch indifferency as juft'ces require. 2 Inll. 285. li the fliorift returni. that the dilFeifor is iniufficienc, procel's ftiall iffue to levy it of the tenant, ainft. 2S5. (d)Thisex- ** By the fame aft the (a) difleifee (hall recover damages In a tends not to cc ^y^it of entry (^) agaiuft {c) him that is found [d) tenant after z'lnit'i'se. the diffeifor." But by a lubfcquent claufe in this a<^, where he recovers the land againfl; the difleifor, he fliall have damage, (i) Extends not to him tha: has an eftate by law caft upon him, if he waives the poffefTion. #0. Lit. 360. 2 Inft. 286,287. (c) If brought againit two jointenants, and one difclaims, and the other takes upon him the whole tenancy, and pleads, &c , he fh.ill anf.ver the whole damages. 2 Inft. 287. (d) The difleifor enfeofts A. who enfeoffs 5., and in a writ of entry in the per and cut vouches^., who pleads and lofeu, judgment fliall be given againit the vouchee, becaufe he is found tenant in law. 2 Inft. 287. a Inft. 289. In a writ of partition by one coparcener againft the other, no Noy, 68.* damages fhall be recovered, though the defendant hath not been vide talc ,°. . . J ' °. . Coparcenen. ^t ail tmies {e) ready to make partition. (e) If a man will avoid the damages, becaufe he hath been at all times ready to render the thing in de- mand, he ought to come at the firft day. 17 E. 3. 71* In detinue againft an executor, fuppofing it to come to his hands after the death of the teftator, the defendant may come at the grand d'.ftrefs, and fay, that he hath at all times been ready to deliver the writing after the time that it came to his hands, and thereby fave damages againft him. 2a Ed. 3. 9. Roll. Abr, 574. (D) Of aflefling the Damages : And herein, I. Of the ^lantum of the Damages the Jury may give. Tii/fMoor, TN all aftions which found in damages, the jury feem to have a 419- difcretionary power of giving what damages they think pro- OweiT^i.^' P^'- *• ^°^ though in contracts the very fum fpecified and agreed on is •Vent. 267. ufually given, yet if there are any circumftances of hardlhip, fraud. Where mo. qj. deceit, though not fufficient to invalidate the contrail, the inrep^airs" j^^y "^^7 confidcr of them, and proportion and mitigate the da- ihaii be re- mages accordingly ; as, in cafe upon a policy of afTurance, which covered in ^^33 ^ cheat, for an old vefTel was painted, and goods of no va- Godb! <;'3. ^"^ P^^ ^" ^^ veflel, and about 1500/. infured upon it, and then Where in the fhip was voluntarily funk {f). So, on an atlion brought on a trefpafsfor promife of looo/. if the plaintiff fhould find the defendant's ciofe, &c. owl ; the court declared, though the promife was proved, that the court the jury might mitigate the damages ; alfo on demurrer, by which refuied to jj^g promifc is confefled, the jury may confider of the circum- gj-antanew _r ■•• , •''^i-, writ of in- Itances, and mitigate damages accordingly. quiry, becaufe the damages v/ere too fmail, the fuing forth the writ being the plainti^T's own a(ft. 2 Leon. 214. But fcr this fi Sandiford a.id Bean, Eftj. If the tenant vouches, the demandant (hall not recover more 8H. 6,. n. damages againft the vouchee than he hath counted of ; for the Ro^^* Abr. vouchee comes in lieu of the tenant, and the judgment is given againfl; the tenant. But the plaintiff in detinue may recover more damages againft S h. 6. 5- the garnifliee than he hath counted of, for his count was not "* ' againft the garnifhee, but againft the defendant, and damages esi. s. c! azainft him are for the delay after the count. Roll- Abr. .... . 57S-S.C. In trefpafs for refcuing a diftrefs, to his damage fo much; If 21 E. 3. the defendant juftifies the refcous upon fpecial matter, upon t"'.,"' , which it is demurred for the plaintiff, he (hall have damages as ._§.' '^.\ \^ he hath counted of, {h) for the defendant hath acknov/ledgeJ the ceot for trefpafs, and hath not denied the damages. d?e°*V^6"* for not fetting forth tithes, if the defendant pleads the 31 H. 8. c. 13. § 21-, and that the lands were difcharged in the handi of the prior of £. at the time of the dilfolution, &c. and thereupon iffue taken; and at the trial the defendant cannot make good his plea ; the value fttail be taken as confeiled, be:aufe tiie ilfue.is jo.ned upon a collateral point ; and the defendant took not the value by proceftacicn. Allen %%. Rulea upon a trial at bar, and a verdict given for 2co/. V'lde^o^X. Abr. 572. Where the jury finds greater damages tlian the party declares Y2!v.45, of, the court may, to prevent error, give judgment for fo much t^'j ^"' * as the party declares for, mdlo habltu r.fpeclu to the reft, elfe the cannot be party may releafe the U) overplus, and take judgment for the enured in a n. term liibfe- quenttothat in which the judgment is entered. Wray v. Lifter, 2 Str. mo. Chevely v. Morris, 2 Bl. Rep. Alfo, though the jury cannot regularly give the plaintiff more F;r this damages than he hath counted of, yet may they award him cofts ""'f'f '°^°' diftinct and feparate from the damages; and though fuch cofts Cro. Ej'iz, (f/) exceed the damages laid in the declaration, yet ftiall the plain- 563. 2 RoiL titf recover both ; for the damages are given for the v.rong, for crTjti^.'Jt. which 268 H^ama0cjsf. Yeiv. 70. which the a£Uon is brought, and the cofts for the charge of the ft'' tn' ^"'*' ' ^^^^ °"^ before the fuit, and the otlier in and for the fuit. t'uie z Inft. a 58. ((/) Where the jury m.iy give 10/. cofts, though tliey give but 10/. damages on the ftatute 2 J Jac. 1. c. 16. Salk. 207. and -vide tit. Co/is. 3. Mud be afleflcd purfuant to the Plaintiff's Right, or the Injury- he has received j and herein of aflelhng entire Damages. 30 Co. 117. If in a writ of entry fur ihJJVifuiy or in nature of an afFife, a writ of inquiry of damages is awarded, the plaintiff fhall recover his damages but from the time of the dillcifin to the time of the award of the inquiry of damages, and not after, though the writ of inquiry be not ferved till feven years after ; and if in fuch writ an ilTue is joined triable by verdi6l, lie fliall recover damages but from the time of the difleifm to the time of the verdi6t. 10 Co. 1 17. But in z pracipe quod reddat, of a rent of the poffeflion of the ^erfo^iUc <^^'"''^^^dant himfelf, he fliall recover arrears as well ((7) pending tions the the Writ as before ufque diem judicii redd'iti. plaintifl- /hall recover damages only for the tort done before the adlion biought. lo Co. 1 17. C0.Lit.257. The diflefee, in an a£lion of trefpafs, may recover damages for the firft entry without any regrefs. Co.Lit,257. But after regrefs he may have trefpafs with a continuafuhf and Abr.\co°."' ^^''^^'^^^ recover for all the mefne occupation as well as for the firft entry. Co. Lit, So, in an a£lion upon ^ R.i. cap. 7. for entering into land, ~^^' '• iibi ingrejfus non datur per legem tcm?^ the plaintiff flaall recover damages for the firft tortious entry only. Co.L)t.257. But in an adlion upon ^ H. 6. cap.g.^ where one enters by force, or enters peaceably and detains with force, or when one ^ enters with force, or detains with force, the plaintiff without any regrefs fliall recover treble damages, as well for the mefne occu- pation as for the firft entry. Hob. 189. If in cafe, for not grinding at the plaintiff's mill, the plaintiff jHarbinand fiej-iveg j^jg (-jjig under a leafe made to him 1 1 Jac, and then fets Moor, 8S7. forth, that the defendant at feveral times, from 2 Jac. to 12 Jac. ,s. c. did grind his corn elfewhere, he cannot have judgment, though 1 Td Raym" ^^^^^ verdi, aL the •words in fome of which ate not aftlonable, and there is not any fpecial damage laid, or if laid, not found, andagtrner.il verdift U taken for the piaintift", (except as to the fpecial damage, if any laid, and that is found for defendant,) the judgment will be erroneous, and may be avoided, by motion in arreft of judg- ment, or reverfed, on error brought. [It is the rule of the court of C. P. in itWird a venire faciei dc novo in fuch cafe, upon payment of cofts, that tiie plaintiff may fever his damages. Anger v. Wilkins, Barnes 478. Smith v. Haward, Id. 4S0.] Moor, 708. But if the action "be brought for feveral words fpoken at feveral pl. 9S7. times, and the a6lion will not lie for the words fpoken at one _jo. * time, but will lie for the words fpoken at another time ; and upon Bulft. 37- not guilty pleaded, a verdicfl be found for all the words, and entire 3Bulft.283. [damages given ; this is not good. 3ecfiipray n. 237. 328. Hutt. 131. Roll. Abr. 576. 10 Co. 130. If the plaintiff declares that he bought of the defendant dlverfa a. i32.b. hotw ^ caiallai "uiz. untim fulcrum lecf't ( Aiwlice a field beddead) {a\ Trover -.i. . a j . • '^r /• ^- r . \ deunoriLo ^ifh a teitcr and curtams 01 Jay, imum cmiopiiim ( vocat. a canopy) (Anglke a ^r, and that the defendant afllimed to deliver bona prad., but had trunk full j;,Qf^ i^^.^ gj^^l there is a verdi6l for the plaintiff, and general da-^ &c.) and mages given, it Ihall not be prefumed that any damages were damages in- given for the teftcr and curtains, which [a) Were not alleged/o/'- tendedtobe fi^'^g . j^^t or\\y expofttwe and this expofition is too extenfive, for the trunk fulcrum fignifies the bedftead only. only. Cro. Jac. 665. z Roll. Rep. If in an action upon a covenant divided into two [b] branches, ^'J" ?^"' the breach is afTigned in one part only, ^V. and the jury affefs {h) A.' ' damages generally />;'(? yr. juc. though not in iffue, and the jury cannot find [a) more than the 353- plaintiff has declared for, and aflefs damages for it. they give damages for what they have not found. Bulft, 64. If in trover, inter aim de una falfura ( Angl'ice a faking trough )y SW. 98. there is a verdi£t for the plaintiff and entire damages ; the decla- p^^'^^', ration as to the trough being merely in EngliJJj, the damages fhall 10 Co. 1^3. be intended given for the other particulars -, but if the defendant Raym. 15. had been acquitted of the other things, and exprefly found guilty 3^^^ 356- of this, it would have been otherwife. 317. If in an avowry for rent due in money, and alfo for fo many Carth.437. hens, it appears on the face of the avowry that the hens were not ^"""^^ and due at the time of the diftrefs taken ; although there are entire judged,' and damages and cofts, yet the plaintiff may releafe the damages and a remittitur tent for the hens, and take iudement only for the rent in ^nJ^eyed ac. ' /- coraingly» money (^), but need not releafe the cofts. (^) Byars and Newton, Trin. 28. Car. Rot. 718. S. P. faid to be adjudged. If an aftion upon the cafe is brought [c) upon two promifes (^), Roll. Abr. and both are found for the plaintiff, the jury may give entire da- ^^- ^°"* mages for both, for this is at the peril of the plaintiff; but if the ., buU. 258. a£tion does not lie for one of them, the plaintiff" (^) fhall not have s.c. the judgment for the other (/). ^^^^^^^^ on demurrer and entire damages aireflcd upon a writ of enquiry, [c) So, in other a£lions upon the cafe. Moor, 707. pi. 9S7. Cro. Eliz. 560. Hob. 1S9. lo Co. 130. Moore, aSi. — So,indebt. Brownl. 70 — So, in trefpafs. Styl. 174. 182. 39Q. jLeon. 215. Cro. Car. 21. Godb. ^7. — So, in cove- nant. Cro. Eliz. 685. Cro. |ac. 439. Sand. 155. —And for this -vide 5 Co. 108. a. 10 Co. 130. 3Bulf. 231. Hetl. 51. 53. Lit. Rep. 61. Styl. 198. Cro. Eliz. 59. Cro. Jac. 239. Sid. 38. Moore, 281. [iStra.621. Fort. 376. Andr. 21. 2 Ld. Raym. 1381.] () taxed. (6) And the plaintiff hath election to lake extcuiion de melkribus damr.h. 3 Mod. 102. Cro. Car. So, where they plead feveral pleas, as in an aftlon of battery, if 239.^ Waifh Qj^g pleads not guilty, and the other juftifies, and both iflues are g^Mod.'ic'z. found for the plaintiiF-, in fuch cafe he may enter a nolle prof. S.C. cited, againft one, and take judgment againft the other, becaufe their pleas are feveral. J I Co. 6. b. If in trefpafs againfl: two, one appears againft whom the plain- Roll. Rep. tiff counts J^w/// cum, i^'c. who pleads, and is found guilty and da- loCo*. 1*19. mages aflefled, and after the other appears and pleads, and is found guilty, he fhall be charged with the damages taxed by the fir ft jury. II Co. 5. b. If In trefpafs againft j4. B. and C. for a battery and wounding. Sir John ^^ appears, and the plaintiff declares againft \\\myfiijwl cum, ^c. cafe ^Cro. ^"^^ ^' pl^^ds not gulIty, and a ve?ure IfTues, ilfc. and after B. Car. ir2. appears, and the plaintiff declares againft him. ftmul cum ^ and B. Like point pleiuls not gullty, and a "vetiire iflues, and both thefe iflues are ©"mayhem. ^"^^^^ at the fame afllfes, viz. that againft A. is firft tried, and (f) In tref- 200 /. damages given \ and after that againft B. is tried, and 50 /. pafs ags'n't damages given ; and after C. appears and confefles the a£lion, c' yi.\ni ^"^ 2 writ of inquiry is awarded upon the roll, but none iflues, B. juftify ; the U) plaintiff at his ele£lIon may have judgment for the damages uponwhich given by the jury, and tliis ftiall bind all, for in judgment of law demurier, the feveral juries gave their verditl at the {^\me time. and C. pleads, thereupon iiVue is joined, and the demurrer is adjudged againft y^. and B., and upon writ of enquiiy damages are given ; and after, the ifliie is found f Cur. Cro. Jac. 350. S. C. adj.jdged upon a writ of error ; and the firit judgment affirmed accordingly, becaufe the writ h entre, and the defendants are all charged with one battcrv, though the declarations are feveral. Roll. Rep. 30, 31. S. C. [i Wiir. 30.] Noke V. [So, where two defendants In ajfumpftt fevered in pleading, and ^"w-""'' ^^^ ^"^ pleaded a bankruptcy, which, on iflue joined, was found ^* for him, it was holden, that the plaintiiF might enter a nolle profequi as to him, and ftill proceed to final judgment and execu- tion againft the other.] Cro. Jac. In trefpafs for an aflault, battery and wounding, the defendant thVdam"''e/ V*°^'^ ^^^ battery, and wounding pleads not guilty, and quoad the ^"''^ ' aflT-iult 2Damagcj8f. 273 &{lault jUftifies, and both iflues are found again fl the defendant, fliould be feveral damages fhall not be found, for the aflault is included in ^°^^'^ f^**' the battery and wounding. woul" be'dilble. If in trover and converfion of 2coo loads of coals, upon not Cro. Car. guilty pleaded, the defendants are (a) found feverally guilty for 54- feveral loads of coals, and feverally not guilty for the refulue ; the wal"/^ jury mufl aflefs feveral damages (^) ; adjudged upon a writ of er- {a] So, in ror in the Exchequer-Chamber, and judgment againll them feveral- "''^'i'^^s, if ly for damages, according to the verdift, and intire cods. ant is found guilty in part only, and the other in all, the damages ftuU be fev.ral. Cro. Eliz. 860. Brownl. 23^. Bulf. 50. (b) But I'lde Cartn. 20., where it is f^.id that the contrary had b;en lately refo'ved in C. E. between Whorewood and Jackion. [And agreeably to that refolution the law is now fettled. For where the count is ofaj.ir.t trelpalV, and the jury rind the defendants guilty of 3 joint trefpafs, or they all confefs the trefpafs^ the damages cannot be fevered, HIjI v. G( oJth Id, 5 Burr. 1750. Onfio.v v. Orchard, i Str. 422. Lowfield v. Bancroft, 2 Str. 9:0. Witcheli v. Miibank, 6 Term Rep. 199.] In trefpafs and falfe imprifonment, and impofing the crime of Carth. lo. treafon on the plaintiff, againft ^. B. and C. B, confeffed the ac- f'"^^^U'. tion, '^. and C. pleaded jointly not guilty, and were found guilty ; adjudged in* the jury aflefled damages, ^'/2;, loooA againft y/. and 50/. agaiidl B.R. Fafch. B. and C. each: and the plaintiff entered a nol/e profequi as to B. ^ J* ^ ' f"*^ j/-> J 1-1 ■ CL A 1 r ^ t • arnrmeu in and C, and took judgment aganiit A. only tor the icoo /. : it was the Exche- holden, tliat the defeft of the verdict was [c] cured by the JicUe quer-cham- profequi \ for as the plaintiff might have brought his a^lion againft f^l^u''"/- them jointly or feverally, lb it is but reafonable that he Ihould have of Lords, the fame eledlion as to the damages ; although it was objected 1 W. & M. that the plaintiff hath ele£lion de melioribus davitiis only where the ?", ^ " " trials are at feveral times, and this was a fact of which t'.ey are raid to be all equally guilty, and that it was a contradiftion to fay that the lately givea plaintiff is injured by one to the value of 50/. only, and by the |j"j^yjg„' other to the value of 1000/. Trobarefoot and Gresnway, 3 Mod. loi. S. C. Cro. Car. 243. Like cafe; wr.evelt is f.;'c], though dsmages ought not to have been taxed feverally, yet the plaintifFrelir.ouirhing his fiMt againft the othe;, it is not mate- rial, no advantage being taken thereof. [Thcugh if (everal damajics be aiTefl'ed in fuch cafe, and judg- ment thereupon entered up, it would be error, yet is it no ground '.o arreft the jurigmcnt. Carth. 15. 6 Term Rep. 159.] (c) Fo* this 'vU, Rait. Ent. 127. 585. b:^. R'-li. Abr. 784. Cro. Car. 54.. [If there be judgment by default as to part, and an iffue upon Tidd'sPr, other part, or in an action againft feveral defcnd.-.nts, if fome of 59'- them let judgment go by default, and others plead to iffje, there ought to be a fpecial veiiire^ as well to try the iillie, as to inquire of the damages, tmn ad triandian quam ad inquirendum, and the jury, who try the iffue, Paall affefs the damages for the whole, or againft all the defendants. In thefe cafes, when the defendants who plead to iffue are acquitted at the trial, the jury, in fome in- ftances, {hall affefs damages againft the defendants who let judg- ment go by default, and in others not. In actions upon contracty as covenant [d), ajfumpfit {e), Isfc the plea of one defendant, for (<0 J Lev- the moft part, enures to the benefit of all ; for the contraft '"-•■^g ^^" \ |"^; entire, the plaintiff muft fucceed upon it againft all or none ; and ^g^. s. c* therefore, if the plaintiff fail at the tri.d, upon the plea of one («•) Ca Pr. of the defendants, he cannot liave judgment of damages againft p*^^'^„'^"' the others, who let judgment go by default. But in a<^ions of loa. s! c. Vol. II. T torty 274 IDamagcjof* 3 Term fort^ as trefpafsy \^c. where the wrong is joint and ieveral, the Rep. 602. cUftin^lion feems to be this, that where the plea of one of the de- fendants is fuch, as fliews the plaintiff could have nocaufe of aftion againfl: any of them, there, if this plea be found againft the plain- tiff, it fliall operate to the benefit of all the defendants, and the plaintiff cannot have judgment or damaged againft thofe who let [fi) 2 Ld. judgment go by default [a) : but where the plea merely operates in Raym. difcharge of the party pleading it there, it ftiall not operate to the I'stra 610. benefit of the other defendants, but notwithftanding fuch plea be {h) 2 str. found againft the plaintiff, he may have judgment and damages 1108. 1 122. againft the other defendants [h). Tidd's Pr. If there be a demurrer to part, and an iffue upon other part, 55^' or, in an action againft feveral, if fome of them demur, and others plead to iffue, the jury who try the iffue (hall affefs the damages for the whole, or againft all the defendants. 2Str. 1140. But if in trefpafs, one defendant lets judgment go by default, another demurs, and a third pleads to iffue, and is acquitted, the plaintiff may affefs feveral damages againft the others. Snow V. If there be a demurrer to one count, and an iffue on the other, I Sir.'oT. ^'^^ ^^ plaintiff be nonfuited on the iffue, contingent damages cannot be affeffcd on the demurrer. J (E) Where the Court may increafe or mitigate the Damacres. o Roll • Abr. T N {c) all actions at njft prius, where damages are the prfncipal, pafs for cut ^^ *^^^ court Can have no certain conufance of the caufe, either ting his by record or other matter apparent, they can neither mitigate nor trees, unon increafe the damages. not guilt)^ pleaded, the court cannot increafe the damages given by the jury, hccaufe it lies not in their conufance. 3 H. 4. 4. Bro. Colts 7. — Nor can they diminiih them, becaufe the trr.rpafi is local, and it cannot ap- pear to them what the djmages were. Brownl. Z04.— So, in cafe for words, though tne court thought the damages exceffive, yer they woiiM not mitigate them. Pa'm 3I4. And thouf;h at firft they in- clined to do ir, yet i::^on great coiifideration they refolved to leave fuch mat'.eis of faft to the trial of the jury, who bell know the quality and eftate of the perfon, and the damages he hath fuitained. 22E.^.ii. But in [d) h^xttery fro ampuiaiicne mafius dextra, the court may KoM ibr"^ increafe the damages, for it is apparent to the court by the record 572. Leon. 3"d (V) viCw of the pcrfon. 1 39. fo done, (d) So, in an ^appeal of mayliem, upon view of tlie mayhem. 8 H. 4. 22. 3 Aff. 30. • In an appeal of mayhem the jury gave 20 maiks damages, and apon view in court, and information of the lurgeons there prefent, the court increafed the d.images to ico/. becaufe he loft the ufe of his hand. Roll. Abr. 572. Freeman and Trevers. (e) It is not futficient that the juftlces o( nlfi prius upon view thereof, certify that he had fuflained damages to lu'.h greater fum ; for the julVrces of the Court, out of vvhich it iiiucs, cannot increafe the dama.es v-ithout their view. 8 H. 4. 23. Roll. Abr. 57^- 3 Salk. 115. pi. 6. Ld. Raym. i-b. But upon a view in fan by any of the juftices of the court into which the nUi prius is leturned, they may increafe damages. 8 H. 4. 23. Bro. Dj- mages 74. 19 n. 6. ro. So, in trefpafs, if judgment be giren upon nihil elicit, and a writ RoJi^ Ab" °^ inquiry of damages executed, the court may increafe or (f) di- 573. Styl, minifli tlie dar.iiges found by the inqueft ; for that they might 310. s. c. liave awarded damages, according to their difcretion, without fuch a-lj"Hged. " ° ■ Ulrlt : adjudged In an a£lion of aiTault, battery and wounding (d) ; ment in the manner of doing thereof being; fpecially laid in the declaration, ^^^^"y ^f , , , . - o » t • • r "°" '"'" '"' though the mqueit gave 200/. damages, yet upon exammation or formatus, furgeons, and upon view of the wound in court, and for the hei- and upon noufnefs of the fact, beinffdone in the high ftreet In the day-time ^^^1^°^ • 1 . , ^ . , ^1 inquiry or With a flilletto, with an Intent to kill him ; and the furgeon by damages agreement being to have 150/. for the cure ; the plaintiitbeing In found, &c. great danger of death, and having loft a pottle of blood, as the •^''''^ "P"'^ r r • 1 1 ■ /-111 ;• ^ motion to lurgeons laid, the court increaled the damages to 400/. in toto-, mitigate the and judgment given accordingly. damages, faid, tliat in fuch cafes they never alter the damages. Lit. Rep. 150. Hetl. 93. Ld. Raym. 176. (a) Otherwlfe, if the wounding be not particularly expreilbd in the declaration, chat the ci)u-t mif judge thereof by the record ; fjr it ought to appear that the wounding was by this bittery, and the par'ty is not to be viewed in court by a bare averment at the bar. Scyl. 345.-^ — So, in an appeal of ;nayhem, when the particulars of the mayhem are not expielTed in the dedaratiDn, the court upjn view of t'le may- hem cannot increafe the damages, uniefs the judges oi r.iji prlui, before whom tried, certify the pirticu- larj of the mayhem to the court j or where tried before ajudge of the fame court, who affirms that thefe are the mayhem? that were proved upon evidence ; otherwlfe r.or. p-Aeji corfiare curia, that thefe are the fame mayhems for wii'ch the pi J ' tainted at the fu't of the party, great and large amends (hall be awarded, according to the trefpafs ; in the explanation of which ftatute, it is faid, that if the damages are too fmall, the court hath power to in- creafe them, t r that the word flitwi properly belonged to the court, a Inft. 200. * If there is a judgment oy default or confelVion, and the certjiniy of the demand appears upon record, the court may alfcfs damages, without awarding a writ of inquiry, it" they will. 2 Sand. 107.— -So, if there be judg- ment for the plaintiffon demurrer. — So, in debt — (where generally, if not always, the damages are no- minal). — But where t!ie demand is not c;:rt.i:n upon the rfcoid, or where the damages a-e not merelj nominal, and judgment is for plain'iff or. (kniuner, by defsulr, or confeflion, and the damages are not confelVed, a writ of inquiry fhould ilVue. SceYelv.i;2. 31.00.213. Lut. 111.213. 1 1 H. 7. 5. b. Cro. El. 536. For damages arc to be proved, by a •viva v.ce examination of witnclTes, which is not tlK proper province of the ciurt- * [But in a<2Jons upon promiflbry notes and bills of exchange, it is the praftice, in''ead of executing writs ot inquiry, to apply to the cr.urt for a rule to ftiew caufe, why it fhuuid not be referred to the maiter to fee what is due for pr ncip^l and interell ; and wliy final judgment Ihould not be figned for that fum without executing a writ of inquiry ; which rule is made abtblute, oil an affidavit cf lervice, unlel's good caufe is /hewn to the contrary. Shepherd v. Charter, 4 Term Rep. 275. Rafhleigh V. S.il.-non, 1 H. Bl. 2;2. Andiews v. BlaUe, /(/. 529. Longman v. Fenn, /e jury gave a verdift, butomitted to inquire of the value of the goods. loCo. irg b. But in Skin. 595, pi. 8. and Salk. 205. pi. 3., this point s faid by H'J-, C. J. to have been otherwife ucternr.ined, but, as bethought, contrary to law, being againft Cheney's cafe. If there be [g) a demurrer upon evidence, though the jury are Cro. Car. thereby difcharged of the ilTue, yet they may tax damages condi- '43- tionally, viz. if judgment fhall be given for the plaintiff, or when ^^j where the demurrer is determined, it {h) may be done by (/) writ of in- there is a quiry, and faid to be the molt ufual courfe where there is a <^^m""erto demurrer to evidence to difcharge the jury without further uVietopart. inquiry, 2 Roll. Abr. 722. (i) Where an omifljon of taxing damages by the jury cannot be fupplied by writ of Inquiry, but a I'ntre faciat de vovo fliall go. 2 Roll. Abr. 321. — Where the court will refuf'e a writ of inquiry, bu: will award a new •venire. 22 t. 3. 5. Roll. Abr. 57 r. (;) Where upon a writ of inquiry the plaintift'is not bound to prove his property. Cro. Jac. 220- Yei. 151. Brownl. 214. If in debt upon a bill obligatory, the plaintiff hath judgment (;^) 2 Saund. by default, the court, by the affent of the plaintiff, which is always l^\\-^°^', entered upon record, may tax the damages occafwne detentionis oway/sid. dekit. (/), but if he will not aflent therev, he may have a writ of 442. s. p. inquiry \ but this eleftion is in the plaintiff, not in. the defendant : ^'^^- ^^'• alfo, it is faid to be the courfe and practice of both courts upon a \k) ?,o, if a judgment in debt (w), by default or confeifion, to tax damages as vercia is well as cofts. ^°""f f"'.^ the plaintift, and the jury do not aflTefs damages, &c. for the debt is certain, and the lofs of the plaintiff apparent. Pyer, ipj, to roarginc.— In replevin, theplaintiff ismofifuit 5 the court, witii^ut a writ of inquiry, may Y 2 afl'efs aflefs dimages, becaiife they accrue not in refpeft of any local matter, but it is the delay in the non- payment of the rent ; fdcits, where judgment ii given tor ihe plaintiff, for he ought to recover tor talcing his cat tie, and the damages m'.e a rule to ftay execution till the writ of error on the principal judgment is tried by certiorari, and mittimus out 01 Lnancery. Every contradl mud be legally [d) entered into, and the {e) con* For this wV< fideration thereof mull be lawful, otherwife an adion of debt will ^'"^.0^0^- not he. (^) If a man by deed acknowledges, that he hath fo much money of y. 5.'s duetto him, in his hands, though here is no contract of borrowing between them, yet y. S. may have an adion of debt againft him. JI H. 6. 39. {e) As marriage, work, foliciting a caufe, &c. -vide Roll. Abr. 593., feverj(l fuch instances ; — but not for money won at play, though an atlion on the cafe will lie ; but for this Wc title Camingy and 5 Mod. 13. If a {heriff levies a certain fum of money on a levari facias^ at the Hob. 206. fuit of J. S., and returns the writ (/) ferved, J. S. may have an ^°^^,^^^* a£lion of debt againft the flieriff, without any a£lual contrail ; for And where the levying of the money to the ufe of J. S. is a contracl in law, it will lie that he (hould pay it over. ^^l, the flierifF, "jidi title Sheriff, and title Executors and Admiiujiratort. (/) Otherwife, where he returns, that he hath t^ken goods into his hands to fuch a value, which remain /.ro defcHu emptorum. Cro. Jac. 514. 2 Roll. Rep. 57. Godb. 276. And i/fi/« March, 1 3. But if he returns, they were reicued from him, he fhall be charged j foi he might have taken the fojj'e cemitatus, Sa. a Saund. 3431 Cro. Jac. 514. Godb. 276. T4 If 28o K)clt Roll. Abr. If (a) a {latute prohibits the doing of a thing under a cer- 59S tain penalty, and prefcribes no particular method for the recovery li. ^\^.\. thereof, the party entitled to the penalty may recover the fame againllprac- by atlioH of debt, tifing phy. fick without licence. 2 and 3 Ed. 6- c. 13., which gives the treble value for not fetting forth tithes, viai head of lithes, Ro.l- Abr. 598., and which is now the common practice. Roll, Abr. An aftion of debt lies by a (herifFupon the ftatute of 28 Eliz. 508. Latch, ^^p^ ^_^ for his fees given by the ftatute, for an execution ferved ^L^^^'t. by him -, though the ftatute does not fay that he ftiall have his \b) ri-.eflje- fees, or any a6tion for them, but only fliys, that he fhall not take^ rift'brought f^j. ^^^ ^j^y execution ferved, any confideration or recompence be- fees orexe^ ^des that thereafter in the faid a^ ' ° ' a lecond "was expnxd. afDgnee. Carrh i6z. fcr Curiam. {f) Hufband poffefll-d of a term in right of his wife, makes a leafe for half the term, and dies ; his executors ihall have debt for the rent, and yet the feme fliall hav? the revejrfion. Dyer, 227. [g) If a termor furienders to the leflbr without deed, rendering rent; this is recoverable as a rent, and is not as a fum in grofs. Vent. 272. 2 Lev. 80. adjudged. Cro. Jac. If a man lend goods as a fecurity for money, and the borrower '4-3' Ye'v, fgpfiej. j-^g money, and recover the goods in an adlion of trover, -iL -I. ' yet the pawnbroker may have an a6lion of debt for his money {k) ; {h) So, If a becaufe, though the fecurity ceafes, yet the duty remains, inaf- jTian lend j^ueh as the money lent is not paid back to the party from whence good> as a It came, ine lame law as to land. pledge, and they decay, yet the perfon to whom they are pledged may have an aftion of debt for his money, becaufe the duty continues. Yeiv. 17;. Co. Lit. 299. Bro. Statute The conuzce of a ftatute-merchant, as alfo the conuzee on the ^^^"^M^' 23 H. 8. c. 6., the ftatute and recognizance having the feal of the pi 1097. ' conuzors, as well as the feal of the king, may bring an a£lion of Cro Lliz. debt, and waive the execution given by the ftatute ; fecus^ of a ^'^^ ftatute-ftaple ; becaufe the king's feal only, without that of the party, is affixed to it. Ponarousv. [ If an cihccr entrufted with the cuftody of a prlfoner, againfl: a Xtim whom judgment has been obtained, permit his efcape, he is liable to to an aftlon of debt, in which the very fum for. which the party is Rep. 129. charged in execution is to be recovered. But againft his executors (^) +• ^^' the fuit is not originally maintainable [a). 32,. a. b. I Roll. Abr, 921— This aaion in Sa,ind. 218. is referre4tp th? common law : but in 2 Inll. 3S2«» and 2 Term Rep. IZ9., Co ftat. Wtftm. 2., 13 E. ». c. i I., and I R. a. c. 12. If an indenture of covenant contain a ftipulated penalty for non- 3 Wooddef. performance, the remedy is by an action of debt for fu^h fpecifick I^tr-Vij."' fum. By the fame method the arrears of an a.nnyity or rent-, a. b. 120.3. charge may be recovered [b). ^ Hardr. 332. Debt may be brought by the aflignees of bail {c) and replevin (c) Stat. 4 (J) bonds, under particular ftatutes. J ^ ^^_ ^^^ ^^^^^ ^^^^ ^^-; ^^ f^; (B) At what Time it fhall be faid to have accrued. T F a man enters into a bill obligatory for the payment of [e) Co. Lit. ^ feveral fums of money at feveral days, an adlion of debt will fjp #^"' not lie till the laft day is paft. * in 292. b. it is more fully explained, viz. there it is faid, " If a man be bound in a bond, or bv contraft to another, ♦*to pay 100/. at five feveral days, he (hall not have an aftion of debt before the laft day be paft,— •' But if a man be bound in a recognifance to pay loo/. at five feveral days, prel ntly after the firft day " of payment, he fliall have execution upon the recognifance for that fum, and ihall not tairy, tilt the " laft be paft, for that it is in the nature of feveral judgments." 3 Co. 22. a. 128. b. Cro. Jac. 505. Cro. Car. 241. {e) If to pay 20/. in manner following, viz. 10/. at one day, and 10/. at another day, debt lies not till after the laft day, becaufe one entire duty ; but if a man binds himfelf to pay J. S. 10/. at one day, and 10 I. at another day j after the firft day, debt lies for 10/. becaufe it is in itfelf a feveral duty. Owen,4z. [Coates v. Hewit, i Wilf 8x. acc.'\ -— So, if ^. mal;;s a bill to B. for the payment of 20/., viz. 10/., &c., and thereby covenants and grants w/ith 1^. that \t he makes default in either of the (aid payments, that he will then pay what of ^he whole fhall be unpaid, after default at the firft day, debt lies for the whole. Leon. 208. adjudged. So upon a contract, debt lies not till all the days of payment are C0.Lit.292. paft, for where there is but (/) one contraft, there can be but one 3^^°' ^"' debt, and confequently but one a£lion of debt for the recovery 5C0. 51. of it. S.P.[Rad. der v. Price, I H. BI. 54.7-] (/) But the law is otherwife of a covenant or promife to pay money, i'c. at feveral days, for as often as the money is not paid, according to the covenant or promife, fo often is there a breach of the covenant or promife, and confequently fo often an adlion lies. Co. Lit. 292. b. [Cooke V. Whorwood, 2 Saund. 164. See too i H. Bl. 552-] If a man leafes lands for years, referving yearly 20 /. at four Co. Lit. [g) quarters, debt lies for one quarter before the others are paft j ^ s'.V!^** for it is referved for the leflbr's maintenance in lieu of the profits, (^) so, if and fiiall be confidered as feveral contracts. referving weekly, during the term, nine quarters of wheat. Roll. Abr. 6oi, ; but for this nVePlowd. 172. Allen, 57. Raym. 222. 2 Lev. 80. Vent. 242. 272. Carth. i6i., and title iJ^nr. If one enters into an obligation or contract to pay money, t^c. J^ide title on two feveral contingencies, the obligee may have an {h) a6lion '^ ^°"v of debt on the happening of either of them ; for the putting in, debt on an that he fliall pay at the one or the other, muft be taken to have "•'''g"'""', been inferted for the benefit of the obligee j and the rather, piftof^J^ becaufe 282 a)ebt and either bccaufc cvcry Contract is to be conftrued mofl flrongly againft the the goods or obHgOr. the obligor ^ came fate, he fliould pay fuch a fum over and above the ufe allowed by the ftatu:(. } although the obligor dies, yet an aftlon of debt lies agiinll his executor on the happening of the other contingency j for the Jaw fupplies the words, which Jhiuidjirji ha/ifeti. Lev. 54.. Sayer and Gleane. (C) Who may bring Debt : And herein of the Privity of Contra) in like manner as their teltator might or ought in th-r money, " his life, and (hall make avowry upon the mutter aforefaid/' &c"o"otiSr profit to be deliveied or yielded, whether annual, or lecond, thirJ, &c year, but work days, or othe^ corpoial (ervicc, is not within the ait. Co. Lit. j'.z. {g) Wheti.er the Icllor, leiFce, or occupier. Lit. Rep. 93. The tenant is not charged, but he h under a neoellity to pay ii, lo lave the diitiefs. Allen, 62. {h) This extends not t ■ the grantee of a rent -charge for year«, if he lives fo ioijg, Cro. Car. 171. adjudged -, for the itatutehath provided only where the teftat r dies feiled of a jrcnt in fee, or for life, and the executois have no remedy, & I'i.ie j, "lid. 62.. (1) But it extends not to the arreari o£ A nomine poenis, rehel, aid fur fair Jifz chivafur 01 Jilc tr.drr'icr. Co. Lit.l6i.H> ' k) Oi ajhte que ufe of a (eolfment, though he claims not only by the feoffor, but by the flatutealfo. 4. Co. 50. b. . So, if the tenant makes a gift iji tail, ai.d .he donde dies, a dilhefs may be ta en upon tiie poireflion of the ifluc in taii, though he cidSxrn, per fonnam doni, as well as by deiceut. 4. Co. 53. b. 2 Leon, ijj, 3 Leon, y.;, 60 (/) The tenant leaies for life, the remainder in fee, and the tenant for life pavs not his rent to the lord, and the lord dies, and tr,e tenant tor liie des, tue executors of the lord cannot diftraia upon him in remainder, for he claims not by or fom tie tenant for life. Co. Lit. 162. b. 5 Co. 118. a. So, in cafe of 3 reverfion. Co, Lit. i 2. (;h) Anvi not paramount, as the lord by efciieac Co. Lit. 16a. Leon. ^03. Or one that is remitted to an ancient title. 4 o. 50. b. [n) The feofJee, and lefTce of the feofiiie, jic in infinitum, are vifithin the adt. 4 o. 5 . a. b. Leon, -503. a Leon. 153 (0) But tenant in dower, or by the curtely, fhall not be charged, for they claim not by the party only, but by law alfo ; Leon. 303. perCurtcv.. 3 Leon. zd^. per Curiam, [p) So, that if after rent is arrear, the lord grants away his ieigniory, his executors fliall have no remedy, for the aft gives none, where the teftator had none at his deatht And by the fame aB^ " If one, in right of his wife, hath any (7) Extends *' eftate in fee-fimple, tail, or for life. In rents, or fee-farms, c^^u^has ** which ihall be unpaid in the wife's life, after the death of his fg^e mar- ^' *' wife, his executors and adminifrrators fhall have debt for the riage . for *♦ (a) arrears againft the tenant of the demefne that ought to ?* to tbofc \7 f o ^ _ o mcurred <' have paid the fame, his executors or adminiftrators, and he during mar- ** may diltraln for the arrears in like manner as he might have nage, he ** done if his wife had been then living, and avow upon the ""oiy have " matter arorelaid. thfcom- common law. 4 Co. 51, a. b. Co. Lit. i6z. b. Co. Ent. 119. Bendl 263. Kelw. 214.. And by the fame aBy " If one hath rents or fee-farms for the life (■-) But if ** of another, which fliall be unpaid, and ce/lui que vie dies, after ""'""ajudg- *' his death, fuch perfon, his executors or admlniilrators, may tenant for ** have debt agalnft the tenant in demefne that ought to liave paid life of a *< it when firll due, his executors or admlniilrators ; and alfo '^"^"'^ *'^*» *' (r) diftrain for the fame arrears upon fuch lands, ^c. (j) out of thereof is " which payable, in fuch manner as he ought or might if cejlui extended " que vie had been living." "/^,^^nd after rent being arrear, the tenant for life dies, the tenant by elegit cannot diftrain for the arreais by this a6l ; for coming in by an a£t of parliament, he is in the poji. i^ool and Neal, i Sid 2S. 62. adjudged. (i) If a rent be granted to ./I. for the life of B., and af;er the land out of which, &c., is let to C. for life, the remainder to D. in fee; and rent being in arreai, B. dies, and alter C. dies, A. mjy diftrain upon i). in remainder for all the arrears. Co. Lit. 162. b. rdrichs cale. 5 Co. iiS. adjud^ed# & vide Mooi, 625. pi. 858. Cro. Eliz. 805. S. C. Debt is given in lieu of the diftrels. If a man leafes for years, rendering rent, and after devifes the Roil. Abr. rent to another, and dies, the devifee may have an aclion of debt 5^2. for the rent, though it is become a rent -feck, becaufe by the ori- ginal creation thereof debt lay. So, if the lelfor grants over the rent, and the leflee attorns, Leon. 315. for the attornment creates a privity; and there is no cafe where *.'^^°"' '♦ 4 a thing ^84 2Del3t 140. Cro. a tiling may be transferred or afligncd over, but the remedy V?:.H^' J ftiall GO alone with it ; and the law (a) favours remedies for (tf> Ilulband b to ■ ' \ J ItcirefTed of TCntS. a term in right of his wife, makes a leafe for half the term, and dies, his executors fliail have debt fbj the rent, and yet the feme fhall hive the rcveifion. Co. Lit. 46.— i^ent granted for life, tenant dies, debt will lie, becaufc there is no other remedy. Dyer, J27. Cro. £iir. If a man grants an annuity for years, ari a£lion of debt may z63. ad- ^g brought for the arrears during the years, for being a grant for Buirt. 151. years, it is by the deed as a contra6l. ^id to be adjudged. Velv. 208. and Bulfl. 151. Lucas and Fulwood, S. P. feems to be admitted ;^ bat the plaintift" could not recover, becaufe his plaint was of debt, and his count of annuity 5 \y\ii. vide Dyer, 140. Cro. lliz. 3. 9 H. 7. 17. cited in 7 Co. Lillington's cafe, 45 E. 3. 8. 4 Co. 49. a. If the father grants a rent-charge to the fon in fee, and the rent being arrear, the father dies, and the land defcends to the fon, by which the rent is extinct, the fon may charge the executors of the father in an adlion of debt for ilie arrearages incurred in the life of the father j for though no action lies for them, as for the arrearages of a rent, [yet for the arrears of an annuity it is main- tainable i and though by the defcent of the l^d to the grantee, being heir to the grantor, as well the annuity as the rent was de- termined, and the original ele6lion was annexed to an inheri- tance, yet inafmuch as the inheritance of both was determined by a£l of law, (which will do no wrpng to any) his ele£tion {hall remain as to the arrears.] Hawk. Abr. [By flat. 8 A/m. c. 14., an a£lion of debt is given for the reco-t. Co. Lit. 73. ygj,y q£ rents upon leafcs for a life or lives during their contimi-: ance^ which the common law denied : on which ftatute Mr. Serj. Hawkins queries, whether it doth not extend to leafes of incor- poreal hereditaments ? By flat. 5 Geo. 3. r. 17. § 3., which enables ecclefiaftical perfons to leafe tithes and other incorporeal inheritances, debt is giv^n foi^ the recovery of rent on fuch leafes.] (D) Againft whom it may be brought, loH. 6. II. |p a feme, lefTee for life, takes hufband, and dies, debt lies Roii.lbr.^' againft the hufband for {b) rent iffuing out of the land, in- 592. curred during coverture \ for he took the profits out of which the (/^) Aifoit rent \tht 28i But li he once atciefts the rent from the aflignec, he Aall not after charge the leflee for rent due after the afiignment. 3 Co. 14. b. Marrow and Turpin. Moor 6co. pi. 829. 2 And 133. 6f vid* Sid. 402. For in the acceptance of the rent from the aflignee, notice of the aflignnnent is implied. Maich and Ikace, Cro. Jac. 334. adjudged, 2 Bulft. 152. adjudged, ^ -vide Roll. Rep. 366 But though he refufes co accept the afiignee as his tenant, yet he may af.er charge him in an a£lion for the rent, if he plejfes. Devereux and Barlow, 2 Saund. 181. Where covenant, againft the leflee, after affign- ment of his term, br jugSt upon an exprefs covenant for non payment of "-ent, and held good, and that the accepting the aflignee ai tenant did not hurt. Edwards and Morgan, 3 Lev. 233. Cirth. 178. But if after fuch afiignment of the leflee the lefl*or grants 3 Co. 22. b, over his reverfion to another, the grantee fhall not have debt ^f^ ^^' againfl; the leflee, for the privity of contract holds only between s. P.' adi the leflbr and lefl'ee. judged. Brownl. S. C. Cro. Eliz. 556. cited. Moor, 351. cited; but wde Cro. Eliz. 636., and 3 Lev. 233. If A. leafes three acres to B. rendering rent, and B. afllgns all Cro. in*, his eftate in one acre, and after A. grants the reverfion of three ^^^^ acres to C, he may have debt againfl {a) B. for the whole rent, for s. c', cited*' the entire eftate remaining in part, the entire privity and adtion and -.iV^ Lit. for the whole remains againft the iirft leflee. (aTc^o* Jac. 41 1. faid the leflbr in fuch cafe may have a joint aftion againft the leflee and aflignee. — For arrears of a rent-charge for life, after deternaination thereof, debt lies not againft him alone that received the profits of part of the land charged, but againft ail that received the profits of any part thereof. Sand. 284. If lefliee for years afllgn his whole term in the moiety of the 2 Lev. 231. land, the leflbr may have an aclion againft the aflignee for the Gamonai»4 moiety of the rent •, for the aflignee having the entire eftate in adjudged. the moiety of the land, he hath a fuflicient privity of eftate to be charged by the leflbr, if he pleafes, with the moiety of the rent. If a prebendary leafes for years rendering rent, and this is con- {b) So, firmed by dean and chapter, and the leflee dies, and his ih) exe- '''^°^^.*i'= , J rr- 1 1 r 1 1 1 V admmiftra- cutor (f) afl/igns over the term, and after the prebendary religns, ^or of the and a new prebendary is made, he ftiali not have debt againft the lefleeaffigns. executor of the firft lefl'?'^ for the rent due after the aflTignment ; ^^^^^""?^ *'*^ for the fucceflbr was no party to the contra£l:, but privy in law cr^^o. El'ix. only, (^) and by the affignment of the term, the caufe of the 715. ad. cliarge is removed. AJjudged between [e] Overton and Syddaly ^^^^^'^ Cro. E/iz. ^^^. pi. 829. . adjudged per totam curiam. 2 And. 133. adjudged. Latch. 260. cited, and fjid no judgment was ever given, as appears by the roll ; but ^._ Vent. 210. cited, and faid that the acceptance of rent from th« alfignee was pleaded, &c. 3 Mod 326. cited, and faid the late refolutions had been contrary. 4 Mod. 76. tiled, ar,d denied to be law ; for the executor (hall be ftili liable to the contrafts of his teftator, fo long as he hath any aflets to fatisfy them, (f) By the report of the cafe in Popham the leiTee afligned. (tht Lev. 215. . If the afTgnee ofa term aiTigns to another, yet he may be charged Keighiyand j^ (^eb^ foj. ^q^^^ growing due after, before notice given to the re- Tdjl'^dgedbv verfioner; but ^ Keeling and Windham, wnr. Twifden. Sid. 338. S. C. Raym. 162. iKeb. 260. S. C. CartJi. 1771 For where covenant was brought fot rent agalnft the afTignee of Tovey and ^\^q exccutrix of the leflee, who pleaded that before any rent ar* held by' ^^^^ ^^ affigned over to J. S., on demurrer it was holden, that Poiiexfen the privity was deftroyed, and the aflignment complete without f'^i^"^*''^ notice, and the defendant difcharged of all the rent accrued after Z:t. Powei the aflignment. and VenTis, that tiie defendant ought in his pica to have fct forth notice given to the plaintiff of the alQgnment; and Ventris dying the judgment was accordingly ; but upon a writ of error in K. R. the jud^- m.nc was reverfed by three judges. 3 Lev, S9<;. S.C. Show. 340. S. C. 4Mod. 71.S.C. a Vent. 428234.8.0. Salk. 8j. pi.a. 12 Mod. 23. S. C. [i Ld. Raym. 368. S. C. cited. Videju^ra (E) Where Debt is the proper A£lion, and not Covenant, Cafe, Isfc. 4C0. ()2. b. A CTIONS of debt are founded on contraft, in which the plain-^ siade'acafe. /^ fjff Cgj-g forth his demand in certainty, and infills on being reftored to it in numero. Vaugh.ioi. The inconveniency of the defendant's being allowed to wage his law in this action occa'.ioned the fubftituting of other a61:ions in the room of it ; fuch as all actions on the cafe, which are properly founded on injuries and fraud, for in thefe the defend-* ant could not wage his law, becaufe he could not make oath of paying that which by reafon of its uncertainty he could not know \ and which could never be before it was afcertained by the jury. 4C0. 92. b. Hence if A. declares that he fold corn, l^c. to B. and that jff. Mot""-^' ^"^ '^^ before fuch a day promlfed to pay fo much money, A. may S. c'veiV. at his {a) eleflion bring debt or ajj'umpftt for the injury done by 20. s. c. the violation of the contratl. Vtde the Regifterg;. 139. (a) If I delivcrio/. to ^., to deliver to B., and lie does not deliver it, I may have an ailion of account, debt, or jierhaps ca(e, againit him. Keilw. 69. a. 77 h. Cro. Jac. 687- Dyer, 21. Hut. :2 A. ceiivers oxen to B., to fell for as much as he can j;ct, and he fells them for fo much, A. may have debt againtt B. for the money. Rc'l. Rep adjudged A. delivers money to JB., to re aeliver, debt lies for it. Palmer, 364. The defendant by bill fealed, acknowledged that he had received 7/. of^the \^\-K'\n;^\^ ad evta:det:duiK a pair of bellows. Cro. Eliz. 644. adjudged, that ac- count or debt lay. Vide 3 Leon. 38. R.0II. Abr. 597. Dan- 26. 2Ld. Raym. 814. • 2 Salk. 658* pi. 3. 7 Mod. 87. Palm. 364. A,, pays money to B. as a Hne, upon -S.'s promife to make l leafe of land, and before the leafe is made B, is evicted, debt lies not for the money, for it was not paid to be received back ; but cafe lies for non-performance of the bargain, in which he (hall rocovcr in damages not only ::he money given for the fine, but tliC damage by breach of the contratt. Styl. 51. If A. covenants with B. to pay him (^) fo much money as he ]}}\ ^Q^J i^^iall expend in the repairing and vitlualling of a fhip for him, and ' ' * B. expends T>thu 287 S. expends 300/. accordingly, an adion of debt or covenant lies 184. Like for the money expended. . , . ,. . ,. ... r ... ..^ r'"v ^^,' ^ ' ^ judged, though the certainty or the debt did not appear by the deed. If it be recited by deed, that there is a fuit depending between 3 Lev. 429* the vicar of 5. and A. concerning a modus decimandi^ which con- ^^^^^ ^!*** cerns all the parifhioners of 5., and B. a pariftiioner, by the faid judged'afce'r deed agree and promife A. to pay his proportionable part of the a long de- charges of the fuit; an a£tion of debt or covenant lies upon this rfV'pu deed ; for by an averment of what was expended in the fuit, that debt will lie which was at firfl uncertain may be reduced to a certainty (o). for an inde- terminate fum, capable of being readily reduced to a certainty, hath been eftabllflied by other cafes. Bloome v. Wilfon, Sir T. Jones, 184. Birtch v. Weayer, 2 Keb. 225. fo. 80. Rands v. Peck, Cro. Ja. 618. Nor is it now underllood to be neceflary that the plaintiff fhould recover the full fum demanded. Ayiett ▼. Lowe, 2 Bl. Rep. 1221. Walker v. Witter, Dougl. 6. Rudder v. Price, i H. Hi. 550. And a declaration in debt upon a fimple contradl hath been holden good, though it fpecified by the feveral counts a /(/i fum than appeared robe demanded in the recital of the writ, and yet afligned as a breach the noo' payment of the fum demanded in the writ. M'Quillin v. Cox, i H. Bl. 249.] If A. retains B. to embroider a fattin gown of a maid fervant Cro. Eli«« of the daughter of -^. taking for the fame 40/., B. may have debt ^^°* againft A. for the money ; for the embroidering the gown of another at the requeft of A. is a fulhcient confi deration to charge A.y and it is at the ele£lio,n of B. to bring debt, or an ajfum^it. (F) Of the Manner of bringing the Adion ; and where it muft be brought in the Debet and Detinet* TF the aftion be brought for {h') money, it muft be in the debet {b) 50 E. 3. "■• and detmet\ but if ic) goods or chattels, it muft be in the deti' l^\}'\, . ' \ ^ b ' Roll. Abr. "^^ only. 604. s. p. (c) 3 Leon. 260. 4 Leon. 46. S. P. Winch, 75. It was brought for money in the debet and detineff and for two ftiirts in the dettnet only* * Sedqu. If the declaracioa was good, as it feems to be two diftjndl fpecies of aftion, and requires two different pleas ? So, if brought for foreign money (J) not made current, for then Palm. 407, It is as bullion. l'"'=^■77; 84. J on. 69. S. C. adjudged, where by Dod. the aftion might be brought in the debet and dttinet, or in the detinet only ; but this muft be intended where fo much Englifii money, being the value of the foreign, is demanded, Raftal and Draper, Cro. Jac. 88. Yelv. So. Browr.l. 90. Noy, 1 3. ©" fi^c Leon. 41. Yelv. 13J. Brownl. 102. {d) But if made current by proclamation, the action fo-r it may be brought in the debet and detinet. Nov, 13. Latch, 77. 84. Palm. 407.— Debt in the debet and dennet for 107/. tos, where the declaration was upon a fpecial wager for 100 guineas, which the plaintif}' averred were worth 107/. 10. i, and it was obje<5led that it fhould have been in the detinet only, fjr lOo guineas in fpecie, but held well enough as to this point, though reverfed for another fault. St. Leger and Pope, Carth. 322. 5 Mod. 4. 4Mod.4o6. Lutw.484. Salk. 344. S. C. pi. i. ioMod.336. izMod.Si.S.C If a man fells certain cloths for 66/. Flemijlo money current at Cro. Jac. M'iddlehirgh^ to be paid upon requeft, he may bring an action of ^^* n^^^r debt for 39/. \is., fetting forth the fpecial matter, and averring adjudged.'* that the 66/. FlemiJJj tempore ijeuditionis^ is'c amounted to 39/. 12/. YcU. 80. moneta Arig/i/e, and that the defendant has not paid, &l. and if he ^i°or" 77^,* Values the foreign money otherwife than in truth it is, the de- s. c/ fendant 288 titbt Leon, 4.1. fendaht may plead m abatement, and fo help IiimlclF. Adjudged^ '^[°' ^^^* after a verdiil, for tlie plaintiff, and faid that it being found that fdjuliged, * ^6 owed what is demanded, there ought to be no {a) farther ia- & lude quiry of the value. Yelv. 135. Brown!. 102. {c) Butin debt agalnft an executor for 47 /. S i. 8 d. moneia Flardntp att'w^cnt, ad vah'r.' tiam ol Englifli,the defendant pleaded ^/tvi^ adinwijlrai'it, and it w.is found afia'mft him, and jutlgment given quod Vxcuperet deh\tum\ but upon a writ of error between Bagihaw and Plain, Cro. Eliz. 5J^-» it was reverfed, becaufe it fhould have been quod recuperet the 47 /. 8 %. 8. adjudged. Lev. 147., and for this i/ii/e Roll. Abr. 603. 5 Co. 32. Sand. 216. {b) Where the defendant h:S been held to Ipecial bail in fuchadion. Vent. 355. Sid. 63. So, if the executor obliges himfelf to pay a debt due by con- iiH. 6. S. tract by the teftator, in debt upon this obligation the writ may JJ',,^*., be In the debet and detinety becaufe the obligation made it his own 603.' 3. c! debt. In an action of debt againft an executor for rent, incurred in nH. 6 36. the life of the teftator, the writ fhall be in the {c) detinet only. ^^^- ^^''^^ debt be brought againft an adminiftrator in the debet and dith.tt for rent due before h's time, where it fhould only be in the detinet, this is aided after verdiifl, by 16 & 17 Car. 2. c. 8. -vide Sid. 379. Pot- ter's cafe, and tit. Ernr. Vol. IL U But 1^0 SDcbt Roll. Abr. But if an aQlon of debt he brought againft an executor for the 603. Cro. arrearages of a rent, rcferved upon a leafe for years, and [a) in- Moo^ 556. curred- after the death of the teftator, the writ (b) fliall be in the Browni. 56. elebfi and det'metf [c) bcCc'.ufe the executor is charged of his own Cro. Jac. pofleffion. 41 1. 546- ^ B.iKh 23. z Browni. 206. Cro. Car. 225. All. 34. Mod. 181;. a Browni. 202. Palm. 116. S. P. (j) Wliere part incurred in the time of the teftator, and ^.-art aher his death, liis executor may be charged in the (fc.'j;.vr for the whole. All. 76. St)l. iiS. (i) He may be charj^ed in the rf./mcf only, but tiien he fhall anfwer only out of the teltator's eftate. Royfton and Cordary. All. 42. adjudged, and fiid that it was never doubted. Styl. 79. adjudged, tf 'f/Ve Stvl. 52. Lev. 127.* (c) For though he hath the land as executor, yet nothing ftiali be employed to the execution of the will but fuch profits only as are above that which is to make the rent ; and thercfoie fo much of tlie profits as is to make or anfwer the rent he fliall take to his own ufe, and he fhall be charged fur it in the debt and detinet. Poph. 120. *«r Popham. 5C0.31. Cio. Eliz. 712. [but fee Cro. Car. 215.] And if the Ijnd be not worth more than the rent, it is a good plea to fuch aiflion in the d^bet and d.t'inct ; for in fuch cafs he is to be chuigcd in the (^£/i>i« only. Vent. I7r. ^rrcwr. ; and for this •:;;. Whether an executor can wave a term .'' i Mod. 185.] * But where p.irt incurs in the life of teftator, and part after, the plaintif}' may bring two actions, for the fird part in the detinet only, the other in the debet and dctiiiet, and need not charge him as executor, 1h the taft cafe, by which means he may obtain a judgment dc hor.ii prc^pi lis. 5 Co. 36. a. If an ailion of deb;: is brought againft bnron and feme, upon Lloyd and j,^ obligation entered into by the feme before marriage, it (hall be - Leon.*2o6. in the debet and deihiet ; for by the marriage all the perfonal goods s. c. ad- and power of difpofing of the real are by law given the hufband, judged. which he has to his own ufe, and not as executors, who have them Allen, 71» , 1 r 1- 1 S, P, only to the ule oi another. 5 Co. 36. a. So, if an a6lion is brought upon a bond againft the heir of the (^) And for obligor, it fliall be in the debet and detinet, (d) becaufe he hath the another rea- ^ ° . , . . , ■» \ / fon, becaufe ailctS m hlS OWH right. h: is bound by fpecial words in the obligation. Cj'o. Eliz. 712. & -vide Cro. Eliz. 350. 2 Leon. 11. 2 Browni. 204, 205.— Cut if in the detlrct cnly, it is good after verdidt, by 16 4: 17 Car. 2. c. 8. £oimber and Wattcn, Lev. 224. adjudged. Sid. 342. 375. 379. (G) Of the Extinguifhment of the Debt, and pleading in Bar thereof. rid; head PUas: and of tF a man accepts an {c) obligation for a debt due by fimple con- *■ tract, this extinguillies the contrail, but the acceptance of an 13 H.'X^'j. obligation for a debt due by another obligation is {f) no bar-of the Roll. Abr. firlt obligation. 604. Bu.r. , Rep 9. (f) This muft Le intended from the debtor j for if a ftranger gives bond for fuch debt, it is •tne.wife. 2 Leon. !io. adjudged -f. So, if upon the making the contraft, a ftranger gives bond for if, or being prcfcnt promifes to give bond for it, and after does fo, the debt by contraft is extiw- guiihed, the obligation being madeupon or purfuant to the contradl. 2 Leon. no. fercur. So, if a i;: ;n accepts a board for a legacy, he cannot after fue for his legacy in thefpiritual court, for by the deed (\ X legacy is extind, and it is become a mere debt at common law. Yelv. 38. [f) For one deed cannot dctermire the duty upon another. Cro. Eliz. 304. 727. for this "jide 2 Dan. 1 16 So, if a ftatute is accepted for it. Roll. Abr. 470* Otherwife, if a judgment is given or obtained upon the obliga- tion. 6 Co. 44, 45. ■j- So, a negotiable note, or bill of exchange, hai been held in B. R. an extinguifliment of a fimple con- tra^ debt, the defendant being liable to pay the money to a third perfon.— Kichardfon and Rickman, M. 1775. [i'^idt j'upr, vol. !• 2S1-2.J In 2:)ebt 291 In debt upon an obligation the defendant cannot plead ml debst. Vide Hard, but muft deny the deed by pleading non eft factum, for the feal of •^^d°'^u'"j the party continuing, it muft be diiTolved eo ligamine quo ligcitur. of PUas and Pleadings. But if the debt be due by fimple contracl, tlien he may plead Hob. 218. nil debet, for it does not appear that there is any debt continuing. ^ ^"^* ^5^* In debt for rent, if it be by deed, the proper pLea is r,ou ejl Hard. 332. factum \ but if it be without deed, the defendant may plead ivm (") .^^ 'u dhnifit, nothing in arrear, or that he never {a) entered ; alfo, by by inJe'nt- the better opinion of the books, if the rent be due by indenture, ure, debc the defendant may plead nil debet : for an indenture does not ac- i'^"' '''°"g^ * , , . nc never knowledge a debt like an obligation, fince the debt accrued by entered, fubfequent enjoyment. [The indenture is ojily inducement to ^ H. 8. 14. . ^. ^^^.,^.. ..-, Roll. Abr. 60^. the action ; matter of fadt is the foundation of it.] 2 Ld. Raym. 1477. * ^^''^* 763.— And therefore, in a declaration in debt for rent againft fuch Icfllee, it need not be fliea'n that he entered, for the contracl is tiie ground of the a£tlon. 4 Leon, j 2. Hetl. 54. Vent. 41. And the occupation not material j otherwife, of a leafe at will. Dyer, 14. a. Hetl. 54, Vent. 41. 108. Salk. 2og. pi. i. S. P. for it muft appear to the court when he entered, and how long he occup'ed ; jecus, of a leflee for years. Ld. Raym. 170. Where upoi a leal'e from year to year ^uamiiu parubus flatuirit , no entry'or cont nuance of the polfeflion was fhewn as to the fecond year, and yet after Teruidl it was intended he was in pofTeflion for all the time for which the rent was found due. ■383111.136. pi. 3. Mod. 3. Sid. 413. ^ tji/g Plow. 423. Palm. 117. 2 Roll. Rep. i 31. Keilw. 65. [So, In debt for an efcapc (<^), or on a deimftavk [c) againft an exe- {b) V/aites cutor, nil debet is a good plea ; for the judgment is but inducement, ^'o^flf^^i, and the efcape and devajlavit are the foundation of the action.] (,.) wheatt* ley V. Lane, i Saund. 219.- In debt for the arrears of an id) annuity granted for life, nil de- Keilw. 147. het is no good plea, for the action is merely founded upon the deed, ^'^) ^"* "* for without it no a£tion can be maintained j and though by the ths grant of death of the grantee the nature of the action is changed, the an- a rent, n\l nuity being determ.ined ; yet this pro'.'es not but that the action "^""j' jsa is founded upon the deed. becaull t*he plaintiff hath other remedy to levy it, viz by diflrefs : otherwife, upon the grant of a bare annuity, for there being no remedy by diftrefs, the grant mult be avoided by ma:ter of aa high a nature, viz. by ac- quittance. Hard, 333. [So, in debt for a penalty upon articles of agreement, or on a bail- Warren v. bond, ;;// debet is no plea, for in thefe cafes the deed is the foun- ^"^"Z^^^' dation, and the fact but inducement.] ^,.00. 2s'tr* 778. S.C. I Barnard. 15. S. C. 8 .Mod 106, 323. 3S2. S. C. Fortefc.363. 367. But in debt for the arrenrs of a rent-charge, dcvifed to the Hard. 322. plaintiff's wife for life, againft the {/) adminiftrator of the '^''';'o^'* occupier of the land, nil detinet is a good plea, for a will is no ^.j V^at deed, nor wants any delivery : adjudged, and faid the action was where the not fo much grounded upon the will itfeif as upon the ftatute, by ^^'^^^f 1-1 ° 1 T . 1 -I' J-- r r 1 - 1 - J could not wnich men are enabled by will to rinpoie or their lands and rents piead nUdem ilTuing out thereof. hst, his executor (ha'l not ple.'d «=« dct'ir.ct. 2 Mod. 266. In debt upon 2 $s* 3 -E. 6. r. 13. for not fetting forth tithes {/), -J'"-'^- 651. not guilty, or {g) nil debet are good iiTues. ^1°; ^"p adiudjr.-l. (y) V/here the aft'on is four.JeJ upon a pen.il ftitiite, not gu';l:v is a g->od il.'a. Cra. F.lz7. :7. Goulf. -,9. Nov, 5.0. a infl 651. Moor, 914. pi. 1103. [See i 'i eim liep. iiGa.J i^)Hob. 2i8. S. P. aJjud?ed. U 2 In SDC'tit ^92 Moor, 49. In debt upon a contract, the defendant cannot plead the C0ntn£t (f) Or plead ^.^3 f^^ a Icfs fum, or othv^.rways, than the plamtifF has declared, K.eiiw.^3*.' 2nd travcrfe the contract in the declaration laid, but may {a) wage Cro. Eiiz. his law. S3o. Palm. 22;. The contrafl; being but the conveyance to the aflion, is rot traverfable. Co. Lit. 295. But for this i-Uc head of Pleas and Pleadings.— • The plea of nil debet, in fuch cafe, puts the whole niciiter in iiTue. I Ld.Raym. 566. i2Mod.376. S. C. I Ld, D-aper v. Giaffjp, 1 Ld.Raym 153. Anon. iSalk. 278. Bredon v. Harman, jStr. 70!. [Unier the plea of ;/// dchety the defendant may give in evidence a releafe, or other matter, in difcharge of the a6lion. . Raym. ",94. S. P. Gilb. Debt, 434. 443. Semb. ccr.tr. And it has been holden, that as this plea is in the pref&nt tenfe, the ftatute of limitations may be given in evidence un- der it. s. P. But in debt qui ta>fiy the defendant was not allowed to give in evidence on tiil debet, a former recovery againft him by another perfon for the fame caufe.j ^eotianU* ADeodand is that inftrntnent which occafions the deatli of s man, and is forfeited to the king in order to be difpofed of in pious ufts by the king's almoner. Tfiis forfeiture of whatever procures the death of a .man without the default of another was (^) introduced to increafe the terror and abhorrence of murder, fo waspoinujy that nothing that occafiobcd it fliould fecm to go unpunifhed. talien from Alfo that weapon or inftrument, whereby one man kills another, ts. 1.W of .g ^^j,g^ ^ deodand. 3 tnil. 57, 58. 1; Co. no. H. P. C. 5/ Puit. J25. Crom. 31. 1 {b) And was poffiWy the law of v.hicb requires that the bealt that nnurders fhouid bt P.nn 2 Exod. 28. Hdwk. P.C C.27. To underftand what things arc forfeited as deodands, we muft obferve that it is laid down as a rule, that omf?!a qua movent ad mortem fnnt deodanda, and, therefore, that wherever the thing which is the occafion of a man's death is in motion at the time, not only that part thereof which immediately wounds him, but all things which mave together with it, and help to make the wound more draigerous, are forfeited alfo. As, where a cart meeting a waggon loaded upon the road, and the cart endeavouring to pafs by the waggon, was driven upon a , L^ hiirh bank and overturned, and threw the perfon that was in the Head's cafe, cart jud bcforc the wheels of the waggon, and the waggon run over Saik. 270. The Lord of the Manor of Kam DeotJanD. 293 over him and killed him j it was holden, that the cart, wag- byPoliex- gon, loading, and ail the horfes were deodands, becaufe they all ^=" =*""^ moved ad mortem. „„ ,i „ u ^'^f?'^' .. on the Home Circa. t. But if a man, riding on the fliafts of a waggon, fall to the -, inft. 58. ground and break his neck, the horfes and waggon only are for- ^.P. C. 20. feited, but not the loading, becaufe it no way contributed to his c.V?. death. So, where a thing not in motion caufes a man's death, that part tiiereof only which is the immediate caufe is forfeited ; as where one climbing upon the wheel of a cart while it (lands flill, falls from it and dies of the fall, the wheel only is forfeited, but if he had been killed by a bruife from one of the wheels being in mo- tion, the loading alfo would have been forfeited, be'^aufe the weight thereof made the hurt the greater. Alfo, if a man riding on a horfe over a river is drowned [a) Cro. Jac. through the violence of the flream, the horfe is not forfeited, "tSj- 2R0II.. becaufe not that, but the waters caufed his death. Po^h.^^*6. (j^ Secus, if the hone had thrown h!m, Salk. 220. By the opinion of our {b) antient authors, things fixed to a {b) S.P.c. freehold, as the wheel of a mill, a bell hanging in a ifeeple, csrV. i° ''• ^ may be deodands; but by the [c) latter refolutions they cannot, i^c) A.sld.' unlefs they were fevered before the accident happened. 204. i^ev. 136. Raym. 97. Keb. 725. 744. S. C. where a roan was ringirg a bell, and the rops cnught him up and daftied him againft the roof of the belfry, wherrby he died. 6 Mod. 187. S. C. cited by H(;]t, and that it wai no decdand. So, cf the wheel of a f^rj,e. 6 Mod. 1S7. See balk. 22c. Hawk. P. C. c. z6. §5, 6, S, &c. Stra. 61. Alfo it was {d) formerly holden, that this forfeiture did not ex- {d) S. P.c. tend to cafual deaths arifing from the indifcretion of children or ^'; ^: „ infants, within the age of difcrction, for that fuch punifliment of h. p.c. 31. innocent owners by taking their goods would anfwer no good end Puit. 125. of juftice; befides, the misfortune in this cafe might feem rather ^^'f-c-yj. owing to the indifcretion of the infant than any default in the 7,9. zos'. thing : but this diftin<5lion has not been allowed of [e) late •, for Ha vk. P.C. the law does not ground the forfeiture on any default in tlie ^' ^7" things forfeited, fmce it extends it to things without life, to which it is plain that no manner of fault can be imputed. This forfeiture takes place at land only, and doth not extend to 3 inft. 5S. the feas that are continually liable to llcrms and tempefts, and h. P.c. 33; therefore a fiiip in fait water, whether in the open fea, or within ^' Hav'k. * the body of a county, from which a man falls and is drowned, is P. c.c. 27. not forfeited. But a (Inp, by a fall from which a man is drowned in the frcfh H.P.c. 33. water, {hall be forfeited, but not the merchandize therein, becaufe }}'^^' ^' HawJc, P.C they no way contribute to his death. c. 27. In all thefe cafes, if the party wounded die not cf his wound s. p.c. 21. within a year and a day after he received it, there fliall be nothing ^- ^'S'^r forfeited ; for the lav; does not look on fuch a wound as the caufe ^\'q ^_ ^„| of a man's death, after which he lives fo long ; but if the party Dait. c. 97. die within that time, the forfeiture fhall have relation to the wound !^''\*- \^°* U 3 givenj 294 DeotiantJ* given, and cannot be faved by any alienation or other a£l whatfo-f ever in the mean time. 5C0. iio.b. However, nothing can be forfeited as a deodand, nor feized as C0.L1t.115. fuc]^ i[\\ \i be found bv the coroner's inqueft to have caufed a S.F.C. II. nran's death; but after fuch inquifition the flierifF is anfwerable a. Pult.125. for the value of it, and may levy the fame on the town where it Hawk. P.c. £j,u . jjiid therefore the inqueft ought to find the value. Fort. Cr. As this forfeiture feemeth to have been originally founded ra- Law,266. |.|-jgj. jj^ |.]^g fuperftition of an age of extreme ignorance, tlian in quificions, the principles of found reafon and true policy; it hath not of late the jury yeais met with great countenance in TF'e/Imi/i/Ier-.Ha/I*. find the value as fmall as pofllble. — And in fome cafes only the value of the identical thing movii)g to, orcaufing the death 5 as for examph, of the wheel of a loaded waggon, &c. [This pradtice, the court of King's Bench have impliedly fanftioncd, by refufmg to reform it on an application by the crown or its grantees. Foil.aSS. a Bjtnardill;. 82. Nor can fuch inquifitions be taken by the grand jury on default of the coroner, i Burr. 19. ; and when taken by the coroner, they any be removed and traveifed. Ji.d, aH. H. P.C. 415. J 2>efcent. (A) Of Lineal Defcent: And herein of the Exclufion of the afcending Line. (B) Of Collateral Defcent. (C) Of the Half-Blood, and the P##<5 Frairls. (D) Of Defcents according to Cuftom. (E) Where a Perfon fhall be faid to take by Piirchafc, and not by Defcent. (F) Of a Defcent, its Operation to take away an Entry. (G) In what Cafes t>ie Entry of the DifTeifTee may be lawful not wit! ftandinj: a D::fcent.- (H) Whofe Entry is preferved notwithftanding a Defcent. ( I ) How the Entry may be preferred by continual Claim : And herein, I. Of the Nature of continual Claim, and the EfFe6ls of it. 3^. What is ncceiTary to a coniinuai Claim to make it eiyc^lua,!, •J, The Tiine In which it is to be made. Defcent 295 (A) Of Lineal Defcent : And herein of the Exclufion of the afcending Line. ANcIently, the lords gave lands to fuch perfons as had be- haved themfelves well in the vv'ars, for their lives only, and fometlmes they alfo married their daughters to them, and then they limited the lands to go not only to the tenant himfelf, but alfo to the iflue of that marriage •, and this firft brought in the notion of fucceflion among the northern nations where the feudal tenures prevailed. The lands therefore in the elder times went to the Immediate Glib. Treat, defcendants of fuch marriage, and originally to none elfe : and in °^/^^"' 9* the firft place they went to the {a) males as the moft worthy of ^fje clplr. blood, and moft capable of doing the fervice annexed to fuch do- umrs. nations : and the feud was united in the [b) male, becaufe he was ^^^ ^l^' obliged to do the duty in the wars, and for every knight's fee was ^dkind^ni. to go out forty days with his lord, fo that the feud did not divide Borough- among the males, becaufe the duty could not be commodioufly f'-^'^,} divided : befides, the males were to keep up the name and grandeur the eidei/ of the family ; and, therefore, the inheritance was not fhared or f^n wasan- broken. From hence it came to pafs, that among the males, the 'j'^^^^T"' eldeft was preferred as the moft worthy, fince he was fooneft able the ccnfeat to go to the wars, and to do the (c) duties of the tenure. and appi-o- bacion cr the lord, for the lord always approved the firft marriage of his feudatory, and of his heir apparent ; and if the feudatory died, his heir within age, the lord had the tntal marriage of him ; and if he was of full age, the icrd gave licence to fuch marriage. From hence the cJefce.it al'.vays fettled in theeJdelt line, and the daughter of tlie cldeil fon was prefeiTed before the fecond or third brother, and their male defcendants, iu order to encourage the beli marriages with fuch eldeft fon.. Sf slm. Rem. 29. When a feud efcheated to the lords for felony, or want of heirs, Co. Lit. the lords ufed to reftore it to tlie old family, or grant it out again "• °' to another family ut fcudum antiquum^ and then the defcent was formed in fuch new feud, as if it had been fetidum antiquum. Hence, the lineal fucceihon or faccefiion of the father was totally excluded, becaufe no cafe could happen where the afcending line could be adnntted infendis anttquis ; for the iatlier took before the fon under tlie firft feudatory in every ancient feudal donation ; and all above fuch dcnati-jn were excluded, fo that in fuch dona- tions the father could not claim as heir to his fon. And this order of defcent which excluded the father was the ruther continued, becaufe the father was guardian to his fon ; and in thole barbar- ous times they v/ould not truft the father with any profit from tlie death of his own iftlie, and fo the father was totally excluded. But though the father cannot inherit his fon, yet if a leafe for Co. Lit, life be made to the fon, the remainder to his next of blood, the '°' ^' father (linll take the remainder by [a] purchafe under the words, of man ha'th defignation. in^e tw;> fon<:, and the eldeft dies, leaving a Ln, and a remainder is limited to the ne.^cc of blosd to tlie father, t!ie younger Ib.i fliail tike ic j ye. ;he other is the fichcr's heir. Co. L::. it. b. U 4 Alfo, zg6 Dercenr* Lit. ^^3. Alfo, if the fon purchafes lands, and dies without ilTuc, and Co. ^1:. -without brothers and fiflers of the whole blood, and the lauds de- (.') There- fcend to his uncle, the father may be heir to the uncle, if the fore,in.afe uncle was in (a) a£lual pcfieiTion ; but he claims it as heir to his fion upon' ^'^other who was lall (i) feifed, according to the rule quodfeiftna a icafe for facit jVirpem. life, made of the lands by the fon, the father cannot be heir, becaufe the Ton was laft aftually feifed ; otherwife, of a re eiiion upon a leafe for years j for the pofic,fJion of the tenant is the pofleffion of the uncle. Co. Lit ji. b.— If a fon be enfeoffed with warranty, ar.d the uncle enter into the lands after the deatii of the fon, and die ; my Lord Coke fjys, that the fathej cmnot take benefit of f^ch war- ranty, bicaufc it was never actually poflelTed by voucher, or luarrant'ia i.bdita- Co. Lit- ii. b. — if an advowfon be granted to the fon and his heirs, and the fon die v\ithout illue, and the advowfon defcend to his uncle, and he die before he can or does prefcnt to the church, the father fliall not inherit, for before a prefentation there is no adlual feifin of the advowfon. The fame 1a\v of 3 rent. Co. Lit. 11. b. ^b) The evidence of feifin; or dtfetft thereof, fliews when it will or will not defcend to the father from the uncle. Eaftwood V. [But if the father happen to be alfo coufin to the fon, and as 7 p.'wms. ^^^*^^ ^^^ ^^'^'^» ^^ "^^y» ^" '^^^' rcxTioter capacity, inherit imme- 614". " diately after the fon,] po. Lit. But here we muft take notice, that if, after the defcent to the *^* ''• uncle, the father has iflue a fon or daughter, that iflue fhall enter upon the uncle, for the land defcended originally upon the uncle, becaufe he was then the next heir ; therefore, if an heir nearer than he is fprings up, by the fame rule that he fucceeded to the land at firft, that heir mull now take place and exclude him : and by the fame rule, if a man hath iflue a fon and a daughter, and the fon purchafes lands in fee, and dies without ifiUe, the daugh- ter fhall inherit ; but if the father hath afterwards ifi'ue a fon, this fon (hall enter into the land as heir to the brother j and if he hath iflue a daughter and no fon, fhe fhall be coparcener with her filler. (B) Of Collateral Defcent. Plow. 444. |F a man purchafed the. feudmn novum ut fcudtim antiquum^ and Set* and ^""^^ without ifl^uc, it went firfl to the father's fide, becaufe the Brook, \'^xdi% in fuch feudal donations were prefumed to refpe6l the fa- Co. Lit ii. ther's fjde, who had been the ancient tenants of the manor; for where it was given ut feudum antiquum^ it muft be prefumed to be meant, as if It had been an ancient feud of that manor, and therefore it wen* to the father's fide in infmtum, before it could go (0 Co. Lit. to any of the female blood. If the father's male line failed, it went Ba^'sin ^° ^'^^ female blood of the father; for the lords were prefumed /i«cj rcaa rather to refped the female blood of their former tenants, than frafertur^ the blood of the mother who was newly introduced into the fa- nt^t'ra'nj. ^^^y ^^ ^^'^''^ feudatory, becaufe the feud was given as an ancient verjuh, & One, and, by confequence, the bluod of the precedent tenant was ^xr&rJo P*"^^^"^^ ^° ^"y ^^^^^ '■ but the blood of his mother's fide was pre- 'finqui^!"' f<^"ed to the blood of his grandmother; becaufe, being both fe- frcpir^uus male blooils, and botn coming under the confideration of ancient 'rmlZ're **^"^"*^> ^^^ (^) nearer tenant's blood was preferred to the more «Tftm7' J^emote : but if the father's fide wholly failed, tlien the blood of the T)c{tmu 297 the mother was admitted, to wit, firft the male line, nnd then the female of fuch blood, fmce the lord muft be prefumed to intro- duce the blood of the mother, when he had given an indefinite right of reprefentation. Agreeably to this fcheme of defcent upon the purchafe of the Lit. §4. feudum novum tit feudum antiquum^ if a fon purchafe land in fee- ^^'^' H"^* fimple, and die without iffue, they of the blood of his f-'ther's .fg^^"^ ^ ^* fide fhall inherit as heirs to him before any of the blood of his mother's fide, for the old rules, formerly fettled for the direcl- ing of the defciats of fuch feuds as were purchafed, ftill pre- vail ; and all new purchafes made now of lands in fee fhall be confidertd as the purchafes formerly made of the feudum novum ut antiquum. If the fon purchafes land, and dies without ifTue, and it de- fcends to any heir of the part of the father, and then the Hne of the father (after entry and poflefiTion) fail, it (hail never refort to the line of the mother, though in the firft inftance, or firfl de- fcent from the fon, it might have defcended to the heir of the part of the mother ; for now by this defcent and feifin, it is lodged in the father's line, to whom the heir of the part of the mother can never derive a title as heir, becaufe he can never fhew that he was heir to him that was laft aclually feifed ; which being a rule to be fir idly obferved, he mufl entitle himfelf by it, otherwife be excluded. (C) Of the Half-Blood, and the PoJfeJJlo Fratris. "^ONE fhall be heir of land in fee-fimple, or to a warranty, or Co. Lit. "*"^ fue an appeal of death as heir, unlefs he be of the [a) whole ^+' -• . blood, viz. both of the father and the mother. courfe of time the feudal donations were worn out, and then it became impoflible to compute up to the firft mar- riage, where fuch donations were originaily fettled, and iherefore they changed the computation, and computed from the laft polleflbr, provided the heir that claimed was of the biOod of the firft purchafer, and then the rule was taken quod Jcifma facit Jlirpem ; forfincethe feudal donation was loft, they could not regularly compute the defcendants from the firft feudal marriage ; and therefore they computed from the laft feudatory j and Cnce both bloods of the firft marriage v/ere neceffary to any perfon that would claim under the firft donation, they required that a man fliould be of the whole blood of the laft feuda- tory, that would claim as heir to him 5 for if any perfon was of the whole biood of fuch feudatory, thea he muft of neceflity be of both bloods of that remote feudal marriage, where the feud was originally placed ; and thus the half- blood came to be excluded ; vide Dijlribution, under title Exe;uton arid yldmimjirators. Therefore, if an elder brother purchafes lands in fee, and dies Co, Lit. without iffue, his filter of the whole, not his younger brother of ^^-a- the half-blood, fhall be his heir. So, if a man feifed in {b) fee hath iffue a fon and a daughter Co. Lit. 15. by one venter, and a fon by a fecond venter, and dies, and the ^^/^ j"V^'^ eldefl fon (r) enters and dies, his filler fliall inherit according to the extend to rule quod pojjejfio fratris de feodo ftmplici facit fororem ejfe hizredem. lands in tail, tor as to them a man muft claim as heir ptr formam dcni. Co. Lit. 15. So, of a remainder after an eftate for life that never fell in, polTeflion, for a man muft claim by virtue of the contrad, as heir to him to whom the remainder was limited. 3 Co. 41. b. So, of a reverfion, whether any rent were referved, or not. 3 Co. 41 . b. 42. b. [c] But without an actual feifin the younger (hall have the lands as heir t» bis father. Co. Lit. 15 a, If 298 HDefccnt Co. Lit. 15. If a father makes a leafe for years, and the leflee enters, and a. 243.3. ^Yiesj the elded fon dies during ti:-: term, before entry or receipt Keiiwi'i'io. of ^S"*» tJ^s younger fon of the half-blood (hall not inherit, but (a) So, if a the filler; becaufe the poflclaon of the lelTee for years, who was guardian by formerly confidered only as a bailiff to the leffor, is the (a) pof- fervfce, or fcflion of the eldefl fon. focage, enters, for the pofTeflion of the guardian is the pofl'eflion of the infant. Co. Lit. 15. a. [And fee the cafes of Whitcombe v. Whitcombs, Pr. Ch. ;So. Goodtitle v. Newman, 3 Wilf. 516. So, the entry of a devifee for years, ic is faid, will make a fofjjiofmtris. Jenk. 242.] Co. Lit. 15. But if a man makes a leafe for life, and dies, leaving a fon and ^r ^ Roll ^ tiaughter by one venter^ and a fon by a fecond wife, and the ^'bV. 6is. eldeil fon dies before the leafe for life is determined, the youngeft Jon. 361. fon {hall inherit, becaufe the eldeft was never feifed. N. Bendl. So, if a father makes a leafe for life, and after recovers againft S Aff 6 ^^^ leflee by default, and dies, and the eldeft fon enters, againft whom the leflee recovers by a quod el deforceat^ and then the eldeft fon dies, the brother of the half-blood, and not the After, fhali have the reverfion ; for when the tenant for life has recovered his eftate, he hath entirely defeated all pofl^elhon in his leflbv, which he acquired by the judgment on default, and all poffefllon in the eldeft fon likewife by virtue of that judgment, and is entirely in of his old eftate ; fo that there is no adlual feifm left in the elder brother whereon to found a pojfejjto fratris. Co. Lit. 14. There is pojjejfio fratris of an advowfon or (^) rent, after a£lual ^' oth"e"r'^.h?- '^^^^^P^ "f ^^^^ "^^"^^y or prefentation of the clerk ; fo of {c) a redicamenis, ^fc, bccaufc equity follows the rule of the common law \ fo like- as a feig- wife of a copyhold, where the eldeft fon receives the profits, and nory, &c. ^jgg though before admittance. 3 Lo. 41. b. ' " 4i. a. — Of offices, courts, liberties, franchifes, and commons of inheritance. Co. Lit. 15. b. 3 Co. 42. a. [b) Co. Lit. 15. b. S. P. 3 Co. 4z. a. S. P. (■:} Dyer, 10. pi. 40. 274. pi. 45. Roll. Abr. 502. pi. 3. [i.e. of a ufe ro; executed by th: ftatutcj fur ul'es executed are legal ettates. Co. Lie. 14. b. note 5. 13th edit.J {e) 1 Co. [So, of a truft [d) and (feemingly by the better ophiion) oiF an 2 p.'wms. ^-l"^^y °f redemption {e).^ 713. Hardr.4S8. (f}iAtk.6o4. Co.Litt. 205. a, note (i), i9thedit, Co. Lit. But though the eldeft fon enters, and gets an a£lual pofieflion '5- *» of the land, yet if the father's reliti be endowed of the third part, and the eldeft fon die, the brother of the half-blood, and not the fifter, fhall have the reverfion of ihe third part, becaufe the aclual feifin which the brotlier obtained, was defeated as to the third part, by the widow's entry into it, vt'ho is efteemed in law to be in, in continuance of her hulband's eftate, without any interruption. Co. Lit. But if the eldeft fon had made a leafe for life, and the leflee '5- 3' had endowed the wife of the father, who afterwards died, the daughter (licukl have the reverfion, and not the half-brother ; for tiie widow's accentance of dower from the tenant for life, and the cxiftence of his eicate in the land after her deccafe, ftiev/ that the tenant for life had an intereft in the land j but fuch an intereft al- ways prefuppofcs an adual feifin in the Icflbr ; otherwife he coul4 6 no^ 'Dzktnt* 299 not make that livery wKich is necefTary on the pafFiiig of a free- hold *, therefore, notwithflanding the dower, this actual feifin in the brother (hall eftablifh a pojfejjlo fratris. Lands are given to a man and his wife in fpecial tail, the re- Co. Lit, maindcr to the heirs of the hufband, and they have iflue a fon, J^'^Jj,''',. and the wife dies, the hufband marries again, and hath iflue a ^^%\ fon, and dies, the eldefl: fon enters, and dies without ifliie ; the fecond brother of the half-blood ftiall inherit the remainder, be- caufe the eldefl brother was not feifed of a fee-firaple, as the margin is, but only of the fpecial tail, and fo no ground for a pojpjfto fratris of the fee expeclant on the tail. If a man dies feifed of feveral parcels of land in one county, Co.Litij. and after his death his eldeft fon enters into one parcel generally, and, before any actual entry into the reft, dies, this general entry into part (hall veft in him an atlual felfm in the whole, fufficient to eftablifli a poJfeJJlo fratris upon ; for fmce the freehold in law is caft upon him by the death of his father, and fmce the pofleffion is in nobody, and fo no particular eftate to be defeated, a general entry into parcel, in the name of all, may well ferve to reduee the whole into an atlual pofleffion : but if his entry into parcel be fpecial, it fliall only reduce that parcel into pofl'efl'ion ; for it is reafonable to bound the operation of his acl by the intention which he appears to have had in doing it. The advantages of this rule of poffeffio fratris do not only ex- Co. Lit. tend to the fifter, but to her iffue, who fhall be preferred to the ^5' «• half-brother, becaufe they reprefent the anceftor, and therefore (hall fucceed to thofe advantages, which their anceftor would have enjoyed if flie had lived. There can be no poflfjio fratris of dignities, as duke, marquis, Co. Lit. and the other honours annexed to the peerage, but the brother of \^'^' the half-blood fhall {a) inherit them j and this diff'erence feerns Cro. Car. to be founded on a ftrift regard to the publick good, v/hich is 'the 6oi. better confulted when fuch perfons are promoted to thofe d'.gnities \^\V^^ as are capable 01 diichargmg the great duties annexed to them. being a baron by writ, was created Earl of Kent, to him and the heirs male of his body, and had idue two fons by feveral venters, the eldeft of whom had iflue a daughter, the barony fliall go to the daughter _;j Lit, §110. ^TpHERE are feveral cuftoms 5«; to defcents, which having been Co. Lit.- J. allowed time out of mind, mull be prcfumed to be coeval llmb%oS. '^^^^ the common lavi^, and therefore cannot be altered without ihiehe.\do{ an aft of Parliament, as that oi gavelkind \n Keitf, by which the G.'.v:^ki,tu, defceut is firfl to all the male children, then to the females, then 6z8., that'ic to collateral relations ; but in this, according to the civil law, re- is probable gard is to be had to thejiirpcsy and therefore if the eldefl; fon had that moft j^-^jg ^ daughter, fhe fliould inherit her father's (hare with the ranas in ° ' England youngCI foHS. were thus partible. Co. Lit. lo. But if a remainder of lands of the nature of gavelkind be limit- Hob^' T^' ^^ ^° ^^^ ^^8^^ ^^^^^ °^ 7- ^' ^^^^ ^^^^ ^^ common law ftiall take it, (a) Aifofor ^^ti not the heirs in gavelkind ; for this remainder being [a) newly a condition created, cannot be reckoned (h) withhi the cullom. bioken, the heir at common law /hall enter, bccaufs the condition is a thing of a new creation, and altogether colla- teral to the land. L.imb. 6o8. Co. Lit. ii, 12. (i) This cuftom, like ail other cuftoms that art -derogatory from the common law, 'a to be conlhued ftriftly, becaufe as far as the particular cuftom hath not derogated from the common law, the general cullom of the whole kingdom ought to prevail. Roli. Abr. 568. a Lev. 87. If a rent be granted out of gavelkind lands, it is of the nature £^^^6* t^s'^^o^j ^"^ ^^li (^) defcend to all equally j for the rent is part s. c! ^ad*- of the profits of the land, and ifiues thereout. judged. [iFreem. 105. 345. S. C. 5 Keb. 165. 214. S. C. 1 Vern. 489. S. C. cited.] Fijc Noy, 15. and Bro. til. Cujlim, 58. ccrtr. 5 but "vide 14 H. 8. 9. 26 H. S. 4. Nuy, 15. {c) That a trult ihail defcend accordingly. 2 Roll. Abr. 780. Co. Lit. The general cuftom of gavelkind lands extends to fons only ; »'+0' 2. but a fpecial cuftom, that if one brother dies without ifiue, all his brothers may inherit, is good. For this, By the {d) cuftom of borough-englifh, the youngeft fons only and the rea- fl^^j| inherit. Ions thereat, •vide title B rough-EngliJh. [d) Where the cuftom was laid, that if a copyholder dies feifed, his youngeft fon Ihould inherit, ana the copyhold was granted to a man and his wife, and the heirs of the man, and he died, whether within the cultom i" 2 Leon. 208. dulitatur. Co. Lit. If borough -englifh lands be let to a man and his heirs, during no. b. ^.]^g jj£g q£ j^ ^ ^j^j ^Y\Q leflee die, the youngeft fon fhall enjoy them. 2 Lev. 138. If the cuftom be, that the youngeft fon fliall inherit, the young- S. P. ad- gq. t^\ brother fliall not inherit by force of this cuftom. judged upon . ^ ' J a fpetlai verdicft. Roll. Abr. 623. 4 Leon. 242. Cro. Jac. 798. Cro. Car. 41 1, (f) If the cuftom of a copyhold be, that the eldell daughter ftiall have the land, the cldeft fifter Aall not have it by the cuftom. Goub. 1^6. Roll. i\hT. 623. 4 Leon. 242. [So, if the cuftom be, that lands /hall defcend to theeldeft lifter, where tliere is .'.either a fon nnr a daughter, an eldeft niece is not within it. Denn v. Spray, 1 Term Rep. 466.] — But by fome cuftoms the youngeft brother Ihall inherit, and conjuitudo lui ejl ebjei-vanda. Co. Lit. 1 10, b. Special cuftom, that lands in fee fliall defcend to the younger fon, but lands in tail to the elder, is good. March, 54. So, that lands /hall dcfccid to the younger fon, if pjt of the haif-b!cod j and if he be, then to the eldeft. Co. Lit. 140. b. If H:)cfccnt. 301 If a cuflom be, tliat if a man dies without heir male, his eldefl Roll. Abr. daughter fliall have the land ; and if he have no daughter, that the ^^3- God. cldeft filler fhall have the land ; and if he have not a fifter, the BuLTk. eldefl coufm ; but if he have an heir male, that he (hall have it before any of them ; and the tenant of the land have feveral daugh- ters, but no heir male, and the eldeft daughter die in the life of the tenant of the land, having iflue a daughter ; this grandchild is within the cuflom, and fliall have the land by defcent upon the death of the grandfather. But if the cuflom be, that the youngefl fon fhall Inherit, and Rolf. Abr- a man have iflue two fons, and the eldefl have iflue two fons, and 624. re- die, and the lands defcend to the youngefl fon, N^ho dies without Cu7^ ^'' ilTue, the eldefl fon of the eldefl brother (hall have the land, be- (^) if a co- caufe tlie cuflom holds not in the (a) tranfverfal line, but only in py^oiderof , ,. , , ^ ^ ' 'the nature tne hneal defcent. cf borough- englifli, furrenders to the ufe of himfelf and hi5 v.ife, and his heirs, and dies leaving iffue three Com, aiid the youngeft dies in the lifetime ot the wife j the eldeit brother ihall inherit, as heir to the younger bro- ther j for the cuftom cannot extend to the collateral defcent. Roll. Abr. 624. Cro. Car. 41 1, Jon. 360. S. C. by two judges againit tsvo. * ' ■ If there be a cuftom within the manor of 2". that if the father Lev. 172. dies, leaving no fon, but two or more datghters, that the eldefl ^^^^^'^-" daughter fhall have his land for her life only, and after her death shaVtoe ad- it ihall defcend to the next heir male that can derive by males ; and judged, and for want of luch, that it lliall elcheat to the lord ; and there is ^^*' '^^ another cuflom, that if the tenant dies, and leaves a wife, that good, ac- fhe fiiall have it for her life ; and a copyholder of the manor dies, cording to leaving a wife and two daughters, nnd no fon, and his wife enters, °" ^''* and the eldefl daughter dies, and after the v/ife dies, the fecond Keb. 925. daughter fhall have the lands for life, within the cuftom; for 2K.eb. m. though {he was not the eldefl at the death of her father, yet flie ^e^'s c"*' was fo at the death of her mother, whofe eflate was a continuance adjudged, ' of the father's eflate, as in cafe of free bench. and that the Cuftom was good ; though faid in the report diereof, that it feemed to be admitted by all, that fuj:h cuftom, as to fee-fimple lands, would be void ; it being wholly againft the r.uture of a fee to elcheat as long as there are heirs ; and 268, another cafe was f;id to have been adjudged accordingly, upon debate in B. R. in 20 Car 2. between Samp fon and Quinley ; but -vi^ic that cife. Lev. 293» adjudged without argunnent, bccaufe the court faid, the point hid before been adjudged in the cafe of Newton and Shaftoe. If ^. hath ifTue five fons, and the youngefl dies in the life-time Sa'k. 243.- of the father, leaving ifTue a daughter ; after which the father ''-^ween purchafes copyhold lands of the nature of borough-englifh ; thofe and'scuda- lands fliall, at the death of the father, go to the daughter of the more, ad- youngeil: {on Jure reprefentatio7iis, and not to the fourth fon, al- J^^Std- though he was the youngeft fon at the time of the purchafe, and s. c. ad- death of the father, judged. iP. Wms. 63. S.C. aLd.Rayoi. 1024. S. C. 302 S^efcent (E) Where aPerfori fliall be (cud to take by Purcliafe, and not by Defcent. Lit. ^4. iT is nn cftablifhcd rule in dcfcents, that none can inherit as Co.Lit. 13. J. hejrsj but thofe who are of the blood of the purchafer ; and, therefore, if lands defcend to the fon of the part of the father, and he enters, and after dies without iflue, the lands iliall defcend to the heirs on the part of the fatlicr, and not to the heirs on the part of the mother ; and if there be no heirs on the part of the father, then they fhall go to the lord by efcheat. Lit. §4. In the fame manner, if a man marries an [a) inheritrix of lands (tf) But if a ji^ fgg^ ^^jjQ j^jjg \{\;^^Q ^ fon, and dies, and the fon enters into the landb^to'^ano- tenement as fon and heir to his mother, and after, dies without therandhis iflue *, the heirs on the part of the mother are to inherit; and for heirs of the ^^^^^ ^f f^^,]^ j-^^jj. ^.j^g j^,^^g f]^^^ efcheat, part of the mother, yet the heirs of the father's part fliall inherit ; for no man can inftitute a new kind of inherit- ance, not allowed by the law. Co, Lie. i 3. But I'ide Co. Lit. 3 54., that lands may be given to a man and his heirs, on the part of the father; in which cafe, none of the heirs of the part of the mother fliall ever inherit ; but in fuch cafe, the inheritance, as long as it c'.>ntinues, defcends according to the rules of law, though it be determinable for want of htirs on the pare of the father. Plow. 446, So, if a grandfather had purchafed lands in fee, and the lands ■**"• Iiad defcended from him to the father, and from him to the fon ; if the fon had entered, and died without iflue, his fathers brothers or fillers, or their defcendants ; or for want of them, his grandfather's brothers or fifters, or their defcendants ; or for want of them, his great-grandfather's brothers or fifhers, or their defcendants ; or for want of them, his great-grandmother's brothers or fillers, or their defcendants, might have inherited ; but none of the line of the mother or grandmother, viz. the grandfather's wife, fhould have inherited, becaufe not of the blood, either by father or mother, of the firft purchafer, viz. the grandfather. Co. Lit. A man feifed of lands as heir of the part of his mother, makes a a\ wh feoff^ment in fee, and takes back an eftate to him and his {b) heirs, the anceftor ^his is a {c) new purchafe of the lands, and confequenciy, if the pur-, takes but a chafer dies without iflue, the heirs of the part of the father, and ''ftatT'and "^'^ ^^^^ ^^'^^^ °^ ^^^ P"^"^ °^ ^^^ mother, {hall fucceed him in it ; the lirnita- ^or he is the original purchafer of tliat eftate, which he takes tions after back to him and his heirs ; and therefore it fhall defcend as a operate by ^^^^^ purchafe. way of pur- i chafe, and not by defcent ; i^/We head of i?.w<7fni/crj, and Co. Lit. 22. Styl. J48. Co, 93. Moor, i;6. And. 69. Hob. 30. Vent. 372. 2 Lev. 75 Raym.z^S, Mrd. 121. 2z6. 2 Mod. 207. 4M(;d, 3S0. Caith, 272. (c) So, if he levies a finey/.;- cognisance de droit, &c, to yf. and B., and by the fame fine ihey grant and render the lands to him and his wife in tail, remainder to his right heirs ; this makes it a aivt purchafe, and tlie heirs of the part of the father /hall inherit. Carth. 140. adjudged. Co. Lit. 13. But if a man feifed as heir of the part of his mother, makes a feoffment in fee to the ufe of him and his heirs, tlie ufe fliall go to the heirs of the part of the mother ; for the ufe being a crea- ture of equity, mufl be governed by the rules of equity, which confiders in this cafe, that the ufe fprings and arifes out of an inheritance iDcfcent 303 inheritance which belongs to the heirs of the mother, and will therefore aflign it to them, as a trufl which arifes out of their property. A man is feifed of land on the part of his mother, and makes Co. Lit, a feoffment in (a) fee, referving rent to him and his heirs ; this '^- b- rent, fince the ftatute 3iiLi emptores terrarum, ^c. if it has a dif- t)^"^^^} ^' r 1 • n^i r \ i made a trefs annexed to it, mult be confidered as a rent-charge ; and if it gif: in tail, wants a diftrefs, as a rent-feck; and fo either way it is the grant o// 'erife for of the feoffee, and confequently a {b) new purchafe ; and there- \^^l, "gt fore it (hall go to the heir of the part of the father, and not to ferving a the heir of the part of the mother. J^"?"^' ^"^^ heir on the mother's fide fliould have had this rent, becaufe the reverficn belongs to fuch heir, and confeo'jently the rent too, as incident to that reverfion. Co. Lit. iz. b. (^) If a man, feifed of a manor on the part of hi; mother, had, before the ftatute qu'u empures, &c. made a feoffment in fee of paicel, to hold of him by rent and fervice ; though this rent and ferv'cs we:e newly created, yet continuing parcel of the manor, they fliail, with the reft of the manor, defcend to the heir on the mother's fide. Co. Lit. 12. b. If a man hath a rent-feck of the part of his mother, and the Co. Lit. tenant of the land grants a diftrefs to him and his heirs, and fo ^^ ''" improves the rent into a rent-charge ; this diftrefs fhall go along with the rent to the heir on the part of the mother, as incident and appurtenant to it. If the heir of the part of the mother, of lands whereunto a Co. Lit. warranty is annexed, is empleaded for thofe lands, and vouches, '3- *• and judgment is given againft him, and likewife for him to reco- ver in value, and he dies before execution, the heir on the mo- ther's fide fhall fue execution to recover in value againft the vouchee •, for the lands to be recovered in value are defigned as a recompence for thcfe lands which were recovered by the demand- ant from the vouchee, and fo muft go to that perfon who has fuf- tained the lofs. A man hath ilTue a fon, and dies, and his wife dies alfo, and Co. Lit. - lands are let for life, the remainder to the heirs of the wife •, the ^3- *• fon dies without iflue ; the heirs of the part of the father fhall inherit, and not the heirs of the part of the mother ; for the lands vefted in the fon as a purchafer, and therefore the defcent is to be governed bv the rules of law. If a man be feifed of lands on the part of his mother, and makes Co. Lit. a feoffment in fee of them upon condition, and dies ; this condi- '^' '*• tion fhall defcend to the heir of the part of the father ; becaufe he is heir at comm.on law •, but if he enters for the condition 1 broken, then he reftores the eftatc to its former nature, and then the heir of the part of the mother fhall enter upon him, and en- joy the land. If a man, having only two daughters, his heirs, devifes his Crc.EHz. lands to them and their heirs, they take as (r) jointenants, and not ^Vc^p*"' as coparceners •, for the devife giveth it to them in another degree - Lev.127. than the common law would have given it them ; and for the S. P. ad- ( In dcfcents which toll entries, it is required, that the anceftov 3S3, 381^. ^\q feifetl of a freehold and fee, or a freehold and fee-tail ; for if ^^'^* the difleifor, at the time of his death, hath not the freehold in him, it cannot be caft on his heir, for then there is no danger that the freehold fhould want a pofreilor ; and therefore the law creates no title to fuch poflcffion in the heir at law ; for it were incon- gruous that the law fliould fuppofc the right of poflelfion in the heir, when the polTeffion is in another at the death of the ancef- tor ; and If the right of poilcflion be not tranfmitted at the death of the anccftor, the law will not afterwards create him a new title in prejudice of tb.e perfon that has the right of propriety: if a difleifor therefore makes a leafe for life, lie parts with the pofleffion, and cannot tranfm.it it to the heir, having parted with it before; and a defcent of a reverfion will not make a right of poflenion; for nothing defcends to the heir in reverfion but a right of reverfion, and that is a right againft all perfons but the diffeifee j for fince only a right defcends, the heir can be in no better cafe than the difleifor w-as at the time of his death ; and, therefore, when the tenant for life dies, he has only the naked poiTeflion, as the difleifor had it ; but if the difleifor had died in poflefTion, the law, for the reafons aforefaid, calling the poflelhon on the heir, makes it a riglit j for that is properly a right which a man comes to by adl: of law ; and fmce the heir in fucli cafe comes to the poflTcflion by ?£l of law, it mull be called a right of polTefTion ; and it could not be a right of poflefllon, if he could not defend it againft all aggrefl^brs; and therefore in fuch cafe the right of entry is taken away from every one ; and hence arofe the diftinclion oi jus proprietaiis and jus ijofpjjlonis. Co. Lit. If he in reverfion difieife his tenant for hfe, and die feifed, tliis *^9- a. defcent ihall take away the entry of the tena:it for life ; for the right of poflefllon is by lav/ caft upon the heir. Co. Lit. So, if there be tenant for life, remainder in tail, remainder in ^39- 3' fee, and tenant in tail difll'iie the tenant for life, and die feifed, this defcent (hall take away the entry of the tenant for life ; but if the king's tenant for hfe be difleifcd, and the difleifor die feifed, this defcent fliail not take away the entry of the tenant for life j for unce the king cannot be difieifed, the diilcifor gains but a bare eftate of freehold during the life of the lefl'ee ; and tliere- fore the law does not caft the pofleflion on the lieir ; for if the heir comes into the poflefiion, he muft come in as an occupant, wliich being a voluntary acouifltion, the law does not favour it, as it does a right of poflefiion devolved by defcent. Co. Lit. If a diifeifor make a leafe to a man and his heirs during the 'j9' ■»• life of J. S. and the leflcc die, hving jf. S. this fhall not take av/ay the entry of the difleifee, becaufe the heir is only in as a ' fpecial occupant of an eltate of frccliold, and not of a fee or fet-tail. If SDcfcent 307 If a dlfTelfor make a leafe for years, or has the land extended Co. Lit. Upon a ftatute-merchant, flaple, judgment, or recognizance, and ^39- *• •Mies feifed ; this defcent fliall take away the entry of the dif- feifee, becaufe the freehold or fee are caft on him by a6l of law. The defcent of incorporeal inheritances, as advowfons, rents, Co. i.Ic. (3fc. do not take away the entry of him who hath right, becaufe ^37' b. no difleifin can be committed of them, but at the eledlion of the owner thereof. If a difleifor make a leafe for his own life, and die, this de- C0.Lit.a39, fcent (hall not take away the entry of the difleifee ; for though the freehold and fee defcend to the heir of the difleifor, yet the difleifor died not feifed of both, becaufe his death was to precede the determination of the leafe, which carried the freehold to his heir. Defcents to a brother, fifler, uncle, or other collateral heir of the difleifor, take away the entry of the difleifee, as well as if the difTeifor had had iflue, and the defcent had been to them. (G) In what Cafes the Entry of the DiiTelfee may be lawful, notwithftanding a Defcent. T O R D and tenant ; the tenant is difleifed, and the difleifor Lit. § 30a, -■^ aliens to another in fee, and the alienee dies without iflue, ^ inft- ^86. whereupon the lord enters, as upon his efcheat ; this does not "' ' ** * take away the entry of the difleifee, becaufe the lord does not come to the land by defcent, but by efcheat, for want of a te- nant, which can warrant his title no longer than fuch tenant is wanting, nor hinder the difleifee from entry, who is that tenant ; but if the lord by efcheat die feifed, and the land defcend to his heir ; here is a pcrfeft defcent, which fliall take away the enlry of the difleifee ; alfo his heir upon fuch defcent muft pay relief, which the lord upon the efcheat only was not obliged to do. If a difl"eifor die feifed, and his heir without heir, the difllnfee Co. Lie, cannot enter upon the lord by efcheat, becaufe his entry was taken ^'^°' '* away by the defcent cafl before, and then whoever comes to the lands fhall take the benefit of it. A man feifed of lands in fee, or in tail, upon condition, dies Lit. § 391^ feifed, if the condition be broken in his lifetime, or after the lands defcended to his heir, yet the entry of the feoffor, or donor, or their heirs, is not taken av/ay. So, if fuch tenant on condition be difl'eifed, and the difleifor Lit. § 392, die feifed, and the lands defcend to his heir, the entry of the te- ^'''J^'^'^ nant on condition is thereby taken away ; but if the condition be after broken, the feoflbr or donor, or their heirs, m.?,y enter j be- caufe the condition went along with, and was annexed and in- corporated in the land into whofe hands foever it came, and the feoflbr or donor have no other remedy but by entry, which is their title, as the tenant on condition, v/ho is difleifed, has ; for he having a right, his remedy for it againft the heir of the difleifor is by aclion j and till the condition broken, as well the Jus pro* X 2 pristatii 3c8 Sr^eCccnt prietatts as theyV/j" pijl/j'touis is in the feoflee ; but wlien he Is dif- feifed, and a defcent cail, the heir of the dilleifor has only the juspopjfionis. Co. Lit. He that hath title to enter upon a mortmain fliall not be barred *4-°- ^-^ by a defcent, becaufe then he would be without remedy, for the writ he can maintain no a«Stion for it. So, where a woman hath caujamatri- titlc to enter cnufd matrimcun pr^locuii^ no defcent ihall take mor.u fraio- jj^,jjy j^gj. entry, becaufe ilie has no remedy by acliou to re- eun extends • , \ toiiide- cover It (^?j. grees ? fee the writ in the regifter. Booth, 197. F. N. B. 205.] Co.L:t.24o. If a man feifed of lands in foe, by his lafl: will In writing de- (/^) So, if ^i^^g them to another in fee, and dies, whereby the freehold in title to enter ^^w is cafl upon the dcvifee, and the heir, before any entry made for confent bv the devifce, enters and dies feifed j this defcent (hall not take to a raviih. ^^^^-^ j-j-^g entry of the devifee, becaufe then he would be without defcent caft {i) remedy, (f) having never had poflefhon. fliall not take away his entry, becaufe he has no other remejy, nor can maintain any a£lion for it. Co. Lit. 240. b. [(l) The devifee, it feems, is nat witlioat remedy, for accoiding to Co. Lit. 1 1 1. a., he. may either enter, or have his writ ex gra'vi quuela. But fee Ow. J41. j Leon. 209. J Lit. §393. If a diffeifor die feifed, and his heir enter and endow his mo- ther, the diiTcifee may enter upon her for that third part, becaufe fhe is in continuance of her hulband's edate, and not by the heir % (<»') So, of and therefore, as to that third part, the defcent is [d) interrupted tenant by qj. defeated ; but till endowment tlie dilfeifee could not enter iS^lC^l'i. upon any part, nor after fuch endowment can he enter upon the other two parts, becaufe as to them the defcent was perfe£V, and continues, but as to the third part, the wife's title was paramount to the defcent. Lit. § 395. If a difleifor enfeoff his father in fee, and t]\e father die feifed of fuch eftate which dcfcends to the diileifor as heir, yet the dif- feifee may enter, becaufe coming again to the diiTeifor, he (hall take no advantage of the defcent quia particeps criwinis ; but the dilTeifee may either enter or have his allife againil him. Lit. §i 596. if a man feifed of lands in fee hath ifflie two fons, and dies •C0.Ljt.242, feifed, and the younger fon enters by abatement, and has ilTue, and dies feifed, and the lands defcend to his ifl'ue, who enters *, yet the eldefl fon or his heir may enter upon them, becaufe the entry of the youngeil fon fhall be intended upon a claim as heir, and the eldeil fon claiming as heir likewife, and fo by the fame title, may enter upon him, or any of his ilTue, be there never fo Diany defcents : alfo, the entry of the youngeft may be intended to prevent others, and fo to continue it in the family, and not ■with defign to injure or drip his brother of it •, and then his bro- ther's entry cannot be taken away : but if the younger brother, in this cafe, had made a feoffment in fee, and the feoffee had died feifed, this defcent had taken away the entry of the eldeft bro- ther, becaufe the feoffment made title by livery to the feoffee, and carried it out of the family. Co. Lit. If the younger brother of the half-blood enters by abatement, -4' •»• and a defcent is calt, or if the eldefl brother hath iffue, and dies, and SDcfcent 309 and after his death the younger brother or his iffiie enter, and many defcents are caft in his line ; yet the elded fon, or his heirs, may enter ; for though the brother of the half-blood cannot be heir to his eldeft brother, yet he may by poflfibility be heir to his father if the eldeft brother dies before actual polTeffion ; and therefore fliall be prefumed to enter only to preferve the feud in the fame family, and keep out ftrangers, and not in oppofition to the lineal heir of the family. But if the elder brother had firft entered, and the youngi^r bro- Lit. § 397. ther had entered upon him ; this had been in deftruclion of the elder brother's pofleflion, and as much a difleifin as if it had been committed by a ftranger, and then his dying leifed (hall take away the entry of the eldeft brother, or his ilVue. If after the death of the father a ftranger abates, and the Co. Lit. younger fon enters on him, and dies feifed ; this defcent fhall ^^^' ^• bind the eldeft, becaufe po/fe/Jio terr^e nvuft be vacua when the youngeft fon enters, which here it was not ; but his entry on the abator having no right, was a diflcifm, and, by confequence, a • defcent thereon will take away the entry of the eldeft brother ; for his entry was a difleifin, not an abatement. Lands are given to huft)and and wife, and the heirs of their Co. Lit. two bodies ; they have iffue a daughter, and the wife dies, the ^4-~« »• ^•■ huftjand has iflue a fon by another wife, who upon the deceafe of the father abates, and dies feifed r, this defcent (hall take away the entry of the daughter, for by the limitation in fpeclal tail, the fon by another venter was utterly incapable of inheriting them ; and being an eftate which the fon could not in any cafe make title to as reprefentative of the father, his entry is an abatement ; for the Jaw cannot make that charitable conftruclion here, that he en- tered to preferve the eftate from ftrangers that might have abated upon the eftate, fince the fon himfelf is a ftranger, and could not inherit ; but in the cafe of the brother of the half-blood it was otherwife, becaufe he might have inherited his father. If a man be feifed of land of the nature of borough-englifh, Co. Lit. and have iflue two fons, and die, and the eldeft fon, before any ^^^> ^*i* entry made by the youngeft, enter into the land by abatement, and die feifed •, this fliall not take away the entry of the youngeft ^ brother, becaufe the eldeft fon fliall be prefumed to enter to preferve the eftate in his family, which he or his heirs may fome time or other, upon failure of his brother's line, happen to enjoy. The fame law holds likewife in intrufions as well as in abate- C0.LIt.14j. ment ; therefore, if a father makes a leafe for life, and hath ifTue two fons, and dies, and the tenant for life dies, and the youngeft fon intrudes, and dies feifed; this defcent fliall not take away the entry of the eldeft, for the reafons before given : otherwile, if the father had made a leafe for years only, becaufe the pofleflion of the Iclfce for years made an adlual freehold in the eldeft fon, fo that the entry of the youngeft cannot have fuch conftruclion, but is a diileifin, becaufe there is no vacua pofft-JJio, X3 \% 3^^ 3Defccnt» Co. Lit. If one coparcener enter into the whole, churning it to herfelf, 243- «• and take all tiie profits, yet fuch entry Ihall be intended only ii? prefervation of the ellate, and, therefore, a defcent in fuch cafe ihall not bind the other filler as to her moiety : but if {lie diffeife the other, after both have entered, and die feifed, there, fuch defcent will take away the entry of the eldefl, or her iflue. Co. Lit. So, if fuch coparcener enter, claiming the whole, and make a -v3* f' feoffment in fee, and take back an ellate to her and her heirs, and have ilTuc, and die feifed ; this defcent (hall take away the en- try of the other fiflev, becaufe the feoffment leaves no room for a prefumption that her entry was to preferve the eilate of the other filler ; and in the other cafe, the claiming the whole only makes the abatement as to her fifter's moiety ; for if one copar- cerner enters generally, and takes the profits, this fliall be ac- counted in law the entry of them both, and no devefting of the fifter's moiety. Lit. §407, If an infant difieife one, and alien in fee, and the alienee die ^c§. feifed, and the lands defcend to his heir, the infant being under age, the entry of the diffeifee is taken away ; but if the infant diffelfor enter upon the heir of the alienee, as he may well do, not being bound by his alienation made under age, then may the difleifee enter upon him, becaufe the defcent to the heir of the alienee, which took away the entry of the difllifee, is now avoided, and the infant dlffeifor may enter at any time within or after full age. Lit. §409. So, if a diffeifor make a feoffment in fee, upon condition, and the feoffee die feifed, this gains a right of pofTelllon to his heir, and takes away the entry of the diflt:ifee ; but if the difieiibr enter for the condition broken, then is the defcent defeated, and the entry of the diffeifee. revived, becaufe the diffeifoi is then in of his de- feafible ellate, having only a naked poli'efTion without any right. Co. Lit. A civil death, as entry into religion, does not take away an 248. b. entry, for this was the voluntary a fucceflur comes in by his own a£l and concurrence, and therefore fliail have no more privilege than his predeceflbr had : alfo, the fucceflbr pays no relief, unlefs by grant or prefcription ; for the ecclefiaftical lands were not relieved into the hands of the lord. (H) Whofe Entry is preferved notwlthftanding a Defcent. A S to infants and {a) feme coverts, their entry is not taken Gilb. Ten. -^ away by a defcent, by reafon of their weaknefs and incapa- ^^^^^^'^'^^^ city to claim, which is not imputed to them. [a) But if 4 teaie fole is diflelfed, and after her hulband dies (he takes another huftand, and then the defcent hap- pens i this defcent fhall take away the ei.try of the feme, for flie had once an opportunity of entering. I Saik. 241, If a man feifed of lands in fee dies, his wife privemcnt enfeint Co. Lit. •with a fon, and a ftranger abates, and dies feifed ; and after, the ^45- *• Ton is born, he fliall be bound by the defcent, becaufe at the time of the defcent he had no right to enter, not being then in ejfe^ and by confcquence, had no wrong then done him ; and the lord had none to avow upon for his fervices at the time of the defcent. B. tenant in tail enfeoffs A. in fee, who hath iffue within age, Co. Lit. and dies, B. abates and dies feifed, the iflue oiA. being ftill with- -^6. a. in age ; this defcent fliali bind the infant ; becaufe the iffue in tail is remitted to his former and elder right, which is to be pre- ferred before the defeanble title of the difcontinuee's heir. If a feme fole feifed of lands in fee be diffeifed, and then take Co. Lit.^ hulband, and the diflcifor die feifed, and a defcent be call, this **^* ^- "• fiiall take away the entry of the wife after her hufband's death, becaufe being diffeifed when (he was fole, (lie might have enter- ed, and her taking a hiiiband, who would not enter, was her own acl and folly : but if ihe were under age at her marriage, the pri- vilege of her infancy then, and coverture after, ihall preferve her right of entry, though-a defcent be cait. If a defcent be cafl, this (liall bind a perfon nofi compoSy $5*r. LitV §4 but not his heir, becaufe if any adion (hould be brought againft g";J;'^J^f* fuch perfon after recovery of his undcrllanding, he could only ^^.[f.N.B. plead his infinity in excufc at the time of fuch defcent : and the acz. 2 Bi. law does not permit a man to ilultify himfelf. Cro. EUz. 398'] A defcent caft, during imprifonment, fliall not bind, becaufe Co. Lit. during fuch confinement he cannot be, fuppofed w know of the ^^^ U.-6. X 4 defcent, ' ^*' 312 ' C'cfcent [But if he dcfcent, and by confequence, not c.^.pable of taking any meafure weie at ^q prevent it. large when he was diffeifcd, and the dcfcent be caft during his imprifonmcnt, this defcent fliall bind. Co. Lit. ubijupr. J Lit. §439, So, a defcent call, during the abfence of one in foreign parts, 4*0' . fliall not bind, but that on his return he inay enter, becaufe lie s6o 26*1. cannot be fuppofed to know his aftairs at home, or to take fuch ways as might fecure it : but if he were within the realm at the time of the diffeifin, or at the time of the dying feifed, then a defcent caft, though in his abfence after, fliall bind, becaufe he might be prefumed to have conufance of it, and therefore ought to have taken care to prevent it before his departure, or before the death of the difleifor. Lit. §443. If an abbot of a monaftery die, and during the vacation a dif- C0.Lit.263. feifin be committed, and a defcent caft before the ele6tion of a new abbot, tliis fhall not bind his entry after, becaufe there was no perfon during the vacation that could make continual claim, (the convent being in law all dead peifons,) and therefore there can be no laches imputed to any. { I ) How the Entry may be preferved by continual Claim : And herein, I. Of the Nature of continual Claim, and the EfFetls of it. Lit. ^414. /^Ontinual claim Is where a man, who hath a right and title to Giib. Ten. Vv enter into any lands or tenements, whereof another is feifed --' in fee or in tail, makes continual claim to them before the perfon dies feifed thereof, the effeft of which is, that, notwithftanding any dcfcent caft after, yet he who made fuch continual claim may enter, becaufe he hath done all that, perhaps, he could or durft do to regain his poffeflion, and fo no default being in him, his right of entry remains as it was before, notwithftanding any defcent. Lit. §415. If tenant for life alien in fee, he in reverfion or remainder may enter on the alienee, or make continual claim to the land before the dying feifed of the alienee, and then he may enter at any time after his death, though a dcfcent be caft. Lit. §416. Lands are let for life, remainder for life, remainder in fee ; tenant for life aliens in fee, and the remainder man for life makes continual claim before the death of the alienee, and then the alienee dies feifed, and then the remainder man for life dies likewife before any entry ; yet in this cafe he in the remainder in fee may enter by virtue of the continual claim made by the re- nr<:indt;r man for life-, for fmce the efficacy of this continual claim, if there had been a fubfequent entry made by the re- mainder man for life, would have extended to the remainder in fee by revcfting that too, it is but reafonable to allow the remain- der- Defcent 313 clcr-man In fee a power of entry under fuch continual claim, efpe* cially fince by reafon of the intermediate remainder, he himfelf could not make continual claim. 2. VvHiat is necefiary to a continual Claim to make it efFeclual. If a man hath caufe to enter into lands lying in feveral towns in LU. §417, (htfaitie coiintx^ and enter into parcel in one town only in the name of all the reft, this fliall be fufficient to fecure his. entry into all the reft. But if the lands lie in two counties^ the entry muft be in each, becaufe the atteflation of both fa^ls, if controverted, mult be by the p.ircs of each county. If three men difleife mt feverally of three feveral acres of land Co. Lit. in one county, and I enter into one acre in the name of all the three ^J^* acres, this is good for no more than that one acre, becaufe each difleifor made a diftincl entry, which being diftindl acls of noto- riety require diflinfl folemnities to defeat them : likewife, each having an independant pofleflion, an entry upon one of them cau never afFecl the reft, fo as to deftroy their feparate poflefiions. So, if one man dilTeife me of three acres of ground, and devife Co. Lit. them feverally to three perfons for their lives, my entry upon one *5*' ''• lelTee in the name of the whole will only reveft what belongs to tr.^Ho'ihiid that leflee ; for v/here there are different liveries there mull be and Hop- different acts of notoriety to overthrow them, and, therefore, a ^'"'' ^'''* different entry muft be made on each tenant of the freehold. • p-a. But if the difleifor had demifed the three acres feverally to three 4 Leon. pi. perfons for years, then a'n entry upon one of the lefTees in the name 3 5' Co. Lie of all the three acres would have recontinued and revefted all the jpaim. 402. three acres in the diiTeifee ; for though they are different demifes. Lady Ar^ol yet being all terms for years, they are iiot different liveries to be de- ^"° Cheuey. feated by diftincl entries, and, therefore, one entry will fulhce to regain the pofTefhon from the dilTeifor by overthrowing his entry by an acl of equal notoriety. I am diiTeifed by the fame perfon of one acre at one time, and of Co. L^t. another acre in the fame county at another time ; in this cafe my "S-- '>* entry into one of them in the name of both is good, for though there are two entries, yet it is but one continued acl of wrong, and but one polTeirion is gained, for which but one afiile lies, there- fore one entry of the dilTeifee is an a£l of fufficient notoriety to reveft the poflefhon of both acres. If one difleife me of two feveral acres in one county, and I enter Co. Lit, into one of them generally, without faying in the name of both, -5-" **■ this fhall reveft only that acre where entry is made ; for the intent, which is the rule to judge of a man's actions, appearing to extend no farther than that one acre, ihall not be enlarged to reveft the polleinon of the other. Livery within view and entry afterv/ards is equal to an entry on Co.Llt.2!;i. ^he land itfclf, and if a man cannot enter for fear of an outrage, ^''- ^^'9* yet it is good. So alfo, a claim within view is good when a man t'l^r^'X^ fears to enter, for in the cafe both of entry and claim a man ought 6 to 314 iDefcent. to take pofleffion where he can, becaufe it is the change of poflcffion makes the notoriety in both cafes ; but if the dilTeifor menace to hurc the perfon that has right, then the law allows him to make his claim as near the land as he dares to come. Co. Lif. But every apprehenfion of danger will not warrant a claim ~53- *>• within view j for if a man fears the burning of his houfes, or the taking away or fpoiling of his goods, this is not a fufficient ground to warrant a claim within view, becaufe if he fliould fuffer what is threatened, he may recover what he lofes, or damages to the value, without any corporal hurt. Co. -Lit. The apprehenfion then that will juftxfy a man's claiming within *53- *»• view, mult be of the perfon's lying in wait with weapons, or by words menacing to heat^ maim^ or kill the perfon that offers to en- ter; as alfo i\\t fear of imprfonment ; for the law will never oblige a man to hazard his perfon in fuch a manner as may render him unfit to fervc his country, when he may recover his right without fuch danger, viz. by making claim within view. In pleading, the difTeifee muft fhew feme juft caufe of fear, that the court may judge of the reafonablenefs of an appreh.en- fion cf danger to his perfon ; but in a fpeclal verdi£l, if the jurors find that the difleifee did not enter for fear of corporal hurt, it is fufficient, and it (hall be intended they liad evidence for what they find. 3. Of the Time in which it is to be made. C0.Lit.237. In ancient times, if the difieifor had been in long pofleffion, b. 254. b. j]i^e difTeifee could not have entered upon him : fo, if the feoffee of the dilTeifor had continued a year and a day in quiet pofTefTion, the diiTeifee could not have entered upon him ; for the difleifee's neglecl of entry for that time formed a prefumption, that either he had no right in the lands, or tliat he relinquiftied it, efpecially in the cafe of the feoffee of the difTeifor, becaufe he came in by a legal conveyance and the folemnity of livery, which gave no- tice to the difleifee, in whom the pofTefTion was, fo that he might have entered on the feoffee immediately, and recovered the polTeffion. Lit. §427. But the law has been altered in this point; for If a man is Co. Lit. j^Q^ difl^eifed, and the dilTeifor continues in poA'cfTion for forty f By'fta't. years without any claim made by the difleifee, yet if the dif- ai Ja. I. feifee at laft make his claim before the death of the difleifor, it ^ ^^'(J\\ ^^'^^^ fecure his entry for a year and a day after fuch claim made, make entry ^o be Computed from the day of the claim inclufive, notwith- upon any ftanding any defcent call; in that time ; but if he fuffers the year lands, but ^^^ ^^^ ^^^^^ j.j^g claim made to elapfe, then a defcent after will twenty bind him ; and fo toties quot'ies after a year and a day after any years after claim made, a defcent will conclude his entry, his right flial! firft accrue. And by flat. 4 Ann. c. i6. § 16., no claim or entry upon any lands, &-c. ftall bs fufficient to avoid a fine levied of fuch lands, or to fatisfy tlie flatute cf limitations, unlefs an aftion be commenced within one year after, and profecuted witheffedt.] The aDeCcent. 315 The rules of law concerning continual claim, and the efFefts i-it. ^4z8. of it, hold as well in rciation to abators and intruders, their Co. Lit. donees and feoiTces, as in relation to diiTeifors, their donees and feoffees, and for the fame reafons. If the dilTeifor dies fcifed within a year and a day after the diflcifin, Lit. § 42$, and before any entry by the dilieifee, this gives a right of pof- feflion to the heir, becaufe when the difleifee yields up the pof- feflion peaceably, the prefumptive right is in the difleifor, and the year and dav wuich Ihould aid the difleifee in fuch cafe fhall be taken only from the time of the claim made by him, not from the time the title of entry accrued to him ; and therefore, it is ad- vifeabk for the diffeifee to make his claim as foon after the dif- feifin as he can. Since Littleton wrote, an alteration as to the entry of the dif- 31 H. J, feifee on the death of the difleifor has been made by 32 H. 8. '-.SS- Co. cap. 33. by which it is enacted, " That except fuch difleifor hath ' '^^ ** been in the peaceable pofl"eflion of fuch manors, lands, ^c. " whereof he (hall die feifed, by the fpace of five years next af- " ter fuch diflTeifin, ^c. without entry or continual claim, l^c. ** that fuch dying feifed, i^c. fhall not take away the entry of ^' fuch perfon or perfons, e^fr." But ftiil after the five years, continual claim mufl be made as Co. Lit. at tlie common law, fmce the ftatute which is introduclive of a "S^* a« new law does not provide for it after the five years. It is faid that abators and intruders are not within the fta- Co. Liu tute, becaufe it is penal, and extends only to a diflTeifor in ex- p^o^^^, ^ prefs words, which was the moft common mifchief, ^ ad ea qua square, frequentius accidunt jura adapt ant ur. The feoff'ee of a difleifor for the fame reafon is held to be out C0.LIt.238. of this ftatute ; but in refpeft of the difleifor himfelf the ftatute ^' *5^' '• is conftrued with that latitude which may beft preferve the an- tient right \ therefore, though the ftatute fpeaks of him that at the time of fuch defcent had title of entry, or his heirs, yet the fucceflbrs of bodies politick, fo they be confined to a difleifin, are within the remedy of this ac^, for the ftatute extends clearly to the predeceflbr's being difleifed, and, confequently, witliout nam- ing the fucceflbr extends to him, for he is the perfon that at the time of fuch defcent had title of entry. If a man make a leafe for life, and the lefl'ee be diflTeifed, and Co. L??; the difleifor die feifed within five years, the lefl'ee for life may ^32- a. enter; but if he die before he enters, it is faid the entry of the ***'47«*« reverfioner is not lawful, becaufe his entry was not lawful upon the difleifor at the time of the defcent, as the ftatute fpeaks : but if lefl'ee for life had died firft, and then the difleifor had died feifed, he in reverfion had been within the remedy of the ftatute, becaufe he had title of entry at tlie time of the defcent, and fo witlfin the exprefs letter of the ftatute, though he was not the immediate difleifee. The fame law of a remainder. E 316 ] SDetinue, DETINUE is an a£tion that lies for the recovery of goods and chattels, though the party came to the pofleflion of them by [a) lawful means, as by bailment, borrowing, or pledging ; and in this action the plaintiff is to recover the thing in fpecie, or {l>) damages for the detainer. (j) It lies againft a man that hath goods either by delivery or finding. Co, Lit. 286, Roll. Rep. 123. (i) 2 H. 6. 15. Roll. Abr. 575 (c) For this 1/Ue tit. TVager cf Laiu, {d) 10 Co. 57- a- Moor, 481. Cro. Jac. . 244. Yelv. 178. {e) Vide tit. 'trover and CiKVCrfK/Tt, But as In this a^lion the defendant was allowed to {c) wage his law, (for it was thought but reafonable that the bailor trufling to the bailee's honefty and integrity at firft, fhould alfo truft to his oath in a court of juftice, fince the reftitution might have been fecret,) and this was {d) found exceeding inconvenient, it being often experienced that thofe, who were fo difhoneft as to retain the goods of another, would generally purge themfelves on their oaths, the a6lion of [e) trover and converfion was fubftituted in the place thereof, which being the adtion ufually made ufe of at this day in thofe cafes, I fhall but briefly confider, (A) By and againft whom Detinue lies. (B) For what Things it may be brought. Roll. Abr. €07. {f) A man that hath a fpecial and limited pro- perty, as a carrier that takes away Sid. 438. Vent. 52 Sid. 43S. (A) By and againft whom Detinue lies. TF a bailee deliver the goods to another, he fliall have an a£lion •*■ of uctinue againft him, {/) becaufe he hath his pofleflion, and und;.itakes for the cuftody, and the original bailor may have his action againft either of them, becaufe in him is the property, which bo:h are bound to anfwer to him. hath goods delivered, or a fheriff by Jteri facias, fliall have this aftion againft a ftranger that the goods, becaufe they are anfwcrable in damages to the abfolute owner. sBulft. 311. Mod. 30. 2 Sand. 47, 2Keb. 588. Yelv. 44. Cro. Jac. 73. Dyer, 98, 99. Lev. 282. Danv. Abr. 20. pi. 4, 5. If J. takes the goods of C, and B. takes them from J.y C. fhall have his a£tion againft yl. or B. at his eledion, becaufe both damnified C. in their taking. If Detinue* 317 If a man detains the goods of a feme covert wlilch came to hli Sid. i-z. hands before marriage, the hufband can (a) only bring detinue, ^^^ ^^^* beaufe the law transfers the property to the huiband, but both styi.'zei*. (hall join in trover ^ becaufe the wrong was originally commenced Yciv. 165. at the time when the wife was fole -, and if fuch injury be pu- ^g^^^^'J^g nifhed, the wife herfclf, who received this injury, muft be party to a feme to the action, and the wife's demand is fufiicient to prove a con- "vcrt be- verfion in the defendant, fince one of the parties to the adion is j°age^d«i- denied the goods ; but if the pofleflfion be laid in both it is ill, be- nueiies caufe if both were poffefTed, the law will transfer in point of f^^^i"^^''^^ ownerfliip the whole intereft to the hufband. iy"but"tio"er and converfon lies againft both, becaufe both were concerned In the trefpafs. Roll. Abr. 607. j but for this "jide title trover and Converjion. If y/. delivers goods to B. to be delivered over to C, either-^. 9H. 6. s*?. or C may have detinue againil B. ; for not delivering them over, according to the undertaking, is an injury done each of them. eog b. 60. Roll. Abr. (B) For what Things it may be brought. iT has been {h) holden formerly, that detinue will not lie for {h)-jH.^. -*■ money, unlefs in a box or bag, nor for corn out of a fack, be- ^" \'. ,, > ' 1 1 T 1 11- CO.Llt.Z60. caufe thefe thmgs have no mark whereby they may be known m cro. Eiiz. order to be re-delivered to the plaintiff. 457- Moor, 394. N. Dyer,22. 2 Built. 508. Roll. Rep. 59, 60. Lit. Rep. 24.''. Noy, 12. Sl^ ^ vide t\x\zTr) upon the ifTue in tail, this is a dif- itisnotihe continuance, {c) by reafon of the warranty. warranty only that makes the difcontinuance, but the warranty and defcent upon him t'-.at hath r'ght to the lands. Co Lit. 32S. a. (c) Vi%. That if aflets defcend, he to whom the releafe Is made may plead the fame, and bar the demandant. Co. Lit. 32S. a. b. Co. Lit. If tenant in tail leafes for years, and after levies a fine, this is BuHt^'i6-' ^ difcontinuance, for fine is a feoffment upon (rt') record, and the 2 Roll. "" freehold pafles. Rep. 484. {d) But if tenant in tail levies a dnefur covuzar.re de droit tantum, ihis is not any difconti- nuance till execution ; for if he dle<; before execution, the tenant may enter. 56 Ad. 8. Roll. Ahr. fill. S. C. So, if a fine be levied to tenant in t.iil, and he grant, and render the land to the conuzor and hii heirs, and die before execution, this is no difcontinuance ; otherwlfe, if executed in the I'fe of tenant in tail. Co. Lit. 333. b. C0.Lit.332. But if tenant in tail leafes for his own life, and after levies a fine, this is no difcontinuance, becaufe the reverfion expe6l- ant upon an eftate of freehold, which lies only in grant, pafTed thereby. If £)ifcontinuance» 32t If tenant in tall leafes for the life of the leflee, by this the tail Lit. \ 620. and reverfion thereupon Is difcontinued •, and if the tenant in tail ('^ So, >f by deed grants his reverfion in fee to another, and the tenant for Hre furren- life attorns ; and {a) after the tenant for life dies, (I?) living the te- dcis to the nant in tail, tffr, (c) this is a difcontlnuance in fee. grantee, or ' \ J the grantee recovers in wafte, and enters for the forfeiture, &c. Co. Lit. 333. b. Lit. ^621.649. Jon- 21O. Latch. 65. {S) If tenant in tail leafes for the life of the lelTee, and after levies a fine with svarranty ;^ though this is not any difcontinuance, fo as to take away the entry <>{ him in reverfion after the death oX the tenant for life, unlefs executed in the conufee by the derith of tenant for life in the life of tenant in tail ; yet the grantee hath an abl'olute fee, to which the svarranty being annexed, and dcfcending upon the reverfioner, will be a bar. Jon. 210. adjudged. Cro. Car. i 56. adjudged. For by the estate for life the tall was difcontinued, and a new fee gained } which reverfion in fee being granted with war* ranty, the warranty was annexed to the fee, and bound tliofe that had right. yiJe Latch. 64. 72. Salk. 245. Lutw. 770. 782. {() Where the reverfion ii executed in the life of tenant in tail, it is equivalent in judgment of law to a feofl'tnent, for the ellate for life paiTed by livery. Co. Lie. 333. b. If tenant in tail leafes for (d) life, the remainder in fee, this Co. Lit. is an abfolute difcontinuance, though the remainder is not exe- }]}'^^'-^f^.^g cuted in the life of tenant in tail, becaufe all is but one eftate, and icafes for pafleth by one livery. . . years, the remainder in fee, and makes livery of jojin accordingly. Lit. § 63:. But if tenant In tail leafes for three lives, according to 32 i/. 8. Co. Lit. c. 28. this is no difcontinuance of the eftate-tail, or of the {e) re- ^ut foVthls verfion, (/) becaufe it is authorifed by a6l of parliament, where- ^idc head of in every man's confent is involved. Lcuj.i. ' (0 But if tenant in tail levies a fine, and after dies without ifTu?, the donor Is put to his formedon. 4. Leon. ijl. Co. 96. Cro. Jac. 696. Sid. S3. (/) Dyer, 57. pi. i. Owen, zS. 2Leon.46. If tenant in tall leafes for life, and after difleifes leflee for life, Co. Lit. and makes a feoffment in fee, and the lelTee dies, and then tenant V'V^^^^^^ in tail dies, though the fee was executed, yet, becaufe it was not by cuitom executed by {g) lawful means, it is no difcontinuance. an infant above the age of 15 may make a feoffment, and being tenant in tall, he makes a feoffment; it is no difcontinu- ance, becaufe the cuftom will not enable one to do a tort. Cro. Jac. 80. If there be tenant for life, remainder In tall, remainder in tail, Co. 76. a. l^c. and tenant for life, and he in the firft remainder In tail levy F°' ^"^"^j^^* {h) a fine, this is no difcontinuance of either of the remainders, g^^. becaufe each of tliem pafled only what he lawfully might. Moor, 634.. Owen, 129. •r^ii^ 2 Lev. 2 54. iJon.sS. (i) So, if they made a feoffment. Co. 76. Cro. EIlz. 135. Lean. 127. But ^. and -vhU Dyer, ■?24. And. 286. Cro. Eliz. 36. 6 Co. 15. and Sid. 83., where this opiniaa is denied ; becaufe a f;offmt-nt differs in its nature from a fine. If fuch fenffment be maiie by pjrQl, it will be the furrender of tenant for lil'e, and tlie feoffment of him in remainder, ut ra mJ^ii -.-.iUatf and, conlequently, a difcontinuance. Co. 77 But a naked confent of the tenant for life svili not amount to a furrender, foai to make it a difcontinuance. Carth. no. If tenant In tail enfeoff the donor, this is not any dlfcontinu- Lit. §65, ance, becaufe the donor hath the [i] Immediate ellate, and it s^p'"*""^' operates as a furrender ; it paiTcs no more than it lawfully may (,) R.jt if pafs. t}i;re l>e te.. nant in rail, the remainder in tall ; and thi* 'enant in tall enfeoff him in reverfion In fee, this i« a difcontinuance, Co. 140. Co. Lit. ;i3 J. S. F, becaule :here is a raefne •(lace. *ieilw. 4,2. a. S. l\ f.r iroaick f«s. Dyer ic. pi. 3:, Vol. If- Y If 32* ff)ircontinuance» Co. Lit. If the donee enfeoff the donor and a flranger, (a) this is" a dif* 3"^S- »• continuance of the whole hihd. (a) Condi- tionally, "vix. if theftranger furvive. Dyer. 12. pi. 53. Cro. Car. 406. Lev. 36. If a man covenants to ftand feifed to the ufe of himfelf for llfc^ ^'7b^"^ remainder to his wife for life •, the remainder to the heirs male tridge. " which he fliall beget on the body of his wife, reniainder to his Raym. 36. eldcfl fon by a former wife, &c. and after the hufband and wife ^.•*-- levy a fine with warranty, and die without ilVue ; this is no dif- S'Q. 83. •' . f. , • , I r 1 .1 -I S.C. ad- contmuance or the remanjder, becaiue the eitare-tail was not exe- judged. cuted, by reafon of the intervening eflate limited to the wife, Eut.t was ^.hich eftate is not drowned, but remains diftind. agreed, that ' if the eftate-tail had hten e^tecuted, this fine had been a difcontinuance of tlie remainder in tail, and h the warranty defceiiding upon him in remainder, would liave barred. Lit. § 637. If a man has the riglit of poffcffion, and is not poflefled by ^41- vjrtue of the entail, he cannot difcontinue otherwife than by Garth. 1 10. , ' ' S. P./.#. (/>) warranty. letter (E). (i) As if tenant in tail is dilTcilTcd, and dies, snd t'lc ifl'ue in tall relesfes to the difleifor wict it liacii the eftedt of a difcontinu- ance by reafon of the warranty. Co. Lit. 339. D}ei 35. Moor 255. Lit. § 658. As, if there be grandfather, father, and foil, and the grand- Roll. Abr. father be feifed in tail, and the father diffcife the grandfather, and Ray''"' 37- ^^^^ '^ feoffment in fee, and die, this works no difcontinuance, becaufe the father was not pollefled of the entail, but of a fee- fimple by diffeiGn, which was fubjedl to the entry of the tenant in tail ; and, confequently, the alienee is fubjecl to the entry of the iffue in tail, inafmuch as the father, who made the alienation, had only the naked poffeffion by difleifm, and not the right of pof- feffion by virtue of the entail. Lit. § 638. '^o, if tenant in tail leafc to one for life, and have iffue and die, (c) So, and the reverfion defcer.d to the iffue, and the iffue {c) grant the ^ratit^had*^ rcvcrfion to another in fee, and the tenant for life attorn, and die, been with and the grantee enter, and be feifed in fee in the hfe of the iffue, warranty. and the iffue in tail have iffue a fon, and die, this is no difcon- ^iq^-'^yet tinuance ', but the fon may enter, ^c. for that his father had -vide ]on. never any thing in him by force of the entail. aio. Cro. Car. 156. Latch. 62. Roll. Abr. So, if there be tenant for life, the remainder in tail, and he €34. ^ru'ide in remainder enter upon the leffee, and diffeife him, and make a Ro1i"rcp°' f^off^'nent over, this is not any difcontinuance, becaufe he W4» 388, never feifed by force of the entail. Moor, 747. Styl. 153. Bulft. 1^2. 310II. Abr. But if there be leffee for years, tlie remainder in tail to J. S. td)'so if he ^"^ (^^ J' ^' ^"''^^ "po" ^^c Icffec, and make a ieafe for Mfe, or make a deed feoffment in fee, [e) this is a difcontinuance, for he was feifed of feoff- by force of the entail at the time of the feoffment. ment with •T letter of attorney to J, N., to make livery, and he enter and oult the ledcs, A:c« Moor 91. pi. ili* »)er 363. pi. 22. (i') Though the kflee rc-cmcr. Moor 281, pi. 6. £)ircontinuance» 325 |G) Of Dilcontinuances by Hufbands feifed In Plight of their Wives. ANY alienation made by the hufband of the wife's land, whe- a Inft. 68|, ■*^ ther by feoffment, or fine, was a difcontinuance, and after his death, {he was put to her cut in vita to reinflate herfelf. But now by the 3?. H. 8. cap. 28. " No fine, feoffment, or [a) The " other adl, made, [a) fuffered, or done by the hufband {b) only, hufband ** of any manors, (sfc. being {c) the {d) inheritance or freehold J.]^,^*^ t^ ** of his wife, during the coverture, fhall make a difcontinuance be brought <' thereof, or fhall be prejudicial to the {e) wife or her (/) heirs, againft him <■< or to fuch as {g) (hall have right, title, or intereft to the fame by *"„„ a ^* ' <■' the death of fuch wife j but that the [h] wife or her heirs, and feigned *< (;■) fuch other to whom fuch right fhall appertain after her ^'^j^' ^"** ^ death, may enter into fuch manors, ^V. according to their coverywith"^ *' rights and titles therein ; any fine, feoffment, or other adl of out any «' the hufband notwithliandinff ; fines levied by the hufband and voucher, .■ , o ' ^ J and cxcs^u- «'' wife (whereunto the wife is party and privy) only excepted.' tion to be liad againft him and his wife, tliis is an aft within the flatate, fuffered by the hufband. Co. Lit, 3 ■•.6. (b) Though a fcoftment be made by the hufband aod wife, for this in fubftance is the adi of the hufband only. Co. Lit. 326. a. [c) Where during the coverture lands are given to the hufband and wife, and the heirs of their two bodies, this is the inheritance of the wife within the aft I fo that if the hufband makes a feofTment, and dies, fhe or her ilTu: may enter. 9 Co. i-?8- 2 Inft. 681. Cro. Car. 477. Co. Lit. 326. a Inft. 681. 8 Co. 72. Brown. 131. But if the hufband levies a fine with proclamations, the iflue is barred, though the wife is helped by this flatute. Keilw. 205. 213. Dyer, 351. pi. 24. And. 39. 8 Co. 72. But if the hufband is tenant in tail, remainder to the wife in ta'.l, and the hulband makes a feof?^"ment in fee, if the h-ifbind die without iffue the wife may enter. Co. Lit. 326. a. 8 Co. 72. But there faid, if he I'l.ffers a recovery, fhe is barred, (^d) This extends not to the wife's copyhold of inheritance. Moor, 596. ——But though the ftatute does not extend to it, yet the hufband cannot at common law discontinue the wife's copyhold. 4C0. 23. Cro. Jac. 105. Poph. 138. Moor, 596. Roll. Abr. 632. {e) li after a feoffment made by the hufband they are divorced caufa pracor.traBuif fhe may enter within this aft, and is not driven to her cui ante di-vorrium, as at common law ; though by the fl-atute the entry is given to the wife, arid now upon the matter fhe was never his lawful wife ; yet at the time of the aliena- tion fhe was his wife def::io ; .ind where the hulband dies, fhe is not his wife at the time of the entry. Co. Lit. 326. a. 8 Co. 73. a. She may enter though her hufband is living, but i':d& Moor, 58. pi. 164. (/) But her heiis by the common law could have no remedy, nor by this aft can enter during the life of the hufband. Co. Lit. 326. 8 Co. 72, 73. {g) But if the wife before entry dies without heirs, the lord by efcheat fhall not enter j for though an entry is given by the aft, yet the feofiee, &c. is in by title as before. Hob. 243. 261. (/-■) But if the hufband makes a feoffment, and dies, and the wife before entry levies a fine, this fo flrengthens and fortifies the difcontinuance, that fhe or thofe in remainder Can never enter ; and though, by the flatute it is enafted, that the feoffment of the baron fhall not be a difcontinuance, but th? wife may enter, yet it is a difcontinuance till entry. 2 Roll. Rep. 311. Cio. Car. 320. and -vide Roll. Abr. 632. (f) By thefe words the entry of him in reverfion or remainder is preferved. Co. Lit. 326. Hob. 261. Although the words of this aft are very general, and feem to C0.Lit.316. give the wife and her ifTue an entry, to avoid any fine levied by fg^f'/^j the hufband of her lands, yet if the hulband levies a fine with pio'w. 373. proclamations, and five years pafs after his death, without any entry 8 Cc. 72. or claim by the wife, her entry is not only taken away, but her right ^ q^'^,<^' is for ever extinguifhed •> becaufe the ftatute was intended to pro- vide only againfl the difcontinuance, which was a grievance par- ticular to feme coverts, but not to invalidate fines duly levied, ac- cording to 4 H. 7. c. 24. as to femes covert ; becaufe they by that ftatute have a remedy in common with others, which is by entry y :{ or 324 £)ircontinuance» or cliim to avoid the fine ; whereas before the ftatute of 32 //. 8. f. 28. it \v.i3 not in their power to prevent the difcontinuance ; r>nd therefore the ilatute reheves them in that particular. Befides, though the words of the acl be general, that fuch fine (hall nat be prejudicial to the wife of her heirs, yet the following words, VIZ. but that Jhe may lanvfull^ enter according to her right and title therein, are explanatory, and allow her an entry only in cafes where ihe had a right before the ftatute, and it is plain that by 4//. 7. c. 24. file had no right after the five years were lapfed from the death of the hufband. If hulband and wife are tenants in («) fpecial tall, and the huf- band aliens in fee, this is a difcontinuance, for though the words of the itatute are, of any lands being the freehold and inheritan:re of the ivife ; yet as this joint eftatc may without any impropriety be called the inheritance of the wife, the mifchief being equal, it ihall be intended to be provided againft. the b.Ton, and the baron makes a feoffment in fee, this is a difcontinuance ; for the baron is feifed by J^rcc cf the entail. Cr0.Car.3io. Jon. 524. 3 Co. 5. Roll. Abr. 632, 633. 2 Roll. Rep. jii. If a hufband levies a fine of the wife's lands to the king, (he may after the death of her hufband enter upon the king ; for though the ftatute does not exprefsly name the king, yet being made to p;:event an injury and wrong, he fiiall be bound by it, the rather becaufe it is his moft immediate concern to relieve his fub- ifdls from any grievance or wrong. C0.Lit.326. SCo. -lb. (j) If Ijnds are given to biron and lemi', and t le heirs <>f tile bi>dy ijf 2 Inrt. 6S1, (D) Of Difcontinuances by Women 'of Lands of the Gift of their Hufband, or his Anceftor. 579- {•h) S.I, if 3. woman, haying; only ti:li; of 4l jwer, en- ters berore flie is tn- do'.vrd, and levic-s a fine. 2Le„r». i6S. 3 Leon. ^S. cited bv Rhodes tu have been adjudged. () other after taken huf- " band (;') dlfcontinue, (k) alien, releafe, or confirm with (/) " warranty, or by covin fufter (w) ai^y recovery againft them ; all " fuch recoveries, difconiinuances, ilfc. fliall be («) void, and (e) " every (p) perfon to whom the intereft, ^s'c. after death of the " woman, in manors, is'c. ftiould belong, may enter, i5fc. as if no " diicontinuance, ^'s. had been ; and if fuch huftjand and wife «* make fuch difcontinuance, the (q) perfon to whom the manors,' " t^fa. fhould belong after the death of the woman, may enter and <' hold, according to fuch title as he fiiould have had, ix" the wo- " man Difcontinuatice* 325 ** man had been dead, and no difcontinunnce, \2fc. as againft the Moor 716. *< hu(band during his life ; provided the woman after the death of P'". ,'°°°*c 1 - 1 -ri-i \ 1 I-- • BriJg- 130. ** her hulband may re-enter, CTt-. but 11 lole when the dilcontmu- ero. Eiiz. ** ance, ^c, flie fhall be barred forever, and the perfon, to whom 5Z4.adjuds. <* the intereft beloncs, may enter, i5'c. ProvUcd the acl (hall ^^- ^°l " i-r • Li_i/A may go to a •* not extend to any recovery or dncontmuance, to bv.* had (r) coiiatetai ** with the (/) heir next inheritable, nor where he, that next lieir. (f the l.ind moved from the wife. Co. Lit. 366. a. Eallon and Stud. Plow. 459. adjud-.-d. KciUv. 214. adjudged. N. Bendl. 230. pi. 266. and with this agrees Cro. El't. 524- Moor 71 ;. pi. icoo. Xay Cro. Eliz. 2. it is faid to have been adjudged, if baron and feme levy a fine of fuch land, and the conufee grants a rent to them in tail, it is out of the aft, for the rent is in lieu of the land So, if the an- ceftor of the baron ma.kes a feoffment in fee, upon condition that thefcofie^ ihall give it to the barun and {tmt in tall, fefc, this is within the meaning of the a£l, though out of the words, for they are in L>y the feoffment, and not by the nnceftor of the baron. Moor 93. pi. 231. Per Fio«'den faid to have been fo adjudged, Linch and Spencer, Cro. Eliz. 514. 2 .'ind. 44. Moor 455. 3 Co 50. It is within the a(ft, though the gift bv the hulband or his anceftors, by which the feme takes, was made as well in conlideratlon of money paid by the feme, or her father, as of the marriage. Dyer 146. a. b. Keilw. 208. Moor 93' pi. 231. Cro. Jac. 474. Otherwife, rf the lands had moved from the ancellor of the feme, as, if fettled by the father of the feme in confideration of the marriage, and of money paid by the baron for the lands moving from her father, it fliall be intended that her aovance- ment was the principal caufe of the gift, and not the money. Kynalto 1 and Lljyd, Cro. Jac. 6:4. ad- judged. Jon. 13. adjudged. Paim. 213. 21 8. adjudged, Copland and Fyot. Cro. Car. 244. adjudged, Jon. 254. adjudged, and -vid-e Moor 93. pi. 251. 2 And. 45. But where conveyed by a ftranger in conlideratlon of the wife's fortune paid by her father to the vendor, and other money paid by the baron; this is the purchafe of the hulband within the aQ. Moor 250. pi. 39S. \i A. in confi- 4eration of good fervice done by B., conveys lands to £, his man, and C. his couCn, and the heirs of their bodies, £ff. This is not within the adl, not being made by the baron or his a:iccltor, and being in confideration of fervice done, it is not fuch a purchafe as the ^A intends. VVaid and VVarthew, Cro. Jac. 173. adjudged ; and though C. was named coufin by the deed, it was faid that was not material, be- caufe it did not appear to be any part of the confideration j but however being f.und in faft that ihe was hiscoulin, and that a marriage was intended ; it was faid it fiiould be prefumed the marriage was as well the caufe of the gift as the fervice. Noy, 122. adjudged. Yelv. lor. adjudged. Moor 6S3. pi, 943. JiJjudged. (/") Baron and feme being joint copyholders in fee, the baron puichafes the freehold thejeof to him and his wife, and the heirs of their Dodies, they have ifiuc, the baron dies, and the feme enters and fiiffer^a recovers, &"<■., this is a foifeiture within the aft, for the copyhold by the acceptance of the new eltatc, was extinft. Cro. Eliz. 24. agreed /cr rur. (j) If a man ocvifcs lands to his wife in tail, this is within the words, but no: within the meaning of the aft. Eoit-c-r and Pitfal, Leon. 261. Cro. Eliz. 2. [Hughes v. Clubb,Com. Rep. 369. S. P.] 'i')Am3n feized in fee levied a fine to the ufe of himfelf for life, and after to the ufe vi his wife, and rhe heirs male of her body, by him begotten, • for her jointure ; and after he and his wife levied a fine, and fuffered a recovery, and the hulband and wife died ; and it was held, the illue upon this aft might enter, for though it was not within the words, yet it was within the remedy intended to prevent the diftierlfon of heirs. Co. Lit. j 6 5. But in the cafe of Kirkman and Thompfon, Cro. Jac. 474- this point is adjudged ccr:. and that fuch alienation was nei- ther within the words nor intention of the aft, which feems clearly to be law. (;) /"li/j Jones and Philpot, Lev. 49. Sid. &;. («)If furh feme tenant in tail accepts a fine fur conu-zance dt Jrcit, aod thereby renders the land for i ooo >e3r>, "f. this is an alienation within the aft, clfe it would be to little furpofe. 3 Co. ji. faid to have been fo refolved. Moor 250. pi. 39S. adjudged. 2 Leon. 16S. ad- judged. 3 Leon. 78. adjudged, &" a/ut Cro. Elil. 514. 2 And. 58 Diverfity where fuch le.:fe made by fine, where by deed only. Cro. Jac. 629. Bridg. 2S. 1 Jon. 60. " I'lJc 2 Roll. Rep. 4.90. "Where it is faid by two judges, that though fuch Icife be made by fine, yet it not being any difcontinu- ance, or prejudicial to the ilfue, he cannot e:itcr till after her death. (.') This relates only to releafes and confirmations, which are no difcontinuance without, fo th.it a leafe by fuch feme tenant in tail made for three lives without warranty, if not puifiant to 32 H. 8. c. 2S. is a forfeiture within the aft. Sir CJeorge Brown's cafe, 3 Co. 50. b. Cro. EHz. 514. (w) Extends to fuch, wh?;c iTre comes in only as vouchee. Moor 716. pi. loco. (r) Yet it continues as to the parties, and all others, except him to whom the intereft, £fi. by whofe entiy it is to be avoided, 3 Co. <■>. b. 60. Hob. 166. (0) Unlef* Ix hath flifabled himfelf by Uvying a fine, luff'ring a iccovery. fc^. \V2-d a-.i Wilthce, Cro. Jac. 17 ;. V J a^judie4. 326 Sl^ircontinuance. adjudged. Ye'v. loi. adjudged. Nay> 12^. adjudged. And where he hath concludeci hirafei^ by fufteiinga recovery, ficc, his iflucwhom he had power to bat fhall not enter. Lincoln College, 3 Co. 61. a And. 31. But if after fuch feme tenant in tail fuffers a recovery, tlie iflue in tail rdeales to the recoveror, yet the iflue of that iflue is not barred thereby. 3 Co. 59. cited fr im Doftor and Student, and 3 Co. 6i. agreed to be law. — But, if the iflue in fpecijl tail, the remainder being to him in fee, levies aline with proclamations, (though not found,) and after his mother (being tenant in t.nl within this i£i) leafes for three lives, (not warranted Uy 32 H. 8. c. 28.) living die ilTue, the conufec may enter; for the tail was extinft by the fine, and the conufec was the perlon to whom the inteieft, &c. belonged after the death of the woman. Sir Geo. Brown's cafe, 3 Co. 51, adjudged. Cro. liliz. 514. adjudged. Moor, 455. adjudged. 2 And. 44. adjudged. And there faid that the record of the fini being in the fame courr, they might infpedl it to fee the proclamations. Roll. Abr. 878. pi. 7. 3 Co.' 61. But if thereverfion in fee had been in another, then the conufee taking nothijig by the fine, but by cftoppel, could not enter 5 nor could the heir, becaufe concluded b\ the fine. Ward a.nd VV^hhoe, Cro. Jac. 175. adjudged. Yelv. 101. .djudged. Noy, 122. adjudgeJ. But in thi> lad book the cafe is not fully ftared, for there is no notice taken of the laft fine levied by the woman aione after the deaih of her fecond huftaiid, which made the forfeiture. (/>) The llatute intended only to prevent fuch prejudice as might arife to the heirs of the baron, by whom advanced, and no: where the Immediate intcicfl upon the death of the wife was fo limited, as to belong to a (1 ranger. Fofter and Pitfai, Cio. Eliz. 2- Leon. 261. f Hughes V. Clubb, Com. Rep. 369. S. P.] (l^) But if fuch woman be tenant for life — remainder for life, remainder in fee ; and two tenants for life join in a feoffment, the entry of him in reiriainder in fea is lawful by this a£t, per Leon. 262. But tliis feems to be fuch a forfeiture, for which the remainder- man in fee might by the common law enter. Co Lit. 251. b. (r) If the baron, being feifed to him. and his feme, and the heirs of the body of the feme, dies, and in the life of the wife hisifTue (then being tenant of the freehold, as pleaded, which muft be intended by difleifin, no furrendcr or foifciture being alledged) fuffers a recovery, (which binds not the tail, he being in of another efiatc,) by agreement that tl e recoveror« fliould enfeoff y. S., and that the wife fhould rcleafe to him with warranty, which Jhe does accordingly, and dies, and the warranty defcends, &c., this ftall bind ; f'or not be ng prejudicial, but intiroid to perfed the affurance of the heirs, it is not leftrained by this aft ; for the ^.voman, join- 'n;- v\ith the heir by fine or recovery, might have baned tiie tail ; and it was ntvsi intended to prevent \ warranty being made to him that had the land, by the conveyance of the hcirhimfelf. ' Lincoln College's cafe, 60. a. b. adjudged, (i) But if fuch heir being a daughter joins, and after a fon is born, he may enter. 3 Co. 61. b. [By flat. 327?. 8, f. 36. §2. it is enafted, that no fine levied, by any woman of any fuch eftp.te as is mentioned in the above {latute, 1 1 H. 7., fhall be of any effect.] (E) What Eftate or Interefl may be difcontinued. Lit. §€27, 'npHERE can be no difcontinuance of things which lie in 628.^ Co. 1. grant; and, therefore, if tenant in tail of a rent, () feoffment, rcleafe, or cunfirmation he dies be- ^'ith Warranty. fore execution, it is no difconiiiuauce. Roll. Abr. 632. Co. Lit 333. b. (A) Dut a feoffmtrtt with livc.y ill law works no uifcontinuauce. Roll. Abr. 632. Co. Lit. A feoffment made by tenant in tail is a difcontlnuance, with or 3* • • without w.irranty ; but a releafe or confirmation is not, for a man can pafs no more thereby than he may lawfully pafs : but a war- ranty r.dded to a releafe, or confirmation to a diffeifor, works a tlifcontinuance, if it defcend on him that hath the right. Co. Lit. But if one having a fon marry a fecond wife, and land be given 3jb. b. tQ ji^g hufband in fpecial tail, and lie have iifue by his fecond wife, and be diffeifed, and releafe with warranty, and die j or if tenant in tdil oi horong/p-eng/i/h land have iflue two fons, and be diffeifed, and releafe with warranty to the difleifor, and die j yet is not the entail difcontinued in either cafe ; becaufe the warranty always defcends to the heir at law. Perk. ^294. If tenant in tail exchanges with another, (c) this is not a dif-. 9Eq.22. continuance. Co. Lit. 332. b. S.P. Roll. Abr. 632. S. P. (c) Becaufe no livery of feifin is requifite thereupon. Co. Lie. 33a. b. Co. 44. b, So, of partition between parceners. Co. Lit. 173. a. a Inft. 644. If tenant in tail bargains and fefls his lands in fee, this is no Lioor, 4a. difcontinuance, for only a freehold which determines within the compafs of a life, paffes. 9C0. 96.b. So, if tenant in tail by indenture enrolled bargains and fells to cafe'"""'^ * J' S. and his heirs, and after levies a fine with proclamations to Buif. 162. tJ^s bargainee and his heirs, and dies without iffue ; this is no S. c. [But difcontinuancc of the remainder, becaufe the remaiiuier is not l"afagr"ed,'' ^ouched or (d) difplaccd thereby ; for no freehold paffes by the ' tliat if tlie* fine ; but the fine only corroborates the eftate of the bargainee by line had_ the ilatutc. been levied before the bargain and fale was enrolled, it would have been a difcontinuiince. So, where a fine is levied in purfuance of a covenant in a prior conveyance, as, wher; a tenant in tail conieys liiicitate by Ical'e Ai.d releafe, and covenants in the releafe to levy a tine, which-is done accordingly ; in this caib, the ieafe, re- leafe and rine will be confiileied as only one atTurance, and the fine will, theretorc, operate as a difconci- liuance of the eltate tail. Doe v. Odiarne, 2 Burr. 704.] (ii of the fredi^yltii fo that it is rather a prevention 330 DifTciftm prcventLon of the heir's entry, than an a£lual ouflcr of him of his freehold. Roll. Abr. If hufband and wife purchafe lands in fee, and then the huf- ^S^- band is attainted of felony, and the king feizes the land, and af- terwards the lord of v. hom it is held hath it, upon his fuggediop, delivered to him out of the hands of the king, as his proper cfcheat ; this is a difTeifm of the wife who was jointenant with the hufband, for the lord got poflelhon of the freehold by his • mifreprefentation of the nature of the eftate to the king, which being a manifeft a£l of injufticc and falfehood, the pofTeffion ac- quired by it muft be looked upon as an acquifition of the fame nature with a pofTeiTion gained by open and avowed violence, and fo a difleifin. ^oil. Abr. A man has a houfe, and locks it, and departs, and another 59- comes to the houfe, and takes the ring of the houfe in his hand, and fays, that he claims the houfe to hinifelf in fee, withoyt making any entry into it, this is a diileifin of the houfe ; for the claim he made upon taking the ring into his hand, fhews his in- tention in doing it to be a plain feifin of the entire freehold, and consequently a difleifin of the true proprietor ; and his non-entry into the hcnife, upon his feifing it, will not qualify the inten- tion of what he has done, fince his feifin of part, in the name of the whole, gives him whatfcjever an entry could have done, an4 therefore fuch an entry was not neceflary. Ero.DiiTei- A man has a mill, and A. turns the water that ufed to ferve *n^ 25. jjjg rtiCAy fo that it cannot grind ; this is a diifeHin of the mill, for which an alTife lies againit A. for to deprive a man of the means he has of obtaining the profits of his freehold, is, in effecl, to diffelfe him of his freehold. Roll. Abr. If A^. cuts trees iri his foil, and B. who has common ther^, ^59- Bro. f^yg jj^^j ^ £-qJj jg j-j-g ^^^ commands him not to ci;t there, whereupon A. departs out 01 the land, this is no duleilm m i>. for he who has no right to a freehold cannot be feifed of it by bare words only, which are fleeting and tranfitory, and do not amount to fuch an act of notoriety and folemnity, as i,s required in gaining polieflion of a freehold, whereof ftrangers are to take notice. HoU. Abr. If a man, who has right of entry into lands, in coming thi- ^59- ther is difturbed and hindered from entering, this is a difreifin, fuch hinderance of entry being equivalent to an actual oufter of the freehold. Roll. Abr. Where a man enters into my houfe by my fufferance without ^9- making any claim, this is no difleifin. Bro. title A man grants all his lands in jD. to A. befides the chamber he DifTeifinjaS. jj^g ^^^^ ^^ . ^^^ ■j.ix.itx livery made purfuant to the grant, by the fufferance of A. the jrrantor removes into the hall without claim- ing any thing to his own ufe, and dies ; this coming inJ^o the hall is no dlffeifin, being, by the permiffion of the grantee, and fo not unlawful. If if the king- be feifed in fee of the manor of j5., and a ftranger Roll. Abr. trecl a fliop in a vacant plat of it, and take the profit of it with- ^^9- out paying any rent to the king, and after the king grant over the Bro. Dif- pianor in fee, and the ftranger continue in the fhop, a;id occupy feifm, ^. it as before, this is no difleifm ; for the firft entry of the ftranger (ivas no diiTeifni, but ati intrufion on the king's pofTeiTion ; for that the king's title appearing of record, the entry in pais, which 13 not an a£t of equal notoriety, will not deveft it out of him : if then the king i? not difTeifed, his conveyance of the freehold i^ good, and the grantee is feifed by virtue of it, and, confequently, cannot be faid to be difi'eifed by the ftranger v/ho has made no entry upon hiai after the king's conveyance, but only continued the old intereit which he had before the grant, and fo remains an intruder ftill, and liable to an action of trefpafs or eje(Slment for it. So, if a m.an enters into certain lands, parcel of a manor which Bro. title \& in ward to the king, by rcafoii of rhr nomge of J. S. iind takes ^'^f''"^? ^'' the profits as owner thereof, and J. S. after fues livery, and the ^ " intruder ftill continues in pofiefilon, and takes the profits as for- merly, this continuance after the livery is no difleifin, but only an intrufion to be remedied by trefpafs or ejectment ; and the ?nanor being in the king only as guardian makes no ditTerence i beca\ife, till it is relieved out of his hands, he is in actual pofTef- fion of it as much as if it were his own. Baron and feme feifed in tail, the baron goes out of the country, Bro. title and in his abfence the feme enfeoffs A. in fee, [who enters,] this Difleifin,24 is a difl-ifin of the hufband by ^. becaufe the feoifment by the feme covert was void, and fo his entry under it tortious. If a difieifor makes a leafe for years, or at will, and the dif- Roll. Abr. feifee e iters upon him, and then the lefiee re-enters, claiming by ^ - • virtue of his leafe, though that Vv'as only a term for years, yet he is a difleifor, becaufe he enters upon the proprietor of the foil, and oufts him of his pofl^eflion, and that by virtue of a former dif- feifin, fo that the pofl'cffion of the freehold cannot be fuppcfed to be left in the difleifee ; and therefore, fuch an entry muft be equi- valent to an avowed diffeifin. If a man enters into my land, claiming a leafe for years, or Roll. Abr. enters as tenant by ftatute merchant, when he has no right, he Lh "j,^**,, is a difiTeifor, the entry being unlawful, and the pretence of title Dyer, 134. ynjuft. pin-. So, if a guardian in chivalry affigns dower to a woman, as pt^gign -^ wife of the deceafed tenant, who in fact is not his wife, and (he 1 Roll. enters thereupon, ihe is a difi^eiforefs, for her falfe title being an Abr. 662. act of fraud and injuftice, and the poiTefi^ion acquired by it tor- tious, the pretence of title, when it appears that ftie has none, will not avail her ; and ^. whether the guardian in this cafe is not a difl"eifor likewife ? A man makes a leafe for years to another and his heirs, and Roil. Abr. the lelfee dies, and the heir claiming the term enters; though the *" term being a chattel muft go to the executors, and not to the heir, yet the heir is no difleifor, becaufe he claimed only a term 13 and ^^2 DiCfeifin. and no freehold, and I'uch a term too as was in being, and a£lually limited to him ; and therefore the heir in this cafe, that is named in the words of limitation, fhall be only prefumed to enter on behalf of the executor, to continue the term that was in being, and not to commit a difieifin on the freehold. Roll. Abr. If there be tenant by fufferance, and a ftranger, who has no 659. Pren- j-Jght to the land, make a leafe thereof for years by indenture to fon and ,° . , ' , . /■ 1 gone. the tenant, without makmg any entry upon luch tenant, previous to the demife, and the tenant thereupon pay the rent referved on this leafe to the ftranger, this is no difleifin of the rightful pro- prietor ; for the tenant at fufterance was no difleifor before the demife; and after the demife, or by virtue of it, he can be no diffeifor, becaufe he ft ill continued his old poflefTion, without committing any aftual oufter of him who had the freehold ; for the acceptance of the deed of demife, and payment of rent thereupon, are not a£l:s of fuflicient folemnity and notoriety, fince they may bs tranfa<5led in private, to change the pofleflion of a freehold. Cs. Lit. 57. If a guardian after the full age of the heir continues in poflef- r f Vb *' ^*^"* ^^ ^^ "° difTeifor, but an abator (a), and an affife of mort- the argu- danceftor lies againft him by the heir, for he does not adtually mcntofthe ouft the heir of his freehold, which is required in a difleifin, but Blu de holds him out by an intennediate entry between him and his an- and Baugh, ceftor, which makes the diftinclion between an abatement and commonly diffeifin. called Lord Nottingham's cafe, Juftice Barclay faid, that he, whom Lord Coke calls in this place an abator, mud be taken for a difTeifor, as he had actual poiTefllon by the poHl-niou oi the guardian. Lord Nott. MSS« Co. Lit. 271. a. E. (z), X3th cdit.j Roll. Abr. If a man enters as guardian into the lands of an infant, who 661. Cro. jj2g j^Q jj,.jg (Q ^g guardian, it is at the election of the infant to Bluiiden ' Hiakc him a difteifor, on account of his wrongful entry upon an and Baugh. adual oufter of fuch infant, or elle to diflemble the wrong, and call him to an account as guardian. Bro. title An abfolute feoffment is made by deed, and a letter of attor- Dif^ifm, j^gy, therein to deliver feifin ; the attorney makes livery upon " * ' condition ; he is a difleifor of the feoffor, becaufe not purfuing his commilTion it is all one as if he had none at all, and then his livery is tortious, and amounts to a difTeifin. Jon. 315. A. feifed of lands in fee permits his fon to enter into them by Cw. Car. j^jg confent, and to occupy as tenant at will ; the fon after by in- Bro.* title denture leafes them for 21 years, rendering rent: this was holden Difleifin, 68. no diiTcifiii, but at the eleclion of the father, who may if he "* "^ pleafes call it fuch, becaufe the leafe for years was more than he could juftify ; but a diffeifin being an a^ual oufter of another's freehold, the poffcfTion of the fon, being in pofTeflion as tenant at will, gives room to the father to conftrue his demife no diffeifin, if he thinks fit ; and therefore, the fon in this cafe fliall be pre- fumed to a£t in behalf of the father, and to demife the land as attorney to him, efpecially if the father afterwards demand and receive the rent, for the rule is, Raiihabitio retrotrahitur et nmti' dat9 data crquiparattir : however, the firft leflbr, before he hath re- ceived any rent, may take the demife to be a difTeinn at his elec- tion ; for when the tenant at will takes upon him to make a greater eflate than he has himfelf, this may be conftru''d a dif- fcifm, becaufe it is an ufurpation upon the right of the iefTor, and in efFe(Sl a feizure of his freehold ; and the great reafon why the leflbr Is allowed to make the other conftrudlion, is to avoid the inconveniences whicli otherwife would follow ; for if a leflbr was obliged to look upon leafes for years of his tenant at will to be difl^eifins ; then if a tenant at will fhould make a leafe for a fmall time, and the leflbr not knowing thereof (hould levy a fine of fuch lands for his wife's jointure, or other ufes, the IcflTee of te- nant at will would be neceihtated to become a wrong-doer, per- haps contrary to his intent, and the dilTeifee would be deprived by his fine of all remedy for recovering his right, as well as the pcr- ibn to whom he levied it ; for he himfelf could not fet up a title to fuch lands, becaufe he had transferred it to another in a court of record, and the other could not claim, becaufe a naked right cannot be transferred. In this cafe, if the leflbr takes fuch a difpofitlon by his tenant Cro. Ellz. at will to be a difleifin, then both the tenant at will and his lefltre ^3°* ^J^'^ are diflTeifors, fince they both concur to the zGt that is the dif- com. Ton. feifin ; but in refpeft of all ftrangers the tenant at will only is to 3" 7- Cro. be efteemed tenant of the freehold, and the perfon who as fuch is ^"' 3°^' difl*eifor i for as for the lefl"ee of tenant at will, he in refpeft of all ftrangers, and likewife of tenant at will, has a fair and legal in- tereft derived out of the inheritance of his leflbr, and fo cannot be tenant of the freehold jointly with his leflbr, but muft claim under him. If a leflee for years, or at will, makes a leafe for life, or a gift Jon. 3x7. in tail, that creates a good leafe, or a good gift in tail among ^"^- '-''• themfelves and all others, befides the firft lelTor, and as tQ him \^^\ tj^g they are both difleifors, for they both clearly concurred in Diffeifin, 3. oufiing him of his freehold, one by giving, and the other by re- ^'^' ^^' ceiving the livery, which pafied the freehold. Tenant at will, or for years, makes a feoffment in fee, and Jon. 317. dies ; his wife brings dower : the feofice cannot plead that her j^*'- ^ay- hufband was never feifed ; for fince the feofVee received his eftate [I'Ij^qJo, from him, he is eftopped to fay that the hufband was never jac, 615. feifed : befides, in refpedl of the feoffee, the feoffor had an eftate, 'Atk.+^i.J though in regard to the difl"eifee he is to be confidcred as a wrong- doer. If a man enters into the land of an infant by his aflbnt, the Roll. Abr. infant may proceed agaiuit him at full age as a difleifor-, for the ^^'^ ^J°' contract made between them during the nonage of the infant Bro. vAe may be confidered by the infant as void, and, confequently, the Diiieifinjjo. entry by virtue of It may be efteemed illegal ; or the infant, if he thinks It more for his advantage, may at fall age ratify the con- tra«5l between them, and fo allow him as his tenant. If A. be feifed of lands in fee, and a ftranger enter upon him ^^y"? i;-;. by virtue of a leafe for years, which is void, and pay rent to him, ^^^"^'^hu A, cm 5H 66 1. Moll- neux's cafe. Dyer, 6i. pi. 33.Mn/. Palm. 40I. Jon. 316. Cro. Car. %zz. Roll. Abr. 661. Roll. Abr. 659. Taylor v. Horde, tBurr. 60. 5Br. P. C. 247. Cowp. 689. See Co.Lit. 330. b. n. I. 33th edit, xviiere the law of the cafe is quef- eioned with great ability. Lit. § 278. Co.Lit. 180. Roll. Abr. €63. Bro. tit. Dif- feifin, I a. 40. 45. !Di(reift'n» A. can never proceed againfl: him as a difleifor, for his accepbficc of rent at his hands is a full and unconteflable allowance of the leafe he claims, and, confequently, the entry by virtue of it purged and made rightful. A. bargains and fells lands by indenture enrdlled to JB. upon condition that oii the payment of 300/. "t the end of three years it fhall be void, and that in the mean time the bargainee fliould not meddle with the profits of the land : the bargainor occupies, and makes a leafe for five years, and at the day does not pay the 300/. the bargainee does not enter, but (the bargainor occupying it) devifes the land : it was adjudged a good devife, for the bargain- or in this cafe was tenant at will ; and, therefore, his leafe does not put the bargainee under the neceflity of being a difleifee. If a guardian by nurture makcG a leafe by indenture to one who is already in under the title of the infant, rendering rent to thd guardian, which is paid accordingly; this is no difleilin, for there is no actual ouftcr confcquent on fuch demife ; and thd rent paid to the guardian muft be accounted for to the infant. [y^. tenant for life, remahider to B. in tail ; B. recovers ill eje£lment againft ^. and has an habere J^cias poffcjfionem^ and whilft in poflellion makes a feoffment of the eftate to D. with Hvery of feifin, that he might become tenant of the freehold, in order for the fuffering of a common recovery. A recovery is ac- cordingly fufFered, and afterwards A. brings an eje£lment, and' obtains a verdict. It was adjudged, that B. by his entry in this cafe under the judgment was not an a£lual difleifor, and therefore had not in him any eftate of freehold ; and that the feoiFment gave £>. an eftate of freehold only at the eledlion of A. but did not give him an actual eftate of freehold. J If two or more difleifc another of any lands to their own ufe, they are all jointenants, and all dilTeifors •, but if they difTeife another to the ufe of one of them only, he to whofe ufe the dif- feifin is made is fole tenant, and the others have nothing in the tenancy, but are called coadjutors to the difTeinn. There are others who are called counfellors and commanders in a difleifin, vi-z. when any perfon counfels or commands another to dilfeife a third perfon ; here we are to take notice, that though the perfons that concur in a difleilin have thefe feveral fiames given them from the nature of that part of the difieifin that they commit, yet co-adjutors, counfellors, and commanders, are dill'eifors in re- fpe£t of the perfon difleifed, as well as the perfon to whofe ufe the difleifin is made, and all equally liable to the aflife of the difleifee ; nay, though the difleifor, who is tenant of the land, dies, yet the affife lies againft the co-adjutors, counfellors, ^c. and tenant of the land_, although he be no difleifor ; and this is a moft equi- table proceeding ; for fince they all concur in committing the in- jury, it is but reafonable they fhould all anfwer for it ; and though the perfon, that fucceeds the difleifor that was tenant in the tenancy, had no hand in the difleifin, yet, claiming under it, he muft be liable to the remedy the law gives the difleifee for recover* ing his right. A maa A man makes a leafe for life, rendering rent, and goes Into Bro. tit. foreign oarts ; tenant for life dies, and A. counfels B. who is not DitTsifiOjsy. heir to the leflbr, to enter, who does it accordingly, and enfeoffs yi. the counffcllor ; the lelTor returns, and is hindered to enter by A., whereupon he brings his affife again ft A. without naming B.y and well ; for J. by his counfel is a difleifor, and benig tenant of the land, and the perfon who difturbed the leflbr of his entry, the leflbr who was abfent when the dilTeifm was committed, and fo unacquainted with the manner of it, is not obliged to bring his remedy againft any other but the perfon who is actually in poflef- Con, and defends that poflelhon with force and violence. A. difl^eifes one to the ufe of -S., who knows not of it, and B. Co. Lit. afterwards aflents to it ; in this cafe, till the agreement, A. was ^^°- •?; tenant of the land, and after agreement B. is tenant of the land, Difreifin,5g» but both of them are difleifors. A man difleifes tenant for life, to the ufe of him in reverfion ; Co. Lit. and after he in the reverfion agrees to the diflieifin : by the better r^h'^[^ opinion, he in the reverfion is a difleifor in fee ; for by the difleihn f.Kinof te- made by the ftranger, the reverfion was devefted, which cannot ".'"c for be revelled by the agreement of him in reverfion, for his agreement f^^^\^^ ^ to the difieifin makes him a party to it; and therefore if he gets diiTeiforis any thing by fuch agreement, he muft get it as a difleifor ; thus ac- and fo in this he is not fcifed of his old efhate, but of an eftate by ""j|^o^rd^°' difleifin. Hobart : *' A grant to y S. and his heirs during the life of y. D. is no fee, but a fpecial occupancy, as is refolved *' in Chudleigh's cafe. But a difTeilin of an e.'tate for life by necelTity in law makei a j">j'; fee ; becaufc *' wrong is unliir.i'ed, and ravens ail that csn be gotten, and is not governed by terms of thccllates, bc- '• caufe it is not contained within rule;." Hob. 323.] The demandant and others, in ^ pmcipe, difleifed the tenant to Co.LIt.iSo. the ufe of others, and the writ did not thereupon abate ; for though the demandant was a difleifor, yet he gained no tenancy in the land, being only a co-adjutor, and fo his remedy to gain the free- hold ftill continu^es ; for the defign of fuch remedy being to recover the freehold, till that be obtained there is no reafon to abate it ; and that is not obtained by the difleifin, for he gains no freehold by it, fo that the writ muft ftill continue. If a man commands J. S. to enter into certain lands In his name, RolL Abr. provided he has a right to them ; if y. 5. enters accordingly, yet if ^.^3- Bro. the commander has no right to the lands, he is not the difleifor, but {^{^^^ j^, y. S. only, for J. S. was not abfolutely commanded to enter, but only conditionally, if the com.mander had right ; fo that it was incumbent on J. S. to enquire into the commander's title before he entered ; and the commander having no title, the entry of J. S, was his own a£t, and not the execution of the command. For the fame reafon, if a man fays to J. S. that his anceftor Roll. Abr. died feifed of certain lands, and thereupon commands him to enter ^''S- into thofe lands in his name, if his anceftor died feifed in fee, otherwife not ; and thereupon j. S, enters, and yet the anceftor did not die feifed in fee ; Jf. S, is the fole diiTeifor, and the com- mander has no ih^re in h. If Bro. tit. If a man fays to me, that he will dlfTcife jf. S. to my ufe, and I Difle.tm,j5, tgii jjjni that I am content ; this docs not amount to a command, but is only a fufTerance of what is to be done, and fo does not make me a diffeifor, without an a6lual command ; but he only that oufts J. S. is the diffeifor. Dyer, 141. A difleifor makes a leafe for years, and the termor enters, the ^^' '*''' difleifor after leaves the kingdom, and at his departure commands his termor, that if the difleifee enter upon him, not to fuffer him to continue in poflefFion, but to maintain the poffefhon againfl him as termor of the difieifor j the difleifee enters on the termor in the abfence of the difleifor, and the termor re-enters, oufl;s him, and pays his rent after to the ufe of the difleifor, being abfent ; it feems the leflTor is party to this fecond difleifin, though he did not exprefsly agree to it after it was done, for the precedent com- mand and infl:ru£lions fufhciently {hew his intent and concurrence to it. RoiJ. Abr. A man recovers feveral houfes in an afljze, and after the tenant ^^dB^h-^if reverfes the judgment in a writ of error, and a writ iffues there- upon to the (lierifl^to put him in pofl~efliou of thofe houfes -, in this cafe, though the tertenants are flvangers to the recovery, and therefore ought not to be oufted without :ifci.fa. yet if the fheriff" executes the writ, and fo puts them out of pofl!eflion by virtue of it, he is no diffeifor; for he acts under the autliority of the court, which he is fworn to obey, under the penalty of being fined, if he does not. Roll. Abr. The fame law in all cafes where execution is of a judgmeiit ^^^' wherein the demand is made of a thing certain : but if an execution Is to be executed without mentioning any thing in particular, there the {lieriff\, at his peril, ought to make execution of the thing in demand, otherwife he will be a diffeifor -, for he is obliged to take notice of the thing in demand, and has no authority from the court to make execution of any thing elfe. Co.LiM76; Leafe for life, remainder for life, remainder in fee ; the re- paim. zoz. mainder-man for life difleifes the tenant for life, and then tenant Dineiiin,74. for life dies, the diffeifm is purged ; for then the remainder-man [For upon for life is feifed of his own rightful eflate for lite, which was to the death ^.jj-g place upon the death of tenant for life, and the fee revefts in or the dif- 1 ^ • , ■ r feifee, that ^hc remauidcr-man in tee. wiongful fee L turned into a righrfjl cftate for life by operation of law. 8 Mod. 53. arguendo."^ Goodtitie [Rights and the purging of wrongful afts are always favoured v-^Ab"' "^ ^^^^ » ^^^ therefore, where a diffeifin or abatement is made, tit."Dlf/' and the diffeifee brings his ejeclment, and has a verdi£l and feifin {N>, judgment for him, (but no execution,) yet an entry by the plain- ?'• ^' tiff being found as being in the declaration in ejedlment, that entry will purge the diffeifin, and the continuer in poffeffion af- terwards is only as a trefpaffer.] Bro. tit. Two co-lieirs, one an infant, and the other of full age ; flie of DirTe.hn, £yji ^gg enters upon the feoffee of their father, claiming the land *^' ' * to her and lier fifter j her entry being unlawful, the land vefls 4 cntiTely entirely in her of full age, and nothing in the infant ; and fo (he of full age muft be the difTeifor ; for an infant can never be made a wrong-doer by the atl of another, or injure himfelf by any con- trail entered into during his minority. If my tenant at will enters into another's land contiguous to Bro. tit. his own, claiming it to my ufe, and feeds his cattle there, and D'^Tei*'"* fells the trees, upon which the tenant of the freehold is obliged ^'' to quit his poflefTion, and fo brings his alTife ; and it is found that I never commanded my tenant to commit this diffeifin, nor ever fliared in any of the profits of it, I Ihall be acquitted of 'the dif- feifin, fince it would be apparent injuftice to charge me with the guilt of an acl I never concurred in. ^. demifes the land of B. to C. for years, rendering rent, C. Bro. tit. enters and pays the rent to ^. : it feems j4. by fhis tranfadlion Diffeifin, is a difleifor j for his demife to C. is tantamount to a command ^^' to enter into the lands of B.j and he that commands the difleifin is the difleifor. u4. has common in the land of 5., and B. comes with his fa- Bro. tit. mily and inclofes the land, fo that A. cannot have the ufe of his Diffeifin, common : B. and his family are difleifors ; for they ouft y^. of his ^^* common by the inclofure, which is plainly a difleiiin. A man leafes for life, rendering rent, with a claufe of re-entry Bro. tit. for non-payment, and for arrears of rent diftrains ; and being pof- Diffejfin, fefled of the diftrefs, re-enters; and adjudged a difleifor; for though he had an ele£lion upon non-payment of the rent to re- enter or diftrain, yet by diftraining he had determined his elec- tion, and fo put it out of his power to re-enter ; therefore when afterwards he re-enters, it is unlawful, and, confequently, fuch an oufter of him who has the freehold, as amounts to a diiTeifin. Land defcends to an infant, and ^. enters as guardian only, Bro. tit. and devifes it to B. and dies, B. enters, and the infant brings an Diffeifin, aflife againfl: him, and he was adjudged a difleifor ; for though ^. was the firft that entered, yet he entered as guardian, fo that it was in the ele£lion of the infant to charge him as a difleifor, or call him to an account as a guardian ; and therefore when the in- fant charges the devifee as a difleifor, it (hall be prefumed that he looked upon ^. as his guardian, otherwife B. could not be charg- ed as the difleifor, but as the devifee of the diflieifor-, for if he had reckoned J. as his difleifor, then B. mufl have been efteem- ed a perfon who claiined under the difleifor by legal conveyance, and fo not to be charged as the a£lual difleifor of the infant. But if the infant is fuppofed to look upon j4. as his guardian, then he may charge B. as a perfon who oufted him by wrong of his free- hold, fince he, and not the guardian, was the perfon who feiled the pofleflTion without title. The father enfeoff"s his fon within age, and after enters as his Bro. tit. guardian, and enfeofl^s J. S. and dies ; the infant brings his aflife ^f^^l"^l^^ againft the feoflee, who was adjudged a difleifor for the reafons ^13. * before-mentioned ; and likewlfe, becaufe it "is provided by Wejhu. 2. c. 25. that if leflee for years, or guardian, alien in fee, the remedy for recovering the freehold fliall be by an aflife of novel Vol. II, - Z dllfeijin. 53S DiiTeifin* dijfeifittj and both the feoffor and feoffee fliall be efleemed dlffeit^ ore, and the furvivor of them (liall be liable to this remedy : fo,;1f cither happens to die, he thiit furvives may be conltrued as a dif- feifor, and as fuch liable to this adlioii. X Iijfl. 413. Not only guardians in chivalry, but in focage, and by nurture, come within this law of Wejlm. 2. So alfo their alienations not only in fee, but in tail, or for life, are within this ad> j for wherever a freehold is transferred by the folemnity of livery, by a perfon \vho has no right to make fuch a conveyance, there is an a6lunl culler of him that has the freehold, and fo a diffeifin. t inft. 41-3. Here it will be proper to obferve, that though the faid flatute tncntiohs only tenant for years, yet tenant by elegit, flatute-mer- chaiit, or ftaple, as alfo tenant at will or at fufferance, are by an equitable conftruflion brought within it, as being all equally capa- ble, by the poffcffion wliich they enjoy, of committing diffeifins, by transferring the freehold by livery : but a bailiff is not M'ithin the aft, becaufe it mentions and intends only thole perfons who have fome interell, and therd>y a poffcihon in the lands, which a bailiff has not. a inft. 413. If tenant for years, or a guardian, make a leafe for life, re- ©"■fl'T^'se "^"^'^"^'"^^ ^^^ hfc, remainder in fee, and tenant for life enters, he ' ' is a diffeifor, for he accepts of the livery, which transfers the freehold, and fo produces the diffeifin, and therefore makes him- felf a party to the wrong. The fame law of him in remainder, if he in remainder for life or in fee enters, for fuch entry is an agreement to that a6l which makes the diffeifin. Bro. tit. If a guardian accepts of a feoffment from his ward, the ward Dinuiin,95. j-j^^y i^i^ijig an affife againft him as a diffeifor ; for the guardian acts contrary to his duty when he aflcnts to any alienation made by his infant ; for it is his duty to protedt the inheritance of his M'ard, and to deliver it up to him at full age, and not to bring it into his own family. Cro. Ellz. A. lets lands for 21 years, from Michaelmas next enfulngj ren- ^rlt ^T^ dering rent, and the leflee enters 29th September y and occupies for D^cr. o"6 yc^r > the Teffor brings debt for the rent referved ; and ad- judged, that though his entry, which was without title, made him a diffeifor, and that this diffeifin was not purged by the accruing" of the term after, yet debt lay upon the contraft ; for though his entry, being made the day before the leafe commenced, cannot be fuppofed to be made by virtue of the contraft, yet it does not difannul the contract, for that mud remain till defeated by an after- agreement of equal notoriety with it ; and therefore the a6lion in this cafe may well be formed upon it : and the reafon why in this cafe the accruer of the term after entry did not purge the diffei- fin, is becaufe when the leffee enters before his title accrued, he is prefumed to difclaim the title of a termor, and fet up another ; and therefore fuch title fhall not protedl him from the notice of the law^ ; for that would be to confider him under a title which fey an exprefs overt-a^ he difowiis. DiMUih 339 (B) What Perfons are capable of commuting fuch , Difleifms. A S to femes covert, if a hufband difieife another to the ufe of Roll. Abr, his wife, this does not make her a difTciforefs, ihe havin? no |^°- . will of her own : nor will any agreement of hers to the diffeifin, D,ffeifin,6j, during the coverture, make her guilty of the diffeifin, for the fame reafon : but her agreement after her hufband's death will make her a diffeiforefs, becaufe then flae is capable of giving her confent, and that makes her tenant of the freehold, and fo fub- je6l to the remedy of the difieifee. So, if a man diffeife another to the ufe of a feme covert, her Roll. Abr. agreement to it fignifies nothing j and though the hufband's agree- ^°- . ment to it fettles the eftate in the wife, yet it makes her no (barer Dlffeifin,67. in the guilt of the diffeifin. But if a feme covert actually enter and commit a diffeifin, Co. Lit. either folely or together with her hufband, then fli^ is a diffeif- P'^' }: orefs, becaufe (lie gains thereby a wrongful poffeffion : but yet Roii. Abr.* fuch a£tual entry cannot be to the ufe of her hufband or a 660,661. ftranger, fo as to make them diffsifors ; becaufe though by fuch ^\^- }j}- entry fhe gains an eftate, yet Ihe has no power 01 transrerring it 67. 8H.6. to another. 14- "«'• As to infants, they are under the fame reftri6lions with feme Bio. tit. coverts ; fo that their agreement during minority to a diffeifin com- D^^iifin, 5. mitted to their ufe does not bind or make them diffeifors, any r'oik ^br. more than if an infant commands a diffeifin to be made ; becaufe 660. no afts, during their minority, are fo binding, but that they may at full age revoke and cancel them. But an actual entry by an in- fant into another's freehold gains the pofleffion, and makes him a difleifor as well as it does a feme covert. Two infants jointenants, one releafes to the other, by which Bro. t'f. the other holds the whole: this feems a diffeifin, becaufe the re- Diffeifin, rj, leafe, being in no manner for the advantage of the infant, is ut- terly void, and then the entry of the other being without title is tortious and a difleifin. But if there had been livery made upon it, though between jointenants, this is void, yet it feems no dif- feifin, for the regard the law has for the folemnity of livery, which fhall continue tiil defeated by a6l of equal notoriety. If a man carries an infant into the lands of j. S. and there R"^"- Abr. claims the lands to the ufe of himfelf and the infant ; yet the infant feems no diffeifor, becaufe he made no. claim of it him- felf, and then (hall not be charged with the tort of another perfon. If the king enters without title, or feifes lands by a vo?d or in- I'ro. tit. fufiicient office, he is no diffeifor j for being the fountain of juf- Diffcifin^Ss. tice, and engaged in multiplicity of affairs, his acls are not to be charged with injuftice. But this privilege does not extend to any of his fubjefts ; and therefore if the king by letters patent grants land fo feifed, and the patentee enters, he is a dif- Z 2 feiforj J4^ E^iffeiO'n* felfor, bdcaufe he has time and leifure to inquire into the legality of his title, which the prince is fuppofed to want lei- fure for. yiJe head of If a corporation aggregate difleife to the ufe of another, they Corporations, g^g diiTelfors in their natural capacity, and the perfons who com- mitted the wrong {hall be charged therewith, and not the corpo- ration, which confifls of a conflant fuccelhon of various perfons, and as a corporation can do no ae- tween him and the a/Tignce of the lelTce, that the leffor ffiould have the premifes on the tsrms mentioned in the leafe, and further ftiould piy a certain fum annually over and above the rent towards the good will already paid by the aflignee, it w.ts adjudged, that fuch agreement operated as a furrender of the whole term, and that the aflignee could not diftrain either for the original rent, or tha fum to be paid in grofs annually. Smith v. Mapleback, 1 Term Rep. 441.] [Although a term be vefted in an annuitant himfelf for fecur- Fairfax v. ing an annuity, yet he may diftrain for the arrears : as where ^"^'^ l^'' lands were conveyed to truftees and their heirs to the ufe oi A. ' ^ * for 99 years, if he fhould fo long live, upon truft that he ftiould receive and take thereout an annuity or yearly rent of 250 1. with power of diftrefs, and fubjeft thereto, to the ufe of the grantor for life, remainder over— it was holden that A. might diftrain, Z 3 for 342 E)iGce&» for that the grantor during the term was merely an under-tenant to him at the above rent, to which rent diftrefs was incident by law, exclufive of the claufe in the deed.] 7 Co. 23-4. If a man feifed of land in fee, and poflefTed of other land for Buct^scaie. years,. grant a rent-charge for life out of both, with a power to 147. b.' diftrain in both, if the rent be in arrear, the leafehold as well as Cro. Jac. the lands of inheritance are fubje£l to the diftrefs, becaufe a man 390. Ro"' niay oblige his chattels to the difcharge of the rent : but the rent Cro. Eiiz! being a freehold, fliall iflue only out of the inheritance, becaufe 607. 6sz. the leafehold, being only a temporary and perifhing intereft, is not a fund commenfurate to the charge, and therefore the rent fhall ilTue out of the inheritance, which for its duration is a more competent eftate to fupport the charge, and render the grant ef- fectual : and hence it was adjudged, that though the grantee might diftrain in the leafehold lands, yet he muft avow for a rent ilTuing out of the inheritance. 47 Aff. 24. For an heriot fervice due after the death of the tenant, the lord Ero. Heriot, j^^y eitJ^ej- diftrain or feize the beft beaft of the tenant. 6. Fitz. •' Avowry, 177. Cro. Eliz. 32. 590. Cro. Car. 26c. Jon. 300. Roll. Abr. 665. n. 5. So, may the lord diilrain for relief. [Co. Lit. 83. if he claims the relief not by teimre, but by cuftom, it feems there muft be a prefciiption to warrant the diftrefs. Lac- 37. 95. i 50. 3 Bulltr. 313. 1 Jon. 132. J Ir he dies, his executors cannot diftrain, but may have an aftion of debt for it. 400.49. Ognel's cafe. [Co. Lit 83. b. 47. b. I Show. 36.] Where a diftrefs might have been taken for aid to marry his daughter, or make his fon a knight. Roll. Abr. 665. 2 Inll. 234. Co. Lit. The fervices or rent, for which the lord or leflbr may diftrain, 5^- ^' muft be certain, or fuch as may be reduced to a certainty •, for otherwife the lord cannot, in his avowry, recover damages for the non-performance or non-payment, when the jury cannot deter- mine what injury he has fuftained. But if the tenant holds of his lord to fiieer all his fheep feeding in fuch a manor ; this is certain enough, becaufe it is eafy to compute the number within the pre- cincts of the manor ; and confequently, what expence the lord is at in em.ploying other hands to that work, and what damages he fuftained by the omiflion of his tenant. ^Co. 50. b. If a man feifed in fee, or for life, of a rent-charge, .after ar- Ogneii's rearages incur, grants over the rent to another, he cannot diftrain ca^e,\^au2 . £^^ tliefc arrearages, becaufe they are by the grant divided from s.'c. cited; the freehold of the rent. the fame law of a rent fervice. Roll. Abr. 672. Mofs V. [If the mortgagee give notice of the mortgage to a tenant in Caiiimore, poflelhon Under a leafe prior to the mortgage, he may diftrain for TefmRep". ^^' arrears of rent in his hands at the time of the notice, as well 3S4. See as for what accrues fubfequent to it.] Powell's Moitgage, 84. Forthis^idV If tenant />«r auter ^7V, or tenant for years, held over, yet the \'i H t' '^6 '*^^°'' could not diftrain them for {n) rent that became due before 6 Co. 64. the determination of their refpeclive leafes, though they conti- Co. Lit 47. nued in polTefiion of the land afterwards ; for when the leafe was ^!!"y^^n,.r determined, the leflbr could not avow on them as his tenants, A4.Z1 (fl ) Due , , , m ght cif. claimmg under a leafe, which was determined, train ifae cattle damage-feafant. Keilw. 96. a. To To remedy this, It Is provided by the ^ Ann. c. 14. "That JnJez\(o " whereas tenants pur outer vie, and leilees for years, or at will, 4 Geo. a. " frequently hold over the tenements to them demifed, after the *' determination of fuch leafes ; and whereas after the determi- " Geo. a. *< nation of fuch, or any other leafes, no diftrefs can by law be *^' '^* «« made for any arrears of rent that grew due on fuch reipe6tive <* leafes, before the determination thereof j it is enafted. That it ** fhall and may be lawful for any perfon or perfons, having any *' rent in arrcar, or due upon any leafe for life or lives, or for " years, or at will, ended or determined, to diilrain for fuch ar- ** rears after the determination of the faid refpe£live leafes, In ** the fame manner as they might have done, if fuch leafe or *' leafes had not been ended or determined ; provided that fuch <* diftrefs be made within the fpace of fix kalendar months, after ** the determination of fuch leafe and during the continuance of *' fuch landlord's title or intereftj and during the pofleflion of the ** tenant from whom fuch arrears became due." QWhere there Is a cuftom that a tenant may leave his away- Beavan v, going crop in the barns, ^c. of the farm for a certain time af- ^fl"^^.?^', ter the leafe is expired, and he has quitted the premifes ; the land- " " ^* lord may diftrain the crop fo left after the expiration of the fix months, and within the time limited by the cuftom. If a leffee dies before the expiration of the term, and his per- EraUhwalte fonal reprefentative continues in pofleffion during the remainder "'^^1^^^"^* and after the expiration of it, the landlord may diftrain under ^(3/ tliis atl for rent due for the whole term.] (B) What Things may be diftrained. 'T^HERE muft be a valuable property in fome body In the things Co. Lit. 47. ■*■ dlftrained : therefore, no diftrefs can be of dozs (a), deer ib). Cv^)%- " r.\--, r , b \ JJ \ Ji to dogs, now coneys, CS* f., which areyfr-f tiaturcc, _ tj^at the le- giflature hath pafled an aft to prevent the rtealing of them. See fl. loGeo. 5. c. t8. [b) But deer kept in aprivote enclofure for the purpofe of fale or profit may be diftrained for rent. Davis v. Powell, C. B. HiJa. iiG.i. 3 Bl. Com. 8.] Things fixed to the freehold, or part of the freehold, as fur- i^E. 3. 4. naces, chauldrons, doors, windows, fixed to the freehold, or corn* '-'!* ^i^^'J^J' growing, cannot be diftrained. s. P. I Mod. 6 1 . [So, an anvil in a fmith's fliop, and a millftone in a mill, are privileged from this diflrefs : and a tempurary removal of the anvil out of the Itock, or of the millftone out of the mill, for the purpofe of its being picked, does not deftroy the privilege. 14 H. 8. 25. b.j * X^attle on the common, and corn^rowing, may be diftrained for rent, by ii Geo. 2. c. 19. § 8. No man can be diftrained for rent by the utenfils of lils trade (r), Co. Lit. 47. as the axe of a carpenter, the books of a fcholar, the mate- ^^^ '^"^ rials for making cloth in a weaver's fliop ; for thefe the law pro- prefcription te6ls under a prefumption, that without them the tenant could .\ toil is due neither be ufeful to others, nor gain a livelihood for himfelf. *",■■ '■^p.^'""S ' o a key or harbour, which is to be levied by diftrefs, fuch diftrefs may be of thofe implement^, by whic'n-the parry gets his livelihood, for the mair*tain;ng of thofe is for the public good j and therefore the taking pjrt»f the 1 jading iias iteji acfjuJgedgjod. Mod. 104. Lev. ^6, 57. S^ C. Rajm. 232. Ld. iCayn. 585. Z 4 a Stra. 344 DiareCjef. a Stra. ijiS. So, has the diilraming part of the tackle of the /hip, as where the anchor, cable, and failo were taken. Carih. 3^7. Ld. Raym. 384. 12 Mod. 216. 5Mod. 359. Salk. 248. pi. 4. for this 'viile plus, 2 H. 7. 16. 2 Roll. Abr. 202. 3 Co. 710. Dyer 352. The cart of a hufband- man may bediftrained, thougli an implement of his occupation. Carth. 359. admitted ^f/- cur. [And Implements of trade may be uiftrained if not in aftual ufe at tiie time, and no other fufficicnt diftrefs can be found. Gorton v. Falkner, 4 Term Rep. 565. Simpfon v. Harcourt, C. P. Mich. 18 Geo. 2. cited by Buller, J. Id. 569. The like law with refped to a-veria carucie. But a-vena caruca, or im- plements of trade, may be Jiftrained for a poor's rate, although there be other fufficient diftrefs : for the diftrefs in this cafe is in nature of an execution. Hutchins v. Chambers and others, i Burr. 579. Com. Dig. tit. Diftrefs (C). Saund. on Conventicles, p. 39. j 70H.7. 21. Alfo, for the benefit of trade and commerce, fome things arc Diftrefs privileged from being diflrained, as an horfe in a fmith's fliop, an Co. Lit. 47. horfe in an inn, facks of corn or meal in a mill, cloth or garments 3 Buift. 270. in a taylor's (hop, or facks of corn or meal in a market. Roll. Abr. '' ^ 668. Cro. Eliz. 549. 596. [Noy, 68. But a chariot ftanding at a 11 very -ftable is not privileged from diftrefs. Francis v- Wyatt, 3 Burr. 1498. i Bl. Rep. 48^. Nor is a race- horfe in a ftable belong- ing to an inn keeper, a mile diftant from the inn. Crofier v. Tomljnfon, Hertford Aflizes, coram Kyder, C.J. cited in 3 Burr. 1500.] Cro. Eliz. So, if an horfe carries corn to a mill, and is tied to the mill door, 5er during the grinding of the corn, he fhall not be diftrained (./). But ^cndo? '"^"' ^^^^^^ driving to a market, and by the way put into a palture, may (fi) a Vent, be diftrained. 50. But fide 2 V'ern. 130. [L'fra, note on the laft cafe] Roll. Abf. And thefe things are privileged, though they continue there ^^^' three or four days, or are retained never fo long by the tenant for his fatisfadlion in fome thing he has done about them. Roll. Ab.'. If a man rides to a place, and is there taken fick, by means fl'/v/Xr or ""'^^'C'Cof J^e is obliged to tarry there two or three days, his horfe a horfe ' cannot be dillrained for rent. which a man keeps for jouriiies cannot, as is fjid, bcdiftrained. ainft. 133. 2 Roll. Abr. 160. Roll. Abr. 668. Sed qu ? Nor an horfe upon which another rides. Co. Lit. 47. Cro. Eliz. 5^2. But an horfe upon which a man is riding, may be diftrained damage-feafant, and led to the pound with the rider on him. Vent. 36. Sid. 440. [But this is not law. Things in aftua! ufe cann.it be diftrained, be- caufcthe taking o? them would occaf».)n a breach of the peace. See what is faid by Willes, C. J. on the cafe of Webb v. Bell, i Siu- 440. in 4Term Rep. 569. and Storey y. Robinfon, 6 Term Rep. 138.] Co. Lit. 47. Things diflrained damage- feafant cannot be diitrained for rent, a"ahift'an tecaufe they are in the cudody of the law. «ecutor he pleads rlens injes mains, but certain goods diftrained and impounded : adjudged no aflets to charge him. Cro. Eliz. 2.3. [So, it feems that goods under an .ittachment cannot be diflrained. jVipnk's Ctife, l Ventr. zzi. i:rg:itr.do.'\ Cro. Eliz. If a clothier having put his wool to fpin comes with an horfe to adrnd^ed? ^^vrv it back, but becauie there is no beam or weights at the fpin- 5 Ley. 261. ner's houfe to weigh it, the clothier and fpinner, with the leave of S.C. cited, a neighbour, who had a beam and weights in his houfe, bring the ver^onVwho ^'^'^^^^ thither, and enter the houfe to weigh the yarn, the lord of undertakes the hoiife, whilft they are there, cannot diftrain the horfe for to carry all fetvicCS. perfons goods, thereby becomes a coniinoit currier, and the goods in his poffcffion are privileged. Salk. 249, 250. a ill. A^r, Things for which a replevin will not lie, fo as to be known !ri." ^Tntt. ^S^"^> *^ "ioney ou^ of a bag, cannqt be dillrained, for this reafon ; and and alfo for the damaees, that Ihocks of corn, * hay, t^c, might 8x. [But fuftain, it was held that they could not be diftrained. binilieV may be uii laincd -; for the b '- le.iled may he known again. 22 E. 4, 50. b.] • But for this -a;*/* a W. & M. c- s 'et lonh at Lnge,- ietier (D), fji^ [But notwithftanding this aft, (heaves of corn, it feems, cannot be diftrained for the arrears of an annuity. Horton v. Arnold, Fort. 361. J Averia cariica^ or beads of the plough, or any thing belonging Co. Lit. 47, to it cannot by common law be diftrained while there are other ^in'^-'SB' goods or beaits (which Braclon calls animalia otiofa)^ which may be this chaptej. diftrained. Alio, a covenable diftrefs is not of armour or veflel, or apparel, or jewels, fo long as there are other fufficient or coven- able, nor of ftieep, faddle-horfe, poultry, or fifh . By the ftatute de d'lftriElicue fcaccarii made c\ H.T^. Jl. /i^. " No This ftatute " man (hall be diltramed by the beafts that gain his land, nor by ^''pds riot ** his flieep, but until another diftrefs or chattels fufficient be treflesbe- ** found, except for damage-feafant." tweenLord and tenant, but to all other diftrefl*es, as well at the fuit of the king, as at the fuit of the fubjefl. 2 Inft. 133. Dal. 84- In an adtiop on this ftatute, it is not neceffary to ihew that there was a fufficient diftrefs, frtetir^ &c. Bat it muft corns on the other part,^.' to plead that there was not a fufficient diftrefs, prater, &c. Dyer, -12. pi 8'i. It muft be intended there was cattle fufficient at the time of the diftrefs, and it is not material what was before or after. 2 Inft. 133. It is agreed that the cattle of a ftranger efcaping into his neigh- 27 E. 3. ?o. hour's grounds, and there being levant and coucharit^ may be dif- p'"^" ^^^' trained by the lord or leflbr of thofe grounds for rent or fervices Dyer- 17, due to him j for it fhall be imputed the owner's folly that he did 3 '8. not provide againft this mifchief by proper bounds and fences. 2 Lean. 7,8. a Brownl. 170. But fuch cattle ihall not be liable to a diftrefs for an amercement. Noy, 20. Nor to a rent-charge ilTuing out of tho-Os lands, unlcfs they were U-var.t and couchant. Roll. Abr. 66S. J Mod 63. And by the better opinion of the books, it feems not to be material whether they wer« ie-vant 01 couchant 01 not. ^ii/i? Co. Lit. 47. z Sand. 250. 2 Brownl. 170. Palm. 43. Hob. 265. Cattle which are in certain land by way of agiftment may be Roll. Abr. diftrained for rent. ^^9- If the tenant ought to inclofe againft the highway by prefcrip- -^ ^- 4- 49* tion, and in driving my cattle by the way, by default of the in- J^t. Roll. clofure they efcape into the land of the tenant, the lord cannot Abr. 668. diftrain them : fo, if he ought to inclofe by prefcription againft But ».jr this my land, and my cattle efcape. ^_ DyersiyT If A. and B.y have two clofes lying contiguous, and^. by pre- aSaMd.289, fcription is bound to repair the fences between both the faid ^9°- ^•^°^ clofes, and A. leafes his clofe to C. for years, rendering rent ; and viUe.'^"^ *" the fences between the two clofes being out of repair, the cattle of B. efcape into the clofe of -^., he may diftrain them for rent ar- rear j and it is not material whether they are levant and couchant or not : adjudged, and the judgment affirmed upon a writ of error, though objected that they efcaped therethrough the default of A. who ought to have taken care that the hedges were repaired : and by Sanders ; nota ; this was a hard cafe to maintain, there being 3 vaft difference between the lord's taking a diftrefs within his feignory, and the leflbr's diftraining for rent referved upon his own leafe ; for the lord had nothing to do with the land or fences, and fo it concerns not him whether they are in repair or not ; ptherwife of the leiTor ; fpr he ought tO repair them, elfe he will hayq advantage of h^s own wroii?. * j:Thc $4^ ^i^ttt^. Kimp V. [The various cafes upon this point -wen very fully confidered in Crewes, ^ j-^j-j^j- cafe, whcrc the following dillinclions were made. If a * Jt ** ftranger's beads efcnpe into the land, by the default of the owner, they may be diilrained for rent, without being levant or couchant. But if their efcape be in confequence of the default of the tenant of the land in not repairing hia fences, the leflbr cannot diilrain them, though they have been levant and couchant, unlefs he have given notice to the owner, and he fuffer them to remain there af- terwards. But the lord of the fee, or the grantee of a rt.nt- charge, mi^y in this l-ift cafe diilrain them, without giving notice, after they have been levant and couchant.] 4 Vent. 5c. If a man, that is driving his cattle to London to fell, aflcs If.ave of Fowkesand ^^ leffor to put his Cattle into the ground for a night, and he gives 3 Lev'. 260,' him leave fo to do, with the confent of the leffee, and the cattle i6i. s. C. are put in accordingly; the leflbr isnot concluded by this licence, ■^v^"^^" ^^^ ^'"'^*' ^^ "^'^y diflrain them for rent ; adjudged upon demurrer j Where in and it not appearing by the pleading that the ground belonged to this ve;y a common inn, it came not in queftion whether in that cafe they ca:e the rv^icrht have been diilrained. party had t> relief in equity, the confent of the head landlord being looked upon as a fraud and contrivance to fubjeft the caicle to a diftrefs, and there cited the cafe of Bredon and Pierce, where there being two years a. rear oi a rent-charge, and cattle canne by efcape out of the next ground, and were diftrained, &c. The Lord Nottingham relieved againft it. Fieced. in Chan, j, S. C. decreed for the plaintifi' with coils, at law, and in ec^uiry. (C) Of the Manner of diftramlng, as to Time and Place. Co.Lit. 142 7 Co. -. a. g Co. 66. a \ Diftrefs for a rent-fervice, or a rent-charge, cannot be In the ■^^ night, but one may diilrain cattle damage-feafant in the night, othcrwife they may be gone before morning. 4. Leon. 218. If the tenant, when the lord is in view of the cattle, to avoi4 ^"'ft^S°'^ the diftrefs, chafes them into a place not within the lord's diftrefs^ Ann. c. 14. yet the lord may take them freihiy ; for the tenant fhall not have and n Geo. advantage of his own wrong, 2. c. 19. the tenant, before the lord had view of them, had chafed thfm away, or if the tenant for other lawful xeafon, even after view, had chafed them away, or if after view the cattle went out of themfclves, th; lord could not diftrain them. 44 E. 3. zQ. Co. Lit. 161. a. 268. a. 2 I nil, 131. [But now by II Geo. 2. c. 19-, goods, &c. may be diftrained in 30 days, after removal.] Buckley v. [If by the cuftom of the country, or by exprefs ftipulatlon be- Tayior, 2 tween the parties, the rent be payable on the day on which the 600!"" ^^" tenant enters, the landlord may diftrain for it on that day. So, it 6 Mod. 214. feems, by the ufage of aparifh, a quarter's rent may be diftrained for before the end of the quarter.] (fl) This is Ey the ftatute oi Alarlbnge made {a) 52 i/. 3. c. 2. " None declarative u {\;^^\\ diftrain any to come to his court, {b) which is out of his mon law. ' " fce. Or upon whom he has no jurifdlction, by reafon of a a inft. 104. « hundred or bailiwick, nor take diltrefles out of the fee or place (i) This is „ ^,j^gj.^. j^g i^^^Ij ,^\ jurifdiaion." intended of \ > j fuit-fervice in rcfpe£l of a feignory, and not of fuit-rcal in rsfpefl of refiance. 2 Inft. 104. (f) But no dirtrtfs is prohibited by this tct in any place where he hath power, by cuftom or otheiwife, to dittrain. i Aid. 71, 71. By Difttef^, 347 By the fame ftatute, r. 15. it is ena£led, " That from (^7) (a) But this «« thenceforth {b) it (hall be lawful for no man (c) for any man- '5°niyin «« ner of caufe to take diftrefles out of his fee, or in the icing's oft^hl^^com- " highway, or in the common ftreet, but only to the king and mon law. « his officers, having fpecial authority fo to do." m" Th'^^* muft not be uktnfmpliciter, fo as to take advan'.age thereof in bar of an avowry, hvXjtcutidum quid,\iz. that the tenant may have an aftion againft the lord upon this ftatute, in which he fhall be fined. 2 Init. 132. And if it may be pleadei in bar of the avowry, the king fliall lole his fine. (c) This muft be intended only of diftrelles by reafon of afeignory, and not of diftrefies tor rint-chargcs. Sec. or by reafon of a leet. z Inft. 131. And. 72. Nor of luch things for which no diftrefs can be taken but in the highway, as for toll-thorough due by cuftom. Cro. Eliz. 710. But an heriot cui^om may be feifed in the highway, for that is not a diftrefs but a feifure : but a diftrefs cannoc be uken there for an heriot- fervice. 2 Inft. 132. Goulf. 97. If the lord coming to diftrain hath a view of the beads within 2inft.23». his fee, and before he can diftrain them the tenant chafes them into the highway, the lord, notwithftanding the ftatute of Alorl- bridgey r. 15. may diftrain them there. A diftrefs for rent may be taken in a houfe, if the door be 46 e. 3. 26. open; fo may it be taken out of a window. b.Roii.Abr. 5 Co. 92. One cannot break open the outer door to diftrain ; and Ld. Hard iv; eke C.J. heid, that a padlock put on a barndoor could not be opened by force, to diftrain the corn. 9 V in. Abr. 12S. pi. 6. If .the outer door be open, one may break open the inner door to diftrain. Comb. 17. [Seetheftat. II G.2. c. 19. § 7., wh-ch empowers the landlord in the cafe of goods being fraudulently removed to prevent a diftrefs, to break open a dwelling-haufc, taking a conftable with him, and having firft mad« oath before a juftice of a reafjnable caufe to fufpedl that they are therein. Sse infra, tit. Rent, (K).} [If the demifes are feveral, there muft be feparate ctiftreHes Rogers v. upon the feveral premifes fubjecl t» each diftinft rent; for one ^erkmire, diftrefs cannot be taken diftributivcly, and the law gives no right Hardw. 2*4.5. to enter into any premifes but thofe whence the rent iffues.] 2 Str. 1049. (D) Of the Diftrefs when feifed : And herein of the Diftrainer's Intereft therein, and what he is to do therewith. T> Y the common law, a man might have driven a diftrefs whi-* 2 Inft. 106. ■*-' ther he pleafed, which was very mifchievous ; ift, Becaufe the tenant was bound to give the beafts fuftenance, if impounded in an open pound, and being driven into another county, he could not by intendment of law know where they were. 2dly, He coull not tell where to have a replevy ; but now. By the ftatute of Mar/bridge, made 52 if. 3. r. 4. " None ftiall This ftatute ** caufe a diftrefs to be driven out of the county where taken, on '* confirmed «.* pam of fine," es-f . _ , //Vtheift. made 3 E. i. 2 Inft. 191, Yet if the tenancy is in one county, and the manor in another, the lord may drive the diftrefs taken in the tenancy unto the manor in the other county j for the te-janc doing l"uit to the manor, oy common intendment knows what is d3r,e there. 2 Inft. 106. KeiKv. 50. Bro. Diftrefs, 33. Whcie he who will tike advantage of this act muft do it by way of a:/■ Holt, C J. [It is provided by the 11 G.2. c. 19. § 19, 20. that for any unlawful act dane, the diftrainor (hail not be a trefpaffer ab initio ; but that the party grieved fliall only have an a ilion for the real damage fullained j and not even that, if tender of amends is made before any adlionis brought.] 9.7 A (T. 64. If a man diftralns a horfe, and impounds him, and the horfe ^°! V iu^' leaps three times over the pound, which is as high as it ufed to be, one d: lain- and thereupon he who diftrained ties the horfe to a poft in the ed a I og pound, by reafon whereof he ftrangles himfelf, the owner may fea'tv f ' ^^^ve an action of trefpafs. •vvIj:, p aftci.vardsefciped, but it did not appeav that it wa« by the difttaina's fault; loan aftion of tref- l>*f» Difltefjaf. 349 pars brought by him for the trefpafs done by the hog, it was adjudged that the aftion would not He, for he might chooi'e what pound he pleafcd, and it was his folly not to chufe one that would hold him j which is not like a diftrefs dying in pound, that being the aft of God ; and his default muft not entitle him to another adlion, nor fubjedl the defendant to a double puniftiment for the fame caufe, viz, the lof* of hi« pig, and the damages and cofts in this action. Saik. 248. pl> 3. Ld. Ra;m. 719. DiftrefTes for rent being in nature of pledges, and the perfon diftraining having no power to fell or difpofe of them, they often- times proved of little or no benefit towards haftening the pay- ment of the rent ; for remedy whereof it has been enadled, ** That where any goods or chattels (hall be diflrained for any 2 W. & M. " rent referved and due upon any deniife, leafe, or contraft what- ^^* ^' ^-S- *' foever, and the tenant or owner of the goods fo diflrained (hall ** not, within five {a) days next after fuch diHrefs taken, and no- [{a) The *' tice thereof (with the caufe of fuch taking) left at the chief .^^^ days arc ** manfion-houfe, or other mod notorious place on the premifes the day of ** charged with the rent diflrained for, replevy the fame, with faie. i H. ** fufTicient fecurity to be given to the fherifF according to law j ^^' "^"^ *' that then after fuch diftrefs and notice as aforefaid, ^nd expira- ** tion of the faid five days, the perfon diftraining fliall and may *' with the (herifF, or under- fherifF of the county, or with the con- " ftable of the hundred, parifh, or place where fuch diftrefs fliall *' be taken, (who are hereby required to be aiding and affifling " therein,) caufe the goods and chattels fo diftrained to be appraifcd ** by two fworn appraifers (whom the fneriff, under-flierilF, oc ** conftable, are hereby empowered to fv/ear) to appraifc the fame *' truly, according to the befl of their underftanding ; and after *' fuch appraifement fhall and may lawfully fell the goods andi " chattels fo diflrained, for the befl price that can be gotten for* ** the fame, towards fatisfa6lIon of the rent for which the faid ** goods and chattels fnall be diflrained, and of the charges of fuch " diflrefs, appraifement, and fale, leaving the overplus (if any) iix ** the hands of the fherifF, under-fherifF, or conftable, for the " owner's ufe. " And that upon any pound-breach or refcous of goods or chat- § 4. ** tels diftrained for rent, the perfon or perfons grieved thereby, [(A) Th<; ** {hall, in a fpeciaJ a£lion upon the cafe, for the wrong thereby P'^'^^'A ""- *' fuftained, recover (b) treble damages and colls of fuit againft djufg jj ** the offender or offenders in any fuch refcous or pound-breach, entitled t Y the ftatute of Mar/hyidgej diftrefles muft be reafonable, and tute made Li ^Qt tOO great. 52 H. 3. S e. 4.. ; v'K^e Mo ^i H. 3. flat. 4. the fiatu^e de diJiriEime Jcaccarii. If the landlord takej an unrea- fonable dillrcfs, a; J adlion lies upon this ftatute, but not an indictment or information, becaufe a private offence. Mod. 7 t. 288. Lev. 299. Rajm. 205. Vent. IC4. [Nor will trefpals lie for an excelfjve diftrefs, except in i. 'lie cafe, where the things dilhained are of certain known value, as gold or filver ; in all other cafes th< ; aftion muft be on the flatu"e. Hutchins v. Chambers, i Burr- <;<)0. Moir v. Munday, Hil. 28 « 3. 2. B. R. cited in the laft cafe. Lynne v. Moody, Fitzgib. 85. 2 Str. 8^1.] No diftrefs for hom.ige • Jr fealty flull be faid to be exceflive, for the high efteem thefe are of in the law ; but ^ & iiide 42 E. 3- 26. 4 Co. 8. b. Bevill's cafe, z Inft. 107., where, notwithftanding it is faid, that the ftatute of Marlbridge is general, I'iJe 1 3 H. 4, Fitz. tit. Avowry, 239., it was held, that a diitrefs of m^ «e than the value fha!! not be faid excefllve, fcr the expenccs of knights of parlia- ment ; becaufe the 1 ting ;s in a manner party. 4.1 E. 3. 26. If forty fheep are taken for 2 d. and fixteen oxen for 9^. this is \f°'\' exceffive. Abr. 674. 29 E. 3. 24. So, if tv.'o oxen are diftrained for four pair of gloves, ten fheep «74 ' '' •^°'- ^"^ P^ir, and ten for another, it is an exceffive diftrefs. S H. 4. 1 5. But if a ioian takes five horfes joined in a cart for 3 d. rent, this is aVent. 183. ^^^ exceffive for the entirety. a Inft. 107. So, if the lord diftrain an ox or an horfe for a penny, if there were no other diftrefs upon the land holden, the diftrefs is not exceffive ; but if there were ftieep or fwine, ^c. then the taking of die ox or horfe is exceffive, becaufe he might have taken a beaft of lefs value. Moor, 7. If for 10/. rent due at one day, a man diftrains goods of the P'- - p- value of 40J-. only, and at the time of taking the diftrefs there are 13. s^C* goods of a fufficicnt value upon the premifes, he cannot, for the Bio. Dif- fame rent, diftrain again ; for it was his folly, that at the firft *'v'' ^Car ^^ diftrained no more ; but if there be rent in arrear at feveral a.c.7. ^4-, days, a diftrefs may be taken for what was due at the other by which it daVS. is enaftcd, That where tl^c value of the cattle diftrained (hall not be found to be to the full of the arrears diftrained for, the party, to w',,om the arieats were due, his executors or adminiftrarors, may from time to time diftrain again for '.he refidue ©f the faid arrears. [Whether or not there fhall be more difireffes than one depends upcn tbe entirety and identity of the thing diftrained for, not upon the value of the goods taken. One entire duty, orfum, ftiall not be fplit, and diftrained for, part at one time, a:id part of it at another .time; for inftance, if, as was the cafe in Lutwyche, tlieVi/hole funi due be 77 /. JOi., a man ihall not diftrain for 62/. ic s. at one time, anci afterwards diftrain again for 15 /. the tefidue of the 77 /• 105., but he ftiall diftrain for the whole 77/. 10 r. at once. But if, from miftuke or ignorance of their value, the goods at firft diftrained for the whole 77/. 10 j. be not fufficient to fatisfy it, he may diftrain ag.iin in order to fupply the deficiency, and to make up that fame fum. Wallis v. SaviU, 2 Lutw. 1532. Hutcbir.s v, Chambers, j Burr. 589. J [A diftrefs IDiarefs^* 353 [A diftrefs m?.y be taken for rent under a leafe, though the te- ivracdonnel nant entered before the commencement of it,! v. Welder, -• 1 Str. 550. If a diftrefs be taken of goods without caufe, the owner may Co. Lit. refcHC them. 47- 1. ; but a It ranger cannot. 39 E. 1;. 35. b. t Roll. Abr. 673. If a man diftrains my cattle, together with the cattle of J. S. without caufe, J. S. or I may jultify therefcue of all. 59 E. 3. 35. b. per Thorpe. But if a diftrefs be taken without caufe, and put into a pound, Co. Lit. the owner cannot break the pound and take them out, becaufe 47^ b. they are in the cuftody of the law. s_ p' ^ N. Bendl. 30. pi. 48. S. P. v'tJe flat. 2 W. & M. feff. 1. c. 5. and Co. Lit. 47., where the writ dc fa'cofrado will lie. F. N.B. 100. Winch, to, 81. If the lord, or another that has a rent, diftrains feveral times F.N.B.178. for his fervice or rent, where none is in arrear, the tenant may ?"^'f.^^^ by the common law have an afftze de fovent dijlrefs. t^Iins'for homage or fealty fo often, that the tenant cannot manure his land, ye: the tenant fliall not have an ajfize de, &c. 4 Co. 8. b. This a£tion lay at common law, in which the writ is general 8 Co. 50. and count fpecial, that the lord diftralned, l^c. and judgment, ^- ^* not that the demandant recuperet fe'ifinam, for he hath that, but quod teneat abfque niultiplici dijlriclione. (F) Of diftraining Things Damage- feafant. SHOCKS of corn may, by the common law, be taken damage- 21 H. 7. 39. feafant. ^' ^'"-^ 14. a. Lat. 8. S. P. admitted fer cur. Fitz. Avowry, 363. S. C. Bro. Diftrefs, 30. S. C. A greyhound may be taken damage-feafant running after conies 2 E. 3. Fitz. in a warren : fo may a ferret broucrht into a warren. „ „ ,^^''"^7^'^ r r ' . » 1 82. Roll. Abr. 664; But if a man brings nets and gins through my warren, I cannot 7 E. 3. take them out of his hands. ^^ ^ ^,. ^°"' ^}\ 664. Cro. Eliz. 552. i>. r» If men are rowing upon my water, and endeavouring with Cro. Cnr. their nets to catch fifh in my feveral pifcary, I may take their '^^■'^„^l^^ oars and nets, and detain them as damage-feafant, to ftop their could not further fifliing. c"'^ t-^"r nets. If a man rides upon my corn, I cannot take his horfe damage- 7 E. 3. feafant. ^T'/: Roll. Ahr. 664. ; hiiX per Sid. 4^0., it is faid by the Chief Jiiflice, that the horfe upon which one is riding may be diftrained dimage-feafant ; and it feems he Ihall be led to the pound with the rider upon him. bee Vent. 36. Videfupra, letter (B), con:r. If a man takes my cattle, and puts them Into the land of ano- Roll. Abr. ther man, the tenant of the land may take thefe cattle damage- ^."|- ^°' feafant, though I who was the owner was not privy to the cattle's waiier, />fr being damage-feafant ; and he may keep them againft me till fa- Mum cu. tisfaaion of the damages. „ ' _ . c p ^ T'"""' .' "l • Rep. 449. S. C. and S. P. pa- iwojulLteS. Vol. II. A a If 354 DiGrcfie?. Co.L''t.'6T. If a rrnn coming to iliftrnin damage-feafant, fees the beafts on b^'^^j!"/' ^*'^ ^'"''^ ^"'^ the owner, on purpofe, chafes them out before they the owner of are taken, he cannot diltrain them. the foil is riCt obli^;ed to takf- tlit c-iUle diiriage-fcafjnt, but may chafe them out with a little dog. yidi 4 Co. jS.'b. 2 Roll. ^hs. 5O6. pi. 15. 50 E. 7- 27- A commoner may juRifv the taking of the cattle of a flranger •^j'-' ^"""^ "^ upon the land damage- feafant. vol. 1. 6:4. 46 E. 3. 60, if a man hath common for ten cattle, and he puts in more, J2,. b. Bro. jj^g furplufaee above the ten may be taken damajie-feafant. Avowry, 29. 10 > o 5.C. [..^ri^.', where the r.uriiber is uncertain. HjII v. HarJin^, 4 Buir. 2426.] Co Lit. 143. A man may diflrain cattle dnmnge-feafant in the night, for 2 ^.°" ^'^' otherwife, perhaps, the cattle will be gone before he can take S. F. 9 Co. ' t r ' o 66 3. s. i'. them. 2 Jon. T93. If turfs lie upon a common dnmage-feafant ; though for this a [The com- commoner may diilrain them, yet he cannot burn them. moi;ei; s •' <' power of di.lraininjs' is nit mentioned in the cafe cited J v/igiey V. [Goods brought to a market to be fold, cannot be diflrained by Peachy and ^^^^ owner of it for toil ?.s damatre-feafant. others, ° 2 Ld. Raym. 1589. Sa-Aver v. Wiiklnfon, Cro. El. 628. Mayor of If a man hath' a fre':.hold in a market, and corn is brought Liuncef- thither on the market-day, and fet down, 'he cannot juftify the ton s cale, 1 • • i 1 r r ■" ' Cro. El. 75- takmg it there damagc-icalant. Burt V. y^. dem.ifed to B the milk of twenty-two cows, to be provided fticojc, ^y ,} ^ ^j^,j jQ ^g £^,|.| ^j. ^ >g expence, on certain clofes belonging Rep. 329. to A. ; and ^J. covenanted that i». might turn out a mare, and that no other cattle (honld be fed there. B. may diftrain other cattle of ^. there, for the feparate herbage and feeding of the clofes palled to B.^ (G) Of Dlflrefres for Amercements. Roll. Ahr. /^, F c^mmon right, a dillrefs Is incident to every fine and ttnR amercement in a {heriff's torn or court-leet, whether the 201. 1 1 Co. f^me belong to the king or to a fubjecl •, if the offence, for which 45. a. Cro. they were impofed, be of common right incident to the jurifdiclion j.c. 3S2. q£ ^^^Jj^ courts. 3 H.7. 15. pi. 12. ic H.6. 7. cc«:. 11:1.7.14.3. 21JI. 7. 40. b. Salk. 175. Dad. and Stud. 138. Vrnt. 105. But if fnch offences were only the negledV of a duty created by ^Ke"b*^ot* C"^*^'*^* '^ is quellionabje whether it doth not require the hke 739- 745- cuftom for a diilrefs, though the duty be of a publick nature : as, r,y there- if there be a leet belonging to the manor oi A.^ and by cuflom-, ^'-Tin Vent ^^"^^ *^"^ °^ mind, the inhabitants of B. have ufed to fend a con- Hie court in- liable to the faid leet, and they make default, upon which they ciined, th.it are fined by the fteward ; whether a dilhefs could be taken tomonhi ^*^^ ^^^^^ ^^^^> ^vithcut a fpecial cuflom to diftrain, waa doubted ; and and the cafe adjourned, no fncclal cudom to diftraln being abitdtofec alleged. " " ^"'' '^ o canno: be di'.hained for without a cuftom : alfo in P;!ym. it h faid by Twifden, that when a duty is railed by cullom, a diftrefi for that duty mu:i be maintained by the like cuftum. But If it be for the private benefit of a fubjedl, no diftrefs Is R'll. Rep. incident to it without a fpecial cullom. , „ 7^\i'^^' * 44. b. 2 Hawk. P. C. 60. The fherifF or lord of a leet may, for fuch fi:ies or amerce- (<7) a h. 4. ments, diftrain the goods of the offi^nder in (a) any lands within ^^'y\ the county or precin£l of the leet, of Vv-homfoever they fliall be ,^^ j/' holden, except (/') only in fuch lands which fnall be in the Bro. Leet, kind's hands ; thefe beinjr wholly out of the iurifdidlion of fuch ?.?• +''• COUrtS. ry, i<;4. Roll. Abr. 670. 2 Ir.ff. 1C4. (^) 47 E. 3. 12, 13. Fitz. Diftrefs, 15. Roli.Abr.670i And fuch a diftrefs may be taken In the highway ; for the 2 imt. 131. flatute of Marlbridge^ c. 15. which prohibits the taking of a ^^^j"^j^^* diftrefs there, is to be intended only of diftrefies taken for fervices due by way of tenure of lands. Such fines and amercements being for a perfonal offence, no 47 £.3.13. ftranger's beaft can lawfully be diftrained for them, though they *• 4-i £• 3" have been hvant and couchant on the lands of the offender. Ero. Djf. trefs, 3. F. N'. B. 100. Owen, 146. Noy, So. Mw/rii. RoU. Abr. 669. pi. 20. [Roll, ciies for ths contrary opinion the cafe in 41 E. 3. 26. b. which feems an authority (if any) the otbcriL-ay.] It feems to be agreed, that where any fuch court is in the king*s Hetlcy, 62. hands, the goods diftrained for fuch fines and amercements may ^'^^> 47^* lawfully be f()ld, after they have been kept a reafonable time, as , r.„;}| '*' the fpace of lixteen days : and it feems the better opinion, that Rep. 76, where any fuch court is in the hands of a common peribn, if tiie ^^dii"' goods were diftrained for an ofFenceof a publick nature, they may be fold of common right, without any fpeciai cuftom for that purpofe. No bailiff can lawfully diftrain for any fuch fine or amercement, 3Mod. 13S. without a iDecial warrant for fo doln'i ; which muft be fet forth by ^''°- ^''^„" 1 , , . - '^ -, . OOo. 740. him In an avowry or juftilication ot fuch a diftrefs. Moor. 514. 2 Keb. 745. Salk. 107. pi. 2. [In replevin z'.'.e cSicer mufl (late that " the defenJar.t \v:.s guiity ;" in trefpafs the coDviciion is a fufHclent jufUfication. It muft appear too, that the amercjoient was by the ju; y, and not by the court. Stephens v. Haughton, 2 Str. 847. j [By prefcriptlon there may be a diftrefs for toll in a fair or mar- Hob. 187. ket. But toll is not incident of common right to a fair; and, 5^°" ji Jj^^ therefore, If the fair is a new one, and toll is not exprefsly granted, way v. a cuftom cannot fupport it. Smith, 2 Str. 1171. Jf goods arc fraudulently fold out of a market, in order to Bhkey ». evade the toll, the owner of the market cannot diftrain them ^i^^^p''^'^^^ for it.] A a 2 [ 356 ] 2Dotocr. Co. Lit. 33. 39- b. b. Co. Lie. 30. b. Perk. 301. rWcaBl. T\OWER is the part of the hufband's eftate that comes to the Comni.129. LJ' ^ifg upon the death of the hufband. Dower by •* the civil law, was the portion the wife brought to her hufband, either in land or money, whereof the naturale dommum belonged to the wife, and the domi/iium d'viUto the hulband ; fo that the hufband had only the uJuifruBut during his life in things immoveable, but coulJ not aiien them ; in things moveable he might alien them, but mufl teftore to the value ; for thel'e, upon the diflbluiion of the marriage, by the death of the hufband, or divorce, came back to the wife. Vide Vin. 249. Corvin. lib. 23. tit. 3. Ho- norius, 1 14, 115. Donations inter Jponfum £f ffcr.fdin propter nupi'us began about the time oi Coi;Jiant'wf., and were made before marriage ; but by the jujllnian conllicution tlicy were good after marriage, and were gifts from the hufband to the wife, which, upon the dilToiution of the marriage, came back to the hufband as the dower did to the wife. Vin. 245. Inll. of Imperial law, 43. 1 17, 1 18, 119. Among the feudifts, the rule was, non uxor mar'itofed uxori maritus <3ffcrt j and the reafon was that the hufband and eldefl: fon of the family being biought up in military cxercife, the wife and youngeft fons tilled and improved the land, and in their expeditions found provifions for the army ; and leaving the third part in labour, fhe had the third part of the feud for the maintenance of her and her younger children during her life. Spe'm. tit. Doarium, 175. Dower is of five forts: i. At common law. • 2. By cuftom. ^. Ad qfl'ium ecclefttE. 4. Ex ajfenfu patris. 5. De la pints heal. We fliall begin with the firfl and chief. Dowetj at common hiw, is the third part of all the lands whereof the hufband has been fcifed during the coverture, of fuch an eftate as the children by fuch wife might, by poffibility, have inherited, and to which by the death of the hufband, the wife is entitled for her life. For the better underftanding thereof, I ihali confider it under the following heads : (A) Who may have Dower, and who not: And herein of the Age, and other Difabilities cf the Hufband or Wife. (B) Of what Eftate a Woman may have Dower. 1. Of the Quarentine. 2. Of the different Kinds of Inheritances. 3. Of the Nature and Quahty of fuch Eflate, whether fole, joint, or in common. 4. Of its Continuance j wherein, of Eftates conditional, fufpended, determined, or extinguifhed ; and herein of Remitter to the Heir, and Recoveries by Title Para- mount. 5. Of the Value and Improvement of the Hufband's Eftate, either in his Lifetime, or after his Death, (C) Of (C) Of the Things requifite to the Confummation of Dower, viz. Marriage, Seifin, and the Death of the Hufband, 1. Of the Marriage, how long it muft continue j and herein of the feveral Sorts of Divorces. 2. Of the Seifin, either in Fa6l or in Law ; and herein of the Seifin in Fa£t, as it is continuing, or not continuing, as Inflantaneous. 3. Of the Death of the Hufband. (D) Of the Affignment of Dower. 1. By what Perfons. 2. Of the Manner; and herein of aflignlng of it by Metes and Bounds, ^c, 3. By what Court. (E) Where the Wife fhall have her Eledion to be endowed of one Thing or another, and where of both : And herein of Endowment ^0/ (A) Who may have Dower, and vvlio not: And herein of the Age, and other Diiabilities of the Hufband or Wife. Lit. ^36. A S to the age of the hufband it is not material, but only the Co. Lit. xl jjg^ Qf f}jg wife; and if ihe be of the age of nine years or Do'a! & more at the death of her hufband, (lie dnW have dower, though Stud. lib. r. her hufband be then but four years old. Tlie reafon the law would '^" M R ^^^ allow women before thus age to demand dower feema from 3^^/ ' their incapacity of having iflTue fooner. • I Roll. Abr. 675. 2 Inft. 234. Leon. 53. Brock, th. Dowe , 36. 45. The fupport of the children is part of the confideration where- on this allowance of dower is founded ; and, as on the one hand ^t would be unreafonable to extend it to iuch women as are inca- pable of performing the conditions ; fo on the other hand it would not be reafonable to exclude women of fufiicient age, by reafon of the incapacity of their huPoands ; fince that is the adt of God, which ought in no fort to prejudice the wife : much lefs can the hufband J 3 Co. 12. by his own aci prevent his wife of dower, if (he attains the age oi Co Lit, j^.-j^g years during the coverture •, and therefore, though he aliens - " * his land before, yet if (he after arrives at nine years of age, her title is now confummate ab initioy and over-reaches his alienation : for dower being intended a provifion for the wife and children, when- ever fhe attains fuch an age, as the law adjudges her c;ij,iable of Pyer, 313. children, nothing farther is required: and therefore though tlie pi. 92. 369. jjuii^aj-n;! jjg before lie or his wife are of age of confent, yet if Co. Lit. flie be nine years old, this is a fuilicient marriage to entitle her to 33- a- dower, and fo ought to be certified by the bifhop. Co. Lit. 40. If a man marries a woman of loo years old, and dies, (lie fliall be endowed 5 for the law cannot determine tlie precife time of the failure of her capacity to have iflue, which may vary according to the flrength and other circumilances of the woman. 7 Co, 7. If 2. woman alien, be flie friend 'or enemy, marry a ,fubje£i-, „°'^ "^' flie fhall not be endowed, becaufe by the policy of the law all But by the aliens are difabled from acquiring any freehold amongft us; but law a tne for thls vide head of Aliens. cvov-n, if / tJie king many an alien Ihe fh^ill be eridowed, becaule princes canno: mairy accorcing to their dignity, unlefi ;o perfor-i abroad. Co. Lit. 31. If a Jew born in England marry a Jev^ born alfo here, and the far R.I. hufband be ccnyertcd to the Chridian faith, and after purchafe erected 3 <;o'jrt *iiere lands, and enfeoff the other, and die, the wife fliall not have zii the real dovi'tr. and perfonal cftaie ot tl";e jews was regiftered, anJ upon the death of any Jew came to the king, though it was re^ or^mabL by their chiLren [aying a fine ; and in this court flie c .ni:d not demand dower but againrt a Jew, and ihe could noi demand it at ccmmon law ogainil a Chriftian; and for this rcal'-n it ihew; if tt.e huibjfid hau not alientd, jct flic could :ict :cccvcr agair.fl the licir of a Chriiiian, riollin^fiitjd, •yoi. 3. p. 15, _,. Roll. Abr. 673. S.P. Women Paplfts feem not diubled to demand and recover do vver within the words of 1 1 dff i2 If^. 3. c. 4. If a woman be attainted of treafon or felony *, Oie fhall not Tetk. 349. have her dower, but if pardoned flie flrall be received to demand ^°' ^'^* it, though tlie hufoand has aHened in the mean time, beca-jfe by jjCo". 2^. the marriage and ieilin of her hulband flie was entitled to dower, But if flie and when the impediment is removed, her capacity is again re- ^^''"y^j""- itored. treafon or felony, this feemS no impediment of her dnwcr, for this forfeits no freehold, nor title to any fee- hold, though ihi king fliail have the profits during the conviction. * See injra. At common law if the hufband was attainted of treafon, mur- Perk. 308; der, or felony, the wife lolt her dower, becaufe it was a condi- 1°''^ tion annexed to all feud?, that the feuditary fhould not commit j\.^/ fuch crimes. Brook, 85, Co, Lit.40. b. Flow. 262. But afterwards the flatute i E. 6. c. 12. ordained, that in all Stanf. 195. cafes where the hufband was attainted of treafon or felony, their ^'"' ^"^* wives fliould notwithilanding have their dower : but 5 it. 6. f. 11. .g,. j,, repeals that in all cafes of treafon •, the words of which atl being 13 Co. 19.^ general, exclude the wife as well in cafe of petit treafon as in ^■^",'^'„"J^' cafe of high treafon. But in cafe of mifprifion cf treafon, or at- Monr'eVw). tainder of felony only, the other act: (lands in force, and there- E>yer, ^7. "• fore, they fliall have dower in all fuch cafes. P; ^' " - ' ' 2C3 pi. 36. If the hufband felfcd of lands in fee makes a feofFment, and Bendi. 53. then commits treafon, and is attainted of it, the wife (hall not ^="^^'^-''^- recover dower agamic the teoltee. pl.4'..s.c. Co. Lit. I IT. a. S. P. .And thougii the huiband had been pardoned, yet Ihould not the wife recover dower. Leon. 3. Mayne'a cafe, iiut of land purchafed bf^he huiband after the pirdon, the wife ihall be endowed. Perk. 391. The {a) wife of ■s.felo defe fhall have dower, («) PIj*. 261. a. 2<;, my Lord CAe fjys that ihe /hall be eitdowed. Co. Lit. 31. a. After the making of the ftatute i E. 6. c. 12. it feems to have {d) As in been doubted whether the wife fhould net lofe her dower in cafe 5 e^'^- <^- of any new felony made by acl of parliament; and therefore," ^j^esVie- where feveral offences have been-made felony fmce, care has been c.e fliall be eadovved, but her lord may enter on tbe lands during her life. Co. Lit 31. a. Tetk. 365. If a woman being a lunatick kill her hufband, or any other, yet flie fliall be endowed, becaufe this cannot be felony in her who was deprived of her underllanding by the ad; of God. So, thoue^h the be of found mind, and refufe to bring an appeal of his death, when he is killed by another, yet (he fliall be endowed ; Peik. 3C4. for this is only a waiver of that privilege the law has given her to be avenged of her hufband's munierer : fo, it feems, if flie refufe to vifit and aflift her hufband in his ficknefs, yet (lie fliall be en- dowed, for this is only undutifulnefs, which the law does not pu- nifh with the lofs of her entire fubfiftence. Co. Lit. If an idiot or lunatick marry and die, his wife (hall be en- 31. a. And dewed, for tliis works no forfeiture at all, and the king has only ] ndl^de^' the cuftody of the inheritance in one cafe, and a power of pro- fcend to an viding for him and his family in the other •, but in both cafes the idiot or lu- freehold and inheritance is in the lunatick, and therefore the wife natick after , ,, marriage, dowablc. and the king on ofRce found takes tbofe lands into his cuftody, or grants them over to another a$ committee in the ufual manner ; yet this feems no reafon why the hufband fliould not be tenant by the curtefy, or the wife endowed, fince their title does not begin to any purpofe till the death of the huf- band or wife, when the king's title is at an end ; but for this quare, &' 'vide Flowd. 263. b. 4 Co. 124, 125. [The marriage of idiots muH be void upon general principles of iavv, by reafon of their incapacity to contiait.] (B) Of what Eftate a Woman may have Dower. I. Of Quarentine. Co. Lit. 32. 'T'HIS is a privilege the law allows to women to continue in the b. 34. b. 1 capital mefluage or manfion-houfe, or fome other houfe ^ ^"^rook whereof they are dowable, 40 days after their hufband's death, 307. Hob! whereof the day of his death is counted one ; and during this time 35^. and they are to be provided with all neceflaries at the expence of the 3^61 CeS ^^^"^i and before the end thereof to have their dower afligned to the writ u!d be afiigned, tlse tenant may perhaps not fow tha: part at all, and fi> defeat the diwcr. [But the alJijn-.nent is good, thou^zh tithes ff the thiid yaid-land be allii;ned. M. 9. Jac. C. B. Keitleby's cjfe. Haic's MSS. Co. Lilt. 32. a. n. 3. 13th edit.] How dower of tithes of wool and lambs is to be afligned, a? .'^'r Brownl. 126. z Brownl. 143. Perk. -41 ^f common of pnjlure ill grofsy which is certain, a woman tliali ■742. be endowed, but not of common without number, becaufe it '^'T' r* cannot be divided without furcharging the common by two, which Lit", -o. ' before was only in the power of one by the grant ; and when one Roll. Abr. has power by the grant to put in as many cattle as he pleafes, he ^75- alone is made iudee of tiie number, which to divide, or dele- j I Co. 4c. J C> ' ' Style's I'rac- g^tc to another, would be unjull. tical Regirter, IZ2. Cro. Car. Dowcr 01 fevcral lands, meadow and pafturc, and common of 300^. Di2.cc pjif^ure cum pertitientiis in D. and upon fie unqnes fe'tjie que dower Ion. -.\\. pl'^^ded, and verdid: for the demandant, it was moved in arrefi:, s. c." Lit. J 9 a. 2 Inft. Perk. 302. Roll. Abr. 677- Perk. 335. Brook 6. yide Cro. Eliz. 564. yl. tenant to the contrary, but that it may be an abfolute fee, and till the iiTue comes in to fliew it otherwife, and claim his right, it fliall, to all intents, be regarded as fuch ; and, by confequence, the wife of fuch grantee or bargainee is well dbwable thereof till the contrary appears. If tenant in tail be attainted of treafon, and the king grant the land to one and his heirs, the wife of the grantee fhall be en- dowed ; for the king had a qualified fee, fo long as the tenant in tail had iflue ; and this qualified fee pafled to the grantee. But if tenant in tail covenant to fland feifed to the ufe of him- felf for life, and after to the ufe of his eldeft fon in tail, and after marry, and die, yet his wife fliall be endowed ; becaufe when he limits an eftate for his own life, he hath executed all the power he had over the eftate by fuch manner of conveyance, and the remainder is merely void ; and he continues tenant in tail, as he was before : fo, if he had covenanted that the land fhouid defcend, remain, or come to his fon after his death ; yet his wife fliould be endowed ; for this is only a covenant to per- mit his fon to have what he ought not to hinder him of, and makes no alteration of the father's eftate. heirs, or the heir of his body, for the life of the leflee, and after the leflbr dies, living the fe of the leflbr fliall be endowed, becaufe this amounts to a fuirender. Roll. Abr. 677. If there be tenant in fpecial tail, remainder to him in general tail or fee, and his wife die without iflue, and he marry again, and die, his wife fhall be endowed ; for by the death of his firfl; wife without iflue, he was become tenant in tail after poflibility, &c. which being but an eftate for life was merged by the ac- cefTion of the remainder in tail or fee j and fo his fecond wife dowable. If A. feifed in fee covenant to ftand feifed to the ufe of liimfelf and his heirs, till C. his middle fon take wife, and after to the ufe of C. and his heirs ; and after ^. die, and this defcend to B. his heir, who dies, and then C. take wife ; it feems the wife of B. fhall lofe dower, becaufe the eftate of the hufband ended by exprefs limitation made before her title of dower began ; and therefore her dower, which is derived out of it, cannot continue longer t-ian the original eftate. Of an eftate to a man and his wife, and the heirs of their two bodies ; if fuch wife die, and he marry a fecond wife, and die, fuch fecond wife fhall not be endowed, becaufe the ilTue by her cannot inherit per formam donl. 336. Co. Lit. 31. Leon. 66. 3 Leon. 80. Noy, 66. Brook, 9. Dyer, 41. a. The hufband muft have the freehold and Inheritance in him fitnid (Jjiwtiy otherwife the wife fliall not be endowed ; therefore, if lands are given to the hufband for life, remainder to B. in tail, remainder to the hufband in fee or in tail, and he dies living B, or any of his ifl^ue, his wife fliall not be endowed. lor life, rema'nder to truirecs for ninety-nine years, remainder to A. in tail ; A. dies ; hi« wife fhall be •ndoweJ, nctwithftand'n^' the intermediate eftate for years. Salk. 254.. pl. 4. Batss's cafe. Ld. Raym, 326. See liic nixt tafe but on?. jc E)otoec» 365 If a leafe is made for life, rendering rent ; the lefTor marries Perk, 348. and dies ; his wife (hall not be endowed either of the rent or of Brook, 44. the land : not of the land, becaufe her hufband was uot feifed of q^ L?t_ -12. the freehold thereof during the coverture, and the rent was but a a. Perk, freehold for life. But if a leafe is made for years, rendering rent, 335> 6. and the lefTor marries, and dies, his wife fhall have dower of the g-g * third part of the reverfion, and of the third part of the rent, as Brook, 6. incident to it; becaufe he had the freehold and inheritance in f^l'i^ the hnd ftmul l^ femel; but (he (hall not be endowed of the rent ufeor year* perfcy merely becaufe her hufband was not feifed of any freehold be made by ' or inheritance in it : but if no rent be referved on the leafe for ^^^ hufbaad years, then cejjet executio during the term ; and therefore, if a leafe marriage, be made for years, remainder to J. S. and his heirs, the wife of then his 7. S. fhall be endowed ; but ce/Tet executio during the time. ^'^^ ^^^^ J ^ JJ o have her dower difcharged of them, as fhe fhall from other charges of her hufband. Co. Lit. 32. a. In dower upon tie tinques feifie que doiuer pleaded, the cafe was Duncumbs thus : A. tenant for life, remainder to B. and his heirs for the life "' ^""" of A.^ remainder to the heirs male of the body of A., remainder 3Lev.*437. over ; A. marries, and dies without iflue ; and if the remainder {") The to B. and his heirs, during the life of A., was fuch an inter- b°°'<^5 give pofing eftate between the eftate for life to A. and the remainder reafon for to him in tail, that his wife fhould not be endowed, was the fji's diftinc- queftion ? And for the demandant it was faid, that all the eftate |h''a"'jt\".oy[^ was really in y/., and the remainder to B. for the life of A. was be giving but a poffibility ; that if A. fhould commit a forfeiture, then B. the wife a might take advantage of it to preferve the remainder; and though, th'^^^t^e^^ by reafon of this pofiibility, the eftate for the life of A. is not huiband merged, yet the tail is executed to fuch purpofe that his wife fhall had,where- be endowed: but the court, on the firft argument, gave judgment onlyln\lv- againft the demandant ; the [a) reafon feems to be, becaufe tlie pr, and hufband was noc feifed of the freehold and inheritance ftmul continuance £ . ^ , -^ ofherl-.uf- <2f f^i-nel. band's eltate. [The true reafon ^s, ibat the remsinder to B. was an intervening ffji.d eftate, and not a poffibility. Freme's C. R. 509-10. 4th ed,] [Lands were conveyed to the ufe of A. and his v.'ife for life. Hooker v. remainder to the ufe of ^. the fon of A. and his wife for life, re- qI°'^^^* mainder to the firft and other fons of B. in tail, rem.ainder to A. Hardw. ij. in fee ; A. and his wife died in the lifetime of B.y who afterwards died without iflue, leaving a wife : the queftion v\^as, whether the wife of B. was entitled to dower in the lands ? And it was decreed fhe was ; for that the eftate for life in B. was merged by the defcent of the inheritance upon him, and the contingent re- mainder deftroyed.] If the hufband is feifed of a joint eftate, and dies, his wife Co. Lit. fhall not be endowed ; as if lands are given to tv/o men and their 27- ^'^^^ heirs, or the heirs of their two bodies, and one of them dies, his pi. 4. 84. wife fhall not be endowed, but it Ihall go to the furvivor, who is Cro. Car. then in from the firft feoffor or donor, and may plead ir as an /Jf^^^^^*^ original feoffment or gift to hin:felf; and fo is paramount to fajsitwas 6 her 3^^ E)otoer» the ancient Her titic of dowcr, whIch is not complete till her hufban5*a tou.fein death. jnortgages, to make t^le eflate to two, in order to prevent the mortg.igee's wife of dower. Perk. 334. So, if lands are given to two men, and the heirs of the body* of one of them, and he who hath the tail marries, and dies, leaving ifTue ; yet his wife {hall not be endowed, but the furvivor> fliip Ihall take place : yet ll.all the wife be endowed upon the death of the furvivor, becaufe the hufband, during the coverture, was not feifcd of an eflate whereof flie was dowable. Cro. El'z. Father and fon jointenant, to them and the heirs of the foil, 503- were both hanged in one cart for felony •, the wife of the V. RaVdal. ^^^^ brought dower, and upon ne unque feifte que doiver Noy, 64. pleaded, this matter vi'as given in evidence; and further, that s. c. But j|-^g f-Qjj furvived *, as appeared by Ihalcing his leg j and adjudged reported, is ^^ woukl.be dowable. upon anoiher point. — " 1 rhirik there is a cafe in tlie civil law, where father and fon were loft at foa la the fame /hip, and adjudge.; t'-" T^n i'urvived, as being accoiding to the courfe of nature, and it was rcafonable to fuppofj f beirii; c' ruli age) he was able longer to relill the force of the waters, than a fa- ther, who, be.ng much older, might be prefumed to be weaker. Co. Lit. Of a tenancy in common a woman fhall be endowed, for there 34. b. 37. a. jjQ furvivorfhip tikes place, but each moiety defcends to the re- •^44> fpedlive heirs of the refpeclive tenant in common; and in fuch cafe a dower Ihall be afhgned in common too, for (he cannot have it otherwife than her huihand himfelf had. 4. Of its Continuance ; wherein of Eftates conditional, fufpended, determined, or extinguiHied ; and therein of Remitters to the Heir, and Recoveries by Title Paramount. See Co. Lit. As to its continuance; in fome cafes this Is material, and m *4i.a. note {^^j-^jg not I and therefore if donee in tail of rent or land marries, Perk.'^^i?.' ^^^^ '^^'-^^ without ifi\ie, and the donor enters; yet the wife of the Brook, is. donee fliall be endowed, though in this cafe the eftate-taii has no ^\„ f- continuance ; for to have dower is fuch an incident to an eftate- Vau^. 4c. t^ilj that if one make a gift in tail, upon condition, that the wife F.N.B.149. of the donor fhall not be endowed; this condition is repugnant ^.<^°:.34- and void. Co. Lit. 31. 6 Co. 41. Co. Lit. 224. a. Dyer, 343. But if a rent be referved to the donor and his heirs, upon fuch Xl' ?^' o R'^t in tail, the wife of the donor fliall be endowed of fuch rent Brook, 44, "^ longer than the eftate-tail continues. • Co. Lit. 32. a. Z41. n. Flow. 155. F. N. B. 149. Plow. 156. If one grant a rent out of his land to J. S. and his heirs, upoi^ Co. 87. condition, that if the grantee die, his heir within age, that then. Perk. '327. du'ing fuch nonage, the rent fliall ceafe ; if the grantee die, his heir being v/ithin age, yet the wife of the grantee Ihall be en- dowed ; but cejfahit executio during the nonage of the heir ; for fuchi futh condition is part of the original conditution and nature oftlie rent, and then the vn£c can have it in no other manner than her iinHjand had it granted to him. If the hulband feifed of a rent in fee, or fee-tail, releafe it to 6 Co. 79. the tertenant, the rent h extingniihed by it ; and yet, as to the 7 Co. 65. wife, has fuch continuance, that ihe fliciii have dower thereof •, which the huiband, by his own a£i, cannot debar her of. If the huftjand be feifed of a defeafible eftate during the cover- Roll. Abr. ture, yet his wife {hall be endowed thereof till it be actually ^77- (h. defeated; as if the hu(l):ind and wife, lelices for life, furrender a d/rteif'r to him in the reverfion ; tliis is defcAfiblc by the wife, after the die feifed, luifoand's death ; yet in the mean time, if the reverfioner dies, T-l^-r". his wife {hall be endowed. abate, vef the wife of the diireifor ihall be enriowed •. fo, if tenant for life furrender, or grant his cffate to t'ic liiilbjnd in reverfion, upon condition, the wife of the reverfioner Ihall be endowed till it be brokcri. Roll. Abr. 677. Brook, 74^ If a feoffment be made to the ufc of 7* ^* '^^^ ^is heirs, till Leon, lesj J. D. hatli done fuch a thing, and then" to the ufe of J. D. and ^"^.(^Jlj^'" his heirs; if J. S. die, his vv'ife {liall be endowed till tlie thing fljeiTi/ub? performed. endowed af- ter, which feems not reafonabie, becaufe his eftate Is then determined by exprefs llniitatioa, to which it was at iirltfubjeclj but for this •L'.-i/f Ferlt. 317, Lit. §357. zCo. 59. 79. Roll. Abr. 073. Br^oJi, 62.. If land be mortgaged to the hufband in fee, and tlie condition Roll. Abr, be broken ; and after, upon agreement, the mortgagor have the ^^9- land by payment of the money ; yet the wife of tlie mortgagee Brook, /I.' ' lliall be endowed ; for by non-payment of the money at the day, Cro. Car. the eftate of the mortgagee was become abfolute, and his wife en- [j^i^'J^^'^i^'^ titled to dower thereof: fo, if the money was paid at the day, yet exptefsdoc- if paid by a {Iranger, who was no ways privy to the condition, the fine in the wife of the mortgagee fnall be endowed ; for conditions being in ^olTr^^^et'* law taken {Iriftly, if they are not complied with, according to in chancery, the terms thereof, it is as if they were not performed at all ; when tiie and fo the wife, who is a ftranger, {hall not be prejudiced '^i°^lf^^f°'^ thereby. redeem, even the vvon:53n''s dower is avoided ; for the huftnni's eftate was at ir.iuo Incumbered with ecjuity, and in that cjart the mortgjgee is conUdaeJ as a tiuftee for the mortgagor. Haid. ^6j. Abr. Ja Equity, 311. If tenant in tail dlfcontlnue in fee, and after t?,l:e a wife, and F.N B. 149. difleife the difcontinuee, and die feifed, his wife {liall not have ^°J^''^ V:,^- dower, becaufe the iffue is remitted to the ancient entail, which ' ^^" being a reliltution to an ancient right, muft take place of the dower of the wife of a fubfequcnt wrongful eftate, in as much as the eftate of wliich fhe is dowable is defeated. So, if a man hath title of adtion to recover any land, and he F.N.B.149. enters, and diffeifes the tenant oftlie land, and dies feifed, upon J" Dower, ,.,,.,. , . . , t • • u '"'^ tenant which his hcir enters ; now he is remitted to the ancient right /hews that which his anceftor had; and, by confequence, the wife of the land was en- aiiceftor {hall lofe her dower of the wrongful eftate her Huftjand J^trh^uf- had, which is determined and goiie by act of law. band of the «kmandant, and his wife, naolher of the tenant in fpecial tail, and that after hU fether difcontlTjed tb« tjil 36g SDoben tail by fine to a ftrjnger, nnJ tootc back an etlate by gr.mt and render ih general tail, and had Iflue the tenant ; and the firll wife di;d, and his father married the demandant, and died, and (o he is remitted to the fiift entail, to which the court clearly agreed, and gave judgtnenc that the demandant fliould be barred. 44E. 3. 26. Brook, 14. S. C. but i^ at this day, fince the ftatutes of 4H. 7. c.24. and 32 H. 8. c. 28. if tlie iffue fhall be remitted upon fuch fine, for thefe ftatutes feem a^ainft it, and then the wife Ihall be encowed. Ferk. jcg. If there are father and fon, and the father exchange lands with a ftranger, and die, and the fon marry, and enter into the land taken in exchange ; and the ftranger, being impleaded for his lands, vouch the fon as heir, who enters into the warranty, and lofeth, and thereupon execution be had accordingly, and then the fon die ; his wife fhall not been dowed of the lands taken in exchange ; becaufe the recovery thereof againft her hufband hath relation to the time of the exchange made, which was before her title of dower began. Ferfc. 312. If a difleifor makes a feoffment in fee M'lth warranty, and the F.N.B.150. feofiee marries, and the difTeifee brings a writ of entry in the per parwners'in againft the feoffec, who vouches the feoffor, ^c. and each recovers gavelkind in valuc againft the other, and they have execution accordingly, make parti- ^nd the fcoffec dies, his wife fhall have dower of the land reco- one marries, vercd in value, but not of the land loft, becaufe by title para- and tiie mount : but if one recovers in value againft the huftDand by war- "'['"^d df"^' ^'•'"'^^ of his anceftor, and the huft)and dies, his wife fhall be en- Ms part, and dowcd of the land recovered from him, becaufe this was by force prays in aid of the Warranty, and not by elder title. of the other coparcener, who joins in aid with him, and the demandant recovers, and the tenant hath fro rata of that which rema'.nt in the poffeffion of the other coparcener, who afccr dies ; his wife fliall not have ciower cf that whicii was recovered pre rata, becaufe the recovery hath relation to the death of the an- ce.lor, vvhic!) was paramount to her tiilc of dower. 5. Of the Value and Improvement of the Hufband's Eftate, either in his Lifetime, or after his Death. Cn: Lit. 32. If the hufband makes a feoffment In fee of lands, and the feoffee 3. Perk. 328. |5u;i(Js thercon, and improves the fame greatly in value; yet the cr feoffee wifc of the fcotfor fliall have dower only according to the value it upon condi- was of in the hufband's time ; for if fueh feoffment were with tion, im- warranty, the heir would be bound to render only the value as it lands of the "^''"'^s at the time of the feoffment. hulband by building, &c. and the hufband enter on the d:flcifur, or for the condition broken, he fhall have sll the improvements, becaufe the eftste of the one was tortious, and the other uncertain ; and it was irieir folly to make fuch improvements ; but if the hufband had died before fuch entry, and hi* wife had recovered dower : ^ if Ihe lliould have the third part of fuch i.mprovemencs, for her huf- band was never feifed. ainft. 81. Co. Lit. If the heir improve the land by building or fowing it, the wife fliall recover her dower with the improvement upon it, becaufe by her huft)and's death her title to dower was confummate, and the improvements as to her part were quafi upon her land -, for which reafon likewife, if the land be impaired in value in the time of the heir, fiie fliall fliare in the lofs, unlefs it v/ere voluntary by the heir himfelf, and then ftie ftiali recompence herfelf in damages againft him. If It the hufband hlmfelf, or his feoffee, pull down houfes, ts'c. and Perk. 329. then tlie hufband die ; it feems, the wife hath no remedy for thofe ^^ the ^ui- houfes, becaufe, before her title was confummate, the thing itfelf p,^^ of±s was deftroyed. land, aid die, an J this part be afligned to the wife ftjr dower, whether the wife or the executor of the hufbar.d fliall hare the crop, ^ &f I'ide Dyer, 316. pi. 2. Z Inft. 81. (C) Of the Things requlfite to the Confummation of Dower, visz. Marriage, Seifin, and the Death of the Hufband. I. Of the Marriage, how long It mufl: continue; and therein of the feveral Sorts of divorces. T F a man make a contra^V of matrimony with a woman, and die Perk. 306. -'' before the marriage be folem.nized between them, fhe fliall have ^^ ^^^^ ^"^- I 1 J- rL 1 • •/- ' merivhcld, no dower, becaule Ihe never was his wile. that a wo- man married in a chamber fhould not have dower, 16 H. 3. and that the marriage /hould be celebrated in facie ecdtfia \ but the law is now altered, and marriages in private houfes, ir all circumdance: are C'jmplied with, held good ; and that (iod is not lefs prelent in Cuch houfci than in the moft lanclined places. Perk. joS. F. N.B. 150. But fee i6 Geo. 2. c. 33. If a woman make a contrail of matrimony with J. S., and But Ifa maa then marry with J. D., who is feifed of lands, and die, {lie '"^"y ^ /=- fhall have dower of the lands of J. D. liV-p.^the' firft, and die, fuch fecond wife itin] have no d.jwer : fo, if a woman marry a fecond hulband, living the firft, and die, /he fliail have no dower. Perk. 304-5. Moor, 226. Upon iffue of fie unques accouple en loyal matrimony^ the bifhop Co. Li:, ought to certify, that they were accoupled in lawful marriage, 33' *\ though the man be under fourteen, or the wife above nine, and .J"'o6^! under twelve years of age at his death, becaufe it was a good marriage till avoided, which now cannot be after his death : but if either difagree to the marriage at their age of confent ; then it is avoided ab itiitioy and the wife fliall have no dov.-er. In dower, upon ne utiqttes accouple en loyal matrwiony, and iffue there- Cro. Car. upon, a writ was awarded to the bifhop, who certiried that the de- -V.'', , mandant was accoupled tn vera matrimofiio cinn prxcur.o o.Jea dan- v_ Enfield. dejlinoy $5* quod B. (^ E. (demandant) thori iif men/a parti cipatione But for this mutuo cohabitaveruiit ufq; ad mortem pr^dul.B. and judgment there- !"'^' ^p^^j' on given for the demandant, and error brought and affigned {inter 31*5. pi. c,L alia) that there was neither day nor place of the marriage men- z(>i. pi. 48. tioned in the bilhop's certificate : but the court held it not mate- I'J^Q^Xh. rial nor iffuable, becaufe the certificate from the bifhop is con- 3-. b. eluding. 2. That the certificate is not good, becaufe it did not 9^°- ^9' anfwer to the words of the iffue, ne unques accouple en loyal matri- mony ; for that it was a true matrimony, and that they lived toge- ther at bed and board, is but argumentative, that they were legiti' mo niatrimonio copulati : but the court difallovved this exception ; for vero matrimonio, though clande/linOf copulati fuerunt, is as good as legitimo matrimsnfs, and hath all one iiuendment ; and though Vol. II. B b it 370 Dotocr. it be <-/.i/n/()'?/;w, yet it doth not vitiate the marriage -, and when it is added, that thori tsf fvefrfe part'icipatioue cohabitavcnwi^ is'c. tills proves they continued as hulband and wife durinL{ his hfe, and therefore it is not to be quellioned now, and the judgment affirmed. Stovvell V. If there be a divorce caufd ndulterliy yet the wife fhall be en- Weeks, dowed ; for this does not diflbh-e the marriage, but only feparates adjmi'ged.* the parties a men/a Isf ikoroy and the marriage dill fo continues in Godb. 145. force, that if cither of them marry any other, fuch marriage is Co. Lit. ^^oij^ 31. a. 33. b. 2 Lean. 171. Cro.Car.463. 7 Co. 70. Roil. Abr. 6S0. cont. Cro. Car. So, a dlvorcc propter f,tvitlam or mcttwiy is of the fame nature, AQ'-i- and does not dlfibhe the bond of matrimony, but is only a provi- ca°fe."Avv;/e ^o" ^or the woman's fafety, that ftie may avoid her hufband's fhaii been- Cruelty and ill ufage ; and therefore, the wife in fuch cafe fhall be d>.v.en, not- endowed the rather. wirhitaiiding a d'vorce cauja prof£l:r:i, for which -v'Je Roll. Abr. 6?i. 2 Leon. 169. Moor, 226. Cro. Car. 462. a Inft. 6S7. Co. Lit. %,z. but vde 32 H. S. c. 58. by \shich it feems that this and other icrupalous divorces are taken away. Roll. Abr. But if there be a divorce caufa pracontracfiis, caufd confanguuu- 6S1. Co. tatis.i cont'd affimtatisy or caufd frigiditatis^ the wife (hall not be en- i\.^^'* dowed j for thefe dilTolve the r'/.-r/J/zm ;;7fl/>7wj77i7, and leave the 7 Co. 70. parties at liberty to marry again : but if either of the parties die 5 Co. 98. before I'uch fentence of divorce be actually pronounced, it cannot 9. ^^ pronounced after ; and therefore if the hufband die before fuch divorce, his wife de facto lliall have dower, for it was legit'tmum matrlmonium quoad dctem^ and the bifhop ought to certify that they •were legitimo matrinicfvo ccpulati. Cro. Car. In dower, the MTit wns/r.?i:7J!)£' A. qiicd reddat B. rattonahUem *77-. dotemfuam of the lands, Id'c. dudum C. quoJidam vir'i fui ; and for HatiiT "' "OL faying, precipe qucd reddat B. qiix fiiit uxor C. l^c. that fo (he mi;^it appear to have title of dower as his wife, it was held ill ; aud that quondam viri fu'i would not fufficiently help it. 2. Of the Seifin, either in Fafl or in Law ; and herein of the Seifin in Facl, as it is continuing, or not continuing, as in- flantaneous. Perk 3:4. The hulband mufl be feifed either in fact orjn law, to entitle Co. Li:. 31. j^jg ^.jfe J.Q <]ower. But a feifm in law is fufficient for that purpofe, i^6?!i. "' bccaufe otherwife it would be in the hufband's power to defeat 8C0.34.36. his wife of a fubfiftence after his death, by his own negligence or ^■•^'.^•^49- malice, and (lie cannot enter to gain a feifin in his right, as he may 41V Brook, do into lands defcended to her ; which is the reafon, that of a 66, 75. feifin in law a man fliall not be tenant by the curtefy ; and there- '» Though a £Q^g ||- j.|jg anceftor die felled, and the hufband * die before he enter J^lz" into the land ; yet his wife fhall be endowed, though he had but Perk. 371. apofTeffion or feifin in law. Perk.. 57Z. So, if a leafe be made for life, remainder to 'J. S, in fee, who marries, and the lefl'ee die, and then a ilranger enter and intrude upon Hr^otoer* 371 upon the pofleflion, and J. S. die before any entry made by him, yet his wife (hall have dower. If the hufband purchnfe rent, and die before the day of pay- Brook, 35. ment, yet his wife ihall be endowed, nay, though the day of pay- ^^- 7^- ment be come, and the rent be tendered to the hufband, who will not receive it, but utterly refufcs it, and dies before any receipt Perk. 373, thereof by him, or any other for him, and before any thing paid in the name of feifin thereof. But if there be neither feifin in fa6l nor feifin in law in the Perk. 366. hufband during the coverture, but only a right of entry or ^°> '^ ^^1^ aftion, then his wife fhall not have dower ; and therefore, if a fejfe" and a man be diiTeifed, and then marry, and die before any entry made ftranger by him, his wife Qiall not be endowed of that land. abate, and ^ tnen after the heir marry, and die before entry, his wife /hall not have dower j becaufe by this abatement the feifio in law, \Ahich he had, was dcvefted before hii marriage j and fo he was neither feilsd in fadt nor in law, during the coverture. Perk. 367. So, if exchange be of lands between ^. and B.j and j4. enter Perk. 369. into the lands of B., and then B. marry, and die before any entry into the lands of -^., his wife fliail not have dower of thofe lands. If one enfeoff a flranger, upon condition to be performed on Peik. 368. the part of the feoffee, and after marry, and then the condition be broken, and the feoffor die before any entry made, his wife ftiall not have dower •, becaufe there was no feifia at ail in the hufband, during the coverture. So, if a man make a bargain and fale to one and his heirs by 6 Co. 54. indenture enrolled, with a provifo, that if fuch act be done, the F't^wii. bargain and fale fhall be void ; and after the bargainor take a wife, bj^jf t"e*' and then the condition be broken ; and before entry the bargainor words had die -, his wife fhall not have dower ; for though the eflate of the ''""'^^^'^■ bargainee veiled by 27 H. 8. c. 10. of ufes ; yet becaufe the c-,'ndirion hufband did not re-enter, the eflate of inlieritance in the bar- broken, the eainee was not devefled, nor had the hufband any feilln during bargain ani the coverture. be to the ufs of the bargainor in fee, ^ becaufe then the ftatute reveft; the pofleilion in him again according to the ufe. In fome cafes, though the hufoand be feifed in faft, yet his Co. Lit. tr. wife fhall not have dower ; as, of an inflantaneous feifm (a) ; and ^;^- ^\ therefore, if two jointcnants are, and one of them makes a feoff- ^Vr. e-ei * ment of his part, and dies, his wife fhall not be endowed, becaufe Moor, 50. he was fole feifed but for an inllant when he made the livery: i'<") ?/-^ fo, li ceftui que ufe [b) after the flatute 1^2.3. r. 5. and before th^ttnthe' 27 H. 8. c. 10. had made a feoffment in fee, and died, his wife cue of an (hould not be endowed, becaufe her hufband was feifed but for 'f'-'"'^"- an mftant. the wife Ih^ll nut be endowed, though here laid down broadly, is by no means general. When, indeed, tne lame aft which gives the hulband the eft..ts, conveys ic out of him again, when he is the rr.tre inlirumsnt of pjfling the efta'e, the tranfitory feifin gained by fuch an inftrumenrality do- s not in general lejm faf- ficient to entitle the wife to dower. But when the land in the language of Sir Wm. Blaclcfl ;ne, 2 Comm. I \i. ahUti in the hulband tor a tingle moment, that is, as a later writer explains i:, Prertjn on Ef^ates, tit Doiver, w hef^e has a feiiin for an mllanc benjiyially for h:s czur. uj':, trc title to dower fliall arife in favour of tiie wife* Thus, in the cife put above, wheie lands drfcend on a man who i^ married, and a ftranger enters by abatemeut immediately, after the death of the aJiceftor— there the wifi of the heir ihall B B 2 ^3ve 372 2Doloci% ha»e her dower, and yet the hjftiand haa merely a fcWln in liw, and that far an inflant only, for the abatement devclled ii trom biiii. So, in tlie cafe above of the father and Ion joinienants, who were banged out of one cart, where the qucOion depcnaed on the p;ioriiy of their death. And, where a huibaiid toni'.ujly gains an inftanianeous feifin, as againil the pcrfon benefited by, and deriving an eftate in virtue of, (uch tortious adt, iht wife i^ entitled to l.dr dower. Thu^, in Matthew TDyl vrs cafe in C. B. 3-tKl. cited ill Sir VV, ]on. ■si 7. where tenant at will, or i<."c years, mjkes a feoffment in fee, and dies, and his wife brings dower, the feofl-ee car.nit plead that the hufband was never fcifcd \ for as the court there fay, in an inftant he gained a feifin, or as it is better exflai.-.ed Jutra tit. DiJJ'eiJin ( A"*, fince the feoflee received his eltrtte from him, he h tftoppcd to lay that the hulb.md was never felled : befides, ii» refpeil of the feoftee the leofior hjd an ellite, though in regard to the difleifce he is to be confidered as a wrong-doer. (A) It may be qiicftumed whether either of ihefe inf^ances will fiifport the d.-dl ine hee advanced, vix. that there cannot be dower in the cafe of an inftantancous feilin. In the firft, the hufbar.dis never folely feizcd during the coverture : for whtn he makes the feoff, ment he is feifed jointly wiih his companion : the tenancy is not fevered ur,ril the hulband has made ih^ conveyance, and departed with all his right and cliate j and confequently, duiing all the time he hath feifin of the eltate, he hath \r.j-':niy vith fome other, and nn{ fo/ely by himfelf. In the other inftance, vix. of the Ci/fui que ufe, the huiband hath not feifja of the land at any perkd: he h.id merely the ufe with thepciL'ir in virtue of the ftatute of i R. 3. of transferring that quantity of eftate in the / • • ■ rr 1 • 1- • 1 1 t)Ur Wlt- aminmg no witnefles to prove mm livmg, the demandant had ntffes, who judgment. agreed in all points, ai d at the day of the eflbign of the tenant he produced twelve witnefles Je -vita ii'in, who aJfo ajjrred in ail points ; and this waj held the ftrongcr proof, and the demandant was barred ; for in thefc cafes the ruU is qui melius probe: melius habet. (D) Of the Aflignment of Dower. I. By what Perfons. T F a difleifor, abator, or intruder affign dower, this is good, and Petk. ^91, "■• fhall not be avoided, unlefs they be in of fuch eftates by frauil 39S' 39^- and covin of the woman, to the intent ftie may be endowed by 3^.3. * them, or recover dower againft them, and then this lliall be avoid- ^ Co. 67. ed by the entry of him who hath right, though the alhgnment be 3 ^°- 7^' indifferently made by the ftieriff after judgment of an equal third 6 Co! 58* part. Plow 54. b. Brook, 15. 59. The reafon why fuch aflignment ftiall bind is, becaufe fhe had a right to be endowed thereof, and might have compelled them as tertenants to affign her dower thereof, and ought not to expedl till the heir will re-enter or fue for recovery of his right : but if there were covin in her, and yet notvvithitand- ing this fliould bind the heir, it would encourage fuch vijience and wrong to the heir as would put him to great trouble and expence to recover his right, without any default in him. But an aflignment of a rent out of fuch lands by them fhall not bind, becaufe de jure not dowable of fuch rent, vide poJUa, If there be two or more jointenants of land, whereof a woman Perk. 397. is dowable, and one of them aflign her dower thereout, this is ^''; ^'^' 35- good, and fhall bind the others, becaufe they were compellable to r j^is cafe aflign it in fuch manner : but if one of them had afligned her a of aflign- rent thereout in lieu of dower, this fnould not bind the reft, becaufe T'^"^ °f dowcr bv they could not be compelled to it by fuit. one of two or more jointenants mull be underltood to be where tlie hufband has be;n folely feifed during the co- verture, and afterwards conveys or devifes the lands to two or more joinily and dies j for the wife of a jointenant is not dowable. Vidtfufra.^ If the hufband makes feveral feoffments of his land to feveral Co. Lit. 35. perfons, and one of them endows the wife of the feoffor of his part ^^°- ^^' in fatisfadlion of all that fhe ought to have of tlie other feoffees, and ^J^.'-j^ptr fhe accepts it, this is good : but yet the others cannot take benefit Moor, z6. of it, becaufe flrangers thereto, and cannot plead it, nor have any J^'j^ ^(^^f^^^ means to bring the other into court to plead it : but if the heir piead this afTigns her dower in fatisfa£bion of dower out of his own lands, aflignment and the lands of the feoffees, then if a writ of dower be brought ^^J^q^"^' againft the feoffees, they may vouch the heir, who may {n) plead Ent. i7z. this for his own fafety, left they recover in value againft him, «"? ^'^o. B b 3 If 374 2)o\33cr. Perk. 399. If the hufband feifcd of lands in right of his wife, or jointly Brook, 13. ^vith his wife, of lands whereof a woman is dowable, afligns the 53^,' ' third part of tlie fame lands to the woman for her dower ; this is good, and fhall bind the wife, although fhe furvives him, becaufe they might be compelled to it by fuit. Perk. 403. None can aflign dower but thofe who have a freehold, or againft f?^\- whom a writ of dower lies; therefore a («) guardian in focage. Brook, 63. tenant by llatute merchant, (latute ftaple, or elegit, or Icflee for 94- years, cannot alFign dower, for none of thefe have an eftate large Roll. Abr. enough to aiifwer the plaintiii"'s demand. 6 Co. 57. Co. Lit. 58. b. 39. a. 9 Co. 16, 17. F. N. B. 148. {a) But a guardian in chivalry, though lie have but a ciiattel, may after his entry into the land affign dower ; for which videVlow, 141, Roil. Abr. 6^2. Co. Lit. 35. 38. Brook, 20. 9 Co. 17. 2 Jnft. 262. 2. Of the Manner ; and herein of aligning it by Metes and Bounds. Roll. Abr. If a woman be dowable of land, meadow, pafture, wood, tffc. M^or 1 ^"^" ^"y ^""^ °^ thefe be affigned in lieu of dower of all the reft, ^7. g5. ' it is good, though it be againft common right, which gives her Which laft but the third part of each ; for the heir's enjoyment of the refidue that^'affi V fufficiently accounts for her title to what fhe has. ment by the Iheriff in fuch manner is good, if it be equal in quantity. Roll. Abr. If a woman be dowable in three manors, and accept of the heir ^^3- one of thofe manors in lieu of dower In all the reft, this is good, writ of ia. though againft common right, which gives her but the third part herefudas of each manor. fe'iftriiim the iheriti" cannot return that he delivered the demandant one of the manors in recompence of her dower. Perk. 407. If lands whereof a woman has no right to be endowed, or a Co. Lit. 34. j.gjj|- Q^j. of fuch lands, be affigned in lieu of her dower, yet this Co.Liticg. '^ no bar to her to demand her dower ; for flie having no manner Brook, 3. of title to thofe lands, cannot without livery and feifm be any But ir the niore than tenant at will, which is no fufficient recompence for grantfd by ^'^ cftatc for life, which her dower was to be {b). inde;)tLire, then it works by way of ^Jiop^cl ; fo, if by deed poll, or by parol, and (he agrees to it, and accepts the rent, fhe is concluded; ijije Perk. 410. Dyer, 91. pi. 12. Li dower, the tenant pleads in bar afTigr-me.-.t to her of a rent out of tiie fame land f'.r her life, -virtuie cujus ihe was in dominko Juo ut Je libera tcticn.ento. Sec. Cut for net alleging that he was feifcd of the land at the time of the aflign- ment, fo that he might grant fuch rent, it was ruled againfl him. Dyer, 361. pi. Ti. Besmond v. Dean, 2 l.eon. 10. S. C. ['l>) But fee 2 H. 5. 12. 'ihe heir afligns dower of lands of which the hufband was fcifeJ, hut the wife not dowabie, fhe is itnant in dower. -jO E. i. Briefe. S84. If wife be ciidowtd. arjd ifterv.v.rdo exchange with tl;e heir for other lands which were the inheritance of the liufband, fhe fV.ail be faid U> be tenant in doAfer of the lands fo taken in exchange, and her entry ihall be faid to be by the hufband. Per omnts jujiiciarios. Hal. MSS. Co. Lit. 34. b. n. 9. I3ih edit. J Moor, pi. In dower the tenant pleads that he hath affigned to her, in re- 3^7- , compence of her dower, 20 bufliels of'wheat yearly out of the fame aiargine. ^^■'-'i ^<^r ^^<^r life ; and held a good b:ir, and in the nature of a rent : but flieep, horfes, Isfc. affigned in recompence of dower are no bar, becaufe they neither ifi'ue out of land, nor are of the nature of land. A woman H:)otoer. 37s A woman recovers dower, and hath a writ to tlie fherliF, who Moor, pi. returns that he hath dehvered 84 acres to the demandant of the 9i**- land mentioned in the writ ; and afterwards -Ajcire fac'uis is brought, fuggefting that 60 acres of the 84 affigned to her by the fheritf are a ftranger's, not mentioned in the record, and therefore (he ought to have a new divifion ; the tenant fays that the other 24 acres were parcel of the land recovered, and that (he had entered and accepted the 24 acres ; and upon demurrer it was adjudi^ed, that Ihe was barred by her acceptance and entry into the 24 acres. A woman entitled to dower cannot enter till it be affigned to Roll. Abr. her, and fet out either by the heir, tertenant, or flierifF, in *^^'- certamty. AJ.%\. Brook, 16. Co. Lit. 34. b. 37, a. b. And the reafon feems to be from the partiality every one is prefumed to have for themfelves and their own interelt ; and therefore the la* will not allow her in fuch cafe to be her own carver : another reafon may be for the bet:er direftion of irrangers, thar they may more cert.iniy know againft whom to bring their pracipe, which they cannor be fj -.veil apprifed of, if flie might enter privately, and take what part Ihe plealcd. Eut ihe need not flay for the ictarn of the writ of habere fiiciai jeifir.am, nor for the fecond judgment. Palm. 265, 266. Howard v. Cavendiih. And though the once refufes to accept the part afligncd to her by the flientf, yet may flie after A-ardi enter into it. Dyer, 278. The affignment of dower mufl; be abfolute, and not fubjedl to Roll. Abr. be defeated by any condition, nor leflened by any exception or re- ^^^• fervation; for fhe comc;s to her dower in the p^r by her hulband, h^sv 'f^b and is in, in continuance of his eftate, which the heir or tertenant 2 ina. 153. are but minifhers or ofllcers of the law to carve out to her 5 and Hob. 153. therefore fuch conditions or refervations are either totally void, ,°.'b.' and her eftate abfolutely difcharged from them, or elfe the eftate 2+1. a. aftigned with fuch condition or refervation is no bar to her reco- ^^J^f ''''^"- very of dower, in an a6tion brought for that purpofe ; as if the the heir-" trees are excepted in an aflignment of lands whereof flie is dow- but by the able, the exception is void. mituution * of law ihe is in of the eflate of her hufband ; fo that after the heir's aflignment, (he holds by an infeudation from the immediate death of her hulband. Hence it is, that dower defeats defcent, becaufe the lands cannot be faid to defcend as demefne which are in tenure j and the aflignment of dower being in the nature of infeudation, and taking place immediately from the death of the hufband, there are only two-thirds which defcended as demefne. Gilb. on Dower, 395-J In dower the tenant pleads that he by indenture granted a rent Cro. Eiiz. out of the faid land to the demandant in recompence of her dower, +5^- ^'^^■^- which fhe accepted ; the demandant confeffes the grant of the RqII. Abr.'* rent, and her acceptance, but fays that in the fame indenture was 684, a condition, that if the rent was not paid within fuch a time after ^"'" ^"' it became due, the rent fhould ceafe, and the indenture be void, and fliews a breach ; and upon demurrer it was adjudged for the demandant, becaufe it was pleaded as a grant ; and alfo becaufe it was upon condition ; for rent alhgned in recompence of dower, and which comes in lieu of the land, ought to be as ab- folute as the aflignment of the land itfelf ; and therefore the con- dition annexed is void ; or if it fhould be good, yet it is only an- nexed to it as a grant, and upon breach thereof Ihe is reftored to her writ of dower. It is a rule, that when the wife brings a writ of dower, and Perk, 414, recovers, the fheriff ought to affign it by metes and bounds, if the ^^^- ^^' B b 4 thing 37 G 2?olDen Co. Lit. 74. thing recovered m:iy be fevered ; and if the (lierifF does not re. Beiidi. S7. mr,, feifin by metes and bounds, it is ill, (a) unlefs clofes certain afTignment, ^^e ulfigned by name, or a manor which is known, and certain, though in a in licu of dowcr of other manors. diffexnt manner, by the confent of the demandant may be good. VUe Roll. Abr. 68^. [Sty. 276. Ac- cording to the latter rej;orter, a fpecial vcrdidl found, that the tenant laid to the widow thus, viz. J do (ndcwyou of a tlird pert cf all the lar.di try ccufin J. S. your hujband died f-ijed of. Roll, C. J. to which Nich.>ias and Alk, juftices, agreed, held, that it may be alhgned g.-nerally of the third part in fome cafes, and the parties may sgree againft cv^mmon ri^ht, and that here both parties agreed to take dower in this manner ; but Jermain e contra. But /• r Ri 11, C. J. if the fheriff afligns dower, and does it not fir mctus tt bundai, it is error, if it might have been fo afligned ; and where a feme cannot be endowed per metai ct bundas, fhe may enter without afliijnnient.J {a) For this nildeKoW. Abr. 6S3, Perk. 332. Brook, 72. Co. Ent. 171. Palmer 265. Upon recovery of dower, and feifin awarded, the {heriiF re- VideK^h. turns, that he had afligned to the demandant for her dower of a The flieriff houfe the third part of each chamber, and had chalked it out to committed her; and this was held an idle and malicious aihgnment ; and he jorretuiing ^,^^ committed for it, for he ou^ht to have afligned her certain to ITISkC 3T 1 equal aiiotl chambers or rooms thereout, ^c. mcnt of dower, and taking 60/. to execute his writ of execution, and an information ordered againft him : and Vern. 2i3, 2iq. 2 Chan. Ca. 160. That equity will relieve againll a partial and fraudu- lent aflignme.'it of dower by the iheriti". Pcik. 4ti. The wife of a tenant in common fliall not be endowed by F.N.B. 149. nietes and bounds, for (lie being in pro tanto of her hufband's J*] !!' 11'^ eftate, cannot have it in other manner than he himfelf had. tide Bruwnl. 1 27. and 3 Lev. 84. Sutton v Rolf, in which it was adjudged that a writ of dower will lie a-^^ainft the heir of a tenant in common, before partition made j for otherwife they might perhaps mike no partition at all, and fo defeat the wife of dower. 3. By what Court. Cro. tliz. An aflignment of dower by commifllon de dote ajftgnanda out 364. Stun- j^£ ^^ Court of Wards was held no bar of dower at common law, v.°vifcoJnT but it ought to havc been by writ de dote ajfignandd out of Chan- Bindon. cery, the jurifdit^ion of which court is not given to the Court of Wardb in fuch cafe by 32 H. 8. c, 46. Dyer, 36V Sir Thomas Arundell being attainted of felony, and his wife's Lady Aiun- (^gwer faved by a£l of parliament, flie brought her writ of dower ^r'-' Cot'"^' againft the Earl of Pembrck'e^ and he m:iking default after appear- £it. 173. ance, a termor prays to be received, and (hews his leafe after the LeRcc'.rdde coverture, {ffr. and the attainder, isc. and that £. 6. granted a a w'od'. ^j8. commiiTion under the feal of the court of augmentations, to af- S. c. cited. I'gn the third part of the land of the faid ^'xx'Thornas Arundell to his wife in dower ; and fnews further that, by virtue of the commiflion, the third part of the rent referved on the faid leafc was afligned to her, and this aflignment confirmed by letters pa- tent under the great feal, and fliews her agreement and accept- ance therccf, and faid that this fuit was by collufion to defraud him of his term. In this cafe it was held, i/?, That the court of augmentations haa no power to affign dower to the demand- ant, or any other woman, but it muft be in Chancery. 2dlyy That the aflignment of tlve rent was not warranted by the commiiTion, and 2jOtoer, 377 and then the confirmation could not make that good which was merely void j ?nd it was adjudged for the demandant. As to endowments in Chancery, it appears by our books, that Stsnf.Prer. in former times the widows of tenants who held of the king in i.^- capitej whofe heir was in ward to the king, were to fue in Chan- 3^^^"], '\^ eery by petition for their dower ; and after office found that (he 76. was the tenant's widow, then fhe was to make oath in Chancery ^^",^' ^*' that (lie would not marry again without the king's licence ; and Brown'i. upon that there went a writ out of th^ Chancery de dote ajfignanda iz6. to the efcheator, to affign to her dower of the third part of all ^';^- f''** the lands whereof her hufband was feifcd, ^c. but if the heir g 00.16,17. were of full age at the time of the tenant's death, and the king 7 Mod. 43. had the lands only for his primier feifin, then could Ihe not fue in Chancery, becaufe the king was not then guardian, but had the lands only to fuch fpecial purpofe •, and therefore to remedy this, was the ftatute de prerogativa regis^ c. 4. made, which gives power to the king to affign dower to them, though the heir were of full age at the time of the tenant's death : but this power was not fo abfolutely lodged in the king as to exclude them from fuing at common law for their dower, by reafon of the words ft vidua ilU voluerint, which left them at liberty in fuch cafe, either to fue to the king in Chancery, or if they thought fit to fue the heir in the Common Pleas. But if the king had committed the wardftiip to another durante minore atate of the ward, then alfo at common law the widow had eleclion to fue either to the king in Chancery, becaufe notwithftanding fuch commitment he ftill con- tinued guardian ; or fhe might fue the committee at common law, and recover againff him, without making the king a party by ayde prier, or otherwife, which was ordained by the flatute of bigamisy c. 3. for avoiding delays in fuch cafes : and when (he recovered againfl the committee, fhe took no fuch oath as when (he fued to the king in Chancery : yet neverthelefs fhe could not marry without the king's licence, it being againft the policy of thofe times to permit fuch widows to marry whom they pleafed, fince then they might have brought in enemies or foreigners into the king's feud : and in the king's cafe the fines for alienation fUU continued. Another prerogative the king had in thofe times, that if the Stanf.Prer. heir of his tenant in capite entered before livery fued, this was ''"'■, looked upon as an intrufion, and his wife lofl her dower by it, by q^ ^jJ the exprefs provifion oi prerog. regis^ c. 13. but this was meant 30I b. only of intrufion after office found, which gave the king a title; f^N.B.i^j, for if he entered before office found, and died, his wife fliould be endowed. 378 Do\I3Cl% (E) Where the Wife fhall have her Eledlon to be endowed of one Thing or another, and where of both : And herein of Endowment dc tiovo^ and the Dos de Dote, tF the hufband feifed of lands in fee exchange the fame lands ■■■ with a ftraiiger for other lands, and die, the wife hath elec- Pirk. ii8, 519- Co. Lit. tion to be endowed either of the lands given or taken in ex- 31- b» change, becaufe her hufband was feifed of both during the co- verture : but fhe fhall not have dower of both j for that would be unreafonable. Leon. 285. Hufband feifed of lands in right of his wife, they both join in exchange of diofe lands with a ftranger for other lands, which exchange is executed ; then the hufband and wife alien the lands taken in exchange by fine: two judges held, the wife after the hufband's death might well enter into her own lands, not- withltanding the fine which was of the other lands ; and re- fembled it to the cafe in Dyer^ 385. where the hufband after marriage made a jointure to his wife, and then they both levied a fine come ceo, i3c. thereof a flranger and his heirs ; and this was adjudged no bar of her dower, becaufe the eledlion to claim jointure, or dower, is not till after the hufband's death : and in the principal cafe judgment was given for the wife. Petk. 320. If lord and tenant are by fealty, and i2d. rent, and the lord {a) But it takes a wife, and after purchafes the tenancy in fee, and dies, his eicheatby "^ifc hath cleftion to be endowed, either of the feignory or the theaftof tenancy, becaufe her hufband was feifed of both during the co- God, as by verture : fo, for the fame reafon, if the hufband feifed of a rent- a tenant, ftie charge in fee purchafe the land whereout the rent is ifTuing, and ihaii have die, his wife at her ele£lion may be endowed either of the land, dower or the ^^ ^f ^.j^^ ^.^^j. ^^^ ^^i^ hufoand being feifed of both, during the tenancy . ^ ^ o only. Peik, covcrturc, Cannot by his own [a) aft alter the wife's dower. 321.* i* The reafon is, beciiife the fe'ignory is determined, during the coverture by a£l of taw, and it is not any difaJvantage to the wife to be endowed of the tenancy, for if (he be put out of pofTelTion of part or all, by more ancie.it title, the feigaiory fliall be revived in part or in all, &c. Vide Perkins. Perk. 324. If the hufband ftifed of lands in fee makes a feoffment thereof to a flranger in fee, rendering to him and his heirs 31. rent, with claufe of diftrefs, and dies, and the feoffee endows the wife of the feoffor of the third part of the land for her dower, fhe {hall hold it difcharged of any rent, and the whole rent fhall Iffue out of the refidue of the land, becaufe the wife fliall be en- dowed of the befl pofTcfTion of her hufband during the coverture ; and the hufband had the land difcharged of the rent after the coverture; and yet becaufe he had alfo an eRate in the rent during the coverture, it feems flie may be endowed of that, if fhe think fit, and waive her dower of the land ; but the rent re- ferred on the feoffment is no more a bar ro her to demand dower of the land, than if none at all had been referved, if ihe choofes the land. In DolDcn 379 In fome cafes, a woman (hall be endowed a-new ; as where Perk. 419. the lands, ^c. afligned to her for dower, are lawfully evi£ted F-N-B.I49. by elder title ; and therefore, if one be feiled of two acres by ^g. ' good title, and another by difTeifin, and marry, and die, and his 4C0. izz. wife be endowed of the acre had by difleifm, and after the dif- feifee enter into the faid acre, now ihe fhall be endowed of the third part cf the two remaining acres : fo, if the difleifee in fuch cafe had recovered the acre againft the wife, flie fliould have been endowed of what remained, and the entry or recovery being by title paramount to her title of dower, it is as if her hufband had never been feifed thereof ; and therefcie (he fhall only recover the third part of what is left, and not a full retom- pence for the acre loft. If one feifed of two acres in one county marries, and enfeolFs Perk-. 32T. a flranger of one acre with warranty, and hath iflue, and dies, ^°^^' ^^' and the iflue enters into the other acre, and the wife brings Cj^^^ 6-. dower againft: the feoffee, who vouches the iflue as heir, and he 9 Co. 17. lofes by default ; and thereupon the wife hath a conditional judg- ment, "viz. againft the vouchee if, (5'f. and the demandant fues execution againft the heir, and after is evicted by elder title ; fhe Ihall have tx fcire facias upon the firft recovery againft the tenant, to be endowed of the two parts left : alfo upon fuch eviclion (he may be endowed de novo againft the heir j and the fame law, if the endowment was in Chancery. As to the dos de dote, if there be grandfather, father, and fon. Perk, 315. and the father, or, after his death, the fon endow the grand- 5i6. mother, the mother (hall not be endowed of the grandmotlier's Buitard"/* thirds after her deceafe, becaufe the grandmother's dower defeats cafe, the defcent to the father, and by confequence, the father was r'^'^'!*^ feifed of no more than two thirds of that land ; and therefore, (,jj' the wife of the father was entitled to a third of thefe two thirds Co. Lit, only, and no more : but if the grandfather had enfeoffed the fa- ^^' ■**' "* ther of the whole land, and died, and the grandmother had been endowed, either by recovery or affignment, there, the mother fnould be endowed of the grandmother's third after her deceafe, becaufe by the feoffment the father was feifed of the whole eftate, which gave a title to his wife to be endowed of that whole eftate : and though the grandmother recovered one third out of that eftate during her life, yet fuch recovery doth not defeat the opera- tion of the livery, fince by that conveyance the reverfion of that third is claimed 5 and, by confequence, the mother Ihall be en- dowed of that third when it falls in poffeffion, fince the father was adlually feifed of it during the coverture, by virtue of fuch livery. If there be grandfather, father, and fon, and the two firft die, and the mother be endowed by the fon of a third part of the whole, either by affignment en pais, or upon a recovery in a writ of dower, and the grandmother bring a writ of dower againft the mother, and recover, ftie leaves the reverfion in her; for the dower was vefted in the mother by the affignment or re- covery, and is only defeated during the life of the grandmother, whofe eltate as to the mother Is lefa tlian her own eftate ; and, 4 therefore, 380 Dcloer, therefore, the rcverfion is In the mother, and flie, after the grand- mother's death, may enter into that third recovered from her-, and by confequcnce, the heir may re-enter into the fecond dower af- ligned to the mother, upon fuch recovery againfl: her by the grandmother ; for (lie cannot have both. Roll. Abr. A. feifed of land marries ^., and aliens to C, who marries £)., *77- and then aliens to E. and dies, and after D. is endowed, and then B. hath dower afligned to her of the third part of all the lands, and brings 7i prtTcipe thereof againft Z)., who vouches to warranty -F., who counterpleads upon the matter, and fays that D. ought not to be endowed, quia non potejl habere dotem de dote i and adjudged accordingly. BiJthlns V. [Lands, fubje(fl to a title of dower, were devifed to a perfon HUchins, ji^ £(.£ ^yj^Q djgj leaving a widow ; this widow fued for her dower, X ern. 403. ^^,^ recovered a third part of the whole without any regard to the title of dower in the widow of the teftator, who did net put her claim in fuit : it was holden by the court, that the teilator's wi- dow not having recovered her dower, it was to be laid out of the cafe, and the dower of the devifee's widow was not therefore to be looked upon as dos de dote.'} (F) What fliall be a Bar of Dower, and what not : And herein of Ads done or fuffered by the Huf- band folely, or by the Hufband and Wife jointly, or by the Wife folely, either during the Cover- ture, or after : And herein of Elopement, and Detinue of Charters, or Heir, clnft Perk (* 349- iF a recovery be had againft the hufband by collufion, this fhall • 376- ■*■ not bar the wife of dower ; as, if the recovery be by con- feflion or reddition, which are always underftood to be by collu- fion, the hufband always ailing and concurring in obtaining them : but it feems to have been a very great doubt v.hether a recovery by default Ihould not be a bar ; and the better opinion being that fuch recovery was a bar at common law ; therefore the ftatute of IV. 2. c. 4. was made, which ordains that notwitliftand- ing fuch recovery by default, i5c. pleaded, the tenant fhall more- over in bar of the dower (hew his right to the tenements recovered ; and if it be found that he had no right, then fhall the demand- ant recover her dower, notwithflanding fuch recovery by default againfl her hufband. Perk. 379. By the flatute W. 2. c. 4. it appears, that if the recoverer had 3S0. right, then the wife is barred ; therefore, if the heir of the dif- £5,' * feifor be in by defcent, and the difTeifee enter upon him, and Sc, if the marry, and the heir of the diffeifor recover by default or reddition in husband ^ ^yj^ ^f entry, in nature of an alTife, and the hufband die, his f-oftment in ^'ife fhall not have dower, becaufe he, who recovered, had right fee, and dif- to the pofTeflion by the defcent : aluer, if this diileifin, defcenr. T>oWt. 381 bfc. were after marriage, becaufe the hufband was felfed before feife the of a richtful eftate during the coverture, whereof his wife had 'coffee, who o o ' recovers in title of dower, which cannot be defeated by the difleifin, defcent, affife againft and recovery, which all happened during the coverture. him, the wife /hall not falfify this recovery diredly, but erk. -jSg. have been only in abatement of the writ, and make nothing to If the hm"- the right : but if fhe (hews that her hufband was tenant of the |'*";':>• ly?, That thefe charters ought to concern the land, or the reverfion ^^^^ " ^''" of the land whereof dower is demanded, idly^ That fuch detainer Dyer, 37. is no bar of dower for more lands than the charters concern. P'- -^^^^ ^3^* 3^/y, That none can plead this pica but the heir, and not a J'i-heVeafon itranger, who is tenant of the land, though he hath the charters why fuch conveyed to him. ^f'^""^ "": , ' c:iaitcrs IS a good pica for the heir feems to be, becaufe the iriheritance by lav/ is caft upon him jmmedin rely after his anceftor's death, without any aft cf his concurrin;^; ; and therefore he cannot provide agaio'.l the injury done him by any precaution or covenant whitfoever : but a Ibanger, who comes to the lind by ron- veyance, and his own aft, ought to take care to have all the deeds aod writinvjs, neceiT?.'y tor the de- fence of his title, delivered to him at the fame time, or to fecure himfelf by. proper covenants ; and i- he has not fo done, it is his own folly ; and he insW take no advantage thereof by pkaiing it in bar of the demandant's right, but muft cu'fue his rennedy bv an aftion of detinue, &c. In v.a^t tjfes ti^c Vot. II. C c ' 1'^^ 386 ©Otocn heir himfelf fha'il be co:ifnlered as a ftranger, and cannot plead detinue of chartcrSj fUe 9 Co. itt Perk. 258. Dyer, 230. pi. 52. Perk. 359. If two coparceners are of land, and after partition made between "them the mother brings dower agaii){l one of them, fhe [the daughter] may well plead detinue of charters, becaufe the char- ters concei-n her inheritance, though they do alfo concern her filler, who both make but one heir. Perk. 360. If the daughter enter into the land after her father's death. Roll. Abr. ^yi^Q }gfj. j^jg ^,jfg etijictit^ and the wife bring dower againft the Biook 8. daughter as heir, (lie cannot plead detinue of charters, becaufe it may be that the wife is enfient with a fon, who will be heir, and ' therefore may judly detain the charters for him. FVk 360. Detinue of a tranfcvipt of a fine is not a fufficient caufe to Roll. Abr. detain dower, becaufe another tranfcript may be had in the 670. cent, . r ^ trealury. Sa!k. 2^2. Detinue of charters is no good plea after imparlance : refolved Pf- ^- upon a demurrer to fuch plea in the court of Durham^ and con- Eurdon.^' firmed on a writ of error in B. R. Comb. 183. s. c. Dyer, 230. The guardian in chivalry may plead detinue of the heir, becaufe P'- 5*- the wardfnip of the heir belongs to him : but he cannot plead detinue ertc. 3 o. ^ charters, becaufe thev belonsr to the heir for defence of his in- Rcli. Abr. herltance. And the reafon why he is allowed to plead detinue of ^'^')\ the heir in bar of dower feems, becaufe the writ of dower lies only g_°° *^^' againit him during the minority of the heir; and fince the de- 9 Co. 18,19. mandant does wrong in detaining from him the wardfliip, it is but 10 Co. 94. j-cafonable fhe fliould be delayed of her right againft him, till flie -o." a. * reftores it ; and therefore he concludes his plea, that if (he will deliver to him the ward, he hath been and ilill is ready to render her dower : fo, if the wife takes away the ward, and delivers him to another, fo that the guardian cannot have him, this is a good caufe to bar her of her dower: fo, if the guardian comes in by voucher, he may plead the fame plea : and this is a good plea in bar of dower ad qfliiim ecclifiHy or ex aQl'uJu patris; if the wife does not enter, but brings her writ, claiming it as dov^-er, whereof fhe wa4 nominatUn dotata by her hufband j and in thefe cafes if fhe cannot render the ward unmarried flie Ihall lofe'her dower, becaufe flie hath thereby deprived the guardian of what was moil valuable, ' vi%. the marriage of his v/ard. Pcik. 362. If a woman, as mother to the heir, brings him up, and one claims ( the v/ardlliip of him as guardian in chivalry, and takes him from her ; this is no caufe for the rightful guardian to detain her dower, becaufe fhe v/as not in fault. Pejk. 363. If tlic mother takes the heir out of the polTefTion of thofe who had the education of him, and they retake him, fo that fhe cannot deliver him to the guardiau, this is a -good caufe to detain her dower for the wrong done in the ciloignment at firft, "when the wardfhip did not belong to her. (G) Where the Wife fhall hold her Dower, fubjed to the Charges of her Hiifband, and where not : And herein of the Privileges of Tenant in Dower, and the Nature of her Eftate as to Alienations made, or Adions brought by or againft her. 'Tp HE wife (hall hold hei* dower difcharged of judgments, re- 4C0. 64.^^ ■*■ cognizances, ftatutes, mortgages *, or any other incumbrances ^^* . made by the hulband after marriage, becaufe after his death dowofa her title, which is now confummate, has relation to the mar- monsagor riage and feifin of her hufband, which were before the incum- "--^^arredof brances : but 11 (he joms m a grant 01 a i^ent by nne out or iuch ifftjedid land, or makes a leale for years, n-ndering rent by fine to the huf- not j^in in band and his heirs, ihe (hall hold her dower fabjed to fuch rent ";^^'^''"- or term, becaufe flie wiis examined upon the fine, and by fuch 4W. & M. means might bind her own inheritance. c. 16. § 5. 10 Co. 4c;. If the hufband die indebted to the crown, yet his wife's dower Co. Lit. is by law privileged from any diflrefs ; and if ilie be difbrained, flie |^*r"g , may have a writ to the fherifF, commanding him not to diftrain ^'er t^ut. her, or to re-dcliver the diilrefs, if any be taken, unlefs fuch debts were contracted before her title of dower accrued, for then it will be liable thereto. And the reafon (he fliall riot be diflrained for debts to the crown, contracted after the marriage, feems to be, her prior title by relation. If the hufband feifed of three manors gr.mt a rent-charge out Perk. 330. of all, and die, and the wife have one manor alhgned to her ^3^' ^, by the heir in lieu of dower of all the three manors, fhe {hall hold egj. ^i^, it charged for a third part of the rent, becaufe this endowment was againft common right, by which fhe ought to have had the third part of each manor : but if fhe had recovered her dower, and fuch alTignmcnt had been made by the fheril?, (iie fliould have held it difcharged, becaufe (he purfued the proper means to obtain it clear, and then it is not reafonable the iTierifT's a£l in mif- executing the judgment of the court niould prejudice her, efpe- cially when the heir is not more hurt by the whole charge falling upon the two manors, than he would if it had fallen upon two parts of ail the three manors. A wife may demand dower of a rent-charge granted to her huf- Plow. 4.1.3. band and his heirs, without fliewing the deed, becaufe the deed ^^- **• belongs not to her, but her eftate is created by the law. Tenant in dower is allowed by the ftatute of Mcrton^ c. 2. to 2in{}. 81. devife thv' corn growing upon the land at the time of her death, of ^'^'^w- "5» which before that ftatute it was doubted if ftie might •, and the word bhula there extends likewife to hemp, flax, and other thin;:s, whith ^row by the indultry of man, but not to grafs, trees, ^c. which comz fuapte natura. In dower againft an infant who makes default upon the grand Cro Ja«. ca^e returned \ it was held p^r tot, cur. that judgment {hall be 'J^^' |9^| C c 2 given 588 Dotoen 30-). 351. given upon die default : for the infant (hall not have his age jti 5 57- 5^7- dower, wliich being but for life the widow may be totally defeated 46°'-^ix4S, ®^ ^^ ^y ^^'S frequent defaults : thougli fome of the books fay, that 1141. if judgment be given upon the grand cape before appearance, this ^^^Z""^"'* is error : fecus^ if he appears by guardian, and after lofeth by de- Eiiz. 638.' fault ; for then if any default be in the guardian, he (hall recover 2 Leon. 59. againll him in a writ of difceit : and other books doubt if the in- '^5- fant fliall not be allowed his age in dower; but the contrary feemg the more reafonable opinion. Cr EFORE the ftatute of Marlb. c. 12. in dower unde nihil habcty 2 Inft. 124. ■^ there were days of common return, as in other real adiions, which was mifchievous to the wife, by reafon of the long delay, file claiming but an ellate for life ; but this is now remedied by that a£l, and four days of return in the year are given at leaft, and that a6l extends likewife to the vouchee, but not to a writ of right of dower, nor to dower ad ofliuin ecchfue^ nor ex ajfenfu patris ; but 32 //. 8. £•. 21. extends to, and gives the fame return in every writ of dower. In dower the tenant at the day of taking the inqueft, after Browni 126. the jury had appeared, and before they were fworn, made de- fault, and 7i petit cape was awarded, and the tenant at the day //; banco informed the court that he was but tenant for life, and the reverfion in one A. who at the day in bank ought to be received, and the court appointed him to plead his plea at the return of the petit capey befoi'e which time his appearance feems idle. In dower of lands in L., iJf ., and iY., the flierifF returns pleg'ii de Hob, 133. profeq.A.yB.yC.yD. and the names of thefummoners jfe.'.,i^.,G.,//., ^^^^J' and that after the fummons made, and 14 days and more be- iheprocla- fore the return of it, ac the mod ufual church door of L. where mation by part of the lands lay, fuch a Sunday after fermon ended, he pub- c^°,^ o^^'^j lickly proclaimed all and fingular the things contained in the writ, to be at to be proclaimed according to the form of the ftatute in that cafe the parifh- made, and indorfes his name to the return ; and exception was ^oor thoujih taken to this return, becaufe proclamation was not made at all the it be in church doors : \i\xt per cur.y proclamation at any of the church another doors is fufficient : but the return was held ill, becaufe he fays he ^""JJe^the"" had proclaimed all and fingular the things in that writ contained, land lies. without fayinjT what. Cro. Ehz. '' o 472. Error of a judgment in dower, in that the proclamation is fald to be at H. In the fcring, and it doth not appear that it is within the parlfh of W. H., where the dcmind is : but by Wefton tor the defcndiint, this is caufe why no grand cape fliould ifTue, by 31 Eliz. c. 3., but it is no cau(e of error ; and the judgment was affirmed mfu Kcb. 529. Upon a writ of fumm'-ns in dower it was returned ad cjiium eicujia fro- clamari feci juxtJ fjrmMnfiotul. jtcunduvi ex'igen. Lre-is, ana held good by two jultices againft one, though what the error was does not appear. Keb 6.S0. On a motion for a fuperfedeas, to ftay proceedings on a grand cape in dower, ^tiia emnice emana-vlt. I ft, Becaufe the return of the fummons was not according to the ftatute of 31 Eliz. c. 3. for the ftatute is after fummons. zdly, The land lies in a vill called Heroick, and tlx return is of a proclamation of fummons at the pariih church of Halifax, and it does not appear that the lands lie within the pariih. 3dly, The return is prulamari feci fecundum formum Jiatuii, and it is not returned to have been made upon the land ; for ail which cauiea it was held etronsous, and thegiand cape was fuperfeded. Mod. 197. Furnis v. Waterhoufe. Error to reverfe a judgment in dower at the grand fefiions in Vent. 60. Wales : it appeared by the record that the tenant appeared at the ^ c^.^n, return of the fummons, and day was given over, isf adtitnc vetiit 2. Saund. per attornat. z^ nihil die it in barram ; whereupon conjiderat. ejl quod 46; ^- ^• tertia pars terrar. i^ tenement, capiatur in manus d^ni regis : and up- ^^^ on day given nd audiefid. judicium^ judgment was given quod recu- s. C. fetet^ and error aiTigncd that they ought not to have awarded a C c 3 t^^'it 350 Vent. 2*" 7. Lomax % . i^rmoror. i Lev. 93. 123. S, C. 3 K-eb. 277. 326. 421. S. C. Bicok, c,6. petit cape^ bccaufe the defemiant appeared, and then they ought to Jiave given judgment upon the ;;//>// dicit ; for the petit cape is al- ways upon default after appearance, and is only to anfwer the de- fault, as the grand cape is before appearance to anfwer the default, and demand : but it was held no error, being only an awarding of more prccefs than needs be, and it was an advantage to the tenant by delaying the demandant ; and per Tnuifden, if erroneous, they might now give judgment upon the 7iihil dicit in this court. Error of a judgment in dower in Ncivcajile-court ; becaufe the proceeding was by plaint, and no fpecial cuilom certified to main- tain it } and it was held error, becaufe pleas of frank tenement cannot be held without original writ, unlefs there be a fpecial cuflom for it. Leon. C2. I*iichell V. Kyde. In dower, if tenant makes default, by v/Iiich grand cape iflues, the demandant fliali make her demand, for no certainty appears before the demand made. In dower, one appears upon the grand cape^ who in truth was but IciTee for years, and fo might plead non-tenure \ and if now he miglu wacije his lav/ of non-fummons, and the writ be abated, was the queftion ? becaufe it was faid that by wiiger of his law he affirms himfelf to be tenant : but two juftices only in court held, that he would be at no mifchief, for being but leflee for years, if judgment and execution were againlt him, he might, notwith- ftanding, enter upon the demandant. Another matter was, that where the writ of dower was, de tertid parte reclorix dc Z)., and the grand cape made upon it accordingly ; yet the {herifF by colour thereof took the tithes fevered from the tv.'o parts, and carried them away ; and per ciir.^ this is not fuch a feifure as is by the writ intended, for he ought only to have feifed generally, but not to carry them away ; and the court had a mind to have committed him for a mifdcmefnour. In dower, tenant demands the view, demandant counterpleads ^^j^^'t^""^*^'^ the view, becaufe her hufband died feifed, ^ hoc par at. ejl veriji- care ^^ petit judicium Isf dotem fuam de teneme7rt.prddiB.J1bi ahjudi- cari ; tenant protejlando^ that the hufband did not die feifed, demurs and (hews for caufc that the counterplea male conchtdit^ for it ought to have been is petit judicium Cff quod tenens de vifu excludatur^ and the counterplea is but dilatory, and ought not to conclude perem.ptorily for linai judgment; and of this opinion was Levinz, but two other juftices held it not ill : alfo, the demand was of three meffuages, is'c. where it ought to have been only of the third part of them ; and if this might be amended was doubted. In dower, unde nihily t^c. tenant demands the view, demandant counterpleads it, becaufe the hufband aiienavit tenement. prediEl. to the tenant ^ hoc^ &c. and it was demurred, becaufe aiienavit does not Ihew what eftate he aliened, for it may be a Icafe for years > but per cur.y alienation implies all the eflate which he had, and the llatute IF. 2. 48. oufls the view, where the liufbaud aliens to the tenant, or any of his anccilors ; and this is in the very words of the ilatute j and a rejpondeas oujler awarded, but no notice 3 Ler. 169. jLcv. 220. Barries ^ Ux. V. Rich. Kote: In dovVcr the view is ou.'ied by •W. 2. c. 48. in thefe words. In H)oteer» 391 notice taken whethei" the view was allowable in dower idtt^.U hre^ije nihil habet. dot i cum ferntur diS i/f tenemento ouod -vir uxcrh allenavU tenentt aut ejus artfceffhri, cum t^ncrare tion debet tenens quiU tcncK. vir uxoris aitenazk fibl 'vel.ar.tecejj' ri fuo, licet vir riOri cLiic jci/itus,nibiiominui unenti de catno run er:t I'ljus ccncedendus ; and my lord Coke in his expofition thereof fays it extends not to a writ of dov/er uade vihil bahet, for thereon no view by at the common law, liscaufe die demandjrit ftiouid no: be delayed, hiving nothing to live on ; but it extenJed to otlier writs of dower, whether for dower at common lav, ad cli'mm tcdcfia:, ex ajjinfu fatrh, or by the cuftom ; and wheie th; view has been granted, it is to be intenu'ed in thofe cafes, for which vide z Lev. 117. 3 Keb. jbo. Dyer, 179. pi. ^1, 2 Roli. Abr. 725, 2 Inft. 481. At the common law, before the (latute of If. i. r. 49. if a 2iu{i. igr. woman had accepted any part of her dower, thougli n;:;ver fo fmall, of any ont tenant in any one county or town, flie had no other remedy for the refidue, but by a writ of right of dower ; for if {he brought a writ of dower uncle r.ihil hahet, it was a good plea in abatement, that flie had accepted fuch a part of fuch a tenant, in fuch a town or county. This being a great niifchicf to the woman is remedied by that ftatute, which provides that it (hall be no plea in abatement, to fay that flie hath received part of her dower of any other perfon before the writ purchafed •, and this extends as well to guardian in chivalry as to the tenant of the land, becaufe fuch guardian is to render her dower. In dower the tenant pleads, that after marriage the hufband Raym. 366. had fettled other lands on the demandant for life, for her jointure, ^^^f^^y v. and that flie after his death agreed thereto, and entered accord- "^^^' ■ ingly j the demandant replies, that it was a voluntary fettlement of her hufband, and traverfes that it was for her jointure j and iflue thereupon ; and at the tiift prius the tenant made default, • and a petit cape awarded, and returned, and judgment, that the demandant have feifin ; and the demandant fuggefts that her huf- band died feifed, and prays a writ to inqmre of the damages, re- turnable fuch a day; the Tneriff returns that he hath delivered Note: The feifm of the lands particularly, and alfo an inquifition which finds "''^'^"^ ^^' that the lands are worth 114/. us. per atuiuniy and that her huf- n,j^es are to band had been dead fix years and three quarters, and that fhe had be recovered fuftained damages cccafione detentioms clotis ultra valorem prad. iy ag^'n't the ultra viifas <^ cujlag. fun 195 /. i^ pro mijis i^ citjlag. 20 x. and writ'of upon this the demandant gratis relcafes- the 195/. and demands dowef, and iudgment only for the 20 j. and iudgment'is yiven that the de- f°'^3PP"s 1 .•'*'. 7-5 r 111 inthejudg- mandant recover tarn valorem tertia partis pradict. trom the death mentof this of her hufband, which came to 257/. quam the 2oj". and 11-/. de cafe, and in incremcntOy in toto i^m^I. and the tenant brings error, for that the °" '^" ^^" damages being releafed by the demandant, there ought to have Bendi. 155. been no judgment againft him for the value of the land. But the whole court refolved, that the releafe was only of the damages fuftained occafone detsntionis dotis, and not of the mefne profits of the lands, for they are two diftinft things, as appears by Co. Lit. 33. a. Rajl. Entr. il~j. where the writ is to inquire not only of the value of the land, but alfo of the damages ratione de- tentionis ; and the judgment is always entered accordingly, and a 'fieri facias lies for the damages ; and therefore the judgment was affirmed. C c 4 As 392 SDotoen Co. Lit. 32. As to damages in dower, they are given by the ftatute of Dyer, 184. Mertoii^ c. I . but that flatute extends only to the pofleflbry action Yelv. i 12. o^ dower iiiide nihil habet, and not to the writ of right of dower •, Dr. and becaufe they are intended to be given for the detention of the Stud. lib. 2. pofleflion ; and on writs of right, where the right itfelf is quef- i. 166. tionable, no damages are given, becaufe no wrong done till the a init. 80. right be determined : alfo, that ilatute extends only to lands, ^Vhhfta^ whereof the hufband died fcifed -, and therefore judgment for lute are, the damages was revcrfed, becaufe the jury did not find that the Siuodfidua hufband died feifed ; for otherwife (t\Q (liall have no damages : as, qua pcfl •£• j.|^g hufband aliens and takes back an eftate for life, the wife rorumfuo. il^all Tccovcr dowcr, but no damages ; becaufe this dying feifed rum exj:e>- vvas Only of an eftate of freehold ; but if he makes a leafe for donhui^fuis y^^'^s only, rendering rent, flie Ihall recover a third part of the & dotes fuai reverfion with a third part of the rent and damages, becaufe there 'velquaren. he dicd fcifcd as the ftatute fpeaks. tsnamjuam •"■ baben nor. pojjfunt Jine plac'itOy quod qukurque defcruatier'tt eh dotes fuas I'el quarentenam fuam de tenement'ts de quibus -virijul cbierini fiijJ/i, & ifja -vidua pojlca fer placitum recupcra-ver'ir.tyfi ipjl dcforc. de ;;;_/'«/? together with the demandant, as his mother and 115. S.c. guardian, took the profits for fix years after the hufl^and's death, and that fuch a time the fon died witliout ifTue, and the land de- fccnded tc the tenant a'; uncle and heir to him, and that he en- tered tered and took the profits till the purchafe of the original wrh 5 and the yearly value of the land was found, and damages were af- feiTed for the detaining dower and cofts ; and the plaintiff had judgment for the damages from the death of the hufband without any defalcation. In this cafe my Lord Coke fays there are many things obfervable, but the moft material feems to be the recovery of damages from the hufband's death, though there was no de- mand of dower, and though the demandant herfelf took the pro- fits for fix years, which feems to be the confequence of the te- nant's pleading non-tenure, which being found againft him, the other matter found was fuperfluous, except as to the damages, for which he then remains deforceor. In dower upon default, a grand cape was awarded, and on 3 Ley. 409. fuggefting that her hulband died feifed, a writ of inquiry of the j'^'''*^^'"* "• value of the lands was awarded likewife, and inquifition taken Upon a trial and returned, and 60/. damages for the value of the land ; and at bar the it was moved to flay the filing of the writ of inquiry, becaufe no ^^^^^^'' notice was given to the tenant thereof, nor of the execution of there was a it 5 and though it was anfwered that in real a£lions no perfonal demand of notice is to be given, but the tenant ought to take notice, becaufe ^l^^^^l ^^^ the fummons is always executed on the land, and not elfewhere ; entitle 'th.c ytt per curiam^ the grand cape is a judgment, and by that the fult plaintiff to is determined at common law, and the damages for the value of th™pfabtifF the land are added by the ftatute of Alertony and perfonal notice proved an ought to be given of the writ, and of the execution of it, as in ^"^"^i ^f- other cafes of writs of inquiry ; and therefore for want of notice j^eir h-m^ they difcharged the inquifition, and awarded rellitution of the ot the age of damages. But Levhiz makes a quare of it, and fays the praiflifers '4years. - r 1 1 • 1 • • r ^ ■ ■ r .1 • then in her informed Inm that it 13 not ufual to give notice ot tlie executing cuftody of the writ of inquiry in cafe of dower. though by his father's will committed to another; the infant faid his guardian would not let him af5ign dower; refolved/:ir lot. iur. upon debate ; ift, That it was demandable of the heir, though he had been under age. adiy, Thjt his guardian was but in na'ure ot a guardian in focage, and that ihe dower was not demandable of hi.nij but of the heir, though not in the cuftody of the guardian ; and that if the heir had entered upon the land to alTign do-vcr, he had been no tiefpalfor upon the guardian, though the cuftody of the land duiing fuch nonage was coinmitted to fuch guardian. 5aly> That his notafligning dower upon demand, though he did not refufe to do it, was a reful'al in law, to entitle the plaintiff to her damages. Hil. 29 & 5oCar. 2. in C. B, between Corfellis and Corfeiiis. Bull. Ni. Fri. 117. In dower, the tenant to part pleads non-tenure, and to other Dalifon, parts detinue of charters j and judgment for the demandant ; but ^°°' R'^h's it was reverfed in error, becaufe the tenant, being within age, 52. s^c°"' appeared by attorney, where it ought to be by guardian. Then Note : The a new writ of dower was brought, and the tenant pleads tout temp "<«"> truth prl/l: the demandant pleads the firft record to eftop him ; tenant after her rejoins nnl tie! record, becaufe it is reverfed \ which the court huibands agreed j but they held that the demandant might take ifTue that l^^^^^l^^^ he had not been tout temp prijl^ and give in evidence the firll re- abated with- COrd to prove it. out align- ment of dower, and occupied for five years, and then the tenant re-entered, and fte brought dower ; and agreed that in fuch cafe the tenant need not lay tout tcmf fr'iji generally, but ftiew the abatersent and re-eiuiy, for the time of her occupying flialJ be cojifidexcd and recouped in damages. In 394 Leon. 56. "Walker ?. Kevil. Pcnricc V. Penrice, Barne!-,234. (a) The opinion of the court in this latter po:nt is con- trary to the preceding cafe, and to the exprefs words of the flatute of Merlon, c. I Hardw. 19. Brook, 49. 73- 78- y3- Brown v. Smith, Hil. S5 & 26 Car. 3. Bull. Ni. Pii. 117. Lev. 38, Alevvorth V. Roberts. Sid. 188. S.C. Keb. 85. S.C. 646. 711. Brownl. 127. cent. In dower, judgment was given upon mill didty and becauf* the huiband died feifed, a writ of inquiry of damages was award- ed 5 by which it was found that the third part of the value of the land was 8/. per ann. and that eight years had elapfed a die mortis viri fui proximt ante inquifition. is' ajfident dammi to 80/. and upon the record it appeared that after the judgment in the writ of dower the demandant had execution by habere fa. feifinam^ and that damages were afleffed for eight years j whereas it appeared upon all the records, that the demandant had been feifed for part of the eight years; and therefore error was brought and afhgned, I/?, That damages are afligned till the time of the inquifition taken, where they ought to be but to the time of the judgment'; but this was difallowed. idly^ That the value being found but % I. per annum y the damages for eight years are but Gii^L; but per cur.y it may be that by the long detaining of dower demandant had fuftained more damages than the bare value ; but becaufe it appeared that damages were alFffTed for the M^hole eight years, where the demandant herfelf was feifed for part of them, by force of the judgment and execution, it was held erroneous. [Upon the execution of a writ of inquiry in an adlion of dower unde nihil habet^ the jury alTefled damages to the amount of the tliird part of the value of the land, from the death of the huf- band to the day of the inquifition, without making any dedu£lion for land-tax, repairs, or chief rents. The inquifition was fet afide, the court being of opinion, that as there are in a writ of dower U7tde nihil habet the words ultra reprifaSy a deduftion ought to have been made for land-tax, repairs, and chief rents ; and that the jury {a) ought only to have aflefled damages to the day of awarding the writ of inquiry.] ., and alfo to the cafes of Spiller v. Andrews, 8 Mod. 25. Dobfon v. Dobfon, Ca. temp. 2 Barnard. K. B. 180. 207. 443. and Kent v. Kent, 2 Barnard. 357. In dov/er if demandant recovers by confeffion, or otherwife, yet fhe may after, upon fuggeflion and averment, that her huf- band died feifed, have a writ to inquire of the value and damages. [If the heir fell to J. S. and the widow recover her dower againft him, he mull pay the whole mefne profits from the death of the hufband, though he have not himfelf been half the time in polTefTion : flie is entitled by the llatute, and can recover only againft the tenant.] In dower unde nihil habet, the demandant had judgment, and a writ of feifin executed, and the tenant brought error, and the judgment affirmed ; but pending this, the tenant aliens the land, and dies; and now the demandant hriugs fcire facias againft the heir of the heir, and againft the alienee, to have her damages, fuggefting that her hufband died feifed ; the tenants feverally plead the matters aforefaid ; and judgment againft the demand- ant ; but therein agreed that the judgment is complete at common law without the damages, and error lies of it before the damages given, and that it is time enough to fuggeft the dying feifed of the hufband, in order to recover damages after the judgment given for for the dower ; tut the flatute of Mcrtcn gives clamages centra deforciatorcs^ which here neither the heir of the heir, nor the alienee are ; and therefore they are loft by the death of the heir, and are not a lien upon the land to pafs with it ; for if they fliould be recovered, from what time mu(l this recovery be ? not from the hufband's death, becaufe none of the prefent tenants had the land from that time ; nor from the death of the heir, againft whom the judgment was, for none of the now tenants are deforceors ; and therefore they are like damages in trefpafs, which die with the party ; and when the tenant dies before judgment for the damages, the judgment for the dower remains as at common law, A Vvidow brought a writ of dower, and recovered, and this jWoi. 2?:-j^ judgment was affirmed in a writ of error, after which fhe took out Mwdantv. a writ of inquiry of damages, but died before the fame was exe- Jji'k'^^'*" cuted ; the damages are loft, being no duty till they are affeiTed ; pi- i- s. c. and therefore zfcire facias by her adminiftrator in this cafe was ^^f^h. 133. held not maintainable. , show. 97. S. C. 3 Lev.%V- S. C. [If the defendant plead 71c zniqne fe'ife que doxver^ the demandant ?. Roll, Abr. may give in evidence a releafe to her huft^and, or a furrcnder to 676. ol. 10. him by one who was feiied as jointenant with liim. 80, if the Pri/ilj;.* demand be of an advowfon or rent-charge, fhe may give a grant But qu. as of the advowfcn or rent-charge in evidence, and that her hufband ^^ ^"^^ {"'"' died the day before payment or prefentation. this cafe? for one jointenant cannot furiender to another, by reafon of the unity of poflefiion. Perk. § 586, 7, See 40 E. 3. pi. 21. 41. b. contr. See alfo Walk, on Defcentf, 33. note. If the tennnt plead r.e untitles nccoiiple in loyal malrimonie. It fliall Robins v. not be tried by a jury, but a M'rit fiial! iflue to the bilhop to certify <^fuf<^hley, it. To a demand of dower as the vvidow of J. R.^ the defendants jj,-' " ■" ' pleaded ne unques accotiple ; the plaintiff replied a fentence of the ecclefiaftical court in a caufe of divorce brought by Sir IF. TV. againft her, charging that (lie was his wife, and had committed adultery with J. R.; to which fhe pleaded, that fhe was the law- ful wife of J. R.y and not of the faid Sir JF, TV. ; and that after- wards J. R. died, and the caufe coming on to be heard, the judge declared, that the plaintiff had been the wife, and was then the widow of J. R. ; and fhe prayed judgment whether the defend- ants were not eftopped to plead ne unques accouple. The court held it no eftoppel, as the bifliop's certificate in an action between the plaintiff and other defendants would have been. In dower, the defendant pleaded, that T. D. was feifed in fee. Green t. and made a leafe to J. C, but did not fhew when feifed in fee, ^°^> ^''"^ or that the term was affigned to him ; fo it might be after cover- A^ecover* turc. After judgment for demandant, the faid J. C. claiming by in dower leafe for years from T. D.. father of the demandant, prayed to be ^^'" ^'^"^ J ', , , , . . , . ' z J the tenant, received, but the court wouid not admit him. and all claiming under him, froin giving a prior term in evidence on an ejedlment afterwards brought by the widow under the judgment. Booth v. Marquis of Lindfey, 2 Ld. Raym. IZ93. By t6 and 17 Car. 2. f. 8. § 3, 4. execution fhall not be ftayed by writ of error upon any judgment after verdict, unlefs the plain- tiff in error become bound to pay damages and cofts, in cafe 4 the 39^ Kent V. Kent, 3 Str. 97i« 2 Barnard. 357. 386. 441. Ca. temp. Haidw. 50. Dee ▼. Roach > Andr. 153. Ca. temp. Iiatdw.373. la\ Wallis ■». Everard, 3 Ch. Rep. {i>) Curtis w. Curtis, 3 Br. Ch. Rep. 634. Mundy v, Mundy, 4 Br. Cii. Rep. 294. and 2, Vez. jun. 112. Mitf. Eq. Tr. 109. (f) Williams V. Lamb, 3 Br. Ch. Kep. 264. (/f) Wake- field V. Childs, 8th July 1791, cited in Fonbl. Eq. Tr. 20. [e] Mitf. iq. Ti.j 1 1. F.N.R.143. Co Lit 3;>. a. the judgment be affirmed, or the plaintiiFdifcontinuc, or be non- fuitcd ; and the court whcrehi execution ought to be granted upon fuch alurmation, difcontinuance, or nonfuit, fliall iflue a writ to inquire as well of the niefne profits, as of the damages by any M'nfte committed after the firfl judgment ; and upon the return thereof, judgment fliall be given, and execution awarded for fuch niefne profits and damages, and alfo for cods of fuit. V.''hcre there are two tenants in dower, and one dies after judg- ment for damages, and his heir and tlic other bring error, the whole of the original damages fhall be recovered againft the fur- vivor. But the value from the time of the judgment to the af- firmance cannot be recovered againft the furviving plaintiff only ; nor can the court compute fuch damages after the rate of the damages found by the firfh jury, but they mud award a writ of inquiry. If the judgment be afurmed in dotn. prcc. and cofls given, the defendant in error may bring an action upon the recognizance for fuch cofls, without fuing out a writ of inquiry. The writ of dower is nov/ little in practice, and will probably in a fliort time fall quite into defuetude. The court of Chancery feems at length to be in poflefhon of a concurrent jurifdiftion with the comm.on law courts in all cafes of afiignment of dower. That the court of Chancery had jurifdi6lion in matters of dower, for the purpofe of afiifting the widow to a difcovery of the lands or title- deeds, or of removing any impediments to her rendering her legal title available at law, feems indeed never to have been doubted. But [a] it has been queftioned, whether it could give relief in thofe cafes, in which there appeared to be no obltacle to her legal remedy .? However, the language of that court now is (^), *' that " the widow labours under fo many dlfadvantages at law, from " the embaraffments of truft terms, isc. that flie is fully entitled " to every affiftance that a court of equity can give her, not only *' in paving the way for her to eftablifli her right at law, but alfo " by giving complete relief when the right is afcertained." And in the exercife of this jurifdiftion it will enforce a difcovery (c), even againft a purchafcr, for a valuable confideration without notice. And though [d) the widow fliould die before fiie had eflablifhed her right at law, it will, in favour of her perfonal reprefentative, decree an account of the rents and profits of the lands, of which flie afterwards appeared dowable. But courts of equity confider themfelves as fo far proceeding merely on a right which may be afferted at common law, that, as in a court of com- mon law no cofls can be given on a writ of dower, fo no cofts are given in a court of equity on a bill brought for the fame purpofe (f).] (K) Of the Admeafurement of Dower. the wife more land in dower than fhall have a writ of admeafure- ment of dcwer at full -age by the common law : fo, if too much be |F the heir within age afhgn to 1 fhc ought to have, he himfelf DolDcr* 397 be affigned in dower by the heir within age, or his guardian In chivalry, and the heir die, his heir (hall have fuch writ to rectify the alTignment : but the heir, in wliofe time the afiignment of too much was by the guardian, cannot have fuch writ till his full age, becaufe till then the intereft: of the guardian continues j and if any wrong be done, it is to the guardian himfelf, and not to the heir. If a difTeifor alTigns too much, the heir of the difieifee fhall have admeafurement by the common law. If the heir within age, before the guardian enters, afligns too 2X11(1.267; much in dower, the guardian (hall have a writ of admeafurement of dower, by the ftatute of IV. 2. c. 7. before which ftatute the guardian had no remedy, becaufe the writ of admeafurement, being a real a6lion, lay not for the guardian, who had but a chat- tel : alfo, by the fame llatute it is provided, that if the guardian purfue fuch writ faintly, or by collufion with the wife, the heir at full age (hall have a writ of admeafurement, and may allege the faint pleading or collufion generally. If the wife after afiignment of dower improves the lands, fo as F.N.B.i4g. thereby they become of greater value than the other two parts, no * ^°^*' "i^^' writ of admeafurement lies: fo if they be of greater value, by reafon of mines open at the time of the afiignment, no writ of ad- meafurement lies, becaufe the land in quantity was no more than s ^°- 1*- fhe ought to have ; and then it is lawful to work the mines, which ^jj^"*^"* were open at the tim^ of f:ich afiignment. If the fiierifi"afilgns too much in dower, by one book it feems Palm- 268. that the heir fiiall have a writ of admeafurement ; but q. whether ^^'^g^^'^" , he fhall have that or z fcire facias upon the recovery, which was gj. Exient, of no more than the third part ? pi. 13. Fiuh. Execution, 165. 2 Ld. Raym. 1234-5.] Thefe writs of admeafurement of dower are vicontiel, and not F.N.B.14&. returnable ; and the parties may plead before the fiherifi^ in the county, if they think fit: but if they are removed in C. 5., by a pcne^ as the plaintiff^ may, without fiiewing any caufe, and the de- fendant, upon fiiewing caufe ; and thereupon procefs goes out, viz. fummons, attachment, and dijlnngns ; then the fiierifi'cannot make admeafurement, but ought to extend all the lands particularly, and return it in C. i^., and upon that admeafurement (hail be made, Dcwer by the Cufiiom. This kind of dower varies accordi::g to the cufl;om and ufiigeof Co. Vk. the place, and is to be governed accordingly ; and where fuch ^^^^''^j;^ cuftom prevails, the wife cannot waive the provifion thereby made 3^5'. for her, and claim her thirds at common law, becaufe all cuftoms Leon. 6z. are equally ancient with the common law itfelf. '3j' By the cufi:om of gavelkind in Kent^ the wife fiiall have the Co. Ut. 33. moiety fo long as fhe keeps herfelf chafl:e and unmarried. The p^^'g^''^ reafon of this provifion for the wife feems to be founded on the sunf. Prir. equal difiribution, which is obferved in this kind of inheritance in 41- b- the fame family for their equal fupport •, and therefore when fiie ^°]'- ^'°''' proves unchafte, or marries again, and thereby contrails a new iiro..k,uu K^ alliance. <* qS Dolccr. Do^pr, -o. alliance, tliis provlfion as to her ceafcs, and returns again into the Br(oi:,:ii. family. But the prelumption of her chaftity is to continue till it Cu.iom, 7. i^g proved flie was delivered of a child, begotten during her vi'idow- z (on. 6. hood, which may be in any action brought by or againft her. bid. 136. Lambari's perambulation, 551;. (But authorities are not wjnting to (hew, that not only child-bearing, a caiu.U coiilcquence of fornication, and the detedion of it in this publick manner, but the commiflion of the zi\ of fornication itfelf is a forfeiture of her eftate. Rob. Gaveik. 165. and the authoiities there ci eJ. J KuntO* Dower, and demands the third part of the lands of A. her late Uxor V. hufband lying in Ke/it, tsi'c.y defendant pleads that the cuftom Leon. 62. there is, that wives fhall have the moiety of their hufbauds' lands Cro. Eiiz. in dower, fo long as they live chafte and unmarried, and non alitet-y ^^.'" ^' or fion fcciindum curfunt communis legis^ and that the demandant Moor°26o. after the death of her firil hufband had married the other de- pi.4oS. S.C. mandant, i^c; et per cur.^ the cuftom is good, and is the law in c^^'^lif ' Kent ; and therefore (he can claim no other dower, nor in any 825'. s. P. other manner, and the rather, by reafon of the negative con- and S. C. clufion. cited. Co. Lit. By the cuftom of borough-englifli, the widow fhall have the 33. b. iio.b. whole of her huftjand's lands in dower, which is called her free- F.N.B.iso. , , * Cro. Eiiz. beach. 415. Moor, pi. 566. The reaf.'n of which feems to be, that in thefe boroughs the elieft fon was In- troduced irto the trade of his father, and therefore the youngeft f)n inherited the land, and confequently the wife that was intruded with the younger children 01 her huiband had the whole during hsr life. Cro. Jac. Upon a fpecial verdict, the cafe was this : a cuftom of a manor V-^' ^ was found to be, that if a copyholder in fee died feifed, his wife Avcry.^ * fhould hold it during her life -^^ frank bank ; the lord enfeoffs the copyholder, who died feifed •, and adjudged that her cuftom ary eltate was gone, becaufe by the acceffion of the freehold the copy- hold eftate was extinguiflied, and fo her hufband did not die feifed thereof; /ecus, if the lord had enfeoffed a ftranger, for then the copyhold i-emained-fo ftill, and the cuftom with it. Hob. 381. Cuftom of a manor was, that the wives of copyholders for life Howard V. f}^ould cnjov their huibands' eftates during widowhood ; and the Vro. Jic. cafe was, that A.., a copyholder for life, purchafed the freehold and 573. S.C. inheritance of his copyhold, but took the conveyance to J?., and his heirs during the life of y/., remainder to A. in fee, and then A, dies : adjudged that his wife (hould have her cuftomary eftate, becaufe the cuftomary eftate of A. her hufl^and continued during his life, and was not extinft, nor altered by the purchafc of the freehold, wliich during his life was in B., and then all cuftomary incidents to fuch cuftomary eftate remain, whereof this is one, and grows out of it as an excrefcence or fruit, and Ihe may enter without admittance. 3 Lev. 3S5. Cuftom of a manor wa-s, that the copyholders' wives (hould have Benfon v. their free-bench of all copyholds whereof their hufbands died 4 Mod. 251. feifed; and a copyholder, beingrnarried, furrenders to -^. in fee S.C. by v/ay of mortgage, for fecuring 70/. and this furrender was ^f'' s prefented to be enrolled ; but before admittance the furrenderer ca:th. 775. dies, and after his dsath A, is admitted ; and if the wife (hould s. c. have have her free-bench, was the queftion ? For the wife it was fakl, Skia. 406. that till admittance the copyhold remained in the hufband, and P'* '• . then he died feifed, and fo his wife within the cuftom ; and though ' " the admittance after his death has relation to the time of the fur- render, yet that is only by {i<£lion of law between the parties, but fhall not prejudice the wife who is a ftranger : alfo, the admit- tance hath relation to the marriage, which was before, and is perfected by, the death of the hufband, and fo her title was begun and perfedled too, before the title of the furrenderee. But the court denied that the wife had any initiate title by the marriage in this cafe as women have to their dower at common law ; but {he hath only a conditional inception of a title fubjedl to the huf- band's power of preventing it by alienation, as here he might have done ; for {he is not to have her free-bench but where the hufband died feifed ; and this by the relation of the furrender he did not J and adjudged accordingly. [The cuftom of a manor was to grant copyholds for three Sallfbury lives : the firft life had a power of furrendering the whole eftate, J; ^"'■^' and the widow of a tenant, who died feifed, was entitled to her Parciev^s^* free-bench. F.y a copyholder for three lives, furrendered to H., cafe, Cro. the deceafed hufband of the defendant ; who afterwards by li- J^* 3^- ^^^' cence from the lord, demifed to J. S. for ninety-nine years by way Freem. 516. of mortgage : then H. died, and J. S. afTigned to the plaintiff. At S. P. the trial, only one inftance of a leafe by licence was given in evi- dence j whereupon it was infifted for the defendant, the widow, that there being no fpecial cuftom to let by leafe, the only way of transferring the copyhold was by furrender. And therefore iu this cafe, if the eftate of H. the hufband was not determined according to the cuftom of the manor, he muft be deemed to have died feifed of the copyhold, and the widow ftill entitled to her free-bench. But the court faid, that here, the right of the hufband was confined to fuch eftate as he fhould die feifed of; confequently, as between lord and tenant, they might defeat the wife's eftate w'hen they pleafed.J The cuftom of a manor was, that the wife of a copyholder Cro. Car. dvin? feifed fliould have her v;idow's eftate ; a commifhon of 5''9- bankruptcy is taken out againft the copyholder, and his eilate fold idiuj. by the ccmmifhoners, but before the vendee was admitted the copyholder dies; and yet adjudged that the widow's eftate was gone, becaufe her hufband did not die feifed, his eftate and right being bound by the fale, to wliich the admittance after has rela- tion, and devefts the widow's eftate. If the cuftom of a manor be, that if any of the tenants marry Ro"- Abr. a widow fhe fhall have no dov.-er ; this is good •, but cuftom, that ^^^" ,^ ^ the wife of tenant in fee fliall not be endowed, is not good. If there be a cuftom, that where the hufband fells his lands R""* -'*-^'- and his wife receives part of the money, or if it be expended in ijt.'cuftoin* the family, that his wife fliall be barred of her dower, this 53. 73. may be good. Ancient rent, or comm.on in borough-englifh, gavelkind, <^c. Brook, tit. is of the nature of the land there, and women fhall have dower jg/^^'e.^ accordingly -, 40O Dolt»ei% accordingly ; and fo it feems to be of rent, common, &c. newly granted, though fome have held the contrary •, and in all thefe cafes, whether it be of land or rent, the cuftom muft be fhewn fpecially. Perk. 435, If the cuftom be, that the wife fliall have for her dower the 436; moiety of the lands and tenements of her hufband, t^c. (lie (hall * ' * ^^* not be endowed of a fair or bailiwick, becaufe the cuftom fhall be taken ftrictly, and thefe are no tenements : fecusy if they were appendant to a manor, whereof fhe is dowable, for then flie fhall have a moiety of the profits as- appendant to a moiety of the manor. Dower ad OJlium Ecckfuz. lit. § 39- Dower ad ojlium ecclejue is where a man of full [a) age, feifed Co. Lit. 34. Qf lands in fee, after marriage endows his wife at the {b) church- \-?2^, ' door of (<:) a moiety, a third or other part of his lands, declaring (• i N- not hufband and wife, for without a free confent (r) there can be ;/^'arrui. rio marriage^ Sid. 65. ^r) Though de jurt it cannot, yset defuBo it may, aai fo within. the ftatute 3 H. 7. c. 2. Cio. Cm. ^88. (D) The Manner of avoiding them. 1 F a man executes a deed by dwrejfs, he cannot p^ead nan ejl 5 Co. 1 19. ■■ faBiim, for it is his deed, tliough he may avoid it by fpecial ^^^^°^l^^ pleading judgment j*? a^io. 2 inft. 483. S. p. Vide Keb. 516. That in pleading, the fpecial manner of the durefs, vix. whether it v^a ^tr fiinai 'Viix, ninai iV'^riftni^.y &(. muft be kt forth ; and note, fo are all the entries, Vd 3 [ 4o6 ] ^itttmtnU (A) Of the Nature of the Adion, and Ant'ient Manner of Proceeding in Ejedtment. (B) Of the Modern Manner of Commencing and Proceeding in Ejeftment : And herein, 1. Of ferving the Declaration, Notice to the Tenant in PoirefTion, and entering into the common Rule. 2. Of adding proper Parties. 3. Of the Cofls. (C) In what Cafe the Antient Form is ftill to be ad* hered to. (D) Of the Declaration in Ejectment : And herein, 1. Of what Things an Ejedlment will lie. 2. What fhall be a fufficient Defcription thereof. 3. Of the Devife and Right of Entry in the Leflbr of the Plaintiff, and of the Oufter, (E) Of the Plea and General Iflue in Ejedment. (F) Of the Verdid and Judgment in Ejedment. (G) Of the Writ of Execution : And herein, 1. Of the Time when the Writ is to be fued, 2. How the Writ is to be executed. 3. How the Plaintiff is to be quieted, and what Relief h« has where his Poffeffion is difturbed. (H) Of the Mefne Profits, and how to be recovered, { I ) Of bringing a new or fecond Ejedmeqt. (A) Of the Nature of the Action, and Antlent Manner of Proceeding in Ejectment. A N ejeclment is a mixed («) a£tion, in which a lefTee for 5 Co. zoj. ■^^ years, when oufted, fliall recover his term, as alfo his ?^°'^7; . J •' ' ' ' (ri) For It It damages. rt^i i„ „- fpe£t of the lands, and ferfinal in refpeft of the damages and «y?j. Comb. 23c. [It is alfo ^pojfcjfory ailion, grounded on a r/g;/6/ to the pofTefTion 10 Mod. of the premifes in queftion between the parties. It is always ne- ^y- ceflary therefore for the plaintiff" to (hew that liis leflbr had a uja.,. right to enter, by proving a poflcfTion within twenty years, or ac- «• »6. counting for the want of it under fome of the exceptions allowed by the flatute.] This remedy was contrived to fupply feveral defeats which at- 6 Co. 7. tended the bringing of real actions ; for in thefe the party could ^""^'s not recover any damages, neither could he regularly bring a fecond aclion if he was barred hi the firft. But the concluding the demandant by one aclion being often- {b) F.N.B. times found to have been very prejudicial to his ri^^ht ; to fupply ^,^°'^, . this and feveral other inconveniencies which attended the bringing mrthod In.. of real adlions, the manner of forming a term for years, and the pears tjhavt leflee's brinrtincr an ejeclment to recover the term, tliereby to aflert ''"" i^^^\^^ the title of the leflbr of the plaintiff^, was found out, and was {b) the reign of fird introduced in the 14 H. 7. (r), before wliich time it feems that Edw. 4 in leafes for years were but of very (hort duration, and were generally \f/J^', t' defeated or determined before any intricate title could be decided, jihomef-r: and were fuch precarious pofleflions with refpecl to the power ^jf^'r.ne which the owner of the freehold and inheritance had over them, p/^-^,]!'^^, that every fuch leflee was looked upon only as his bailiffj and if co-vcrafirt oufted, could only have recovered damages for the lofs of his pof- termepiifft feflion i and if oufted by his leflbr, he could only leek a remedy ^'^f/ " from his covenants. ^uare ijcdt infra ttnnlnum \ et,Ji nuljoit arrere, donqucs tcut in damages. Bro Abr. I. i^areejecicirfm rcrminum,^.6.^ It feems alfo, that fome time before the above-mentioned pe- riod, long terms had their beginning, which to fecure to theni- felves, the leflees ufed, when molefted, to go into equity againll the leflbrs for a fpecifick performance, and againft Itrangers, to have perpetual injun£lions to quiet their pofleihons. This draw- ing the bufmefs into the courts of equity, was probably one reafon * which obliged the courts of law to come to a refolution, that they {liould recover the land itfelf in an habere facias pojfejfionem. Hence this aclion became, and ftill continues, the common method of controverting the title to lands and tenements. As this refolution brought on a new method of trial unknown [' *^__. , /-i-ns ^^^^ ^^ the poueflion m the carnal ejector s name. cafuai ejeftor does not claim title, un'els the tenant appears and defends his title, the cafual ejedlor will fuffer judgment to pafs by default, whereby the Urinni-vfill be turned out of poileflion. [It muft bi figned by the cafual ejeftor. Bamaid. K.. B. 43. 01 by the nominal plaiatiff. 3 TermRep. 351.] It hath been holden, that the fervice of the declaration ought Saik. 255. to be on the tenant himfelf, or his wife, and that the fervice on ffJ'p any of his children or (h) fervants is not good; and now by [hemoder/ the zi Geo. 2. c. 28. it is enacted, '* That in all cafes between paaice, ** landlord and tenant, as often as it fliall liappen that one half '^f'^*^-."^" *' year's rent fhall be in arrear, and the landlord or lelTor, to fervant of *' whom the fame is due, hath right bv law to enter for the non- the tenant is « payment thereof, fuch landlord or leiTor fhall and may, with- J^'"«^S'>o \ J _ » {h) To becaule it is an adt 01 champerty lor any perion to interpoie to make the cover the poflefiion with his title. To make any perfon defend- hndiord a ^^^^ ^^j^j^ another, who was not concerned in the pofleffion of derendint , ' ..,.. , tr-ri in ejed- the tenements, was a mifchief at common law, becaufe if the mcnt, is plaintiff recovered againft one of the defendants, the ftranger, fVc^her. ^^'^'^ ^"^ acquitted, had no remedy for his cofts. But that is wife he remedied by 8 ^9 ?^. 3. c.ii, whereby cofts are given to the might be perfous " fo acquitted," unlefs the judge certifies immediately InTis'ln- ^^ ^^^ trial, that the plaintiff had a probable caufe for making herirince, him a defendant. by combination becseen the plaintiff and tenant in poffeinon. Salk. 257. pi. 10. So the landlord, though 3 peer. Comb. 339. or a member of parliament, muit be joined, if he applies for it; for every perlu.n, who hr.s any privilege, has it by law, wliich the courts cannot compJ him to waive. Salk. 256. pi. 6.— —[Such, it feem<;, was the right of the landlord at common law ; yet, by itat. II Geo. 2. c. 19. §13. it is enafled. " that the landlord may, by leave of the court, make ** himfelf defendant with the tenant in puff;ilioi), in cafe he appear ; and in cafe fuch tenant Ihall le- *' fufe or negleft to appear, judgment fliall be figned againft the cafudl ejedlor. But if the landlord *' fhall dcfire to appear by himfeif, and confent to enter into the like rule as the tenant, in cafe he *' had appe-red, ought to hjye done, the court ih.dl permit him" (as the court often did permit be- fore the pafTing of this ftatute, fee the authoriiies colledted in 3 Buir. 1290.) " fo to do, and order a *' iiay of execution upon fuch judgment until further orders." And by the fame ftatute, § 12. " the " tenant being ferved with a dtclaration in ejedment muft give nouce thereof to the landlord, under •' the penalty of tiiree years improved rent." This penalty, however, do.'s not attach on the tenant of -J. mortgagor who omits 10 give no;ice of an e^citment bruu^ht by llic moitgii^ee in wder to enforce . aft (KjcSm^nt 413 An attornment. Buckley v. Buckley, i Term Rep. 647. A lord, claiming by efc'ieat, or it feems, 3 mortgagee, who is out of poflc/Iion, (though as to the latter it hath heen holden otherwii'e formerly, Jones V. Williams, Barnes, 194.) may be admitted to defend. Fairclaim v. Shamtitle, 3 Burr. 1299. So, the immediate heir of the pcrfon laft fcifed, or remainder-man claiming under ilie fame title with the original landlord. Heblethwaite v. Roe, 3 Term Rep. 783. n. ; or, a devifee in truft. Lovelock v. Doncafter, 4 Term Rep. 122. ; though they have ne^er been in pofleflion. But if the perfon who wi/hes to defend, be neither tenant, nor oEiual landlord, but have feme intereft to fuftain, he mufl: move the court, on an affidavit of the faft, to be made defendant inltead of, or with the cafual cjedlor, which may now be done without the confent of the tenant. Sty. 368. 3 Burr. 1290. And fuch utTO defendant may give a rule to reply, and tion pros, the plaintiff, but cannot have colls. Ward V. Badtitle, 2 Rep. 760. And in no event will it be permitted to a ledee to defend alone againft his landlord, or thoie who claim under him on a fuppoled defedl of title. Driver v. Lawrence, % Bl. Rep. 1359.} Rut a landlord may refufe to be made defendant. Salk. 256. pi. 6. Where it Was moved, that the wife of the leiTor of the plaintiff might be made defendant, the plainiift"'s title being by a pretended marriage, which was controverted, and the court inclined accordingly; but per- ceiving it to be a trick to gain time, and (a to put off the trial, it was refufed. Salk. 257.— One who is only a truftee need not be joined. Comb. 532.— ——If a material witnefs is alfo made a de- fendant, the right way is for him to let judgment go by default; but if he pleads, and by that means admits himfelf tenant in pofleflion, the court v/jil not afterwards upon motion ftrike out his name Dormer V. Fortefcue, Mich. 9 Geo. 2. In eje£lment, where there are two defendants for the fame Vent. 255. premifes, and one appears and confeffes leafe, entry, and oufter, ff^J^l^l^^ and the other does not, the plamtifF cannot proceed againft the iraaice \n other, but he muft be nonfuited, becaufe both the defendants not this cafe is admitting the demife, and the plaintiff not proving an adual "o* to pro- entry and demife, he cannot maintain his declaration (o). But if the one who there appeared any covin between fuch perfon not appearing, and fJoes appear, the leffor of the plaintiff, the court will flop the judgment againft g^jir^ia ^" the cafual eje£lor, for the part of him who appeared, and oblige agaimuke him who did not, to releafe the cofts, becaufe a declaration was oxh^r, in- delivered to each of them for their rcfpeillve parts: and there- fu"^"^** lore, where one does not pay obedience to the rule, the plaintifr the caufe of has judgment againft the ejedor for his part only. fuchverdia, which as to that defendant entitles the plaintiff to judgment againft the cafual ejector. Claxmore v. Scj:I, i Ld. Raym. 729. Thruftout v. Foot, Barnes, 149. Ellis v. Knowles, Jd. 174. And where there are feveral defendants, to whom the plaintiff a Keb. 524. delivers declarations, that are feveraliy concerned in intereft, and the plaintiff' moves to' join them all in one declaration, yet the court will not do it ; but the plaintiff muft deliver feveral declara- tions to each of them j becaufe each defendant muft have a re- medy for his cofts, which he could not have if they were joined in a declaration, and the plaintiff prevailed only againft one of them. And by this means the plaintiff miglit have a tenant of his own, defendant with others, in order to fave the cofts. [But where feveral ejedlments are brought for iYiq fame prcmif'^Si Gr'mflo-.e upon the fame demife, the court on motion, or a judge at his "' '^"^s^s, chambers, will order them to be confolidated.j arjie,,j, . 3. Of the Cofts. The parties by entering into the common rule are under the Salk. 251. power of the court, by virtue whereof the court awards cofts, fV/-^''" which being taxed by the mafter, if demanded of the party, and diabcg:v»n he 414 <&ic&mtnt for the dc- he rcfufes to pay tliem, the court on affidavit thereof will gra»f fendant, or a„ attachment. the plaintiff be nonfuited for any other caufe than the want of confefllon of leafe, &c. the defendant muft tax his coftj on the paftea, as in other actions ; and fue out a capias ad fath faciendum for the fame againll the plaintiff, which he murt {hew, under feal, to the plaintiff's leffor, and at the fame time ferve him with a copy of the confent-ruie; and if the lelTor, being required, refufe to pay the co(ts, the court, on motion, will grant an attachment againft him- Tilly v. Baily, M. 6G.2. — If the leflbr of the plaintiff die before the commiffion-day of the affifes, and the plaintiff be afterwards nonfuited, becaufe the defendant did not conf-Cs le.ife, &c. the executor of the lelfor of the plaintiff is not entitled to cofts. Thruftou: v. Badwc J, 2 Wilfi 7. But if he die after the trial of the caufe, the executor fliall have the cofts, which had been taxed on the c jnfent-rule. Goodright v. Helton, Barnes, 119.— If the tenant appear, confefs leafc, &c. and a verdict be given againft him on the trial, the judgment there- upon is entered againft the tenant, on which the plaintiff nlay take out execution, as in ordinary cafes j far this is not a cafe provided for by the rule. Runningt. 415.] a Lev. 66. And although the plaintiff in ejectment be but a ndminal per- 6 Mod. 309. j-Qj^ ygf j£ j^g ^g j^Qj. jQ jjg found, or if he be not able to pay the 12 Mod. n 1 r 1- • • T- 1 1 1 ..•'., 3,8. colts, the attorney or lohcitor is liable, or may be comuntted until Str. 40Z. he pay the cofts, or produce a plaintiff that is able to pay them. So, if a ftranger carries on a fuit in another's name, who has t title, and yet is fo poor that he cannot pay cofts \ in cafe he fails, upon affidavit of this matter, the court will order fuch per- son, who carries on the fait, to pay cofts to the defendant. ^tra. 694. If an infant delivers a declaration to the defendant, fome friend ^ Raf ^^l' ^^ guardian muft be fet up as plaintiff to anfwer the defendant'^ K. B. 140. cofts j but if fuch perfon dies infolvent, fo that the defendant has 2 Kei. 55. no remedy, by this rule the infant himfelf muft anfwer the cofts, fCa^^tcm . becaufe the rule was entered into for the infant's benefit; and Hardw. 56. cvcn infants muft not difburb the pofleflion of others by unlawful iWiif. 130. entries, without being punlfhed with cofts. Previoufly, however, to any motion in court, inquiry fhould be made, whether there be a real and fubftantial plaintiff or not ? for on inqui.y, the guardian may undertake to pay the cofts, in which cafe the court would probably decline to interpofe. Cowp. 128 It hath likewiie been hulden, that upon the death of the plaintiff's leffor, proceedings may be ftayed, till the plaintiff" /hall have given the defendant fe- eurity for his cofts. Eaft v. Nonelly, Barnes, 147. Thruftout v. Grey, 2 Str. 1046. So, where an ejeftment was brought on the demife of a perfon refiding at Antigua, Cufack v. Jones, H. 33 G. 3. B. R. ; and in another cafe, where the leffor of the plaintiff refided in Ireland, the plaintiff was com- pelled to give the defendant a fimilar fiicurity. Denn v. Fulford, 2 Burr. 1177. In the latter cafe^ the ejeftment v.as brought under the direOion of the court of Chancery, where the bill was retained till after trial of the ejedVment, and fecurity had been there given to the amount of 4c /. But except- ing fuch inftances, and that of a former ejeflment, the court will not compel the leffor of the plain- tiff to give fecurity for the cofts. Doe v. Aillon, i Term Rep. 491 J I Keb. Rep. If there be baron and feme leffors in ejeclment, and one dies 827. pi I, jjfjgj. eiiteriiig iu^y j^e rule, the furviving perfon is liable to pay cofts. ^ If ejeftment be brought to be tried ?.t bar to bring a matter in queftion, as the validity of a will, and a parcel of land be inferted in the declaration, which is not concerned in tlie queftion, but to which the plaintiff hath undoubted right, and the defendant con- fefs leafe^, entry, and oufter of the whole, not obferving tfliis part, the plaintiff fhall not on this account be excufed from the cofts 5 but the court will give the defendant leave to retract his {a) Mich, confelfion as to this parcel. The like was done in [a) a cafe Ti R^"^ h"' 'where a parcel of copyhold land was inferted in the declaration, twccnOddie which was net touched by the will, no furreuder being made to andPrelbn. the ufc of thcwill. €je8ment. 4) there can be ik) ^.^^J^ ^^^". judgment againft the cafual ejedor without moving the court for cafe the de- that purpofe, though the rules for pleading are out, becaufe the ciaration court will not grant any judgment againft the cafual ejcftor, who ^"1"°^^ ' is only nominal, without fuch proper affidavit, left otherwife a feiveJ, his third perfon ftiould be tricked out of his pofleffion. fufficjent w * *• affix It to the door of the houfe or «n fome notorious place on the lands, in cafe the ejedVment be for lands. [But a very little matter is fufficient to retain the pofleffion j and there'bre where the tenant had left fomt beer in the cellar, and the landlord proceeded 36 on a vacant pofleiSon, the judgment was fet zdd^. Savage V. Dent, 2 Str. 1064.] (i) Salk. 255. pi. 3. So, if the tenant in poiTeffion kept his door fhut, It was thought the beft way to feal a leafe on the land, and proceed in the old way : but in this cafe it feems, that if the practice and fraud of the tenant be made appear to the court by affidavit, the court will grant judgment againft the cafual eje£Vor nifi. It has been held, that w^here a corporation is leflee of the plain- {i>) But in- t^.fF, they muft give a letter of attorney to fome perfon to enter and p^"^'.^ , ^9^ fcai a leafe upon the land, for a corporation cannot make an at- paiis^ in* torney or bailiff but by deed, nor can they appear but by making ejectrntnt, a proper perfon their attorney by deed. They cannot therefore ^\'^-"^.l!'^ enter ^nd demife upon the land in perfon as natural perfons can ; ciared upon nor can they fubftitute an attorney to enter into a rule for their a demife cofts ; nor will an attachment go againft them for difobedience to ^^'^j^g^^/j'"' that rule, and, by confequence, they are put to make an (h) adiual men and leafe upon the land, which leafe muft try their title, and then the burgeffei;— attorney may proceed in the common method, which is not altered ^^g f"rth^ by the faid ftatute. that it was by deed, •r under the feal of the corporation ; on a writ of error, It was held well enough ; and that th^ being a fiftitious adtion to try the title, the demife need not now be fet out to have been by deed. I Ld. Raym. 136. [And the hw is the fame before verdi right of entry iato the chapel to perform divine fervice. Martin v. Davis, i Str. 914. % Barnard. K. B. ay.— In the cafe of the King v. Eijbop of Londor, it was faid (in argumtr.t), that an ejeft- mcnt would lie for a ptebcndal AAi, after «oUalioa or admitiaoce j for Uicn it becomes a freehold. iVtilf. 14.] a. What €j'eftmenr» 419 2. what {hall be a fufficient Defcriptiop of thofe Things for which an Ejedtment will lie. In this a£lion the law requires, that the thing demanded be fo [{a) AtthI* particularly fpecified, that the fherifF may certainly know what to *^'y» ''°*- give the poifeflion of, if the plaintiff (hould recover (a) ; for the prlaice*i« judgment is in order to execution, and the judgment would be otherwife. vaiu, if execution could not be had of the thing Tpecifically de- '^^^ ^^r^' manded. But the judges did not confine themfelves to thofe l^'poffef- rules which govern tha prcetipe, but allowed fome things to be re- fion accord- covered in this adlion, which could not be demanded in z pracipe; j"*]^-^*^*^ becaufe fince the eftablifhment of that real action (^), many things the plaintiff, have been added and improved by art, and acquired new appella- who therein tions that are perfc6^1y underilood npw by the law, which are not '^?^^ Jj;* found in the ancient law-books ; and as men begun to contradl plaintiff by new names wliich were not known in the old law, fo it himfelf was reafonable to fafFer the remedy to follow the nature of fuch T^^ "^ -. ' pev) th« contracts. Aeriffthat which under the writ he is to deliver pofleffion of; and is to take poffeffion, at his peril, only of what he has title to ; fur if he takes more than he has recovered, and proved title to, the court will, in a fum- mary way, fet it right, i Burr. 6*9. 5 Burr. 2673.] {l>) Hence it is faid in Palm. 337. by Noy, arguendo, that an ejectment will lie of a hop-yard. [So, it will lie for alder car ; a well-known terna in Nortolk for land covered with alders. Baincs v. Peterfon, x Str. 1063. So, for a beajl-gatt, a pro- TJncial term in Suffolk, importing land and common for one beaft. Bennington y. Goodtitle, id. 1083. Andr. 106. S. C. So, for a cattle-gate, a Yorkfljire term, faid to be fynonymous with beaft-gatCi Mctcalf ». Rwi, Ca. temp. Hardw. jo6. X Term Rep. 137.] But the judges did not extend this a£lion as far as they went in Dyer, 84. ^^ (^') ^/'ff becaufe the recognitors having the view of the thing p'- *S« demanded in the afTife, muft have more certain knowledge of the therefore it thing demanded than could be given in ejectment. hath been held, that an eje£tment will not lie de crofto, though an affife will. Style, 30. [But in Sty. 104. Roll, C.J. faid, that an ejr^menc would lie in this cafe : and according to pofltive law (4. 5e 5 Ann. c. 16. § 3* J Geo. 2. c. 15. § 14.) and modern praftice a view m»y (on motion in the ufual manner) be had, of the hcus in que in ejc^menr, as well as in the ancient affife, or any other adlion.]. But if an eject- ment be brought for a croft and an acre of meadow, and the plaintiff have a verdidl, he may have a fpe- cial judgment for hit acre of meadow, relcafing the damages for the red. Ler. 58. -Alfo, an ejctl- ment will lie de unc crc/to "u.Citt. B. Lev. 58. ftr Twifden. An eje£lment lies of an orchard^ becaufe It is a word of a cer- Noy, \j. tain fignification, though in a pracipe it muft be demanded by the ^}^^\ *"* name of a garden ; and it being well enough underilood, the ad]udgeL* fherifFmay with certainty deliver it upon an execution. Cro. eUz. 854. s. c. adjudged, becaufe but a petfonal adlion, wherein damages ire the principal. Roll. Rep. 55. S. C. Cro* jac.654.. Palm. 337. S. P. adjudged. Hard. 55. S. P. by Baldwin, tfrfw«i/«. Lev. 58. S. P.^«rTwifden. So, an eje£^ment lies of (d) a ftable, becaufe it is a word of a Lev. 58. determinate fignification, and may be delivered by the writ of ^"*^y ^*' ^. ° ' ' cres'scafe, execution. ,dj„dged 'jpon view of feveral precedents of rccQvcriet itjiahulo. (7.- ^^^ in wafle the thing itfelf is recovered, befides damages, and yet 5^ard.'76. the a^ion of wafte is given de dcmibus. . • . 3 Leon ,2io. So, an ejcftment of a chamber in the fecond flory of fuch a Hafd'/'^^' ^O"^*^ "^"^^s held good, there being certainty enough to direft the s, i'. ' flier'ifr in the execution. [So, an cj''<5lm.fnt: for part of an houfe in A. hath been adjudged to be well enough. SuUivaine v. Sea- gCiye, z^iitr. '^95. Rawfon v. Maynard, Cro. Eliz. 286. J Nov, ictji. But an ejectment de coguinu, AngUd a kitchen, is naught ; for Lerk ^"d- ^^''^^g^'^ ^^^ word is. well enough underftood, yet becaufe any j(»dg?d.^ chamber in the houfe is applicable to that ufe, the flieriff hath ' not certainty enough to direft him in the execution, in regard the kitchen may be changed between the judgment and exe- ■ cution. C(?.?V. 53. ...AaejcfStment liesnot of [a) a clofe, becaufe it is of an uncer- ir'r)7^" ^-' t^i" extent -, nor will it mend the declaration, though the clofe RfilliRep 55 , ,111 . , . - 1 ,r I 1 'i^ridg. ",6. be called 'by a particular namc^ becaufe that alfo leaves the extent aQjoaged, of it uncertain, fo that the fheritF cannot tell what quantity of beirtgof r.n j^-^j^j (.Q tleliver in execution 1 and thouch the number of acres extent, and contaij>ed in the clofe (hould be mentioned in the declaration, and **"'^f )>^- ^^^ forth to belong to a mefluage for which the ejeclment was namt^did'^ alfo brouglit ; yet even that hath been {b) held too general, be- not help it; caufe the nature and quality of the land is thereby left uncertain, \>\ix-vidf fo that the iherifF isftill at a lofs what to deliver the poifefTion of, \o. Eiz. as whether meac'ow, pafture, l^c. 235, 339. . » r > - Qro^Jac. 6';4.-which fe'eips eontti^ry. (0) Aneje> «nd ten acres fowed with peat to be all onr, and therefore certaJD enough. iBrownl. 150. »RoU. An ejeftment was brought for ten acres of {a) wood, and ten Rep.48z. acres of underwood-, it was int'ifted (in error) that this was a Wakely. bis petitum; but the obje£lion was difallowed, becaufe plainly they [In the cafe ate of different natures ; and thofe who argued for the error of Savile V. fgemed by their argument to have admitted it themfclves, becaufe Dom. p'roc. they infifted that no ejeftment lay of underwood, which (hews 1735, it was it muft be of a different nature from the wood : but that objec- decided.that ^^^^ ^^^ j^jj-q difallowed, becaufe the nature of underwood is fo was noob- wcU uuderftood in the law, fo that the fheriif will have certainty jeftion in enough to dircft him in the execution. ejeftment. I Burr. 6»6. 630. See too Harebotle v. Placock, Cro. Jac. ii.] (^^* cuter into ; yet that being only defigned for expedition in the trial •'fiut']^. of the right, and not to give the plaintiff a right of adion which may main- he had not at law ; therefore it mud appear by the declaration, ^''l*'* that the plaintiff had actually the poffefhon, and was oufled there- tf^theper- of by the defendant. Hence it is, that [a) if A. a leffee for years, fon who makes a leafe to B. at will, and B. is ejedled, A. cannot have this /^Z*^"* ^« a<9tion upon that oufter, becaufc though the poffeffion of B. was deliver up in law the pofleffion of A.y yet the trefpafs vi l^ armisy which is ttie poflef- complained of in this adion, muit be aeaiuft the adtual poffeffion, 5°" V* •^* J ' , • D jn. * 'Sec the nest and that was m B.* note. So, if A' be leffee for years, the remainder to B. for years, and A. be ejected, and then his term expire, B. fhall not have an ejeiftment on the ouUer of A.y becaufe the poffeffion was not ac- tually in him, and therefore he cannot complain of a trefpafs done to another. Alfo, the leffor of the plaintiff mufl have a right of entry when this action is brought ; for if his entry were taken away he is a diffeifor, and cannot enter to make a leafe to try the title ; and therefore where tenant in tail makes a difcontinu- ance, the iifue in tail is put to his foremedouy and cannot have v\it tit. ■ his eje(Stment, becaufe his entry by the difcontinuance is taken Difcontinu. away, """• AJfo, by the flatute of limitations 21 "Jac. i. c. \6. none (hall {}) where make an entry into lands, but {b) within twenty years after their ^^«P'a">t'ff right or title, which fhall fir ft defcend or accrue to them ; but this fuited be- a£t hath the ufual favings for infants, feme coverts, Isc. which cauf* not vide under title Limltatmis. able to prove that he had been in poflTtffion for twenty years. Keb. 68 1. Hard. 461. [Twenty years adverfe poOeflion is not only a negative bar to the a£lion or remedy ot" ihe plaintiff, but takes aw»y his right of pofleflion, and gives a pofitivc title to the defendant : lor the plaintiff mult fliew a right of fcjjjfion as well as of pro- perty 5 and therefore, the defendant need not plead the ftatutc of limitations, as in other cafes. I Burr. 119. And by Holt, C. J. «• a pofleflion for twenty years is like a defcent which tolU entry, ** and gives a right of pofleflion which is fufficient to maintain an ^flment :" as where A. had the poflTeflion of lands for twenty years without interruption j B. then acquired the pofleflion, on which v^. was put to his ejeftment : here, though A. was phintiff^, yet his polTcflion for twenty years was deemed • good title, and he recovered accordingly. Stokes v. Berry, aSalk. 421. For, if no other title ap- pears, a clear undiiluibcd poflTcflioa for twenty years, is eviaeacc o£.« U%, Cowp. 397J Thit ftatute £ e 4 ibal 424 CBjcament fliall not affedl the king or his tenant. Hard. 176. a Leon. 206. Cro. Elif. 3;!.— — Ksf s ctf«» mon perfon whofe tenajir has been in poflcflion, and has paid the rent, for the podiflion of the tenant is the pjlTeflion of the hndl >rd 2 Keb. 127. So, the poflefllon of one joint-tenant is the pofieffion of the other, fo as to prevrnt the ftacu;e from being a bar in the ejeftmcnt ; fo of coparCenei*. Salk. 285. pi. 19. yide tit. Joint-tenants, &c. vol. 3. 688-9, Cro. jac. If a rent be granted in fee, or otherwife, to B., with a claufc 5'^- or provifo, in cafe it L>e in arrear, to enter and hold the land till Sid. 12-'. the arrears be fatisficd out of the profits thereof; if the rent be a62. 344. in arrear ^. may recover the polTelhon in an ejeQment ; for this r""**' ^!' provifo creates an interefl in the land to anfuer the rent. And () Under a provifo of this kind, the grantee muft make his entry during the term, f ^'' Ma^ for three years, virtute cuius the plaintiff entered and was poffeffed quoufque pojleay viz. eodem die ^ anno, the de-- fendant ejedled him; this on a writ of error was allowed a good declaration, though it was infifted, that eodem die ^ anno mull refer to the firft day of May, which was the laft antecedent, and then the eje£tment was laid to be twenty-one days before the leafe was made. Lawljeftm. The plaintiff in ejeftment declared, that whereas J. 5., by in^ *'• denture the pth day of June (without faying when it was made or delivered), did demife, isfc. habend. a die dat, figillationis k*f dtli- berationis indenture pradid^y virtute cujus the plaintiff entered and was poffeffed till the defendant the fame day oufted him. It was moved in arreft of judgment, that it was uncertain by the declara- tion when the term began, neither the day of the date, nor of the fealing and delivering, being mentioned in the declaration : yet judgment was given for the plaintiff, becaufe after a verdift the leafe fhall be intended not only to bear date, but alfo to be fealed and delivered the day mentioned in the declaration, which was the 9th, for all deeds are prefumed to be delivered the day that they bear date, till the contrary appear. LiwEje^m. But where the linrutation of the leafe is altogether uncertain, *»• the plaintiff cannot recover, becaufe where the commencement of the leafe is uncertain, the leafe Is void in itfelf, and then the plaintiff cannot have 9 title : beildcsi the court cannot poffibly perceive perceive whether the eje£lment was before or after the plaint'ifF's title accrued, if fuch uncertain leafe could give him one. Other- wife it is, where the limitation or commencement is impoffible ; for in fuch cafe the leafc commences from the delivery, as if it had no date, and then the court may judge whether the eje£l- ment is laid to be before or after the commencement : But there is this further reafon for the difference, for the impoffible limita- tion is rejected, becaufe it could not be part of the agreement or contra£l ; but an uncertain limitation is part of the contradJ, and vitiates the whole agreement, becaufe the court cannot reduce it to any certainty. Thus, where the plaintiff declared on a leafe, habettd. a die datus Hetl.C). indetitura pradiB. without mentioning an indenture before ; this ^"''y "' was held bad, for the uncertainty when the leafe commenced. "'° " °°* But if the plaintiff had declared on a demife to him per quoddam Vent. 137. fcriptum obligat. habend. a die datus indent. pradiSl. this had been * ^^^- 79^- good, becaufe the fcriptum obligatorium fhall be intended an inden- ture. The plaintiff declared on a leafe of the fourth part of a houfe, LawEjeam. in four parts to be divided, by force of which he entered in tent' ^*» ^1* ment. prediB. and was poflefled till the defendant ejefted him de tenementis pradiHis. It was objected in error, that the plaintiff laid the oufter to be of more than by his leafe he had a title to, for the oufter was de tenementis pradiEl. which at leaft muft be underftood of the whole houfe, and the leafe was only of the fourth part : but the obje5- ^* and it appeared on the trial that A. was tenant for life, remainder Co! Lit. 45. ^^ ^' '" ^^^ J ^J^is on a fpecial verdidl was adjudged againil the jone^, 305. plaintiff, becaufe it could not be the leafe both of -^. and i?., to Roll. Rep. pgfg j.j^g i^j-,^ mprafentt to the plaintiff, for during the life of A, it R^aym. 14a. could not be his leafe only, becaufe he was the tenant in poffeffion, 2. Jon. 137. and -S.'s joining in the leafe amounted only to a confirmation, but could pafs no interell during the life of A.\ and therefore the allegation of the plaintiff, that A. and B. did demife, was not proved. Show. Rep. If the plaintiff declares on a leafe made by A. and B., and on ^i^- the trial it appears that they are {b) tenants in common, the plain- Comb, 190. tiff cannot recover; but if A.ax\6. 5. had been joint-tenants, a c»rth. 224. joint leafe to the plaintiff had been good, and might have declared [^,^f^^'''*y quod demiferunt ; and the reafon of the difference is, that tenants in aWiif. 232. common are in of feveral titles, and therefore the freehold is ace] {everal ; and if they be diffeifed they fliall be put to their feveral ^■^amen^ ^"^^""s = as . therefore the lands of tenants in common are to be is brought confidered as. different eftates depending upon different titles, the by one te- plaintiff fliall not recover, becaufe they were to allow the plaintiff nantincom- ^ ^^^,^ feveral and different titles in one iffue at the fame time ; mon againlt r y -i ■, • • n- i • i another, io that the plauitift to make out his title mull (hew and prove that, there mull each demifed the whole to him, elfe he doth not prove the declara- oufter^of"* tion, whereas the difcovery of the tenancy in common proves the one by the Contrary ; for as they have different titles to a moiety only, fo they. otha-, eife could not ■ eoch of them demife the whole {b). But joint-tenants ilcofripeiled' ^^^ leiled/xT nioy Isf- per tout^ and they derive by one and the fame tb confers title, and therefore each may be faid to demife the whole ; and as icaie, entry, they muft join in an adion'for any violation of their poffeffion, fo' p",- Hoi"' f'^^ the fame reafon too their kffee on their joint demife. And C.J. qopar^eners . feem to Hand on the fame foundation and reafony 7Mod^39. becajafe both coming in as one heir, the poffelfionmull be iointas the old cafe that of jomt-tenants (f )• ,^ »f Milncr V. Robinfon, {Vloor, 682. it was allowed a good exception to the declaration, that the plaintiiF declaicd that 1*9 ' cof a«eijer5 diw'ijuunt, Htictoi'ore, to avoi4 difficulty in I'ucU utes, the way was for for coparceoers, jo'nt-tenants, andfenants In commnn to join In a leafc to a third perfon, and for tlij* Jeidie to majce a leafe, afcer the ancicp.t courfe, to try the title.] In ejeflment the plnintliT declared upon two demlfes of feveral Cartb. 224. lands by feveral parties, but laid only one habetidutn, viz. hahemlimi f."'^''*" ^"'* teuementn pYitdiEln fo demifcd by the aforefaid feveral parties for juj^ej \^ feven years, and lays in his declaration, that the defendant entered B- R- upon into all the aforefaid tenements, ^ ipfiim (the plaintiff) a firmafud ^ "^"^ "^ pradiBd (in the fingular number) ejec'it^ expulit ^ amovit ; and it com'b. 190. was affi^ned for error, that the declaration was ill for want of S. c. ad- another habendum, for that the verditl is ^reneral, and it is uncer- J"^/^*^' . o ' 2 vent. ziA tain to which demife this fingle habendum relates: but the court s. c. ad- held, that reddendo fingula Jtngulis it was well enough. judged in ; If the heir brings an ejectment, and pending the fuit his an- Raym. 463. . ceflor dies, yet he fhall not recover, becaufe every man muft re- cover according to the right he had at tiie time of the a£lion brought ; for during the lifetime of the anceftor the eje£l:ment was done to him only, and therefore to be punifhed by the an- ceftor; for one man cannot complain in a court of juftice of an injury done to another. [A plaintiff cannot xzcovzx agaiiijl his own covenant; and a Right v. licence to inhabit amounts to a leafe.l Proaor, +• , I'urr. 2208. A leafe made by a guardian to try the title of an infant feems Hard. 330. good ; for though fuch leafe may be voidable as to the infant, yet t^"'^ ^ '^^'« a ftranger cannot defeat it : and if the leffee fliould not be allowed ^XwiJ-tar^ to maintain his ejectment on fuch leafe, the infancy would deprive guardian of the minor of that remedy of punifhing the trefpaflbr, wliich per- ?" mf^mt fons of full age are entitled to ; which were to deny the minor the parry v. common right and privilege of other fubje£l;s. ■ Hodgfon, 2 Wiif. 129. 135, And if the leflbr of the plainiifFcUim title ns guardian in focage, he may be called upon to prove that the infanr is not. fourteen years of age. i Bl. Com.45(. 5 Term Rep. 471. — it has been long fettled, that an Infant hitnfelf may make a leafe without rent to try his title. 3 Burr. 1806. a Term Rep. 161. 5 Br. P. C. 570.] A man may bring an ejeftment on a joint leafe made by baron 2 Co. 6r. and feme, of the lands of the wife, if the leafe were made by her- ^''o- J'*^- felf in peifon, whether it be by parol or indenture ; for the con- . ,_^ g^^. tradls of the wife relating to her own ellate are but voidable during Cro. Eiiz. the coverture, that flie may have the benefit of them after the '^''°' ^'^'^' death of her hulband, if they fliall be for her intereft to confirm ' ' them: but the hulband ought to join in the leafe, becaufe they SceCowp. are confidered in the law but as one perfon, and he having, during ^^' the coverture, an intei^eft in the property of his wife, the whole proprietor wouUl not join in the leafe, without the huiband : and ns on fuch joint lenfe each may be faid to demife the whole, the leflee might according to the ancl'^nt praftice, maintain his ejeft- Viient on fuch demife. • [But it wa^ not neceflary, that the huiband Cro. Jjc. and wife fliould join in a leafe to try the title to her eftate ; he S^^' iaione might make a leafe for that purpofe ;] becaufe during the coverture he hath the power of her property ; and therefore all ! .' :ii a his 43© (JBieftment his (iontra£^s relating to it arc good during his life, becaufe his pleafure muft determine her who hath refigned her will to him ; though after his death (he may avoid the leafe. Cro. Jac. But if the plaintiff declares on a joint leafe by baron and feme, *'7- Gar. ^jjj (}^g jg^fg appears on the evidence to have been executed by a Norojin. ^^rd perfon, by virtue of a letter of attorney from the hulband and wife, fuch evidence will not maintain the declaration, becaufe ihe cannot delegate a power to a third perfon to a6l for her, hav- ing already devolved all power and authority on her hufband. But the letter of attorney, though void as to the wife, remains as to the hufband ; and hence it hath been held, that the leflee might, in this cafe, declare on that leafe as the leafe of the hufband only. Cfo. Eiiz. [A copyholder may declare on a leafe for any number of years 469. 535. without forfeiture : and the leflee of a copyholder for a year, LMh' 1^' "^^y fuftain an eje£tment; for his eftate is warranted by law, and Hardr.* 350.* it is thc moft eafy way for him to recover the pofleffion. iLutw. 803, Co. Lit. 398. a. 4 Co. z6. a. Doe T. In eje6lment, the plaintiff muft recover on a /egal title. Therc- Stapic, {qjq ^^ j^ the truftee of a term for the benefit of creditors, not hav- Rep!'i^4. i"g notice of an agreement for a leafe made previous to the grant (a) Good, of a term, has been permitted to maintain an ejectment againft title V. Way, ^j^g tenant in pofTefTion under the agreement : for the title of the Hjp. yjj. tenant, being only a doubtful equity, cannot be fet up againft the legal title of the truftee. RocT. So, itfeems to have been determined, that if an equitable tenant a^^'e' ^' '^^ ^ grant a leafe for a long term, under fufpicious circumftances of fraud or impofition, it will not prevent truftees, in whom the legal eftate is vefted, from recovering in ejectment againft thc England ». leflec. And in conformity with the principle laid down, the ^•?^^» tenant, againft whom his landlord had brought an eje£tment, was RwtfiSt. deemed competent to (hew that the title of the latter had expired i confequently, that he had no legal right to turn him out of pof- feillon.] (E) Of the. Plea and General Iflue in Ejedment. Lawljeftm. 'T*HE general rule in the iijue of this a bars the right of entry is a bar to the plaintifTs title : there- fore the plaintiff muft prove feifin within twenty years in himfelf or his anceftors, or muft prove a feifin in the perfon that has a particular eftate in the land, and that he claimed within twenty years after the rcverfion accrued, or that he was an infant, mn composy imprifoned, beyond the fea, or, if a woman, under co- verture, at the time when the title accrued, [and that he claimed within twenty years after he came of age, CsJ'r., for every plain- iButr.119. tiff in eje£lment muft (hew a right of pojfejfton^ as well as of property •, and therefore thc defendant need not plead the fta- tute of limitations, as in other anions.] Fine CB;c8mcnf. 431 Fine and nonclalm, or a dcfcent caft, which takes away the Videtit. entry, are good pleas in this a£lion in bar of the plaintift"'s right ^'°^^g|^gj of entry. ^ _ »nd Defcent. Accord is a good plea in eje£Vment, as is alfo ancient (a) de- 9 Co. 77. mefne. r,"?*'^"'** [{a) But this cannot be pleaded without leare of the court and affidavit. } Wilf. 51. s Bitfit I046«J (F) Of the Verdid: and Judgment in Ejedment. A S the Terdi£l is the ground of the judgment, it ought not to -** be entered for more land or different parcels than the de- fendant was found guilty of: but a variance between the verdift and judgment, occafioned by the mifprifion or default of the clerk in entering the judgment, is not fatal, but hath been amended by the court after a writ of error brought. As, where the plaintiff had judgment quod recuperet termimim of a meffuage and ten acres of land, and the verdict acquitted the defendant quoad the land ; here, though the judgment was larger than the verdift ; yet becaufe it appeared to be the mifprifion of the clerk, who had not purfued the verdi£k, which ought to have been his guide in mak- ing up the judgment, and no miftake in point of law in giving the judgment, therefore the party ought not to fuffer for fuch mifpri- hon, fince the ftatute of 8 H. 6. c. 12. gives the judges, in affirm- ance of their judgment, power to amend and reform what in their difcretion feems to be the mifprifion of clerks. If the plaintiff hath a verdift for all, the entry of the judgment F. N.B. is, that the plaintiff recuperet terminum verfus def. de ^ in ienemen- *-°* ^^^' iis prmdiEl, i*f {h) quod def . capiat ur. (il^Buttt feems, that fince the rtatute 5 & 6 W. & M. c. ii. which takes away the capiat pre fine, nr) judgment «f cafiatur QiiW be entered againft the defendar.t, nor any thing in lieu thereof, but the claufe ihall b* totally Veft out of the judgment : but then the phintiff is to pay the officer, in lieu of the fine, fix {hil- lings and eight pence, which is to be allowea the p.aintiff in hii cofts. Carth. 390. Linfey and Sir Talbot Clerk. 5 Mod. 4^5. S. C. But if the judgment in ejc£lment be entered quod recuperet pof- LawEjeam. fejjtonem termini pradiB.^ this is as well as if it had been recuperet terminum prad., becaufe both fignify the fame thing, the poffeflion itfelf being to be recovered on the habere facias pojfeffionem. And hence it is, that if the term expires pending the fuit, the Sit. 28. plaintiff cannot recover the poffeffion, becaufe the court cannot give the plaintiff judgment for the land, when it appears upon the face of the record, that his title to it is determined ; yet he (V) {c) Co. Lit. (hall have his judgment for damages, becaufe the trefpafs itiU ^^5- remained. In ejeftment againft baron and feme, the hufband was acquitted Cro. Car. and the wife found guilty ; the judgment was quod capiantur; and ^^\^ , held good, becaufe that is only for the fine, which the hufband CoghUi? muft pay, for the wife cannot. If the defendant be acquitted of part, and judgment be entered Cro. Eli*. quod def. Jit quietus quoad that part whereof he is acquitted ; this ^73- is error, becaufe the judgment in this action is not final, as in the writi ^jf tight, and the judgment in this ai^ion doth not prote<^ Roll. Rep. 14- Cro. Jac. 356. 433 ©eSntent prote<^ the defendant from any further fuit, but only ncqiuts hun againft the title fet up by the plalntiiT in the adion. But fince it appears that the plaintiff's demand was groundlefs as to that part whereof the defendant was acquitted, the judgment as to that part mufl: be fet down to be quod def. eat inde fine die ; the plain- tiff as to that having no farther caufe to detain him longer in court. (j) How far If one of the defendants (n) die after a verdi6V, the plaintiff ^^t*'"^^. fhall have judgment againft the furvivors, on his fuggefting the either ot the , , c ^ n 1 » 1 • 1 ~ « . > plaintiffs or death or one on the roll, but then the judgment mult be entered defendants as to the perfon deceafed quod quer. tiil capiat^ ISi'c. (b) abatement, -vide tit. Abatement, and Moor, 469. Cro. Car. 513—14. Jon. 401. Law Ejeitm. 57 — 8. The death of one plaintiff or defendant, where there is another fnrviving, not to abate the fuit. 8 & 9 W. 3. c. II. ^ 7. — And the death o( a party between verdift and judgment, not to be error, provided judgment be entered within tw;) terms. 17 Car 2. c 8. [(i) This latter part of the judg- ment hath been holden to be unneceffary ; becaufe on fuggefting the death, it is awarded by the coutC, *' that further proceedings ihall ftay againft the perfon deceafed." 1 Burr. 363. j If an cje£l:ment be brought againft baron and feme, and the plaintiff have a verdift againft both, and before judgment the huf- band die, the plaintiff may on the fuggeftion have judgment againft the wife, not only becaufe this is a trefpafs committed by the wife, and that therefore flie is punifhable for her own a6t, which is in- jurious to another ; but becaufe where the wife is found guilty of the ejedlment, fhe muft have obtained that unlawful poffeffion, either jointly with her huftDind, and, then it furvives, or, fhe had the whole poffeffion in her own right ; and in either cafe the plain- tiff may punifti her, and recover the poffeffion, which ii wholly ia her on the death of her huftjand. (G) Of the Writ of Execution : And herein, I . Of the Time when the Writ is to be fued. nje tit. A LTHOUGH after judgment the plaintiff is entitled to, and ^'■'- ^"'"' may fue out the writ of habere facias poffefionem ; yet if he the defend- ncglcdl to fue out cxccution within a year after the judgment, antinejeft. he muft bring [c) z fare facias [d)y as on all other judgments, ment dying, othcrwife the court will avi^ard a writ of reftitution quia erronice zjcirejaaai . ■* went out emanavit. againft the terre-tenants of the lands, the writ was demurred unto; for that the heir was not named, nor was it alleged that any ftrangers had intruded ; but the court ruled it well, for the heir may come in as a ter-tenant. Sid. 317. 2Keb.i43. But for this tiW« Cro. Car. 295. 3 12. Eyres and Taunton. Cro. Jac. 506. 2 Brownl. 145. Where in cjedlmcnt there was judg.Tient againft the teftator, and n fcire facias againft the executor, without naming him terre-tenant j it was objected, that in ejeft- ment the defendant is fuppofed to be a diUcifw, and that the lands defccnd to his heir at law, the plaintiff tuok out a new fciic facias and amended'the f^iult. Carth. 2 Where judgment in ejedt- ment was for two meffuagcs, and after a yezi ifciie facias u~cn it recited a judgment of one meffuage only, to which nul tie! record being pleaded, it was moied to amend it, but denied, for there may be fuch a judgment j and this does not appear to be erroneous on the face of it. 6 Mod. 310. {d) It feems to have been doubted, whether a fire facias lay to revive a judgment in ejeftment after the year, becaufe by the common law it lay only in real actions ; and at the time of Weftm. 2. c. 4^. which extends it to perfonol adtions, the term or polieffion was not recovered in this adlion ; but it fecms now agreed, th^tt zfcirefaiias lies to revive the judgment in this a^lon afcsi' the jear, as well as in any •ther. Sid. 35(1 Okeyand Vkcars, Salk. 258. pi, li. 15 * LBut [But if execution be taken out within, and continued beyond, zin can then arife, that the plaintiff hath rcleafcd the execution j be- Ljsd. 4.10. caufe, having been duly taken out, it may be owing to the negledt of the fherifF that it was not executed. If the plaintiff die within the year and a day, his executors can- Runningt. not take out execution without zfcire facias ,- for they are not par- '*"^' - ties to the judgment : though if execution has been regularly fued out in the lifetime of the teftator, the flieriffmay execute it after his death ; becaufe the authority is from the court, and not from the party. The writ of poflefTion has relation to its tejle ,- there- Dr^e v. Roc, fore, though it be not actually fued out till after the death of 4-B^urr. the lefTor of the plaintiff, yet if it be tejhd before his death, it is ' ' regular.] But if the plaintiff hath a judgment, with flay of execution for 6 Mnd. 28?, a year, he may, after the year, take out his execution witliout the ^^"" ^^P' fcire faciasy becaufe the delay is by confent of parties, and in favour of the defendant ; and the indulgence of the plaintitT fhall not turn to his prejudice, nor ought the defendant to be allowed any advantage of it, when it appears to be done for his advantage and at his inflance. But it feems this delay of execution, being only the compro- Keo.?^?. mife or agreement of the parties, is never entered on the roll ; ^ '^°^- ^^^'■ and therefore after the year the plaintiff ought to move the court above au- for the fcire faciaSj iefl the execution fhould be fufpended quia er- thorhics. roTiice emanavit after the year without the fcire facias. So, if the defendant brings a {a) writ of error, and thereby 5 Co. 8S. a, hinders the plaintiff from taking his execution within the year; ^^o- E^'^. and the plaintiff in error is nonfuit, or the judgment affirmed, the 210(1.471. defendant in error may proceed to execution after the year with- 6 Mod. -88. out z fcire faciaSy becaufe the writ of error was ^ fuperfedeas to the ^^^ p^ty execution, and the plaintiff mufl acquiefce till he hears the judg- be tied up ment above. Befides, while the caufe is depending on the writ of by a" »"- error, it is Hill fubjudice, whether the plaintiff fhall recover the of"chap!cei7 land or not. for a y^ar, he cannot take out execution after the year withcut 3, Jiirs facias, becaufe the courts of law do not take notice of Chancery injundlions as they do of writs of error : befides it might be no breach of tbe irjunc- tiontotake out execution within the year, and continue it down by t-ic. von mijit breve, [which, it ieems^ cannot be done in the cafe of a writ of error, becaufe that removes the record out of the court where judgment is given ; and therefore there can be no proceedings below, tiii it be affirmed and returned to the inferior court.] Salk. 322. pi. 9. 6 Mod. 388. S. C. Stra. -501. * But now, accordi.ig to the cafe of Michel v. Cue, et Ux. in B. R. 32 Gto. 2. 2 Burr. 660. if a delay of execution for a year hath arifen from the defendants, by bills for injundtions, and by obtaining time for payment, exe- cution may be fued out without a fdi-cjlaias : and if a rule to fnew cajfe v.hy it fliould no: he fct afide is obtained, the court will difcharge it witli cofts. And this feems founded on reafyn ; and on. if this doftrins will not extend to cafes in ejedment ? A fcire faaas lies upon a judgment in ejetlmeat where a ftranger enters after judgment. R. Lut. 12C8. 3 Lev. ipo. Cliff, 676, 677. [Tenant for years had judgment in ejectment : the term incurred : Sedjwi.k. then he brought z fcire facias quare execuiisnem habere non debet of the \^^f^^^ landy and his damages and cofts. The defendant demurred. It was holden by the court, tliat though the defendant might have a fcire facias for the damages and colls, yet this being for the term likewife, which was incRrred, it was ill ; r.ad a new fcire facias Vol. II. F f . ' ought 434 OBjcament, ought to iflue. It was afterwards argued by Holt, that the fmre facias was good for the damages ; but the court thought otherwifc, and a new fcire facias was granted.] 2. How the Writ is to be executed. 1 Burr. 366- [As cxecutioii fliould be iflued according to the right and jufticc Runnuigt. p£ wliat has been really recovered, the plaintiff muft be careful not to take out execution for more than he had right to recover. And that the (heriff may not labour under any difficulty in exe- I Burr. 629. cueing the writ of poffeffion, the pra£lice fioiu is, (different indeed from what it was formerly,) for the plaintiff" himfelf not only to point out to the (heriffthat which, in execution of the writ, he is 5 Burr. to deliver him poffeffion of ; but to take poffeffion, at his peril, of *^73. only that which he has title to: for fliould he take poffeffion of ^ ' • 49- niore than he has recovered and proved title to, the court will, in a fummnry vs'ay, interpofe and fet it right.] 5 Co. 91. b. The words of the writ are quod habere facias poffefftotiem^ fo that there muft be a full and a<£lual poff:ffion given by the flieriff", and confequeiitly, all power ncceflavy for this end muff be given him. If, therefore, the recovery be of a houfe, the flicriff may juftify breaking open the door, if he be denied entrance by the tenant, becaufe the writ could not be otherwife executed. [t Roll. If the plaintiff recover feveral meffuages in the poffeffion of Abr. 2S6.] different perfons, the flieriff muft go to each houfe and deliver the poffeffion thereof; and this is done by turning the tenants out of each of the houfes : for the delivery of the poffeffion of one mef- fuage, in the name of all, is not a good execution of the writ, be- caufe the pofi'effion of one tenant is not the poffeffion of the other, but each hath his feveral poffeffion. Roll. Abr. But it feems by Roll, that if all the meffuages had been in pof- S86. feff.on of one tenant, it had been fufficient to give poffeffion of one in the name of all ; but without doubt the fureft and beft way is, for the flieriff to remove all the tenants entirely out of each houfe, and when the poffeffion is quitted, to deliver it to the plaintiff'. Leon. 145. If the flieriff turns out all perfons he can find in the houfe, Upton and ^^^ givcs the plaintiff, as he thinks, quiet poffeffion, and after r^«.''whe- ^he flieriff' is gone there appear fome perfons to be lurking in tiier the the houfc ; this is no good execution, and therefore the plaintiff courts would ^^^ij i^^^g ^ j^g^ habere facias pal'^'cfficjtevu becaufe he never had it to be a execution. iuU execution of the wiit. J Where the recovery was of land, and there was more demanded than recovered, as fuppofe the demand for 500 acres, and a vcr- didl and judgment only for 100 acres, it feemed doubtful former- (fl) Roll. ly how the flieriff was to give execution, [a) Roll, fays, it is fuf- Abr,S86. f^cient to give the plaintiff poflcffion of two or three acres in the name of the whole. And this indeed feems the fafefl way for the fl.eriff, when he executed the writ at his peril ; for if he gave pof- feffion of any igind not retovered, and not in the habere facias pof- fejfionem^ (JBjcSmcnt. 435 feJftQnem^ lie was a trefpalTer, and puniftiable In an action of tref- pafs. But becaufe the habere fades is to give the plaintiff the be- nefit of his judgment, and that cannot be done without an aftual poflefllon be given of the whole quantity, it hath been held by {a) others, that the flieriff does not difcharge his duty by givinpj one {a) Palm, acre in the name of all ; but he ought in fuch cafe to fet forth all ^ 9- the acres particularly, otherwife it would leave the execution un- certain, and confequently, not give the plaintiff the full benefit and advantage of his judgment. But mte^ {b) at this day the r(^) i Burr, pradlice is for the plaintiff to give the fiieriff fecurity to indemnify ^g^^j.^ him from the defendant, and then the flieriff to give execution of 2673.] what the plaintiff demands. If the execution be for twenty acres, it fcems the flieriff mud Roll. Rep. give twenty acres, according to the common eilimation of the '^^'^' county where the lands lie. 3. How the Plaintiff is to be quieted, and what Relief he has when his Pofleffion is diilurbed. And here it is further obfervable, that this writ of execution is Roll. Abr. only returnable at the ele£lion of the plaintiff 5 and the court, at ^^j^- ^ the inllance of the defendant, will no: diretl the writ to be re- RjU. Rep. ' turned. This feems to be left to the choice of the plaintiff, that 3 53- he may take what is moll for his advantage, in order to have the ^'^j^o^ni^* full benefit of his judgment : the beft way to effecl that is, to ,5;,. fuffer him to renew the execution at his plerfure till full execu- 6 Mod. 27. tion be had. For the plaintif}-" cannot renew execution after one habere facias is returned and filed, becaufe it then appears on record, that the plaintiff liath had the benefit of his fuit ; and then the new execution is but actum agere^ and, confequently, fu- perfluous ; and therefore the court will not oblige the flieriff to make any return, but at the defire of the plaintitf. If the writ be returned by the flieriif, though not filed, it feema 1 Brownl. no new habere facias fliall ifi'ue, becaufe when the return is made, 2^^- it becomes a record, which the court is entitled to. But where the writ is neither returned nor filed, there is then Palm. 289. no acl of record, by which it appears to the court that the plain- tiff hath had any benefit by his judgment; and there upon a fug- geftiion, vie. ncn 7Tji/ii breve, the plaintiff is entitled to a new writ, becaufe the omifTion of the officer fliall not turn to the plaintiff's delay or prejudice. But the new viTit cannot iffue till the return of the firfl writ be out ; becaufe till the return be palt, non conf}at to the court, but the Iheritf may do his duty, and the plaintiff thereby have the full benefit of his judgment ; in which cafe there can be no occafion for a new habere facias. If the officer be difturbed in the execution of the writ, on an 6 Mod. 27. alTzdavit the court will grant an attachment againft the party, whe- ther he be the defendant or a ftranger . for the writ is the procefs of the court, and any diilurbance given to the execution of it is a contempt of the authority of the court from whence it ilfues, and ao fuch will be puniftied. The procefs is not underftood to be F f 2 executed. 436 (JBjeSmenl:. executed, nor tlie execution complete, till the {herift and his offi- cers be gone, and the plaintiiT left in quiet pofleffion. Keb. 479. But after the poflefTion given, either on the habere facias pojpf- Ratc ifiand j;q,j^,j„^ cr agreement of the parties, tlie law feems to make a dif- ference where the plaintiff is turned out of pofl'elTion by the de- fendant, and where by a ftranger. When it is done by the de- fendant himfelf, the plaintiff may have either a new habere facias or an attachment, becaufe the defendant liimfeif fliall never by his own a(ft keep the poffcffion which the plaintiff has recovered from him by due courfe of law. But where a (Iranger turns the pb.intiff out of poffeffion after execution fully executed, the plain- titTis put to another adlion, or to an indiclment for the forcible e.rtry. For the title was never tried between the plaintiff and a. ftranger ; and he may claim tlie land by title paramount to the. plaintiff, or he may come in under him ; and then the recovery nnd execution in the former a£lion ought not to hinder the ftran- ger from keeping that pofieffion which he may have a right to. If the law were otherwife, the plaintiff might by virtue of a new habere facias turn out even his own tenants, who came in after tlie execution executed ; whereas the poffeffion was given him only againrt the defendant in the action, and not againft others not parties to the fuit. {&') Stjle, Thus in the cafe of [a) Fortune and Johnfon, the court was 3'^* moved for an attachment againft Johufoi^ for ejecting one who had been put into poffeffion by an habere facias : but becaufe it appeared that Johnfon claimed under an elder judgment, the court would not make any rule in it, becaufe it was title againft title, and therefore left them to take their courfe at law. iBi.Rep, [But in the cafe of a tenant, (who cannot be confidered as a *^'' mere ftranger,) it is otherwife. As in Davis v. Doe^ an attach- ment was granted, and that abfolute, in the firft inftance, againft the tenant in poffeffion, on an atfi davit that he had been ferved ■with a rule of court, (which had been made abfolute,) for deliver- ing up the poffeffion, and had refufed fo to do.] Style, 408. The plaintiff had judgment in ejeclment, and by agreement LawEjeam. afterwards, the defendant was to hold the land for the refidue of [(a) This his term, and held it accordingly for fome time, when the plain- tJecifion is tiff took out an habere facias and executed it. The defendant t!>°' Tch''^'* moved the court for reftitution on ground of the agreement v if CO any' but the court would not grant it, buc left the defendant to his attention. aclion On the cafe on the agreement, for the judgment was en- cal-'ftued ^^'^^'^ abfolutely {a). - But if the judgment had been entered with nothing caa a cejfct executio for fuch a time, and the plaintiff had taken out be ra-.re execution within the time, the defendant might have had reftitu- thit^thcex- ^'on, becaufe the judgment was entered with this limitation, that eciufion was thc plaintiff ftiould not have the fruit of it till fuch a time. But jn'icd con- qusre, liow couid tiiat appear to thc court ? fince it feems the cef- fai-l-'^fnd ft executio is not entered on the roll. The difference feems to whenever have bccu between a judgment byconfcffion, and a judgment on that app-ars, verdict. Where the former is given with a ccjfet executio ; if thc jnthsco.".- cxecuiion be afterwards taken contrary to the agreement, the 5 court court w-ill fet it afide, and lay the attorney by the heels : but foentiois wliere judgment Is ffiven on verdi6t, there, the verdicl is the foot ^xercua of J 1 r T- • 1 11 -11 1 • Its furnmary and ground ot the judgment, and the court will not take notice jurifdiaiop, of the fubfequent agreement of the parties, but leave them to wiiiincer- their remedy (^ ) . P^if ^"<* ^"- - \ ' reft It. Runningt. EjetTt. 437. (a) Yet according to the modern pradtice, if the truth be manifeiled to th< Court by aflidavic, tne parry may obtain relief from its futnmary jurifdiilJQn. J (H) Of the Mefne Profits, and how to be recovered. A Lthough in eje' court in the fame light, as a former ejcPitnaH in they^iwc' court, 255. names, and will in either cafe equally (lay the proceedings in a new ^53] ejeclment, till the coils of a former be paid. Doe V. Law, ^ former eiecTment had been brought in the King's Bench, where jica ^^^^ defendant, in Hilary term 13 Geo. 3., obtained a rule for cofts for not proceeding to trial, which were taxed at 85/. 8^^. after which the caufe was tried in the fame term by a fpecial jury, and a verdidl for the defendant ; and his cofts were taxed on the pojlea on the i ith June 1777, at 273/. 10/.; total 358/. 10/. 8^.; no part of which was paid. It was moved in C P. to ftay the proceedings in this caufe till the cofts of the former were paid. For the plaintiff it was urged, that the application came too late. The declaration Was delivered before the eObign-day of Eaflev term 1777. Notice of trial was given for the fittings after Trinity term, viz. the 19th of June 1777. 'i'he plaintift" had been at the expence of prepar- ing for trial, and bringing his witneffes to town ; and the motion was not made till Friday the 13th of June. In fupport of the motion it was alleged, that the caufe was fo clear at the laft trial, and the parties had refted fo long, that the defendant did not think them in earneft till notice of trial was given. He then proceeded to tax his cofts in order to ground this application, which otherwife he would not have done, the leffor of the plain- tiff being infolvent. The court, on conlidering all the circum- ftanccs, made the rule abfolute. poe y. Law, An cjeclment brought by xhz fraudulent affignee of iin infolvent 3180 was ftayed, till the cofts of former ejectments, which had been brought by the debtor himfelf, were paid. Smith V. Where there is manifeft vexation and oppreffion, the court will ^*''"^J''''j' ftay the proceedings in a fecond eje£lment, even though the leffor Rep. 904.* of the plaintiff did not enter into a confent-rule in the former caufe. Bennv. But where the leffor of the plaintiff was In cuftody, under an ^^""' attachment for non-payment of cofts in a former ei^ctment, and brougflt a new ejectment upon the iame demile, the court reiuied to ftay the proceedings therein, till the cofts of the former fhould be paid. Roberts V Though the principle of this rule be founded in a fuppofed ^°^\ vexation of the party, yet, where a defendant againft whom there But^K. ^"^^ been a verdi6t in a former eje6lment, afterwards brought an whether the eje£lment againft the former plaintiff, the court would not ftay courts would ji^g proceeding's in the latter till after the cofts of tlie former eiedl- not now in- ^ S , •' terfv^fe, and mcut Were paid.] fonliflently with the principle itay the proceeJings ; for though both actions be not commenced by the /ame perfoti, yet, in truth, it is equally vexiiious to proceed in the latter, till the cods of the foimcr af^ion be difcharged ? Running!. Ejeft. 420. Saik. 15?. But no new eje£lment fhall be brought by the defendant after Ho"'c^T recovery againft him, till he has quitted the poffeffion, or the te- nants have attorned to the plaintiff i fo that he be in poffeffion, and the defendant out, [Where Cjcftment 441 [Where a defendant in eje£tment, pending a writ of error, iSalk. 259. brings a new allien, the court will {lay the proceedings on the fecond ejedlment, till the error is determined. So they will, Andr.a^?* pending a fpecial verdi6t.] election. (A) In what Cafes an Election is given, (B) To what Perlbn : And herein of him that is to do the firft Ad. (C) Where it fhall be faid to continue, or be determined. (D) What fhall be faid a fufficient Eledion. (A) In what Cafes an Eledion is given, IF a man grants twenty acres, parcel of his manor, without any Keilw. 84. other defcription of them ; yet the grant is not void, for an f ^°' ^^; 1 • . \ • 1 / r - 1 J 1 ( made judge of the value. 2 Co. 36. Keilw. ^^4. So, if one being feifed of a great wafte (h) grants the moiety of Leon. 30. a yard-land lying in the wafte, without afcertaining what part, or ^°J' ^|* the fpecial name of the land, or how bounded ; this may be re- /■^^ b^ if duced to a certainty by the eledlion of the grantee : but it is ^. feifed ia otherwife in the cafe of the king's grant, for there can be no elec- ^^^ "^ ^°° , , 3CrCS IT13k.6S tion in his cafe, and therefore the grant is void for incertainty. feoffment of eighteen, without any defciiption of their fituation, &c. it is void, and no eledion can reduce it to a certainty, becaufe a feoffment with livery cannot operate infuturo. Roll. Abr. 72^, N. Bendl. 148* And. II. Hob. 174. Moor, iSi. S. C. £f -jilcU tit. Feoffment. So, if a man levies a fine come ceo que il ad defon done of an Roll. Abr. houfe and an hundred acres of land in D. where he hath there ^^^S- an houfe and 118 acres, (r) the conufce may ele£l which 100 84.102.* acres he will have, ( V. very would be neceflary, as in cafe of a tenant in tail with re- Countefsof jj^^aindcr over. Warwick, 2 P. Wms. 17^ Oldham v. Hughe?, 2 Atk. 453. Trafford v. Boehm, 3 Atk. 447. Curuiinghana V. Moody, 1 "Vez. 176. Countefs of Holdemefl'e v. Marquis of Caermarthon, 1 Br. Ch. Rep. 377. LontfiZf Eyre's cafe, 3 P. Wms. 13. and Mr. Onflow's cafe mentioned in the note to Eyre's cafe. lariom v. But this rule will not apply where an infant becomes fo entitled ; A-l^biT' . ^°^ ^" infant is incapable of making an election to vary the nature c rr V. '' ' of his eflate.J iJiilOD, a Br, Ch, Rep. ^6. Cleftion, 443 (B) To what Perfon : And herein of him that Is to do the firft Ad:. TT is laid down as a general rule, that in cafe an eleftion is given C0.LIt.145. -■■ of two feveral things, he who is the firll agenc, and ought to ^ Co. 37.3. do the firft aa, Ihall have the eledion. IDoiTUft's.! As, if a man grants a rent of 20 j-. or a robe to one and his Co. Lit. heirs, the grantor (hall have the eleftion, for he is the firft agent '45* >• by payment of one or delivery of the other. So, if a man makes a leafe, rendering a rent or robe, the leflee Co. Lit. fhnll have the ele£lion. Hs- a- But if I contract with you to pay you a robe, or twenty (hillings, Co. Lit. 2XEaJler^ you may, after the fealt, bring debt for the one or the ^^'^' ** other. So, if a man leafes lands for years, referving weekly nine quar- Roll. Abr. ters of wheat, or the value thcrcot, as it (hall then be fold in the '''VS''^^^^ market of W.y if the leflee pays neither of thefe at the time ap- pointed, the leifor may have his aclion, at his eleclion, for the wheat only ; for though the lelTee might have paid any of them, at his ele^ion, at the day, yet after the day, the law gives the election to the leflbr. If A. gives one of his horfes in his ftable to B.y B. hath the C0.Lit.t45, eledion which horfe to take, for he is the firft agent by taking the Il^°°''' ^*' horfe. S y S Dyer, 5. If one grants to another twenty loads of maple to be taken in Co. Lit. his wood of D.y there, the grantee fliall have the eleclion, for he ^^^' ^* ought to do the firft a£l:, viz. fell and take the fame. If one feifed in fee of a manor aliens the manor, except one Leon. 26S. clofe called N. part of the manor, and there are two clofes called ^"■J'^o?'*^ AT 1.- i_ r 1 J • • Lees cafe. N. which are part or the manor, and one contams nme acres, and the other but three acres, the alienee (hall not chufe which of the faid clofes he will have ; but the alienor fiiall have the elec- tion, which of the faid clofes (hall pafs. If I have three daughters, and 1 covenant that J. S. (hall difpofe Moor, 72. of one of them in marriage, it is at my eleclion of which, and ^''• '97- • Dal ^"^ after requeft, I am bound to deliver her to him. s q^' If an obligation be conditioned to pay B. or his heirs annually Cro. Jac. 111. at M'lilfummer and Chriftmas, or to pay him or his heirs, at 594- Abbot any of the faid feafts, 150 /., the obligor hath eleclion to pay the wood, ad- 12/. or the 150/., but he ought to continue the payment of the judged. 111. annually, until he pays the 150/. Though he may at any time determine the payment of the 12/. by payment of the 150/. \i A. covenants with B.^ that A. or his ion C, or either of 2 Sid. 104. them, (hall work with B. at the grinding and polifhing of glafs, ^'gjg^"'j ^. paying to each of them fo much, ksfc. and B. requefts C to Reeve, ad, work with him, ^c. if he doth not, the covenant is broken, judged. for B. had tlie clc^ion to require both or any of them to work with him« In 444 €Ieaiom Lct, 54,55. In debt on an obligation, that if a fhip put to fea, and either GTan''"'d ^^^^ goods or the obligor come lafe, he ftioald pay fuch a fum jJd/ed'. ^ ' o^'cr a"d above the ufe allowed by the ftatute •, the defendant pleaded, that the obligor died before he returned, and inrifled, that he, as his exeeutor, had an election to pay at which of the contin- gencies he pleafed, and that therefore, the teftator never return- ing, no adlion accrued : but It was refolved, that the payment fliould arife on either of the contingencies j and that this being agreeable to the intention of the parties, the hv-v fupplies the words, luhlck Jliould firj] happen. (C) Where the Eledlon fliall be faid to continue, or be determined. Co. Lit. W7 HERE the things granted are annual, and to have con- 2^Co ^* tinuance, the cle£lioii (where the law gives it him) remains Moor, 85. to the grantor, as well after the day as before -, otherwife, when to Keilw. 78. be performed umcd vice. Co. Lit. As if I grant to a'lother for life an annuity or robe at EaJJery ''^5^^ •' ''"'^ ho&i are behind, the grantee ought to bring his writ of annuijy feems that i" ^'"'^ disjunclive j for if he fhould bring it for the one only, and if a leffjr recover, this judgment would [a) determine the ele£tion for ever; ^•tlrra ^^"^ ^^ fliould never have a writ of annuity afterwards, but zfcire rent, or facicis upoil the judgment ; which reafon Fitzherbert [b) in his a pair of Natura Brevium not obferving, held an opinion to the contrary. fpurs, and Jhe lelTee fail of payment at tlie day, the lefTor may diftrain for either of them ; for in this cafe the Teffec lofes his cledtion on!) firo hue wee. Roll. Abr. 725. Cu. Lit. 90. b. {b) FoL 15a. Co. Lit. When nothing pafTes to the feoffee or grantee (f) before eleQIon 345- 3-^ to have the one thing or the other ; there, the elediion ought to be Same rule. ' made in the lifetime of the parties j and the (J) heir or executor (c) When cannot make the election. eleiSion cre- ates the ii'.tereft nothing pafles till eleflion. Hob. 174.— As if a man grants one of his horfes in a llcble, the eledion muft be made in the time of the parlies. Co. Lit. 145. — But if a man gives one of his horfes to A. and B., and after A. dies, yet B- may eledt, becaufe this was a thing in intereft in them, and no exprcfs eledlion limited. KoU. Abr. 725 But if a man gives one of his horfes to be e!e£lcd by A. and £., if A. dies before eltdion, B. cannot eleft. Roll. Abr. 7*5 — 6. {d) For if he fhould, he fliould take as a purchafer, where named o;ily by way of limitation. Leon. 254. C0.Lit.145. But where an eftate or Intereft pafles immediately to the feoffee, a Co. 36 a. [lonee, or grantee ; there, the election may be made by them, or Same rule, their helrs or executors. Lutw. 803, Co. Lit. When one and the fame thing pafTeth to the donee or grantee, HS* ^ and the donee or grantee hath eledlion In what manner or degree he will take this ; there, the intereft pafTeth immediately, and the party, his heirs or executors, may make eleftion when they will. J Co. 35. If yl. being fcifed in fee of a manor, part in demefne, and part Sir Rowland jj^ a leafe for years rendering rent, and part in copyhold, In con- C3fe.^° ^ Cdcration of a fum of money, by indenture grantSj bargains, and (elis CleSion. 445 Cells It to B. to hold for feventeen years from the death of A.y and 2 Ard. loz. after J. covenants to ftand feifed thereof to the ufe of himfelf and ^^^'^^'^' the heirs of his body, and dies, and B. enters; (a) he may elect i^oph. 9^. whether he will take by the common law, or by bargain and fale, S. C. Hob. for ^. had power to pafs it either way •, and if he fliould be obliged \-^9^ ^' ^' to take by demife at common law, then B. would lofe the rents re- (a) a bar- ferved upon the leales for years for want of an attornment. It gain and was alfo holden, that this ele£lion remained notwithftanding the ^^^yj^ ^"r_^ alteration of the eftate by the fecond indenture, and the death of f,ajcb. and the leflbr. ^^ ^^^ ^^^^ time the bargainor levies a fine to the bargainee, he may elefl to take by one or the other. 4 Co. -jz. a. and for this vide 3 Leon. 16. . 2 And. 16 I. If a man levies a fine ccwe ceo, i^fr. of an houfe and 100 acres R^H- Abr. of land in D. (where he hath there 118 acres), and the conufee 7^5- renders to the conufor for 100 years, and after the conufor dies, his executor may ele6l which of the 100 acres he will have, be- caufe this was a thing in Lntereft in the tcftator. [^. died indebted by one bond to B., and by another bond to Croft v. C, and left B. and J. S. executors. B. hitermeddled with the ^^p^^^^^ goods, and died before probate, and before any election made to ig,'. retain. It was infilled, but the point was afterwards waved, that as B. might have retained the goods in his hands, his executors had now the fame power. However, in a preceding cafe, where Weeks j4. lent money on bond to B. who dying inteftate, C. took out l^i\^^^jlj_^ adminiftration to him, after which C. dying, yl. took out admi- cltsd Hid. niflration de bonis non^ ^r., to B. it was determined [inter al.) that yl. might, out of the alTcts of^., reiain for fuch bond-debt contract- ed before he took out admin illrat ion ; and though A. happened to die before he had made any election in what particular efFe^ts he would have the property altered •, yet the court faid, it mull be prefumed he would ele£l to have his own debt paid firft, and this being prefumed, there would be no difficulty as to rJtcring the property ; for as the executors of A. were to account for the aflets of B.^ they muft, on that account, dedu£l the amount of the money lent by B. to A."] There was a compofition between the prebendary of .^. and the Hard. 337. abbot and convent of i?., that the prebendary of A. *and his fuc- SirWiUiani ceflbrs, for all time to come, fhould have their ele£lion yearly, -^f^ei. ^" cither to receive tithes in kind of corn or grain arifing within cer- tain lands of the abbey, or elfe to receive five marks to be paid by the faid abbot and convent in lieu thereof; fo as fuch election was no- tified to the abbot, or any of the monks or porter of the abbey, ^) Southiveirs cafe, in 44 EUz. where an abbot had a {b} whUh quantity of wood, to be taken yearly in fuch a wood, or a fum of ^"'"n money °^ *^'' 4^4 CBIcSion* money at his clcflion ; it was Iield, the election was transferred to the king by the ftatute of difTolution of monafteries. Co. Lit. If one enfeoffs another of two acres, to hold the one for life, »4S' »• and the other in tail, and he before elecllon makes a feoffment of S.F.*^^''* hoth; in this cafe, the feoffor (hall enter into which of them he will, for the feoffee, by this wrongful a6l, hath loft his eleftion. Tyflenv. [By fettlemcnt, previous to the marriage of the plaintiffs Benyon, Scitnue/ T'^Jfen and Zarah his wife, bearing date 24th September Rep.'s. * ^179y F^^""^ y°^-" '^yjp" deceafed, the plaintiff's father, agreed to convey certain lands and other eftates, and it being, among other parcels, recited, that certain farms, isfc. at Fonlden in Norfolk^ were of the rent of 550/. he covenanted before the end of twenty- four calendar months, to purchafe lands in the county of Norfolk^ fufficient to make up, with the farms Tit Fouldeny the fum of 500/. a year, and to convey the fame to ufes, or to convey other farms, Iffc. at Hacktiey in MiddlefeXy of fufficient value to make good fo much as the farms, ^c. in Norfolky fhould be deficient of 500/. a year. By an indorfement on the deed (before the execution there- of) it was agreed by the parties, that it fiiould be at the option of Francis John Ty/fen, within tv/eiity-four calendar months after the marriage, either to convey the lands according to the covenant, or to pay the truflees 12,000/. to be laid out in the purchafe of other lands to be fettled to the like ufes ; and in the mean time to be placed out at intereft, and the interefl: to be received by the per- fons entitled, according to their refpeclive interefts. The mar- riage took place, and there was no iffue, except a daughter, who was one of the plaintiffs. Francis John TyJJeny died 9th September 1781, having made his will, bearing date the day of his death, whereby he gave annuities charged upon his eftates in Middle/ex^ Ejfexy Norfolk, and elfewhere, and gave and devifed all his manors, , is'c.y to truftees for payment of debts and legacies, and for other purpofes, and to allow the plaintiff Samucly fuch fum of money yearly during his life, as they fliould think proper, the remainder to accumulate during his life, and after his death to be laid out to certain ufes therein declared. The conveyance, covenanted to be made by the fettlement, having never been made, or the money paid j the plaintiffs filed their bill, praying that Francis John might be declared to have made his ele'- '^*''"' ele£tion that he ftiall have the fee in the otber acre. ^^ ' When tlie eleftion is given to feveral perfons, there, the [b) firft Co. Lir. eledion made by any of the perfons fhall ftand. ]^^^ \^ fame rule, (i) Where an election made by tenant for life fhall bind him in remainder. Moor, i^z. As if a man leafes two acres to A. for life, the remainder of one a Co. 36. b. acre toi^., and of the other acre to C, B. or C. may ele£l which of the acres they will have, and the firft election by one binds the other. [Where a party (hall be put to an ejedion, fee tit. " Wills and Tejluimnts"] C 448 ] 6rror» {a) Therff- /% "Writ of error is (a) a commiffion to judges of a fuperior fore differs ^^ court, by which they are authorifed to examine the record, thcr'writ' upon which a judgment was given in an inferior court, and on or aaion. fuch examination to affirm or reverfe the fame, according to law. Jenk. Rep. 35. z Inft. 40. Yelv. 209. — But yet, if by the writ of error the plaintiff' therein may recover, or be reftored to any thing, it may be releafed by the name of an adtion. Co. Lit. zSS. b. — In a writ of error to reverfe a fine as coufin and heir of the conufor, it need not be fliewn in the writ of error, how lie is coufin ; for it is but a commiffion to examine errors, and needs not fuch certainty as other writs. Cro. Jac. 160. Co, Lit. This writ lies where a man is grieved by an error in the foun* »89. b. dation, proceeding, judgment or execution of a fuit. But for the better Underflanding hereof I fhall confider (A) In what Cafes a Writ of Error will lie : And herein, 1. In what Cafes a \Vrit of Error is the proper Remedy to be relieved againft an erroneous Judgment. 2. On what Judgments a Writ of Error will lie. 3. In what Court the Judgment muft be given on which a Writ of Error will lie. (B) Who may bring a Writ of Error, and againft whom : And herein of the Perfons neceffary to be made Parties thereto. (C) Of the Time of bringing a Writ of Error. (D) Of the Manner of bringing it : And herein, 1 . Of the Form of the Writ, and where the record fhall be faid to be removed. 2. What is neceffary to be removed 5 and herein of removing the Record, or a Tranfcript. (E) Of alleging Diminuticui and granting a 6Vr- tiorari, VE) Of the Scire Facias^ (G) Of (G) Of the Proceedings after the Record removed : And herein of the Abatement of the Writ of Error. (H) How far the Writ of Error is a Superfedeas. ( I ) To what Court a Writ of Error lies ; And herein, 1. Of Writs of Error into Parliament. 2. Of Writs of Error into the Exchequer-Chambef. 3. Of reverfing Judgments in the Court of Exchequer. 4. Of Writs of Error into the King's Bench. 5. Of Writs of Error in the Common Pleas and other Infe- rior Courts. 6. Where a Writ of Error lies in the fame Court in which the Record is. (K) Of afligning Errors : And herein^ I. Of the Manner of afTigning Errors. «> Of affigning Errors in Fa(fl and in Law. 3. Of affigning that for Error which appears contrary to the Record. 4. Of affigning that for Error which is for the Party's Ad- vantage. 5. Where the Matter affigned for Error is aided by the Ap- pearance of the Party, and in not being taken Advantage of in proper Time. 6. Where Matters which might be affigned for Error are aided by a Releafe, and the Confent of Parties. (L) What Defence the Defendant in Error may make : And herein of pleading a Releafe. (M) Of the Judgment to be given on the Writ of Error : And herein, 1. Where on a Writ of Error, Part only, or the whole Judg- ment (hall be reverfed. 2. What Judgment fhall be given on the Reverfal of the firft. 3. To what the Parties fliall be reftored on the Pvcverfal o£ the firft Judgment. VOL. Ii» G '^ 04.) In 450 €tror» (A) In what Cafes a Writ of Error will He : And herein, I. In v.'hat Cafes a Writ of Error is the proper Remedy to be relieved againfl an erroneous Judgment. {a) when a T^ Eguhrly, an erroneous judgment given in a court of record iUcuteiser- iv (,.jj^ f^\ Qj-^jy {^g reyerfed bv writ ol error. r'>neouily \ / > ^ acknowledged, as before one that has no authority, or if a ftatute merchant hath but one feal, Gff. aa aurina querela lies, and not a writ of error j but if a Itatute is wcil acknowledged, and the execution erroneous, a writ of error I'es. Cro. iiliz. 233. 810. Owen, 14.2. Dyer, 35. pi. 27. Leon. 233. A judgment in a cop>hold court revsrieJ upon petition to the lord, and the party rettored to liii damages by audita querela- 4 Co. 30. b. — Where the fadt affigncd far error is in the luggeftion of the Writ itielt, and not in any of the proceedings in the caufe, no writ ct error lies, but the party muft bring an uudi.'a querela. . Carth. 2%Z- 4 Mod. 314. Salk. 262. pi. 3. but for this -viae tit. Audita Sj^crela. z% Afl". 17. Therefore, if the tenant in a cui in i-ita dies feifed [b) pending Roll. Abr. j.]^g writ, and after judgment is given againft him, which is erro- 3. Bu'if.242. neous, and after the recoverer fues execution againll the heir, and s. P. he brings an alFife, he fliall not avoid this judgment againfl; his •^*^-^A f father, by faying, that his father died pending the writ ; for the the defend- judgment is not void, but only voidable. ant had died after verdicl and before judgment, his heir could not avoid the judgment but by writ of error. P,.oll. Abr. 742. — Note, that this is aided by 16 & 17 Car. 2. c. 8, and cannot be taken ad- vantage of on a writ of error } for which njide tit. Amendment and Jeofail. Roll, Abr. In an a£lion upon the cafe, if the plaintiff be nonfuit, and after '''■"■ ^°'^ it be entered, that he reliquit actionem fuam^ k2f fatdur fe nolle tdte- •djudged.' ritis propqui, upon which cofts are aflelTed ; though it be admitted, that this judgment is erroneous, becaufe this is not any nonfuit, as it is entered ; yet in an a£lion of debt for the colls, the defendant (hall not avoid it by plea without a writ of error ; for it is a judg- ment de facto not void, but only voidable by Writ of Error. Roll. Abr. If a man recovers a;:,:unil the principal, and fues a fcire facias 742. Cro. againfl; the bail, they Ciinnot fay the principal died before the judg- S. c'. Le->n. tnent, and (f) fo avoid the judgment by plea, for it is againil the ioi. s. c. record. (<■) Butitis a good plea by way of excufe for not bringing in the body, but not to avoid the judgment, being a record, which mult be av^iaed by writ of error. 2 .Mod. 30S. & -vide Godb. 377. and tit. Bail in Civil Caufes. [But by ftat. 17 Car. 2. c. 8. the de.ith of either party between verdict and judi^ment (liall not be alleged J^r en-ur, lo as the judgment be entered svithin two teims after the verdict. J ainft. 513. If a fine is levied v/itliout an original, or of more than is con- but for re- twined in the original, it is not void, but only voidable by writ of veiling er- ■ O ' 'J / roneous fines Ctror. and recoveries, iiidt head of Fines and Recoveries. Roll. Abr. If an infant fuffers a common recovery, \\\ which he comes in 7+^-3' as vouchee in his proper perfon, and not by attorney or guardian ; S. c.' for'' though this fhall not bind him, but that he may in a writ of error this -vide avoid it, becaufe it is error in law j yet at his full age he cannot head uf In- gji^^-j- ^^10 tlis land, and avoid it by his entrv, befcre he has re- fancy and ' ; / » Age. vcrfed Terfed It in a writ of error, becaufe he himfelf is privy to the judgment, and may reverfe it by fuch means, and he is not a flranger to the judgment ; for judgm.ent ought not to be fubverted by matter in pais, vitbout matter of record, as a recognizance or fine by an infant where he appears by attorney, and not by guardian. If A. levies a fine to B., who grants and renders to /^. and his 3 Co. 5. a. wife, and the heirs of the body of A., this is not void as to the wife, though flie is no party to the original, but only voidable by writ of error. By the practice of the court of (a) Common P/eas, a defendant 2 Hawk, coming in by capias utlagntum the fame term in which an exigent f ' ^' ^' 5*'» is returnable, may avoid the outlawry without writ of error, by Roll. Abr* fliewing that hepurchaftd zfuperfedeas out of the fame court, and 742-3" delivered it to the flieritFbefore the quinto esaclus^ is^c^ or by Ihew- ^v . "' „ -f ' J whether aa ing any other matter apparent on record, which makes the out- outlawry oei lawry erroneous; as the want of an original, or the omiffion of the crown procefs, or want of form in a writ of proclamation, is'c. or a ^fj,°>5 return by a perfon appearing not to be ilierifi', or a variance be- Bench can tween tlie orisrinal and exigent, or other procefs, or the want of bereverfed /-,,,..° -iirr in the fame luch addition as required by i ii. 5. r. 5. or different term with a writ of error, ilie z Hawk, P. C. ikid. and :it. OuilawrT, If one be attainted upon an erroneous indidlment, he cannot be 3lnft.2i4. relieved but by writ of error, for the judgment being quod fufpen^ dattir, ^c. which is the judgment of law due for the offence, it muft be prefumed to have been given, for that he was guilty of the offence. But if judgment of acquittal is given upon fuch in- dictment, the king need bring no writ of error ; but the offender may be newly indicfited, for the judgment being quod eat fine die, l^c. may be given as well for the iufufSciency of the indiclment as for the party's innocence. And any judgment whatfoever, given by perfons who had no slnt^.sjr. good commifTion to proceed againfl the perfon condemned, may Hawk.F.c. be falfified, by fnewing the fpecial matter, without writ of error, (ij'Ajudg* becaufe it is {b) void ; as, v/here a commilhon authorizes to pro- mentin the ceed on an indictment taken before A., B., C, and twelve others, -^[ar.iiaifea, II r 1 • rr ^ -jTi vvhere none and by colour thereof the commifiioners proceed on an mdict- of the parties le.i ment taken before eight perfons only. were of th» hoftel, was void, and being coram mn judice might be avoided by plea. loCo. 77. a. Brownl. 24.. £? *«■) A man may afTign error* in law or 'ad, upon a judgment given againft him by default. 19 A(T. 8. Roll, Abn 675. S. C* (f) How upon a bill of exceptions, vide ainft. 427. and tit. Bills of Exception, 6 U CBrrcr. 453 If a man brings a writ of falfe judgment in tlie Common Pleas Roll. A-br. ftpon a judgment given in ancient demefne, and reverfes the 744- judgment there, a writ of error lies upon this judgment, for this is a matter of record. If a man is indicted for felony, and thereupon a r^Tp/W and 11C0.41. b. exigent is awarded, but he dies before any attainder, his adminif- '^'^'^'^ ^"^•'" trators may have error upon this award of the exigent, becaufe by R^t) ^, ' ^' the award of the exigent his goods were forfeited ; and this is nd Eatons grave damnum y ^c. though the principal judgment can never be '^f" ^^°' S^^^"' Roll. Rep. 85. b.C. cited. If one be outlawed upon an indictment of treafon, felony, or ^Inft. 31. trefpafs, but the procefs and order prefcribed by the ftatutes of (") '^P^" * 6 H. 8. r. 4. and S H. 6. c. ID. are not obferved, the outlawry and referred may be reverfed by writ of error, which (a) ex merito jujlitia ought to all che to te granted. judges, it ° was holden by ten of them, that writs of error were ex debito jujiitia, and not ex mera gratia, except in treafon and felony j but Price and Smirh held, that the fubjedl could not of right demand them in any criminal cafe. 2 Snllc. 504. but for this i;;i/e Roll. Rep. 175. 3 Bulft. 71. zLeon. iy4. Sid. 69. — And note, that as the law is now fettled, a perl'on attainted of treafon or felony, before he can have a writ of error to reverfe his attainder, muft aflign his errors, and thereupon have leave from the court to profccute his writ of error, a Hawk. P. C. c. 50. § 11. Alfo, no writ of error for the reverfal of an attainder of treafon or felony is to be allowed without an exprcfs warrant from the king or the confent of the attorney general. 3 Mod. 42. Sid. 69. 2 Hawk. P. C. c. 50. § iz. Ld. Raym. 154. Vern. J70. 175. every attainder of treafon by nn; i^uiiiinuii law muum uc ita Raym efFedlual as if by authority of parliament j for the ftatute is to be intended of law attainders by due courfe of law, and not of erro- neous or void attainders ; and fo it v.-as held in a parliament held the 2S E/iz. when it was enafted, that no attainder of high trea- fon, where the party was executed for the fame, fliould be avoided by plea or error : but this act extended only to attainders before that time, where the party had been executed, not to attainders after. ' If one be convicled upon an imliclment of recufincy for ab- Cro. Car, fenting from church for one month, upon which iudement is given, 504- Mar- 1 1. n 11 r r • / 1 • - • ; • 1 ■ ■ ,;• quisof Win- that he ihall lorieit 20/. but it is not tueo capiat ur \ this omiliion cbeder's being apparently to the prejudice of the king, it was held a writ cafe, ad- of error would lie notwithftanding the words of 'X Jac. c. 4. that J'^'^eed, and no fuch indictment fliall be avoided, difcharged, or reverfed, for g^ror the want of form or other defect whatfoever, other than by direct tra- judgment verfe to the point of not cominjj to church, reverfed ac- * o cordingly, the king by his attorney having fignified his pleafure, that it (hould be reverfed, if erroneous. Jon. ac. S. C. by which report, the writ of error was brought by the king, auo there held, that a wiit of error lay for the king, for he was not concluded by the words of the Itaiute of 3 Jac. c. 4. If it be entered in an inferior court, that the Y'^dAnii^ recuperare Svy\^z(>^, debeaty whereas it ought to be recupfretYXSiis is (/',) no judgment; ('!') ihatu fo (<•) no writ of error lies thereupon, for the words of the writ are aw«d, w,/* fi judicium redditumjtt. i^oi'' ^br. 751- (i) Where the judgment was, that he fhould izcovtt Ju^cr recu^cratloncm, wher? it flijuld have becn^&^vr TKognUmim. Yely. 137. Gg3 In 454 €ccor, 17 E. 3. 5. In an alTife of darrein prefentment, if the parties demur upon R n^Ah *^*^ *^^^^> ^^^ ^^ ^^ adjudged for the plaintiff, and that he (hall 749. S. C*. have a writ to the biihop 5 a writ of error lies upon this judgment before the damages inquired of, becaufe there were no damages at the common law, and then the writ would lie prefently -, and the addition of damages given by the ftatute, to be inquired of by the fheriff, fliall not ilay the writ of errorj and if it be affirmed, it iTiay be inquired of the damages where it is afhrmed. 17 E. 5. If a man recovers by default in a writ oi cofenage or aiel, a writ R I'^Ab °^ error lies upon this before the damages are inquired of, becaufe 749-50. t^^e damages are but an addition to the common law given by the s. c. ftatute ; and fo the judgment for the principal continues as it was at common law. Roll. Abr. In a writ of partition, if the judgment be given quod partitio fiat ^ 7 so. Lord gj-jj thereupon a writ be direcled to the flierilT to make partition, Councefsof no writ 01 error lies hereupon, lor the judgment is not complete "Warwick, till the fheriff 's return, and the fecond judgment, which the law re- ro. Ehz. quires herein, vi-z.. quod partitio prnd. foret firmu ^ Jlah'tlis in per^ Moor, 64.3. pftuuni; for before that, the plaintiff may be nonfuit, or he may, Noy. 7'- upon the return of the fheriff, fuggeft to the court, that the par- iudred! ' tition is not equal, and fo have a new partition, and may alfo re- Cro.jac. leafe before the laft judgm.ent. " 324. z Bulft. 104. like cafe adjudged, £f vide 2 Roll. Rep. 125, 2 EuUt, 119. jiCo. 39. b. So, if In an a£lion of account, judgment is given quod ccmputet, Cro. Eiiz. ^^^ thereupon the defendant brings a writ of error 5 yet the record i Leon. 68. ^^ll not be rcmoi-ed till the entire matter of the account be de» a Bulft. 1 19, ter.Tnmed, ne curia damini regis deficeret injujlitid exhibendd. 3 Bulft. 233. Cro. Jac. 224. a Roll. Rep. 125. Style, 290. Cro. Jac. 356. Roll. Rep. 85. Godb. 258. Roll. Abr, But if a woman recovers In a writ of dower, a writ of error lies P°', .'''^^ , before the writ of inquiry of damages awarded, and before the jBrowni.127. third part aihgned by metes and bounds, ror the judgment is per- il Co. 40. fe£l as to the realty, and the damages are giv$;n by the ftatute by Roll. Abr. ^v^y o£ addition. St>Ie, 290. March, 88. Roll. Abr. So, if the plaintiff recovers In an eje^ione firmx. by confeffion, r'-.!'ri" nihil dicit, non fiim informatus, or demurrer, a writ of error lies t-rO. tils. ,, .•'..''-. ' r ^ ' 235. 656. beiore a writ 01 inquiry of damages executed («)•, {b) for the judg- Lcon. 339. ment, quod recuperet poffejftoneniy is perfed, and the plaintiff may Noy.'^qsV^' P^*^^ently have execution thereupon ; and therefore, if the defend- Leon. 193. ant were to be hindered from bringing a writ of error before a Dyer, 291. writ of inquiry ey,ecuted, it might be in the plaintiff's power, by Faim. ty^' '^efufing to bring or execute the writ of inquiry, to delay the 2 Roll. ' plaintiff for ever. Rep. 7a6. Latch, 133. Style, 109. AnJ. 145. March, 8. Keb. 327. and Garth. 205. S. P. j6?r Holt, Ch. Juft. [(d) If the defendant di) not, at the trial, confefs leafe, entry, andoufter, accordirigto the rule, he cannot have a writ nf error ; becaufe, in fuch cjfe, the judgment is againft the casual ejedor ; and error cannot be fued in the name cf the cafual cjcflor, Roe v. Doe, Barnes 181. George v. Wif- donn, 2 Bur. 757. neither can it be fued, in fuch cafe, ip the name of the defendant, for he has not made himfelf party to the record. J (i.) So, in debt, b\»t oUierwife io Crefpafs and cafe, where the damaees are \W- prind|ai, Cto. Elj?. 4554 £0} €rron 455 So, if a man recovers in quare impedit upon a demurrer, the de- Roll. Abr. fendant may have a writ of error before the writ of inquiry of 7S=>75i- damages returned, for fuch writ may be awarded out of the King's g^/ ' -^^L ' Bench, if the judgment be affirmed there. 66. If a man recovers in a quare impedit, and after brings a writ Ro'l- -Abf. quare mn adinifit agilnll the bUhop, a writ of error hes on the ^^i" judgment in the quare impedit, and the record (hall be removed, though the other writ of quare ?}on admifit be not yet dilcuiied. If a quare iinpedit be brought againll two, and one plead to iflue, n Co. 39. \> and the other confefs the a£lion upon which judgment is given, he Ihall not have a writ of error till the matter is determined as to the other ; for the writ of error mufl rehearfe all that arc parties to the original ; and as to one, judgment is not given ; and if the record is removed before the entire matter is determined, there would be a failure of right. If in Tiformedon the tenant has judgment for part, no writ of nCo. 39.l>. error lies until the entire matter in demand is determined, for the Dyer, 491. judgment \s, f( judicium itide redditurn fit, which word inde goes to the entire deaiaiid. If debt be brought againll divers by {zvzx2\. precipes, and judg- iiCa4i.a. ment given againll one, he may have error before determination "t ^°"* of the matter as to the others; for there being feveral counts, the Dyer, 29V. record of his count and the pleading Ihall be fevered from the March, 83, original, and removed in B. R., and yet the original fhall remain in C. B., for otherwifc the court of Common Picas could not pro- ceed to determine tlie refidue without the original. And my Lord Coke fays, it feems to liim, that in this cafe, if there be error in the original upon a certiorari, the chief juilice fhall only certify the tenor of it. If in a quo luarranto judgment be given as to part of the liber- Palm. 1, 2. ties claimed, that they (hall be feifed, and that the defendants ^^'J^'^ssd capiantur pro JiJie, and as to the other part, curia advifari vult^ 7i of error^"^' writ of error lies before any judgment given for the other part. upon a judgment given in a quo ivarranto againft the corpcr.uion of Dublin. 2 Roll. Rep. 11^. S. C. * Frror does not lie on a peremptory rnai.damui, Stra. 536. Nor on a wcriirttttti when the return is allowsd. Stra. 625. • 3. In what Court the Judgment mufl be given on which a Writ of Error will lie. No writ of error will lie of any judgment that is not given in a {a) Not of court of (a) record. aju>%ment given in an inferior court, as the county-couit, &c. Co. Lit. 28S. b. Ncr of a decree or fentence in Chancery proceeding .iccording TO equity. 3- H. 6. 14. Bro. Error, 95. Roll. Abr. 744.- '5urofa}udg- menc given in the limiteJ court ot" Chancery, culled the ptuy-b.ig, which proceeds according to the common law, anJ holds ple.i oi jcire fac.as fur repeal of the king's letters patent, petitions, nrj^ftrgns de drcit, traverfes of offices, /aV^ f^c'i^i upon recognizance', executions upon ftatutes, and pleas of all perfo- nal aiftions by cr againft an officer or minifter of the court, a wiit of error lies in B. R. Roll. Abx. 7 ^/1 . D^sfj 3^5' 4 Inft. So. Plowd. 395. Gfv/i^c; Roll. Rep. 287. Moor, 570. Vern. 131. The authority of the iuftlces of Trailhajlon was by acl of parlia- 2 Infl. C40. menc and by the general rule of law, and if tliey erred in judg^ 4 InA. 1S6. mentj a writ of error lay in B. R. to reverfe their judgment. Gg4 If 4^^ CBtror* Roll. Abr. If a man be convifted {a) upon the ftatute of 7 Jac. 1. c. 11. bSv We. ^y ^^''° i^^^i'^^s of the peace, for killhig partridges, upon proof or 2 Jon. 167. confeflion of the party, without indictment ; this judgment may S. c. cited, be reverfed in JJ. R. being removed there by certiorari, without JiaionTpon a"y '«'rit of error : ^o, if the conviaion had been on the (5)ftatutc the ftatuie againft fliooting, or fuch liice. of hunting in a park, be'ng removed by (■rtiorari, exceptions allowed to be taken thereto, {a) Vent. 33. Like point per Cur. lide Raym. 355 . wnere error was brought upon a conviction of a riot before julliccs of peace, and flieriff, upon the view, upon 13 H. 4. 7. {b) Vide Jon. 171, Cro. jac. But if an erroneous judgment be given upon an indiftment of Kice'scafe ^^rratry at the fcfiions of peace, and the party fined thereupon, adjudged. and committed till he pays it, and he remove the indidment and proceedings by certiorari, and himfelf by habeas corpus^ yet he can- not be relieved, unlefs he brings a writ of error. Lev. T13. But a record of force made by iuflices of peace upon the view. Cur. in the ^^y ^^ qualhed upon motion, without a writ of error. cafe of the King and Chalone-. Sid. 150. S. C. and S. P. pr Cur. and faid that a writ of error would not lie, becaufe they were not a court. Salk. 263. Wherever a new jurifdiclion is erecled by a£l of parliament, Ld.^Raym. ^"^ ^^^ court, or judge, that exercifes this jurifdidion, ads as a «i3. 252. court or judge of record, according to the courfe of the common 454- law, a writ of error lies on their judgment ; but where they ad in a fummary method, or in a new courfe different from the corn-* mon law, there, a M'rit of error lies not, but a certiorari. (B) Who may bring a Writ of Error, and againft whom : And herein of the Perfons necefTary to be made Parties thereto. -^ P-nii. Atr. -^ O perfon can bring a writ of error to reverfe a judgment, who ■^ O perfon can bring a writ of err -*-^ was not {c) party or {d) privy t dVci-, 90. **" ^ ^^'^^ '"'^^ ('^) P^i^ty or [d) privy to the record, or who was not Ic) Where (0 injured by the judgment, and therefore is to receive advantage in t]t€t- by the rcverfal thereof. ment, error «:ay be brought either by leffor or leffce, Sid. 317, £f I'idc ar.te. {d) As heirs and executors ; but if an erroneous judgment be given againft the parfon, the (.atron cannot have a writ of error. Godb. 377. • That error and attaint always defcend lo fuch perfon to whom the land ihouid defcend, if no fuch recovery or faHe cath had been. Leon. a6i. (f) Hence it is, that no man can have a writ of error to rrt-erfe a fine that took any eilate by it, 5 Co. 39. Tcy's cafe And io: the fame reafon the coniifor cannot aflign any error in the grant and lender, becaufe by that the efJate which palTed from him by his conufance is rellored to himj ar.d therefore he fliall not be admitted to defeat the ellatc u'i.ch by hij own agreement he accepted. 5 Co. 39. b. ? H. 6. 46. So, a writ of error does not lie againft any, but him who is Ko\\"°Khx!' P^"y *^*^' P'^^^y ^^ ^^^^ firll judgment, his (/) heirs, executors, or 7\i). S. C. adminiilrators. (/ ) ^- ^' B. 1C7. If a man recovers land by j'jdgment, and dies without heir, againft whom the ^Mit of error Ihal. be brought, is kft zjuarf. 9 U. 6. 49. Koil. Abr. 749. Ro!'. Abr. And therefore on a judgment for recovery of land, the writ Ktp.'3o^!'' """"^ '^^ brou<^ht againfl him who was party to the judgment, although CtCOn 457 although he hath nothing In the land, and not againft the tenant; (a) That to and on fuch writ the judement may be reverfed : but there muft ^^"f^^* ha2 or re- al and on fuch writ the judgr go (a) zfcire facias againlt all the tertenants. covery,tber« muft go a fclre facias againft all the tertcnants. Carih. 1 iz. Uoon this rule, that none fhall have a writ of error to revcrfe a Ltop.zSt, judgment, byt he who is privy to it, and hatli fome prejudice there- y'''^'.^^' by ; it hath been rcfolved, that if one hath lands on the part of his owcn, 6S. mother, and lofeth by erroneous judgment, and dies, the heir of Godb. 377. the part of the motlier (hall have the writ of error. So, the younger fon, when entitled to the land by the cuftom Owen, €?. cf borough englifti, ihall bring the writ of error, and not the JJl'"J„^V.* heir at common law j for this remedy defcends with the land. adjudged, OffideBiidi- 79. Roll. Rep. 311. So, if there be an erroneous judgment, tenant in tail female, Dyer, 90. die iflue female, and not the fon, fliall bring the writ of error. Ro,^"""r.''747. So, if a man fettles land to the ufe of himfelf and the heirs of Dyer, Sg. his body, the remainder to his own right heirs, and dies, leaving ^^°- ^''^* ifi'ue only a daughter, who levies a fine, and dies without iflue, and „ l^v. 36. J. S. brings a writ of error as -coufin and collateral heir of the daughter, yet he fhall never reverfe the fine ; for there could no right dekend to iiim from the daughter, becaufe {he had but an ellate-tail, which determined by her death without iiTue j and it does not appear that the remainder in fee was in the daughter as right heir, wherefore J. S. Avail not reverfe the fine, quia de non appoi'e7itibus 15" fion exijientihus eadem ejl ratio, efpecially in a court of judicature, where tlie judges cannot take notice of any thing that does not come judicially before them, and appear in the pleading. If there be tenant in tail, the remainder in fee, and in a precipe 3 Co. 3. b. brought [b) againll tenant in tail, an erroneous judgment be given *^^"^ '° . againit tenant in tail, and he after die v/ithout iflue, he in re- of winchef- niainder may have a writ ox error j for v/hen the ftatute de donis ter'scife. gave libeity to limit a remainder after an eftate-tail, the law f ^'^^;*'^'^ ''"* gave fuch adlions to him in remainder as belonged to privies in may bring eltate. error ot * cotr.mon recovery where the tenant In tail, vcuctee, dies before the judgment; and he need not fet out a complete title, but only fhew the connedlion and privity between him and the perfon againft whom the recovery was had. Sheepihanks v. Lucas, i Burr. 410. In fuch cafe _/!■;/-« ^^c;<2i, or any warning to the Zti/, isnot neceiTary. /J.] (^) So, if tenant in tail levy a line, and betore proclamacion paffes, a pra.ipc bp brought againft the conufce, wno vouches the tenant in tail, &c. for when the tenant in tail comes in ai vouchee, it is as of his old eftate ; f) that the privity becweea the tenant in tail and him in remainder csn:..^Jes. Bridg. 69. Roll. Rep. 311. If tenant in tail male have ifi'ue a fon and a daughter by one Leon. afir. venter, and a fon by another, and die, and the eldelt fon make a S^jf'^^ fcoflment, and a common recovery be had againit the feofi'ee, in which the eldcll is vouched, and he vouch over the connnon vouchee, and after the eldefl: die, the youngell fon may have a writ of error; for though the eldeft fhould have rendered a fee fimple to the feofl'ee, according to his lofs, yet he (hould have recovered but an eilatc-tail, vis. fuch an eiVate as he had when th« 45 S €rror» the warranty was made, which would have defcendad to the younged, and, confequcntly, the writ of error fliall be brought by him. Roll. Abr. If there be feveral parties to an erroneous fine, they fliall all r^er 8' J*^'" ^^^^^ ^^^ party that is to enjoy the land, though they them- ^ ' ^' felves can have nothing ; and this is faid to be neceflary only by way of conformity. Leon. 317. But if tenant for life, and he in remainder in fee, (being an i^r* sl'p ^"^3"^*) join in a fine, the infant alone may bring error ; for the adjudged, ' error is in refpe£l of the perfon of the infant, which is the caufe and the fine of the adlion for him, and for no other. reverfed ^uoad the infant only : for this vldt head of Fines and Recoveries. Roll. Abr. A writ of error may be brought by liim that is made party by 748. 755. ^jjg Yz-w, though he was not originally party to the fuit, as he who comes in as vouchee. Roll. Abr. If tenant in tail v»ithln age comes in as vouchee by attorney in 755- 79-' a common recovery, he in lemainder may afiign this for error ; for he is party in intei-efl to the recovery ; and where a man's in- tereft is bound by another's acl, it is but reafonable he fliould be allowed to free hirnfelf from the mifchief of it, by taking advan- tage of any error in it. Cio.Eiiz.2. If ^, be tenant in tail, the remainder to jB., and A. fufter an 3 Co- 4* erroneous recovery, and the common vouchee relcafe to the re- coverer ; yet if A. die without iflue, B. may, notwithftanding the releafe, reverie it by writ of error ; for the common vouchee is only called in for form ; as he really has no intereft in, or title to the land, fo really neither does he make any recompence to the perfon that lofes the land j and therefore it v/ere unreafonable to carry the notion of the imaginary recompence fo far as to fuppofe him a real fuiTerer, and tlicreby give him the privilege of fetting afide a conveyance by which he is no way afFefted. 3 Co. 4. If he in the remainder be made privy to the record by aid (a) 8 H.4. prigf^ he {]^a]l have a writ of error during the life of the tenant Error, 39, fo^ life ; fo, («) if he be received by default of the tenant for life. 49 E- 3* So, if a feme be received by the default of her baron, and lofe Roii'^'Ab *^^^ ^^"^ by judgment, the baron and feme fliall have a writ of 748.* * error thereupon. a Co. 57. If baron and feme levy a fine, they may, by error, reverfe the fa^fe'^^^'c'^'^ fine, for nonage of the feme, during the life of the baron. £liz. 129, Leon. 1 14. E. 3. If the conufor of a flatute aliens the land, and execution is fucd againit the alienee, he may have a writ of error upon the execution. Dver, I. Roll. Abr. 748. this is made a ouare, becaufe, as there faid, he is not privy thereto, for the execution goes of the land of the conul'or ; but Oodb. 377. S- C. cited, and faiJ, that otherwile there would be no remedy } for the conufor himfclf could not have error, btcaufe the lands were not extended in his hands. Roll. Abr. If pending a rerd acHiion, the tenant aliens in fee, and after a 7-^9. Co. recQveyy is had aeainft him, he ib) hirnfelf may have a writ of 5 «xror. Ccron 459 error, though he hatli nothing m the land, becaufe he is privy to Cro. Eiiz. the iudement after his alienation and tenant in law. ^^4- Palm. J o 2^^. s. p. and when he is reftored, the alienee Ciall enter upon him. (i) But the alienee cannot have a writ of error for want of privity. 2 AiY. 2. Roll. Abr. 749. But if a fine be levied of 120 acres of land, and he, that has Roll. Abr. right to a writ of error, make a feotfment of the whole, he (Irall ^^.^" ^^^ never reverfe the fine : but if the feoffment had been made, or a Moor, 413. releafe had been given of 20 acres only, he might yet have a writ of error to reverfe the fine as to 100 acres, becaufe he has not transferred his right to thofe, and therefore may be re-inftated, if the fine be erroneous. So, if tenant in tail levies a fine which happens to be errone- Jon. 352, ous, and after fuffers a recovery of part of the land only, of which j^**'^' '^^|* the fine was levied; if the iflue in tail brings a writ of error to reverfe the fine, the tenant may plead the recovery in bar for that part, becaufe for fo much the recovery is an alienation, and therefore the ilTue fhall never have a writ of error for that part of the land which he cannot have or enjoy, fliould the fine be reverfed. (a) In a precipe quod reddat, if the tenant difclaims, he fhall 8 Co. 6r. never have a writ of error, {b) becaufe by his difclaimer he has ^^^cher's debarred him.felf of all right in the land. ^^^ '^ L^on^ 175. S. p. per Cur. arguendo. Roll. Rep. 30Z. S. P. arguendo. {!>) Otherw'fe, where the tenant de- parts in defpite of the court, or judgment is given upon liis confefTion. 8 Co. 6i. a. F. N. B. 21. ■ io, if mjou his default. 2 Roll. Rep. 127. Palm. 56. In a writ of annuity againil an heir, upon an annuity granted Roll. Abr. by his anccftor in fee; upon fion ejl faEliim pleaded, if a verdict 749-f"ranke be found for the plaintiff, and thereupon judgment be given, that the pl-aintiff (hall recover his cofts, damages, and arrears of the land defcended from the fame anceftor, and thereupon a writ of execution be awarded to levy it of the lands defcended ; but no return thereof appear upon the record, and after the heir die in- teftate •, his adminiftrator cannot have a writ of error upon this judgment, in as much as he lofes nothing thereby •, for if it be levied, it is of the lands defcended, the which, or the profits thereof, he cannot have, or be reftored to it, if he reverfes the judgment. If J. S. binds himfelf and his heirs in a bond, and thereupon Style, 3?, judgment is obtained againft J. S., and J. S. makes his will, and ^9- ^'"^' his heir at law executor, and dies, leaving lands, which defcend ^as. Per to his heir, yet he iliall not have a writ of error as heir, for he is Roll, not privy to the judgment *; 2nd when an extent is made upon *%. and him, it is as tertenant : but after the lands are taken in execution, i-^H^' he may have a writ of error. If in a common recovery four hulbands and their wives are Leon. 291; vouched, the voucher fiiall be intended to have been in, in the ^^fV^J^^^ right or their wives, and the heir or any one 01 the wives may liave a writ of error ; for this charge in the realty did not lurvive, and tlie heir of every of them being chargcabkj the heir of any of 4^^ CBrror^ of tlicm, and not of the furvivor only, may have error : ad- judged, where error was brought as heir to one of the hufbandsj but the plaintifF relinquifhed that, and brought a new writ, and entitled himfelf as heir to one of the wives. 3 Leon- 176- If in a quare impedit ]\xAgintnt be given againft the bifhop and the Q^een Jncumbent, though the bifliop claimed nothing but as ordinary, ofGioucX a"d ^^ Joft nothings yet being privy to the record, he may for ter, adjudg- conformity join in error j for the plea of the biftiop is not ib cd, Cro. ftrong as a difclaimer, Eliz. 61;. ° S. C adjudged ; and Wray faid, that the bllTiop had a lofs, for that the writ ftiall be to the archbiihop foe admiflion and inftitution, fo that the bifliop having a lofs may therefore join. Vide 3 Mod, 134. Moor, 686. If execution upon a judgment is fued by elegit, and lands only P'- 949' extended, and after the defendant dies, his adminiftrator may Lord^MoT- have a writ of error, for he is privy to the record, and may in dant, ad- futuro have lofs by it. judged, Cro. Eliz. 294. S. C. adjudged, at the end of which a noia is added, that the execution of the land ma| )>e ^voided, and then the adminiAr«itor oiay be damnified. Cro. Eliz. If a man be outlawed for felony, and die, his executors may ?^5- have a writ of error to reverfe it, for they are {a) pvivy to the «afe, Owen, judgment, and poflibly may have all the lofs, as if the teftator 347. s. c. had only goods j and the objedion, that the teftator was attainted, debated, ^ ^^^^ ^^ |^^j ^^ goods, nor could make an executor, was held not adjudged,^' material in this fuit, which is to reverfe the outlawry, by which and the out- the difability arifes. lawry re- rerfed accordingly ; and by all the books It feems to be admitted, that the heir alfo might have had a v.rit cf error in rerj>e£t of the prejudice to him. 5 Co. iii. S. C. cited, Cro. Eliz. 558. S. C. cited^ {a) A- being felfed in fee, B. his eldeit fon, is outlawed for felony, yi?. dies, and B. enters and devifes to C.jand dies, and C. enfeoffs Z)., and whether Z). could have a writ of error to reverfe this outlawry? Godb, 376. debated. Cro. Eliz. If a woman recovers her dower and damages, and the tenani S-^; brings a writ of error, pending which the woman dies, he may '' " * have a writ of error againft her executor to avoid the judgment as to the damages, for that is a grievance to him as well as the lofs of the land. Cro. Elia. If in a real a6lion the land and damages are recovered, and the 5SS' tenant dies, and his heir, who in refpedl of the land ought to have a writ of error, releafes all writs of error ; yet the executor of the tenant may bring a writ of error to avoid the judgment aft to the dam.ages, for he that hath a lofs muft have a remedy to redrcfs it. Bro.rrror, If a judgment be given againft J?., and the money of C. at- 187. Roll. t.ic]ied by force of a foreign attachment in London, C. fhall not have a writ of error, becaufe he comes in by garniftiment by the cuftom, and is not party or privy. RoU. Abr. If an ai:dk muft begin in B., and by intendment judgment ihall be there given, though by iht ftatute to avoid a lapfe, judgment may bs given before juftices of alTife. a Bulll. 177. S. C. and S. P. cited. If a writ of error be directed to feveral jufl:ices, and returned y^v. ziz. by part of them only ; yet if it (c) truly recite the record, it is Cro. jac. thereby removed, and a new writ of error lies de recordo quod ^5'<- Sid. coram nobis rejtdet. the r:cord , vary from the writ of error, yet the inferior court ought to remove it. Vent. 97. [Although the return to a writ of error from the Common Pleas Blackwood be not fiened by the chief juftice/^ro/r/^ maniu yet this is no objecStion ^- S.s.Com- ^,. ■', .-'-■'* ' ' -• pany, Ca. to proceedmg on the writ of error. „mp. Hardw. 344. 2 Str. 1063. s. c. If a writ of error be direfted to W. W. chief juftice, and the Suilivane 7. return be only by W. W.^ without adding " the chief juflice ^"f/'g"*. •* within named," yet if there are the words, " as to me ivithhi ' *' " is commanded" the return is good, for thefe words are enough to fhew him to be the fame perfon to whom the writ is diredled.] If a writ of error be brought upon a judgment in an aflife capt. Crc. Jac. eoram J. Fleming nnper capitoLjuJliciar. ad phcita ^ J. Dodderidge 34^ a^ljudg- uno jujliciar. ad placita coram nobis tenend. ajfigtiat. jujiiciqir. nofiris ad Uodde.idge, ojpfas; this writ is naught, for there was no fuch record before who faid the Fleming jujiiciar. ad placitdy the words coram nobis tenend. ^^nat. ^^f '5|^|-" *" being omitted, and thofe after Dodderidge cannot refer to the Coih.^^1%. firit. Rolf. kep. 16. 2 Bulft. 164. If a writ of error be brought in recordo ^ procejfu ajftfx^ l^c. Cro. Jac. inter A. fe* B. fummonit.., without fhewing which was plaintiff^ and 34i- which defendant, it is well enough, becaufe the precedents are both ways. And now by the 5 G. i. r. 13. it is ena£led, " That all writs [Cciiir.s v. " of error, wherein there fhall be any variance from the original [•j.^"''j;°'* *' record, or other defe«5t, may and fhall be amended, and made ^^^^^ Hard. " agreeable to fuch record by the refpeftive courts \vhere fuch 104.] « writ or writs of error fliall be made returnable." Vol. II. H Ji [A writ 466 (!El'VOl% 1 Ld. Raym. [A Writ of ttvoT WHS Hot amendable at common law, nor by any 71. P.r of the ftatutes of amendments anil jeofails, till the above ftatute jStn e"/?. of 5 G. I . for all amendments are granted for the fupport of judg- ments; but the principal defign of writs of error is to reverfe them. A writ of error was not amendable at common law, be- en ufe it has in its nature two things, viz. a certiorari to remove the record, and a commilFion to examine it ; and no court was ever allowed to amend its own commifTion. Svvfrd-blade An ejedlmcnt v/as brought againft the Company and Mr. Compnnyv. EJ^ujarcIs. After a verdi6l for tlie pUiintifF, Mr. Edwards died, aStnSoL and a writ of error v/as brought laying the judgment to be ad SFitzg. 201. grave dawnum of the Company, and oi Mary Edwards the daugh- s^c. 1 Bar- ^^^ .^^^ h.Q.\Xy and {he and the Company jointly affign errors. It 4^1. s. c'. was moved to amend the writ and alFignment by ftriking out her So, where name. And upon con fuleration, the court were of opinion, that chared wi'h ^^ ^^^^ amendable by the above ftatute, not only as a variance from ajninrtref- the Original record, which is really no way to the damage of Mrs. pafs, and Edwards, but alfo by virtue of the general words other defecls. judgment was given againft one only, the other being found nu guilty, iSrc, a writ of error was afterwards brought in brrth their names, on an affidavit tbu iliis h.ipoened by the niiilake of the officer 5 the court of B. R. upon the authority of the above cafe, oideied the writ to be amended by ftriking out the name of the perfon who was acquitted. Verelil v. Rafael, Cowp. 415. Gardner v. There was a variance between the writ of error and the record •, Merrctt, ^ and as it flood in the paper, the court obferved it, but neither aLd-Ray'rii. party would move to amend it, for fear of paying cods; upon isSy.S.c. wliich the court faid, the above flatute would warrant their Fitzg. 268. amending it, which they did without cofls. 3 Barnard. 4.62. It appears from fome of the reports of this cafe, that no cofts are payable upon amend- ments purfuant to the llatute, though at the prayer of the party ; but if the prayer be alfo to amend the affigiiment of etrors, the rule is with cofts, becaufe then the party comes for a favour of the court. Wright V. A writ of error was returnable before any judgment given, and Canning, ^^ confidcration, it was holden to be fuch a fault as is not amend- zLd.Ra/m. able by this ftatute.] 1531. S.C. 1 Barnard. 6i. 65. S. C. Rejlndoz v. Randolph, t Str. S34. S. P. Vice v. Burrow, JJ. S91. S. P. Wilfon V. Ingoldiby, 2 Ld. Raym. 1 1 79. However, in almoft all cafes, the writ is ^ued out before judgment figneu, becaufe otherwife execution would iffue inftantly. Per Bailer, ], Ji'jues V. Nixon, i Term Rep. 280. 2. "What is neceiTary to be removed, and herein of removing the Record or a Tranfcript. 21 E. 3. 6. On a writ of error of a judgment in the Common Pleas, or R°n'^Ab^' ^^^'^^ inferior court, in every adverfe fuit the record itfelf Ihall y-y ' be removed, that it may remain as a precedent and evidence of 3 Str. S37. the law in the like cafes. Eendl. ;i. But in th.e cafe of a fine the tranfcript only is removed, for finea Roll. Abr. 2^g Qj^iy ^ niore folemn acknowledgment or contraft of the par- byer, 89. tics, and therefore no memorials of the law, and need only be Codb. 24S. alRrmed or vacated ; if the former, the contra(5l flands as it was ; ■z Roll. Rtp. j£ jj^g latter, the juftices of B. R, may fend for the fine itfelf, F.N.B, ;c. and reverfe it, or may fend a writ to the treafurer and chamber- lain (3Bcrcr» 467 5ain to take it off the file. BefiJes, fliould the record Itfelf be removed and afRrmed, it could not be ciigroCed for want of a chi- rographer in B R. Alfo, if a writ of error be brought in parliament of a judgment 4lnft. 21. in B. R. the chief juftice muft go in perfon into the houfe with ^'■°- J^"^* the record itfelf, and a tranfcript, wliich is to be examined and Ruift. 166. left there> and then the record to be brought back again in B. R. Roll. Abr. and if the iudsjment be affirmed, the court of B. R. may nroceed IP'. , -^1 • 11 r T 1 '' ^ , ■ God b. 249. on the record to grant execution ; and therefore if the record it- inwh.th.aft felf fhould be removed, and judgment affirmed, and the parlia- book it is ment diflblved, there could not be any proceedings thereupon to [^^"^ '" ^^^^ nave execution. of the parliament, to have either the record or traiilctipt. So, if a writ of error be brought in B. R. here, of a judg- [It is the ment in B. R. in Ire/n/id, the record itfelf is not fent, but n tran- '^■^7 ''^-°'''' fcript only, by reafon of the danger of the feas ; but when it is her'e°ou°Tr come fafe and entered in the rolls here, then it ce.fes to be a re- Ireland, and cord in Ire/afid, and is a perfecl record here ; yet if the judgment "°^ J.^^. be affirmed, the King's Bench in England fhall not award execu- jt. " a^j °j tion, but (hall fend a fpecial m.andate to the chief juftice in Ire- isnoobjec- land to do it. 11°"'''?'^ '' Ihould be the tranfcript for fear of the peril of the fea ; for one might obj^'ifl: in the fame manner, that upon error in the Common Pleas, the tranfcript only is rem wed hither, for fear it (houid be burnt or loft, before ic Comes into the King's Bcr.ch. But in fz€t, wheo the record in both cafes arrives here, then it is the true record, and not before ; and that whicii is in Ireland, or the Common Pleas, ceafeth to be the record. Psr Holt, C. J. in Coot v. Linch, i Ld. Raym. 427.] If a writ of error be brought in B.R. to reverfe a judgment 24 E. 3.24. given in B. the (a) original ffiall not be ren^oved, if it be not by P-<^"- ^^''' fpecial matter, as if error affigned in the original. ('ii^Thou'^h the command of the writ is to certify rccoidum (J pro-cjum, yet the courfe is only to certify the declaration and pleas, omitting the writs. Brid;. 57. All ii certified which is with the chief juftice ; but the original and judicial writs remain with the ciijlos brcvium and other officers, and are never certified, but where error is alTigned for want of them. Cro. Eliz. 84. "c/iVA" Leon. 22. Cro. Jac. 479. Roll. Abr. 790. pi. 6. The writ is diieifled to the chief juftice, who only certifies the body of the record, which remains with his clerk. If a writ of error be brought in B. R. upon a judgment in an ^7 Afl". 5. inferior court againft the plaintiff, there, the court may reverfe ^°"- ^'^'^' the judgment, though the original be not removed, no error being '^ affigned in the original ; for this is removed but to fue here upon the fame original. [By the virords of the ftatute of i"] El. c. 8., which firft gave Doiigi.352. the writ of error from the court of King's Bench to the Exche- "■ 3- Rufter quer-chamber, the chief juftice is to caufe the record to be ^str^^^f' brought before the judges in the Exchequer-chamber; yet the Tuiiy v. pra£lice hath always been to fend only a tranfcript, the original Sparkes, !S- granted an erroneous original be returned ; and upon this in nullo Godb. 407. ^n gyy^^jj^jji ije pleaded, and after the court ad informaudam confci- 2 Roll. entiam grant another certiorari lor another orignial ; and upon this ^«p- 352- a good original be certified ; the court ought to intend that this no iudg."' ^^ the original, upon which the judgment was given in favour of mert. Cro. judgments, which ought to be intended to be good. Car. 91. Style, 176. 3 Leon. 106. In a writ of error, upon a fine, an error was afTigned in the BoJ^ proclamations, upon wliich a certiorari went to the ciijhs breviutn, and upon his certificate it appeared, that two of the proclamations were made in one day \ but it appeared in the Chirograph-office, that the proclamations were duly made ; and he making and being the principal officer as to them, and the cttjhs brennuw having only an abftra£l thereof j upon the prayer of the defendant a new cer- tiorari tiofiirl was dlie£lecl to tlie cliirographer, who having certified the proclamations duly made, after examination of the clerks of the Common Pleas by the jullices in B. R. they awarded that the proclamations with the cii/tos brevium fhould be amended according to thofe in the cuftody of the chirographer. If a writ of error is brought upon a judgment in B. R. in Ire- Palm. 285. landm a writ of falfe judgment, upon a judgment in the Toiilfcl^ Eanulerand (which is the court of the mayor and aldermen of Dub/in) ^ and ^""^ *' it is afligned for error, that there was no plaint entered in the Tou/ft'/) and that thefe words per quod acilo accrevit were omitted in the conclufion of the declaration ■■, if the defendant alleges dimi- nution, yet he fliall not have a certiorari to the chief juilice de B. R. in Ireland^ to certify the refidue of the record, \3fc. and that if any part of the record be not before him, that he fliould write to the mayor and aldermen to certify it, and that he fiiould certify it to this court ; for by this plea of in fiidlo cjl erratum in B. R. in Ireland^ he hath admitted the record well certified by the mayor and aldermen ; and this court hath no authority to require the court of B, R. in Ireland to write to the mayor, fifr. and the judgment de B. R. in Ire/a/id only is here in queflion ; and fuch writ being iflueu, 71 fuperfedcas v/as granted to the whole, though it was prayed that tht fuperfedeas fhould be as to the inferior court only : but at another day it being moved, that there might be a (ertiorari ?.s to the wovds per quod, &c. it was granted. In a writ of error in the Exchequer-chamber upon a judgment Cro.Car.91. in B. R. it was adigned for error, that in the bill, the plaintiff ^oweTroh declared on a leafe for three years; but in the plea-roll, upon and Tha- whlch the iffue was joined, and the record of f?iji prius, it was «"". upon a leafe for five years, fo that the bill and declaration vary > and diminution being alleged by the plaintiff, a bill was certified, in which it was only for three years ; upon which tlie defendant had another certiorari, and thereupon a bill was certified, wherein he declared upon a leafe for five years, which warranted the de- claration upon the roll, and the tiifi prius; and it was held by all the juftices and barons, that the fccond certificate, upon diminu- tion alleged by the defendant, Ihould be received, for that war- ranting the roll and the record of tiifi prius, fhali be intended the true bill, and the other a fictitious oiie. A v^rit of error was brought upon a judgment in debt by con- Salk. 26s. feflion in C, B. and the want of an original was afligned for error ; i''- '5- the defendant, before a certiorari returned, came m gratis, and l\,\,' ^'^'^' pleaded a releafe in bar, to which there was a demurrer ; and it Cariton and being agreed that the pica was ill for v.-ant of a fe/iue, the queflion ^''^'^^ c^* ft 1 rr ■ ■ ^ ^ ••o,i- 6iVjoi. ir-J. w^as, whether the court t-.v ojficio might award a certiorari ? i\\\d it 20.5. s. c. was lield by three judges, that though the party had {a) concluded 2 Ld,Rayni. hinifeif by relying on his releafe, yet the court was not bound ,'^°vvu'^* thereby, but may award a certiorari-, and if upon the return there- the de:;ai-j- of it appeared that all the proceedings were rigiit, they were antr.adcjn, obliged to yive iudsment on tlie whole record, accordin;! to con- ^'"'['^■^ ^"^- o o ^ .' o _ ' o Jell bv pie.^c— fcience and. right: but Holt Cliief Juflice held, thai the court in jrg^ .,';,•;;,;/» H h 4 this 47^ and if he do not get it done, as is ordered by the rule, pleteiy af- the afhgnment of error flands for nothing. But if the defendant t'he"cert!fi"-' *" error will come in gratisy and confefs the error, there need be cate is re- "o certiorari returned. And as to the matter, that there might be turned. a bad original, l5fc. that is another fort of error ; and when the Tannef/ '^'^Ht of an original is afhgned for error, the court will never in- Com. Rep. tend, that there is a bad original. And the judgment was 115- affirmed. Tyfon V. If upon crror, diminution be alleged for want of original, zLrRavm ^^^'^'"^"'^ ^^ attorney, Is'c. and a certiorari be fued out, upon which 7122. a record is returned contrary to what is before returned, it caimot J Salk. 269. be received. s. c. bifmo V. Where the want of an original is affigned for error, and it ap- V Tv^^' 8 P^^^'S that all the proceedings are of the fame term v/herein the Booth V. ' original is returnable, fuch an original warrants thofe proceed- Beaid, ings, let it be of any return in that term. But an original of the Dy^e^v^^^ term wherein final judgment is given, will not warrant the pro- Sweeting, ccedin^is, if by the record it appears that there have been proceed- I Wiif. iSi. ings in the caufe, in a term or terms before. The cafe of original writs differs from that of warrants of attorney, for it is fufficient if a warrant of attorney be filed at any time pending the fuit, let it be in which term it will ; the ftat. of H. 8. only requires a war- rant of attorney to be filed in the caufe ; and the ftat. of 4 u4nn. requires it to be filed according to the courfe of the court -, and that is to have it filed at any time pending the caufe ; and it is no mat- ter when, fo that it be in the fame fuit. But as to an original writ, it is otherwife, for if there be proceedings in the adtion in a term €ttor. 473 a term preceding the return thereof, the original will not fupport them. The plaintiff in error afTigned for error the want of an original. Levin v. and had a certiorari upon which it was certified that there was no ~ "' original i afterwards the defendant applied to the court of Chan- ,,3' eery, and upon affidavit that inflru£l:ions were given to the curfitor i Ld. Raym. for an original, but that they were loft, that court allowed the ori- ^95- S* C. ginal to be fupplied. Upon this the defendant in error prayed another certiorariy and an original was certified of the fame term in which the default of an original was certified before. It was infifted, that this was irregular, for before the {tcorxA certiorari was returned, the defendant ought to have given a copy of t^.e original to the plaintiff's attorney ; and the maftcr informed tiie court, that the courfe was fo, when the fecond original certified was of another term ; but it being in the fame term, the motion was not allowed.] (F) Of the Scife Facias, A FTER the record is {a) removed, and the plaintiff in error F.N.B. 20. '^^ {b) has aflfigned his errors, which [c) may be either errors in (^} ^Vi^ facl or in law, he fhall have a fcire facias ad andiendtim errores errors, and again 11 the defendant, who thereupon may plead in niillo ejl erratum^ i^^ out a a releafe, i^c. fdre facias aa aitaitn- Auni errores the fame term, or the term next after tlie .ecird is removed ; otherwife the whole matter is dilcontinued, and he will be obliged tofue anew writ upon the record diiedted to tlie juftices before whom the record is removed, to proceed upon the i ;cord qu^d coram 'vobU rejuiet. F. N. U. 20 G. But fuch difcontinuance is faved by the defendani s appearing, which he may Ao grain. Sid. 173- Keb. 642. (^) Muft aflTign hio errors befure he can have zfcirc facias, &c. F. N. B. 20 E. Vide Roll. Abr. 762, (e) If the matceis which are alTigned for error ap ear to the court to be no error, nor colour of eiror, it will not grant any Jciri facia i. 18 H. 6. iS. Roii. Abr. 763- The ufual praftice is, that the de- fendant in the writ of error by confent doth voluntarily take notice of the alfignment of errors j and this confent is teftified by h.? pleading in nullo ejl erratum, and then t' ere is no occafion for a fcire faciai ai audiendum errcns, Carth. 41.^ — If he does not, there muft be zjclre facias. The Exchequer-chamber doth not award z fcire facias ad audi- Vent. 34, endum errores^ but notice is given to the parties concerned. ^f' i'^im. If after a writ of error brought the defendant dies, yet the Vent. 34. plaintiff in error may fue out zfcirefacias^ ts'c. againft the [d) ex- ^^^^ i^y^hc ecutor. to'be fo'^ ruled in the cafe of Sir H. Thyn. and Corie— — But in Roll. Abr. 763. taken from the Year-book of 5 H. 4. 3. it is faid, that if a man be outlawed upon a procefs at the (ult of ^. who dies, and he bring error to reverfe the outlawry, he ihall not fue ifcirc facias againft the executor, becaufe he cannot pro- ceed upon this original, which is abated by the death of the teftator. Bro. Error, 44. S. C. (.. per car. Keb. 352 An attaint lies againft him wh;) reco- vered, and agsinit the tertenant. zBulft. 2.44. Roll Rep. 37, 302. Bridgm. 72. And the juHgmenC may be reverfed againft the parties to the judgment and their heirs, though they have nothing in the land. (/) Leon. [f) If a writ of error is brought to reverfe a common recovery, 490. Like fj^g court {g) before the reverfal thereof, ought to award a fcire writofd'if- focias againft the tertenants; and this is not merely difcretionary, ceitto an- but ex uecejjliate juris ; for they may have matter to plead in bar as ""'•^^°de°^ a releafe, ^c. HiL 2^3 jcic 2. between Kingfion and Herbert^ inefne lands, 3 Mod. 1 1 9. per CUT. but adjomatur. — [Sir B. Shower in his re- and that port of this Cafe, 2 Show. 490. fays, that the court were of the terte- opinion, that the awarding of a fcire facias to the terre-tenants Ji3nt IS not ^ o J ./ liound there- was uot ex neceJfitatCy but difcretionary. And the fame is faid in by till, &c. argument in Comherhach\ Report.! (i:)Itisthe be(t way to award z fcire facias againft the tertenant, before the court proceeds to the examination of the errors, for he may have fomething to plead in bar, and fo fave the court the trouble of examining the errorsj and if the judgment (hould be reverfed againft the party and privy, yet the plaintift' couk! not have rertitu - ticn till a j'cire fac'as, &c. Dyer, 321. That iadi J cire facias mc\y be granted before or after, at; difcretion. Hard. 163. (i) Lev. 72. But this matter was fully debated in the cafe of (h) JVyfin and 130. 146. Lloyd^ where in a writ of error to reverfe a judgment given in a Keb. 54.' common recovery againft the vouchee after in tiullo ejl errat. 351. 388. pleaded, the court awarded ?l fcire facias (upon a furmife of the '^'''^' 7/^' defendant, that there were tertenants) to the tertenants 5 the fnerifF 16. 55. -o. returned, that A. is tertenant, and z fcire feci y and A. comes m 56. s. C. and fays that there are other tertenants, and prayed a fcire facias j^uTm^ent *° them, and had it ; the fherifF returned, that B. is tertenant, had" in the ziid fcire feci, and B. coming in, fays there are other tertenants, ijrand fef- and prayed z fcire facias to them. It was infifted, that the terte- waes? "^'"' ^'^^ ^^^ ^ party concerned in the reverfil of the judgment, but only as to his pofTelhon, and therefore could not otherwife plead than as concerning his poireflion ; that by tliis means the delay might be infinite, for he that comes in upon this fcire facias niight as well plead that there is another tertenant, and fo the plaintift" might be ftaved off" from ever havinc; the benefit of his wcit OBrror* 475 writ of error: befides, this furmife is contrary to tlie return of the IheritT. On the other fide it was urged, i. That the fcire fa- cias ought to go out againil the tertenants, and had in all cal'es, where it ever was controverted, been awarded, as appears by the (a) books cited in the margin. 2. That it ought to go out againft {") Dyer, them all, becaufe any one of them may have a releafe to plead, uc\ z^' which may dil'charge or advantage the other. 3. That if it can- Owcn, 157, not be pleacied by the tertenant, yet it may be fuggefted to the ^"^'s- ^9* court as amicus curiief and awarded ex officio; for it may be, that he 'g' ^qioJ' who is not fummoned, can plead in bar of the writ of error what Car. 295. will go to the whole, and eafe the court of examining errors ; and S'S- Moor, in that refpecl it may be awarded, and the proceedings ftay. But \\\^^ „- '°* the court held, tliat the awarding of ^fcire facias to the tert«nants Co. Enu was not ex necejptate juris ; and therefore when it is once out, and ^33- the tertenants are warned, there is no reafon to grant it a third time j that here the delay was apparent ; but if he could make it cut, that he that is not warned had a releafe of errors to plead, it being in their breafls and difcretion, it fhould be granted j other- wife not. But where a writ of error was brought to reverfe a common Garth, m. recovery, and -a fcire facias fued out againil him that was the no- p"^°^. . minal demandant in the writ of entry, and •\ fcire facias was moved caf^, for to the tertenants, but oppofed, becaufe the tertenant was an infant, and therefore the parol may demur during her nonage, which would greatly delay the plaintiff; and further, that if the infant Ihould die, the lands may remain to another j notwith- (landing this, the court awarded ^ fcire facias ; and it was held by Holi) C. J. that though the granting of z fcire facias in fuch cafes againft the tertenants is difcretionary, and not JlriBi Jurisy yet it hath been the conflant courfe of this court to grant it ; therefore he was of opinion not to depart from that which had been the ufual courfe of the court. [And upon the authority of thofe two lafc cafes Lord Ma7isfkld Haliy. faid, that by the eitabiiQied mode of proceeding there muft be a ^ gurr"*^ ' Jcire facias againft the terre-tenants, otherwife it is an irregularity, 359. sheep- but no more. But a fcire facias to the heir is clearly not ne- ^'-m'^^s v. ceiTarv. ^:,T''^'' i 410. In an information qui tam^ i^c. upon ^ El. for ufing a trade TheQneen contra formam flatutiy there was judgment for the plaintiff, on oj^"'*^',^' which a writ of error was brought. Per cur. In the cafe of in- vin. Abr. diftments, there needs no fcire facias iox the party to aihgn his Error,(H,a.; errors, but a rule is fufficient, becaufe the queen is always in P' 9" court by her attorney-general. But a rule in this cafe being moved for, the court faid, they had ordered precedents to be fearched for, but could find none ; and therefore the defendant in error mull proceed as he could by law. If a plaintiff below brings error to reverfe his own judgment, Jolmfon and does not proceed, the court will make a rule to alfign errors I'^l^^* in a limited time, or his writ to be non-proffed, for a fcire facias l-j-^z. would here be improper. Where 476 (JBrron yortefcue Wlicrc 111 crror from Irclcvidy the King's Bench afTirnied the yvihnd V. iudenient on a collateral point, it was hoiden, that the plaintiff" Malon, 11 iiri- > ■ r 1 i Str. 1158. could not, on the deiendant ni error s coming of age, take out a fcire facias ad audiend. errorcs in 3. R. in Englnvd; for upon the affirmance of the judgment, the record mull be remitted to h'dnud. Marfljai A tulc to affign crrors was fet afide, becaufe given before any v.Cope, j-^^j^, yj^ j.]^g fcire facias quare exccuiio tion. However, thefe rules Sambidge v. may be ferved together. Houfiey, 2 Term Rep, 17. Thatcher v. On fc ire feci returned, if the defendant do not appear and join Stephcnion, jj^ error, the plaintiif may put it in the paper without taking out a rult to join in error. Millar V. A fcire facias in error need not lie four days in the office before Ycrraway, ^^it retum.] 3 Burr. •' 17Z3. Crofs V. Nadi, 4 Burr. 1439. (G) Of the Proceedings after the Record removed : And herein of the Abatement of the Writ of Error. Reii, Abr. 1 F the plaintiff in error affigns an error in fa£l, if the defendant 763. Bro. ■■■ vv'ill put in ilTue the truth of the fa£i, he ought to rejoin by f "^ Burr ^* fldi^l of the fa6l, and fo join iffue thereupon, and fliall not fay 410.] {a) In nullo efl erratum^ for by this he acknowledges the fa6l al- (a) ihis is leged to be true. in nature of tdemuvrer. Cro. Jac. 29. Cro. Car. 53. Lev. 3 1 1. It is a confeflion of an error in fa£l well aihgneu. Raym. 131. Lev. 294. but not of a matter afligned contrary to the record. Cro. Jac. iz. 52J. Raym. 231. Roll. Abr. But when an error in fa£l is affigned, if the defendant will ac- '^3- knowledge the fa6l to be fo as alleged, and yet that by law ' this is not error, he ought to rejoin in nullo efl erratuniy for by this he acknowledges the fadt, and yet that by law it is not error. Rolf. Abr. Alfo if a man who is outlawed brings a writ of crror to reverfe 7^3- the outlawry, and affigns his errors, the king's attorney ihall not plead in niello efl erratum^ which amounts to a demurrer, as is done between common perfons \ but upon the affignment of the error, the court (hall give a day to the king's counfel to maintain the outlawry ; and it is entered curia advifari viilt till the outlawry is reverfed or affirmed. Roll. Abf. If error be alleged in the body of the record, in nullo efl erra- 7^3- turn is a good rejoinder, for this fhall put the matter in the iudg- rUpon error ^o, •* ,' 11 • j.ir JO in the re- ment of the court, the record bemg agreed to be lo. cord, as, want of capias, or the like, there, he may fay in rullo efl erratum ; and there, though the de- fendant confefs the error, the court ought not to levcrfe the jujigment, till they be alTured of the error. Br, Error, pi. 165. cites 7 E. 4. 16.] Roll. Abr. So, if error be alleged in a matter of record, which is not of ^^^ ^ the body of the record, but in a collateral thing, as ([md non hahe- 10 tur <2Bccor» 477 tiir aliqttod recordum of refummons, in tiullo eft erratum is a good rejoinder ; for if the plaintiff in the n-rlt of error docs not pray diminution, and thereupon procure a certificate from the inferior court, that there is not any refumnaons before tlie rejoinder en- tered, this aiTignmcnt is of no cflccl, but void, inafmuch as this is to be tried by the record itfcif, and no diminution can be al- leged after rejoinder entered -, for if the defendant will coufefs the error, yet the court ought not to rcverfe the judgment, till they are afcertained of tlie error by the record itfelf. If a writ of error abates or difcontinues by the aft and de- Keb. 6sS. fault of [a) the party, a fecond writ of error (hall be no fuperfedens : ^^^^^^-^^ otherwife, if it abates or difcontinues by {b) the acl of God or er orbenon- the lav/. '"''^' ^^ '^^" not have a writ of error agsin. Salk. 163. pi. 4. Ld. Raym. 01. 5 Mod. aaS. Comb. 393. 12 Mod. 105. Comb. 19. S. P. {h) A writ of error abated by the death of the lord chief juftice Fofter, and a fecond writ was fuedout and allowed; and it was held ijupcrfedtas. Keb. 658. 686. A\Arit of error does not abate by the death of the defendant in error j but afcire fr.cias a J uudier.dum errorcs may be taltcn out againd his executor. Vent. 34. Salk. 264. iVfii, if the plaintiff in error dies. Velv. 208. but for this tU. Moor, 701. Sid. 419. Carth. 236 and Godb. 68. A diverfity where a writ of error fliall abate in a real adlon, though net in a pcrfonal aaion. Th.ee join in bringing a writ of error, the rfefendanc pleads outlawry in ab.itement as to one of thera ; but the court held this no good plea, becaufe they are all compelJ.ible to join. Falm. 151. [For if they do not all join, the writ will be quaftied. I Ld. Raym. But though the writ, in fuch cafe be quafhed, yet the record is removed by it, 2 Ld. Raym. 1403. i Str. 606. Where two join in a writ of error, and one will not aflign errors, the court will give the other time to fummon and fever. 2 Str. 783. But if one of two perfons againll whom judgment hath been given, dies after judgmentj error may be brought by the furvivor without the exe- cutor of the other. iStr. 234-] (H) How far the Writ of Error is a Biiperfedeas, A FTER a writ of error fliewn, the plaintifF ought not to take 2 Keb. 129. ■*^ out execution, but the defendant fhall have four days time to [jg^_.]^^ .'l'^^ get it (f) allowed, and four days time more to put in bail, if the dorfinga/*. cafe require it ; and if he (d) pafTes that time, the writ of error cep, thereon. ftiall be no farther ■a^fuperfcdeas. j^^^j " j^^V.* S. F. and that he muft not keep the writ in his pocket, {d) That the very fealing of the writ of error 15 ifupctjcdsas to the execution. Mod, 28. per Keiynge. [A writ of error is faid to be a fuperjc- dtdS from the allowance. Biin. 376. i Term. Rep. 279. but as it is the pradice 10 fue out the writ of error before judgment is figned : the courts have faid, it fiiall not operate as an allowance till the judgment is adluaily figned, and the party fhall be allowed four days after the figning of the judgment to put in bail ; for b'-fore the judgment no bail can poffibly juftify. As ro the fervice of ^be allowance, that is only material to bring the party into contempt, if he proceeds to fue out execution aherwarJs. Jiqucs V, Nixon, 1 Term Rrp. 279. Doe v. Eraccbridge, iiit/. j Where judgment in a^c^-jwr^c;; was pronounced i6 NovemL and Hob. 329. a writ of error brought by the tenant bearing tejre 27 Noiejnb. and ^'j^rie''"*^ then allowed, and in majorem cautelam a fuperfedeas made out gf .^j^, againft executions, and the demandant obtained a writ of feifin, ^Lev. jii- bearing tejle 9 OBob. before, by warrant of the judgment, which was afterwards entered but as of OElav. Mich, being the hit conti- nuance ; this being made appear to the court, and they being fa- tisfied tliat the judgment was pronounced 16 Ncvetnb.y before which time the defendant could not have a writ of feif.n, nor the plaintifF a writ of error, they held this fuch a tricl: as would de- feat 47S (Srron feat any writ of error : and therefore a ntw fuperfedeas wr.s awarded againft that writ of execution, quia erronice. Mod. iS. If a writ of error is taken out to remove a record between fuch Hughfsand gj^^j f^j^h pcrfons, and fome of the parties are omitted; fo that r See ace. "^ ftri^tncfs the writ does not agree with the record, yet it is Laroche notwithftauding a fuperfedeaSy and no execution can be taken V. Waff. pyj.^ £qj. ^i^g court below [a] cannot judge of the fitnefs of it, a Term though it may be quaflied in the court of which it iflues. Rep. 737.] (/i)Th3t if the record vary from the writ of error, yet the inferior court ought to remove it. Vent. 97. Roll. Abr. If A. recovers in debt ot damages againfl B. and fues out a ^^dT'i d ^^P'^^ od fat'tsfacieiidum againfl; B. which is returned ?ion eji itiventusy fer Croke ' upou which 7i fcive fac'ias is awarded againfl: the bail and returned^ and Jone?, and after a fecond fclre facias awarded, but not returned ; B. brings "Inion^of ^ ^^'^^^ °^ error on the principal judgment ; this is no fuperfedeas Brampfton. as to the proceedings againfl: the bail, but the fecond fcire facias • But the niay well be returned, and the plaintiff may proceed thereon, motion°will notwithflianding the writ of error, which, affeiSling only the Hay proceed- principal judgment, is diflindl from the proceedings againft the ings againft bail *. the b.'.il. a Roll. So, If a man recovers againft J. S., and on a fcire facias hath Abr. 491. judgment againft the bail, and the bail bring a writ of error of the judgment on the fcire facias; this ftiall be no fuperfedeas as to the principal judgment, and therefore the plaintiff may take out execution againft the principal. Smith V. [Where a plaintiff, in order to proceed againft bail, took out ^s^'^^^^'sfi ^ ^■^?/"*'''J' ad fitisfaciendum^ and on the following day a writ of error was allowed, notwithftanding which he called for a return of noh efl inventus^ and then waiting till the writ of error was at an endj proceeded by fcire facias againft the ball ; the court, on motion, fet afide the proceedings •, for the ground of them, vix. the return of non efl inventus^ was obtained after notice of the writ of error, which in its nature ftopped all fort of proceedings, and the ftieriff could not fo much as look after the defendant, in order to found ferry V. fuch a return. Befides, it is an invariable rule, that the capias ad Cam^pbeii, fatisfaciendum fliall in no cafe operate as againft the bail until it Kep. 390, ' has lain four days in the office ; and though it have lain that time in the office, a writ of error afterwards allowed and ferved before the day on which the capias is returnable, fhall have the effe£t of A fuperfedeas to any proceedings againft the bail.] % Roll. If a man brings a writ of error on a judgment, but does not; f/r''^'/i:^'L remove the record within fix days, this fiiall be no fuperfedeas^ but Marfh and . ,, , , ^ c ■ 1 u • r ■Whiteftone, cxccution may well be taken out, tor it appears that the writ ot adjudi;ed error is merelv for delay +. ftr tXir. ' ^ ' "f Slu. Ifex-'cution can be taken out, whilft the writ of error is in force, and if the defendant In error ought not .6:{l to ntn-J^ra pliintift' in error. Sesfc/i. 2 Roll. If upon a feri facias on a judgment againft^., the fiierliT s.ul'air" ^^^"^^^ *^^^ goods of B. into his hands; but before any fale of Si.dcn, thei:i. B. delivers to the fheriff z fuperfedeas on a writ of error, 6 B. flvall S. {hall have the goods again, for by this feizure no property is per tur altered. ' ^fj^« ^^- rirF makes a warrant to his bjilifF, and after comes nfuperfeJjas to the /herifF, and the bailiff, before notice of if, makes execution, it is not good ; for the fuperfedeas to the iherift' determines the warrant of his bailiff. ——If execution iffues, and the flieriff executes it, and af.er z fuperfedeas comes to him aula exicuth tr- ror.'ue emapaii: , the flieriff ftiall have his fees for the execution; ■videiix:. Sheriff, If a writ of error is brought returnable into the Exchequer- Roll. Abr. chamber, which is allowed by the clerk of the errors, and z/uper- +9.^- ft'deas granted thereupon ; but the record is not marked by the Methwoid^' clerk of the errors, as the ufage is, nor notice thereof given to and Bawd, the attorney of the other fide ; but thefe matters are omitted, be- f^" '^"''''* caufe the attorney was not known, nor the number-roll of the ^^° record; yet this is a gooA. fuperfedeas in law, fo that if execution s-jtra ace, be awarded and executed, it is erroneous, and -^ fuperfedeas Ihall be awarded qu'm erronich ematiavh : but it is no contempt in the attor- ney in taking out execution, he having no notice of the writ of error, and the roll not being marked. It feems clearly agreed, that an aclion of debt may be brought loH. 6. 6. upon a judgment in B. R.y notwithftandihg a writ of error brought - ^"^'* in the Exchequer-chamber ^ for though fuch a writ of error be Oyer^lz.* z fuperfedeas to tlie execution, yet the duty remains upon record ; pi. 5. and it is but reafonable the party fiiould have this remedy for his Adams and damages for forbearance. [But execution cannot be fued out sid. z-e. * upon the fecond judgment until the writ of error be deter- Lev. 11:3. mined.] ^^°- ^^^- ■' Raym. 100. S P. adjudged, Draper ar,d Erightwell. Mod. I2T. 5 Kcb. Tzg. 239. 316. Vent. 372. S. P. 4. Mad. 24.7. Dighton and Granvil, Sr P. To a fhefula^ qufire execmhn^m habert non dthet, a writ of error pending may b,e pleaded in bar «.f ihe execution. Skin. 591. [Benwell v. Black, 3 Term Rep. 643.] * * Where .a writ of error is depending, the court, on motion, virill ftay proceedings in an afMon on the judgment, upon terms. The fame, if proceedings are againil tlie bail, where error of the princip.ii judgment is depending. [Sucii a motion, however, cannot be made until the defendant has put in bail to the fecond a3. Sid. 43G. Mod. 29. jcfFerfon and Dawfon. [No traces of any writ of error being aftually brought from the common law f.de of the court of Chancery into B. R. aretobe met with later than the i\)urtcenth year of Qu-jca Elizabeth, A. D. 157a. Dy. 31^. And Lord Keeper North (2Bci'0i% 483 North in 1684 declared, that no fuch writ of error lay, that the books were founded only on the fingle opinion of Lord Dyer in the above cafe, and that he would grant injun'flions againlt them. 1 Vern. 131. 1 Eq. Caf. Abr. 129. This opinion of the Lord Keeper, Sir W. Blackftone fays, fecms not to have been well confidered. However, there are refpedtable authorities in confirmation of it. Lamb. Archion, 69. The opinion of Mr. Juftice Choke, Vcarl. 37 H. 6. 13. b. and 11 E. 4. 9. a. Bro. tit. Error, pi. 95. At the fame time it muft be acknowledged, that the learned commentator cites authorities equally refpedtable in oppofitlon to it. 18 £. 3. 35, z-j A131 24. 29 AlT. 47.] If a peer be attainted before the lord high fteward, a writ of sid, 20S. error lies in the King's Bench of fuch attainder, and the party has ^^^- '*''• no Other remedy^ _ * Error ;ic, in pariiainent, upon an attainder for treafon ; for though the ftat. 33 H. 8. ;o. fays, that judgment of attainder by common law, fhall be of as good force, as if done by authority of parliament, this Ihall be intended of a lawful attainder. Hale's Hift. Pow. and Jurifd. of Parliament, ig. 4lnft. 21. A writ of error lies of a judgment in the Common Pleas into 4inft. 22. the King's Bench, which only can correal the errors of that court, and from thence into parliament. A writ of error lies into the King's Bench of a judgment in a 4l"'^-a'4« county palatine, for though thefe are fuperior courts and have V'h' ^"' * jura regaliay yet their jurii'diftion is derived from the crown. If an erroneous judgment be given in Durham ii; the Chancery, 4^"^- ^'S- upon proceedings according to the common law, or before the juftices of the bifliop, a writ of error lies before the bhhop him- (elf, and if he gives an erroneous judgment, error lies in B. R. If the juftice in eyre gives an erroneous judgm.ent at a juflice- ^lad. 297. feat in a foreft, a writ of error lies thereupon in B. R. By the 34$5'35//. 8. c.i6, §113. Errors in judgment in f^)Inejca- pleas real and {a) mixt, before the juflices in their great felhons in ^fT' ^/'^" Walesy fliall be redrcffed by error in B.R. in England; but errors Moor, 24L in pleas perfonal fhall be reformed before the ih) prefident and pi- igi- ^d- council. i^;^^''^- ^'°- Eiiz. 104. adjudged. {b) This court is diflclved by the ftatute of i W, & M. flat. i. c. 27., and by the iame aft, errors in pleas perlo.ial are to be tedreiled as errors in pleas real and mixed were by 34 & 35 H. S« c. 26. 5. Of Writs of Error into the Common Picas and Inferior Courts. If an erroneous judgment be given in [c) London^ or other place, F. N. B. 4,^; which is a court of record, the party grieved fiiall have a writ of ('■') though error, and this writ may be returned into the Common Pleas, or ;„ b.'r.'^^ into the Kings Betichf at the pleafure of him who fueth the fame, upon a judgment given in London, yet it lies upon a judgment givet> at Newgate, which is upon commifTion in their fe/Tions. 2 Leon. 107. fo held, and ■v'.dd z Roll. Rep. 97. 2 Lev. 223. -f f If error be of a judgment in the ftierift's court in London, it fhall be, bei^ore the mayor and Ihcrifls in the huftings. 4 IniK 248. F. N. B. 22. (H) Vide Priv. Lond. 164. 168. No writ of error lies in Banco or Banco Regis, upon a judgment 4 inft. 224. given within the five ports ; but by cuftom fuch judgment is exa- -^- ^^'^ minable by bill in nature of a vi'rit of error coran? domino cujlodefeu ^°nquc" gtiardiano quinqite portuum apud curiam fit am de Shep^vay, Ports. If a judgment be given in the court of Stannaries of the duchy Roll. Abr. Corniual/y [d) no writ of error lies upon this in Banco or Banco Regisy Ij^'jC \''-' becaufe it hath ngt been ufed ; but of this there may be an appeal tor any niat- I i 2 to 494 CiTor. tets touch- to the guardian of the Stannaries, and from him to the prinCcJ ing t!ie jj^j when there is no prince, to the king's council. Staniiane?, * ° otherw3)S, upon a judgment there given upon collateral matters. 3 Buhl. 183. ferCoke, Chief Juftice, faid tn have been (o reColved u^ion a conference by ail the judges, as is ken recorded in Chancery in the petty-bag office. Q^ Owen, 8. Sid. 233. Roll. Abr. A writ of error lies in the Ccmmon Pleas upon a judgment given 1^^- ., before the iudpi;es of afhfe. but 1-ide ■' ^ Lccn. 55. 3 Leon. 159. Dyer, 250. Moor, 78. And. 12. N. Bendl. 153. Cro. Ellz. 26. Carter, 22Z. iS E. 3. 14. Upon a judgment given in the HuJJifigs in Londou^ a writ of error Roll. Abr. |j^3g jjj. ^^^ Martln\ before certain iuftices. 745- ^ Lev. 309. 2 Saund. 253. S. P. and that upon a judgment of the faid juft:ccs, a writ of error lies In parliament, iiide 2 Leon. 107. It lies not from the courts of the city of London to B. R. though it doe* lie thither, from ail other corporition courts. 2 Rurr. Rep. 777. . . An appeal lies to the houfe ci peers from a decree in the mayor's court. Seethe cafe of Littlebury and Buckley, /ju,^, tit. Evidence (G). [In the cafe of Hairifon V. Evans, 6Br. P. C. iSi. on a judgment in the ftieritf's court in London, a wiit of error was leturnable in the court of Huftings there, and on the judgment of that court, a fpeciai commiflion of errors wa^ diiedted to five of the twelve judges, or any cwo of them, upon whofc judgment *. writ of error was brought returnable in parliament.] 6. "Wjherc a Writ of Error lies in the fame Court in which the Record is. F. N.B. 21. If upon a judgment in B, R. there be error in {n) the procefs, Foph. 181. Qj. tliiough the default of the clerks, it fliall be reverfed in the y ,^.* ' fame court by v/rit of error fued there before the fame juftices. {a) And therefore the 27EI:z c. 8. which gives a wirt of error into the Excheqaer-c'iamber, extends not to errors in h&, for thefe might have been examined in B. R. z Lev. j8. Vent. 207. Cro. Jac. 5. S. P. adjudged. , 3 inft. 214. So, if one Is indlfled of treafon or felony in B. R. or, being In- di£led elfewhere, the indlftment is removed in B. R. and by pro- cefs of that court he is erroneoufly outlawed, and fo returned j a urit of error may be brought m B. R. for the reverfal thereof. Sid. 208. Alfo, if an erroneous judgment in point of law be given in Cornhiirs j^ j^ ^ upon an indiftnient in Lofulon^ a writ of error may be iudged. ' brought in the fame court -, for though in civil cafes error does Lev. 149. not lie in the fame court, unlefs for a matter of fact ; yet in s.C. ad- criminal cafes it lies as well for an error in law as fa£l. judged, and faid, though it may be brought in parliament, that does not prove but it may be brought here alfo, — But according to i Sid. 2cS. it kerns that this was only for error in fadt. And i:>^ If it could bs for error in law ? And f;e infra. (i) Fitz. In (h) Fiiz. N. B. it is faid, that a judgment cannot the fame N. B. 21. itxm It is given be reverfed in B. R., without a writ of error, isfi pi7' though fucli judgment may in the Common Pleas. But it does 3^2. rot feem that there is any foundation for this diflin£lion, (r) for Yeiv. 157. (luj-jj-ig tlie term, in which any judicial a6l is done, the record But when'' remains in the bread of the judges of the court; and therefore the term is the roU Is alterable during the term, as they fliall dire£i;*. paft, the r ill is the record, and admits of no alteration. Co. Lit. 260. a. -vide tit. Amendment, 108.— • An i-;.-uncoui judgment may be flayed, by moving in arreft of judgment, w^ithin four djys. But (JBrrot* 485 But if an erroneous judgment be given, and die error lies in ihc Roll. Abr. judgment itfelf, and not in the [a) procefs, a writ of error does not J'^^- lie in B. R, of fuch judgment. ^^j a? ifMe court awaids an exigent where they ought to award a plujles capias. Roll. Abr. 746 Tlicy may re- verfe their own judgment lor fjlle Latin, becau'e this is not the cetault of the cjurt, b;it of the clerks. 7 H. 6. 30. Roll. Abr. 746. Wliere by reafon of fraud, &c. a judgment may be vacated afier the term in which entered, ijiiie % Roll. Abr. 724 If judgment be given in an aftion in B. R. and there alfu exiicution be awarded, a wrijt of error quad coram ■vcL'n icjldct doci not lie in B. R. in aJ- judicati'jne exautionis. RcJl. Abr. 746-7. P.oll. Rep. 65. S. C. If two bring a writ of error in B. R,, upon a judgment in an Roll. Abr. alTife, and pending the writ one of the plaintiffs dies, and after, 747- tiro, the court, not knowing of the death of one of them, rcverfes the LiL" point judgment ; and after ho, againft whom the judgment was reverfed, adjudged. brings a writ of error In the fame court of B. R., and afligns tlie +l^o"'6o. death of one of the plaintiffs in the lird writ of error, which was the act of God, not the error of the court, it feems the writ well lies. If a record is removed by writof error out of the Common Pleas Carth. 3'')S- into the King's Bench, and the writ of error for infufHciency Is 9- quafhed In the King's Bench, the plaliuiff In error may have a wliere the ^^ new writ coratn vobis refiden. but fuch new writ is not a fuper- record is fedeas in itfelf as the firll writ was, and therefore he mufh move ="^"^"y the court for ^fiiperfedeasy and put in bail thereon. andthev'rlt of error is qualhed, error coram vobii lies : fecit s, where the record is never removed, as is the cafe where the writ is quafhed for variance between the wiit and the record. Ginger v. Cooper, i Str. 607. a Ld. Raym. 1403.] So, if fuch fecond writ be quafiied for infufReiency, yet the Carth. 369, court will grant a new or fecond writ of error co'am vobis refiden. 37'^« as alfo Ti fuperfcdeas on putting iq bail ; for fuch fecond writ being void is as if there had been none before. [Error coram vobis does not lie in tiie King's Bench after error Lambei! r. brought In the Exchequer-chamber, and the judgment affirmed ; i''^"y John, for before the ftatute of Eliz. the King's Bench could not examine ' its own errors in fact after an affirmaiKC in parliament -, and the Exchequer-chamber is now in the fame degree with regard to the King's Bench In thofe cafes within the ftatute, as the parliament was before. Error coram vobis lies not in the Exchequer-chamber.] 2 Cr. Pr. 337. (K) Of affignlng Errors : And herein, I. Of the Manner of aflfignlng Errors. T tPON a writ of error for want oi{b) affignlng errors, judgment Sid. 294. *^ is not affirmed, (f) but execution goes upon the hrft judg- '^°'^^". ment, fo that the party can have no cofts ; but his remedy mull ^ Keb.V* be upon the recognizance, by which he is bound to profecutc with 71. 75. s.c. efFea. .'■ (^) ^"f cannot be affigned in a record which Is not in the court where the writ of error is brought, ii H. 4. 47. b. Roll. Abr. 760. 769 — Airignment of error is in the place of a declaration, 9 t. 4. 32. — Error may be afligned in every part of the record, RolirAbr. 760. May be moved to the court, though n )t I i 3 particularly 4S6 Cri'on pirtkuUrly amgned-. 5 Co. 37. b. Error in fafl or in law may be afligned on a judgment by deiajlt. Roll. Abr. 756. Style, iia. {<;] If a record be removed out of the Common Wie.AS into the King's Pench by writ of error, and the plaintiff will not ailign his eiror, then a fcire facias (hall iflue forth ctiare cxecuthvcir. hatcic nan dtha ; and, upon lummonj and two mh'ih r.'tjrned, the plaintiff fliall have execution. 2 Leon. 107. [But 3 f.irc facias, it letms, cannot iffuc till ilie tranfcript of the record telow is removed ; and therefore the defendant in error, if the plaintiff is diUtory, muft give a rule to tranfcribe; and if the plaintiff will nut do it, he may then nonpros the writ of error. Ca. temp. JHardw. 351-] •■■ Catth.40, The parties, upon the removal of the record by the writ of 41. fer error, have no day in court given to either of them ; wherefore if where the' ^^^^ plaintiff in error delay to fue forth his fcire facias ad audiendum errors were errcres^ the defendant hath no other way to compel him, but by afligned in fuing out z fcire facias qiiare executioiiem nony ^c. and if, upon fuch m^3nner* fife faciaSy the plaintiff in error doth not plead, that his errors are without alhgned, but fuffers judgment to pafs upon two nihlb^ no errors giving no- afterwards affij^ned (hall prevent execution. tice to I he o *■ defendant in error. And by a rule of the court of Kitig^s Benchy if the plaintiff in error doth not alTign his errors, and give a copy of them to the defendant's attorney in error, by or before the time given by the rule on iht fcire facias is out, the defendant's attorney in error may enter judgment on x\\t fcire facias ^ and take out execution thereon, but can have no colls, unlefs he gives a rule for the plaintiff to afTign error on record ; which if he doth not do, he may be nonprofTed, and then the defendant in error fliall have his cofts. Alfo, by another rule of the fiime court, when the plaintiff in error hath ufiigned the general errors, he muft give a copy of them to the defendant's attorney, who may plead in millo efl erratum to it immediately, and enter both on the roll, paying the plaintiff's attorney is. /\d. for the fame. Yelv. 6j 7. If the defendant iti error fues out :i fcire facias qiiare executionem nou debet ; this is merely collateral to the record removed, and yet by matter ^.v pojl faclo may become a record ; as, if the plaintiff" vipon the return of ih.t fcire facias appears, and pleads a releafe, or other matter, as he well may, then this is a record annexed to the firft record removed ; but if upon the return ci the fcire facias, the plaintifl' appears, and afTigns errors, or hath a day given him to aifign them, and upon this record affigns his errors infuffioi- ently ; this fcire facias is but a piece of paper filed to the record, 110 proceedings being thereupon. 6r.. 4. 6. In a writ of error it is no good aflignment of error, quod iti om- Roll. Abr. filpus erratum efl ; for the court is not bound to inquire of the Attaint, 8*5. crrors, if the party does not fhew them. 2 Leon. ;'2. In a wait of error to reverfe an (■■• becaufe tliat {a) contradids the record of the conufance taken by [^j^' joa!' the commiflioners, which evidently ftiews tliat the conufor was {a\ But :he then alive, becaufe they took his conufance after they were armed p'^"^'J "» with the commilhon, and the dedlmus iflued. fay,'thj7af- ter the conufance taken, and before the ceitificate thereof returned, the conufor died, becaufe this is confiltent with the record. Roll. Abr. 757. Vide head of Fines and Recoveries. A conufance of a fine was taken before R. M., one of the juf- Yeiv. 33. tices of the Common Pleas, and after, in the profecution of the ^^"|,'^^|"*^ fine, the dedimus was dirctled to "Six R. M., he being after the cro. Eiiz. conufance made a knight, who returned the ^^a'/wwj- with his name ^'y^- S.C. and title ; and this was afligned for error, that the perfon who ^"''' ^^^^'^ took the conufance was not the fame who was impowered to take jac. n, iz. it; but it was not allowed, becaufe it contradicts the record, 3 Mod. 141. which is, that the dedimus was directed to Sir R. AL, and that ' ' '^"^ * Sir R. M. by virtue thereof took the conufance. If a writ of error be brought upon a judgment in an inferior 2Euift.243, court, and the record certified of a court held before the mayor, ^l^'^'er bailiffs, and burgeiTes of A. by cuftom, it cannot be affignid for adjudged. error, that there is no fuch cuftom, for this is contrary to the re- Roil. Kep. cord, and even what the writ of error itfelf fuppofes, viz. that 5v ^■^^ they have a court. 359. .s. c. and per t'Jam curiam, this alTignmcnt being againft the record, it is not receivable ; wherefore the judg- ment was affirmed. If, upon diminution alleged, the plaintiff in error procures an Cro. Jac. original to be certified, and the defendant furmifes there is a lll''^,}^^^ good original ; and upon a new certiorari granted that is certified, paiai, 4215. the plaintiff in error cannot affign that the proceedings were upon the firfl writ, for that is contrary to the record ; for when there is a good writ to warrant the proceedings, a man fiiall never be admitted to fay the proceedings were upon the bad writ. If the defendant appears by John Green, his attorney, it cannot Cro. Car. 53. be affiened for error, that the faid John Green was dead before ^""^'^ ^'"•'^ the day of appearance, becaufe that is againit the record. adjudged upon a writ of error in the Exchcqiier-ch.imbKr. [Nor can it be alleg-d that the detcndar.t i-.ed before the d.\y of niji frius, if the recora noenlions that he appeared on that day. Pluinmer v. Webb, 2 Ld. Raym. 1415-] In a writ of error upon a judgment in the Palace Court held Lev. 76. coram Jacoho Duce Ormond, it camiot be afligned for error, that ^y^^^^^jy^^ the duke was not there, becaufe that is contrary to the record, sid. 94. though in fa£l the court was held before his deputy, according to Keo. :,s5. the patent. j'udged!'' In a writ of error upon a judgment in an inferior court. It may 2 Lev. 1^4. be alfigned for error, that the mayor, who was the judge, had ^|j''/j|^ ''"'* not received the facrament, and taken the oaths, according to the ^jon. Si, 2C Car, 490 €rror» s.c. ad- 25 Caf. c. 2., bccaufe his office is made void, and fo the proceed*' judged per Jj^^g COraVl flOtl judicc. Cur. prater ° •' "Wild. 3 Keb. 606. 665. 721. S. C. adjudged mfi\ butvfrfe z Lev. 242. 2 Jon. 137. S. P. adjudged cont. Baker v, [Where in the defcription of the jufticcs of affife, A. iff B.juji,y Thompfon, ^^_ ^j cap'u'ud. juxta formamy ^c. the word aj'tfes was omitted ; Hardw^iee. Y^'^j ^s it appeared from other parts of the record, that they were juflices of afiife, the court held, that this could not be afligned for error, inafmuch as it would be contradictory to the record. iRoIl. Abr. If A. B. is fworn upon the principal panel, and another of the 758. pi. 8. fame name is fworn upon the tales; it (hall not be afligned for error tl rt the A. B. firft fworn, and A. B. the tales-man were one and the fame perfon, fo as to make it a trial by eleven jurors only ; for this is contrary to the record, which fays, that they who v/ere fworn on the tales were alii de circumjlantibus ; he could not be idem confidently with the record, which fays, that he was alius; and therefore fuch an averment, contrary to the record, Ihall not be admitted. Helbut V. So, it (hall not be afTigned for error, that A. B.y who was fworn ^'^''^'o^'h* ^^ ^ juror, returned upon the principal pannel, was never re- Ray*m-^W- ^^^"^^ ^7 *^^ (heriff: for after the joinder in iflue, the record goes on to the award of a venire Jacias returnable at fuch a day, ad quern diem, it {■a.ySiJurata inter partes prad. potiitur in refpeclu till the next term, nift prius the juftices come, i^c, at which time they come, et juratores unde infra Jit mentio exaBi unus eoruWy (that is, one of thofe returned by the fherifF,) viz. A. B. venit et inju- ratam illamjuratus exijlit ; fo that the record exprefsly fays, that the A. B. who was fworn, was one of them who was returned by the fherifF, and therefore the error afligned is contrary to the record. Bradburn v. So, as being contrary to the record, it fhall not be afligned for "^w-^f's error, that the defendant filed his warrant to defend by A. B. his attorney, and that it appears on the judgment that he appeared and defended by C. D. his attorney. Goodnght A defendant in eje£lment cannot afTign for error, that being an infant, he appeared by attorney.] Vrght, J Str. 25 4. Of afTigning that for Error which is for the Party's Advantage. 5 Co. 39. It feer/?; agreed, as a general rule, that a man cannot reverfe a f ^ ', ^?* judgment for error, unlefs he can ftitw that the error was to his la) And J \°i-r 1 therefore a (^0 ""advantage. man cir.not aflign errcr in procefs, or delay, which h for his own advantage. F. N. B. 21. S Co. 59.— But a rn^o may adign ihe want of a warrant of attorney of his own attorney, though it be hi} ckwn d«fadlt i I H 4. 44. Roll. Abr. 760. 5 Co. 39. b. Hence it is, that no man can have a v/rit of error to reverfe a fine that took any eftate by it •, for it would be trifling with the courts of juftice, and unreafonable to defeat the eftate which he accepted by the fine. 5 Co. 39. b. For the fame reafon, the conufor cannot aflign any error in the Moor, 74. grant and render •, becaufe by that the eft;ate which pafl"ed from him by his conufance is reitored to him, and therefore 1^ fhall not be admitted admitted to defeat the eftate which by his own agreement he accepted. But if the error be the default of the court, though it be for 8 Co. 59. the advantage of the party, yet the party that hath the benefit by ^°"- ^^P* it may affigu it for error, for the courfe of tliC court ought to be '^ ' obferved. As, if in a£lion of debt it is found, that the defendant owes Rcil. Abr. the plaintitl cr /., and the jury aflefs damages to 2 d. and cods 2 d., y^' . 1 r • , • • ■' 1 1- 1 • -iTTL 11 J7-. cJ Holmesand and after judgment is given, that the plaintitt Ihall xtco\tx debitunii^ Twiite, datn/m pradiJf. to 2^., and no judgment is given for the coll.s, adjudged, though this is for the advantage of the defendant, yet he may ^^'^ '^^^^ ^ aflign it for error, becaufe this is the error of the court to aker leverfed the manner of judgments. accoidingly. So, if the plaintiff in a fuit retracts, by which judgment is 8 Co. 59. given againfl him, but he is not amerced as he ought ; though this ^^^^^ ^^^^^ is for his ov/n advantage, yet for that the amercem.ent ought to be jac. 211.* parcel of the judgment, and fo the judgment is not perfect with- ^-C. ad- •1- rF-r JO I- judged. out It, he may alhgn it tor error. So, in every cafe, where a judgment is given agalnft a man, in 8 Co. 59. which he ought to be amerced, if he be not amerced, he may ^°"- ^^^'^ allign it for error, though it be for his own advantage. But where this will be aided by the ftatute of jeofails, videut. Amendment and Jeotail. So, if a man be amerced by the judgment, where he ought to be Roll. Abr. fined ; though this be for his advanrage, yet be may alTign it for '^°°' error ; for the form of the judgment, which is the act of the court, Cro. Eiiz' is altered by it. ^4- s. P. ' adjuJged, but for this videQio. Eiiz. 65. IC7. Poph, 203. 2 SaunJ. 47. and tit. Amendment and JeoiaiL [So, if one defendant only be charged with the whole of the Kent v. damages and cofts, this may be alleged for error by the other de- ^^"^» fendant not charged j for this is an error in the final judgment, it Hardl. 50. is the fault of the court.] a Str. 971. 2 Eamaid. 357. 386. 441. But if in a writ of annuity, the ifTue be found for the plain- Roll. Abr. tiff, and no damages found for him, and judgment be given "^?;,^^l' according to the verdidl ; the defendant cannot aflign it for ^^^ q^^ ' error, that no damages were taxed againft him, becaufe this '^"U. Rep. is for his advantajre ; and here the defedl is not in the iudg- '^]: f- ^^ . . •,*'.. . r TJX.- adjudged. ment, as it is where it is a capiatur tor a inijericordia^ but in 2Buift.279, the verdidt. 180. s. c. adjudged. 1 1 Co. 56. a. S. C. adjudged ; by which books It appears, that the plaintiff before judgment leieafed his dcimages, and had judgment for the annuity only, which made it more clear j and fo it is in Roll. Abr. 784. S.C. Upon an ifTue between a peer of the realm and another, if Roll. Abr. the 'ueuire facias be quod fummoneat 12 liber os t^ Ugales kjinines^ -^ f^T^T and do not fay, tarn iniliteSf quam aliosy as the regifter is, worceihr {a) though the peer of the realm may aflign it for error, yet the and Trade, other cannot, becaufe it does not concern him. ["^ ^ ',, "''"* ' being the error of the court may be afligned for error. Vide.z Saund, 253. In 492 (ZBci'or* 5 Saund.45. In a writ of error brought by the tenant, it cannot bfi afligned •Williams for error, that the court awarded a grand capey where they ouglit Y^lzi.^ ' *o have given judgment for the defendant to recover, becaufe 5Keb.45o. the award of the grand cape was only in delay of the demand- 551. 605. 3^j^ ^jjjj j^Qf jQ fj^g prejudice of the tenant, and therefore not * * . by him to be alleged for error, becaufe not ad grave damnum tc/ientis. 5, Where the Matter affigned for Error is aided by the Appear- ance of the Party, and not being taken Advantage of in proper Time. Carth. 124. A man (hall never aflign that for error which he might have laid down pleaded in abatement, for it (hall be accounted his folly to necledl tyHoltasa *V ^' c ^ ^ • .u\. .- general rule, the time of takmg that exception. Salk. 2. S. P. Carth. 124. As, If a feme covert bring an action In her own name, ^^-r at- iornatumy and the defendant plead in bar to the aclion, he (hall never afterwards aflign the coverture for error. Roll. Abr. So, if a feme fole brings trefpafs and recovers, and a writ of ^^jt- Smith inquiry of damages is awarded ; and before the return thereof, l:am. ^* *^^ plaintiff takes hufband ; and after the writ is returned, and judgment given thereupon, without any exceptions taken by the defendant ; he fhall not have advantage of this in a writ of error, becaufe the writ was only abateable by plea. 3H.6. 9. Alfo, if there be an (fl)omiflion of any writ or procefs, or one Roll. Abr. ^j.-jj. awarded in lieu of another ; yet if the judgment is not given Jj)'wiwr'e thereupon, but after the party appears and pleads to iffue, and an error in judgment is given upon the verdift ; this is not erroneous, be- Cr^d*b^ caufe he had not taken advantage of this before pleading toiflue, appearance, ilde Cro. Eliz. 83. 167. Styie, 237. Vent. azo. 249. Cro. Jac. 4'.4. Bulft. 143. Latch. 118. Cro. Car. 35t. Ran. Abr. If a man in B. brings a bill upon his privilege, but hath no '^^°* nd^^" writ of attachment of privilege; yet if the defendant after ap- Gibbons. pcars and pleads, this ftiall be helped by the appearance. Roll. Abr. 205. S. C. adjudged. 3 Bulft. 6j. S. C. Roll. Abr. If a man be indI6led, and no addition be given to him as there 780, John- ought, yet if the defendant appear and plead to iffue, and this Cro. jac' be found againfl him, it is helped, for the addition is ordained by 609. the ftatute, that the party who may happen to be outlawed ought *^f^'^^' to have notice of it; and here he hath notice, and conjlat de per- adjudged. * fi"^ by the appearance. Cro. Eiiz. A capias was dire6led to the flierifF of B.y and it was returned ow'owl ^y ^^^ ^^° ^^^ "°^ fheriff", and this was held a manifeft error : but and Sewys, bccaufe the defendant had appeared after and pleaded, it was held adjudged. not material. Roll. Abr. If upon a trial between a peer and a common perfon, tlie 7S1. Lord fiieriff" does not return a knight, as he ought, yet if the array Is Powisand , ,, , ^ , • , ° ' , , r • c Kirtman. "ot challenged for this, the peer cannot take advantage ot it atter- wards j v«rards; for this Is a privilege only which the law gives him, and [ThischaU which he may waive if he pleafe. , , ^ '^"^^ ^\ , ' * taken away by 24 Geo. a. c. jS. § 4. J So, If the fheriff who returns the panel in an aflife was brother 3 H. 4. 6. to him for whom the aflife pafled j yet if the party does not chal- ^°''* ■^'^'- lenge the array, it is no error. If a verdidt be quafliable for the mifbehaviour of the jury, as Roll. Abr, for the receiving evidence of one part, after departure from the ^.^^"tv bar, which was not given in evidence at the bar ; if this be not 616. fhewn in arreft of judgment, no advantage can be taken there- of in a writ of error, for this fhall not be examined after judg- ment. The writ was in debt for 40/., and the capias and all the pro- do. Jac. cefs to the return of the p/uries capias accordingly, and then the j^]' |j°^^ entry was, that queretjs ohtulit fe in placito 40 /., and upon the de- juniper. fault of the defendant an exigent was awarded ; and the defendant \a) Style, after appeared and pleaded, and confefled the action ; and this was ^^P'xr^^'^'^ held no error, being helped by the appearance ; for as an appear- Keb. 641. ance faves defaults in mefne procefs, fo it faves the fault of the Sid. -73. {a) continuance by an ohtulit fe. thz'^'^T If a writ be brought to the damage of 40 /., and the plaintiff Pa'^i- -70- declares ad damnum 200 /., and the verdift gives 30 /., this is no \l^l\l^^ error after verdi£l, for the writ is [h) not abated defaBoy but only to beob- abateable by plea. 'e^'eJ is, that where the writ is i/^yflif?'/ a nullity and deftroyed, fo that judgment thereupon would be erroneous, there the writ is de JaEio abated j as if an attion be brought againrt a feme covert as fole, chib makes another man's property liable, without giving him an opportunity of defending himfelf, which would be con- trary to common julUce ; and therefore the writ is de JaEio abated, for which -vide Cro. Eliz. 121. 185. 193.330. Coulf. ic6. 2Leon. 162. 3 Leon. 93. Roll. Rep. 176, Palm. 311. Hob. 57. 162.. 279.281. Godd.ii. Style, 477. Yelv. 56. 300.85.3, Vaugh.95. So, if the return of a flurhi is laid to be after the beginning of a term, and the mancrandum of the bill is entered generally of that term ; this makrs the writ a perfedt irjllity, for, by the plaintiff's own fliewing, he had no caufe of aftion at the time when the adtion was brought. Carth. 172 And in thefe cafes, which are more than matters in form, the parly may move in arreft of judgment, or have advantage of them by writ of error. Jon. 304. Cro. Jac. 654. Cro. Eliz. 722. If upon an audita querela a fcire facias be brought bearing date Sid. 406. before the audita querela^ and the defendant appear, and for this y^ugha™ caufe demur ; this fault is cured by the appearance, for the audita vent. 7! ' querela is more of the nature of a cc:nminion than a writ; and s. c. ad- if the party be in court, the matter ought to be inquired into, J"^ged, the •!••• • 1 c ^ r \ ?-ii /'"'^ facial without inquirmg mto the nature ot the proccls by which he was being only brought in. in the nature of mefne procefs, to bring in the party to aniwer. 2 Keb,46f . But "^ fcire facias upon a judgment differs, and a fault thereio Sid. 406. will not be cured by aooearance. Y^"^- 7- ... ... S. p. For this is the foundation, and quafi. an original ; and if an original ihould bear date on a Sunday, or other like d?fe£l be therein, it would not be helped by appearance. If a quare impedit be brought againfl the bifliop and incumbent Cro. Jac. only, without naming the patron, though this might have been ^5'- Sir pleaded in abatement j yet if the defendant plead in bar, l5fc. it sav'iund cannot after, upon a writ of error, be afligncd for error ; for Thornton. though the want of the patron's being made a defendant might P^im. 3c5. make 3' • -• 494 (Bnot. adjudged, make the writ abateable, yet it was not thcfeby afirually abated j *^°'s^^^" ^""^ nothing Ihall be aiTigned for error concerning the writ, but yjudged.' what adually abates it. Saiii. 4. So, though it be a good plea for a defendant to fay, that a See wo tit ^^^^?^^^ 13 tenant in common with the plaintiffi yet if he does Abatement "ot plead it in abatement, he fliall not have advantage of it in (K), vol. I. arrefl of judgment. 19- Roll. Abr. If an adlion be brought igainfl Sir Francis Fortefcue, knight fA'kh^' ^"^ baronet, and he appear, and plead to iflue, and a verdi6t and and Sir judgment be given for the plaintiff, the defendant in a writ of Francis errer {hall not affign for error, that he was a knight of the Bath, RoirRr* ^^^^ ought to be fo named, for he has loft this advantage by ap- 4:10. s. c. pearing to the other name, and thereby concluded himfelf. adjudged. Roll. Abr. If an alien brings a real a£lion as heir to J. S. againft another, "^-" and recovers, the defendant cannot aflign for error, that he was an alien born, inafmuch as he did not take this exception at firft, as he fhould have done. For this W« Although a perfon acquitted on an erroneous lndi£lment or ap- iHawk. pg.^1 jj^gy ^g j.j.jgj again, and cannot plead, that he was acquitted, §107, 8, 9*, becaufe his life was never in danger on fuch erroneous indidlment 10. c. 35. or appeal ; yet if the error were in the procefs only, the acquittal § ^* may be pleaded to a fecond indiclment or appeal, becaufe fuch error is faved by the appearance. Leon. 189. If a judgment be given in an inferior court and no (a) plaint ^°d's^"'^^^ entered, this is error, and not aided by the appearance of the (a) Yeiv. party ; and therefore, where by the record it appeared, that the 158. Roll. de{end:int (b) fummoftitus fuit^ where the firft entry ought to be fnTs di^* ^' -^' ?^^^'^"'' verfus C. D, i^c.y judgment was reverfed for this ;66. pi. ii. rcafon. that the want of a plaint is the fame as the want of an original in the Common Pleas, which may be certified on alleging diminution ; but in records out of inferior courts no diminution can be alleged, but the court muft take them as they find them, {k) Cro. Jac. loS. And that the court of King's Bench is to take notice of the particular laws and cuftoms of the place wliere judgment was given. Salk. 169. pi. 17. 6. "Where Matters which might have been afTigned for Error are aided by a Releafe, and the Confent of Parties. JO Co. 115. If the plaintiff recovers more damages than he has declared for, cafl"where ^^ ^^ ^^ declares for 40/. and the jury give him 49/., though (c) the plaintiff this be CHTor, yet if before judgment he releafes the overplus, he may reicaie may take judgment for the 40/. damages for part, and take judgment for the reft, ti'dt F. N. B. 107. Moor, aSi. Leon. 91. ^Bulft. 280. Brownl. 235. Stvle, 364.. Hard. 58. (c) If a man brings a plaint in an inferior court, and in the de- claration fets forth particular demands, which over-run the fum mentioned in fuch plaint, though never fo little, and the jury givp. a verdid: according to the fums mentioned in the declaration, this is enone- cus; for tlie plaint is in nature of a writ, and is the original and foundatiofi of the whole pro- ceedings; and if the declaration, verdift, or judgment are for more than is contained in the writ or plaint, though beyond it never fo little, by the fame reafon they may gu to larger fums in ivjir.'ttum^ and then the plaint or writ would be no diredion for the future proceedings of tl:e court'j but in fuch cafe Uif flain'iff may remit the overplus. Yelv, 5, Noy, 44, 2 Saund. •:86. 4 Alfo, Alfo, where the jury find greater damages than the party de- Yeiv. 45. clared of, the court may, to prevent error, give judgnrent for fo [^*n<| where much as the party declared for, nu//o habito refpecfu to the reft, as caufe a well as the party may releafe the overplus, and take judgment for writ of the reft. t"°' u" brought, the court permitted the plaintiff to enter a remUtur of the excefs above the fum laid in the declaration, on payment of the cofts of the wTit of error. Pickwood v. Wright, i H. Bl. 643. J In an ejeSlione jirma^ if part of the things declared for be well Rail. Abr. demanded, and others not, and the plaintiff have a verdicl for the 7S6. ciive whole, and entire damages given, he may releafe all the da- ^"q q^^'^ mages in that which is not well demanded, and pray judgment 458. for the refidue i and this helps the error, if judgment be given accordingly. As in an ejeEl}one cujlodite terra tsf haredisy if a verdi£l: be given Roll. Abr. for the plaintiff, the ifTue being upon the tenure, and entire da- J^^- 7S6. mages given and cofts, the rhir.tlff may relinquifh the damages cafe.'"^Dycr and cofts, and have judgment of the ejedlment of the land only, 369. Cro. for that fuch writ does not lie for the body. ^ „ , ^ Jac. 104. 5 Co. loS. and 10 Co. 130. b. C. citei< So, in art ejeclione firm^e de utio tenemetitoy and feveral acres of Roll. Abr, land, upon not guilty pleaded, if a verdicl: be given lor the plain- 784- 7j^6. tiff, and entire damages found where the a6lion does not lie andchappd, for the tenement, for the uncertainty the plaintiff may relin- 2 Buift. 2S. quifh his damages and have judgment for the lands only, with- ^'^' ^^'^ out error. Cro. Eliz. 119. sLeon. 12S. Style, 30. S. p. adjudged. In a writ of debt for 100/. againft an executor, if the plaintiff Roll. Abr. counts upon an obligation for 99/., and upon a nmttiatus by the 764* A(h- teftator for 20/ , and upon the ilTue, the jury £nd for the plain- ^saund. tiff in the whole, and affefs damages entire, where it appeared 2*56. Like no adlion lay againft the executor upon the mutuafus of the tefta- P°'"j ^^' tor; yet if the plaintiff releafes the 20/. and all the damages, and hath judgment for the refidue, this judgment is not erroneous. In a quare irnpedity if the jury give damages and cofts, where 2 Roll. Abr. no cofts ought to be given, for that the ftatute did not give 7 S4 Grange- them, and ;'fter judgment is entered quod mdlo habito refpeclu ro;i, ^^l^' of the cofts, the court awards that he fhall recover the da- 363. mages, this fpecial entry, without any reieale of the cofts, fhall ^^"'^■^^^' help the error. judged. " If a bill of debt be brought againft an attorney upon three fe- Hob. 178. veral obligations, and upon demand of oyer, it appear by the con- ^^}' ^^• dition of one of the obligations, that the day of payment thereof Saund. zll. is not yet come ; after a verdi£l for the plaintiff, upon conditions S. C. c.-tsi. performed pleaded, and cofts and damages given, though the plaintiff cannot have judgment for this obligation, of which the day of payment is not yet come, yet, upon his releafe of cofts aud damages, he fhall have judgment for the other obligations. If in debt upon the ftatute of ufury it is laid in the writ, that Cro. Jac. he corruptive let 40/. is:c. and that he lent 20/. ts'c. but it is not ^^^^ , faid corruptivef and the defendant pleads fiihil debet, and it is found cife. 3gainft 4^6 (Scror* againfl him, the plaintiff fhall have judgment as to the 40/.: atid in this cafe it wns faid, that if the defendant had demurred, the plaintiff Ihould have had judgment for this part. Raym. 395. If in trcfpafs the plaintiff declares for taking the mare of the MdTa'ior P^^^"'^^^ ^"<^ feveral goods, but does not fay of the plaintiff, and thereupon the defendant demurs, the plaintiff may have judgment for the mare, and veleafc the aftion for the reft. Roll. Abr. In an a£lion of debt for lo/., if the plaintiff declares upon a 785. Barber j^^jf^ f^^. yg^rs, renc'cring rent at certain feafts, and concludes 5s* adjudged ; ?'"^ 10/. 01 thc laid rent, for fuch a tmie endmg at fuch a fealt, l^c. covt. Jurtice he brought this a6lion, u'here it appears by the declaration, that Style'"'?-. ^^^^^ ^2S 4x. wanting of the lo/., fo that the rent in arrear s.c. amounted but to 9/. 16 s. and thereupon the defendant pleads sSaund. nihil debet, and upon this there is a verditl for the plaintiff, and poii.t up'on^ damages and cofls given ; though the demand be eniirCy/ci licet of demurrer lo/., and it appear by the plaintiff's own Ihewing, that he had debated, j-jq caufc of attion for the whole ; yet the plaintiff may releafe the ^tfuV'ven,' 4-'"- ^". £lie. J70. Og- nel's cafe, adjudged. (A) Vide 13 Co. 20. 22. Cro. Jac. 645. Ap- pefley and Sir John I 50? ] Cfwpe in €Ml Cafes; ESCAPE in general is undcrftood, where any perfon, who is under lawful arreft, and reftrained of his liberty, either violently or privily evades fuch arreft and reftraint, or is fuffered to go at large before delivered by due courfe of law. For the better underftanding whereof I fhall confider, (A) Where the Party fliall be fald to be legally com- mitted, fo that the fufFering him to go at large ihall be judged an Efcape : And herein, 1. Where the Authority by which he is committed (hall be faid to be fufficient for that Purpofe. 2. Where the Form of the Commitment, or being in Cuf- / tody, {hall be faid to be regular. (B) What Degree of Liberty, or going at large, fliall be deemed an Efcape : And herein, 1. With what Stri£tnefs Prifoners are to be kept. 2. What on this Account fhall excufe the Sheriff, Gaoler, iifa, when afting in Obedience to fome Authority j as remov- ing a Prifoner on a Habeas Corpus, &c. 3. What by Conftruclion of Law fhall be deemed an £fcape> though the Party be ftill in Confinement. (C) Of the Difference between voluntary and negli- gent Efcapes. (D) Of the Difference between an Efcape on Mefnc Procefs and Execution. (E) What Perfons are anfwerable for, and to be charged with an Efcape : And herein, 1. Of the preceding or fucceeding SherifF, Warden, ^c, 2. Where Sheriffs, Wardens, ts'c. their Superiors or Depu- ties, are liable at the Eledlion of him who is injured by the Efcape. 3. Where the Party injured may have his Remedy againfl the Perfon efcsping \ and herein of Eftape Warrants. (F) Of 5o8 (JBfcapc in Citil CafCjaf, (F) Of the proper Remedy and Nature of the Adioi^ to be brought for an Efcape. (G) Of the Manner of laying the Adion. (H) Of the Party's Defence who fuffered the Efcape j and herein of pleading frefh Suit. (A) Where the Party fhall be faid to be legally com- mitted, fo that the fuffering him to go at large Ihall be adjudged an Efcape : And herein, I. "Where the Authority by which he is committed (hall be faid to be fulhcient for that Purpofe. (a) This . -jT feems agreed as a general rule (n), that v/herever a fherifFor ?aid"doA°n in °^^^^ officer hath a perfon in cuftody, by virtue of an authority Moor, 274. frpm a court which hath jurifuiftion over the matter, that the Dyer, 175. fuffering fuch perfon to go at large is an efcape ; for he cannot Leon. -30.^* J"'-'S^ o^ t^6 validity of the procefs, or other proceedings of fuch SCo. 141. b. court, and therefore cannot take advantage of any errors in them. 5 Co. 64. Hence the law allows him, in an a£lion of falfe imprifonment, to 280.2^9?' P^^^d fuch authority, which will excufe him, though it be erro- 2 Euift. 64. neous. But if the court has no jurifdiclion of the matter, then ^5^- all is void, and confequently, the officer not punifbable for fuffer- 100, 7 01. ^"S ^ perfon taken up ppon fuch void authority to efcape. 3 Mod. 325. Carth. 148. 234. Cro. Eliz. Upon this diflintlion it hath been adjudged, that if j4, obtains Buflie's judgment againfl B.y and a year aftei wards, without zny fcire cafe. fnciasy takes cut a capias ad faUsfaciendum^ upon which B. is taken, {b) Sa!k. and the flierilT lets him go at large, that this is an efcape ; for and*Wrig!i/ ^bough the award of the capias [b) after the year without z fcire s, p. ad- facias^ was erroneous, yet the flieriff could not take advantage judged; but thereof, for it was fufBcient authority for him to make the arreli, thatit would ^'^^^ might havc been pleaded by him in an action of falfe impri- beotherwife, fonmcnt. had it been on a capias adrejpndend. beaiing t entered, becaufe he would have been (a) fo, if he had been taken cafe, ad- within the year; and here is no difference, for the plaintiff was. judjed. at the end of his procefs at the exigent, and no continuance or i^on^^J,/ fcire facias after a cnpias utlagatum^ and the very capias utlagatum, 8,0. S. P. which is fued at his charge, imports an election of the body. adjudged. If at the petition of -^. and the reft of the creditors of B.^ a Roll. Rep. commiffion upon the ftatute againft bankrupts is iffued out againft ^l' ^^'^"*=* B.y and thereupon the commiffioners fit and offer interrogatories adjudged* to C. and he refufes to be examined, and by them is thereupon Moor, 834. committed to prlfon, and the gaoler fuffers him to efcape ; as the o'^'^^j commiffioners had fufucient authority to commit, and A. was judged ; and prejudiced by the efcape, he may maintain an action againft the note.accord- paoler ingtoMoor, ^a^..^,,.. ^j^g aflion was debt. So, if there be a fuit in the ecclefiaftlcal court between A. and Lutw. 121 B.s in which B. is excommunicated, and afterwards taken upon p' '^3- • -7 ^ r rr \ r A L' Slipper and an excommunicato capiendo, and fuffered to efcape, A. may brmg an Mafon, ad- aption on the cafe for the efcape, though it was objeQed that this judged, was a fpiritual matter, and that A. had other remedy, as by writ of recaption. Alfo, upon this rule, that the fherift' cannot take any advantage (*) a Bulft. of the irregularity of the proceedings of a court which hath jurifdic- ^5- ^^ ^^ tionof the matter, it hath been holden [b], if a nobleman be taken icc, the da- in execution, and the (heriff let him go, it will be an efcape *. fendant not ' & » r being liable to be taken in execution, and no court having power to a\\ard ao execution againft the perfon of a pter, in a ci\ril fuit? Upon the fecond part of the diftinclion, that an officer (hall (0 Roll, not be liable to an adlion for the efcape of a perfon taken on a ^^^ 9» writ, which iffued out of a court that had not jurifdiftion of the Richardfoa matter ; it hath been {c) holden, that if A. bring an a£lion againft and Bar- an officer of an inferior court for an efcape, and declare that he j'j^L'j^ brought an action againft J. S., in the court oiKingjlon upon Hull, (^), So, upon an obligation made at Halifax in Com. Ebor. (but do not t^^^^?|!.* allege it to be within the jurifdiclion of the court), and that he oJ^ofafu- obtained judgment, upon which J. S. was in execution, and fuf- psrior court, fered to efcape by the defendant ; that this declaration for want yet, jf fucb of alleging Halifax to be within the jurifdiclion of the inferior ^^i.,^ ^^^ court, is infufhcient to maintain the adlion ; for though the action not jurifdic- be in its own nature tranfitory, yet (d) inferior courts being tied *"^" °^ ^^ 1 ' 1 \ ' , n n tr;2t"er, it dowo to matters arifing within their own limits, they muft Ihew ^^'jn be void, that S^o €fcape in Citiil Cafcjef. and the of- that they had conufance of the matter, otherwife their proceed- uklTdl ^"^^ ^^^^ ^^ ^°^^» ^^ ^^^"S '^''^''"' nonjudicey of which the officer rantage" "^^7 "^^^^ ^^^^^ advantage. riiereof, as if a formtdon ifTue out of the King's Bench, or an appeal out of the Common Pleat, a Bulft. 64. &?*/), formerly in the Fleet, that he virtute brevis P'* ^°- a'e habeas corpus, dire£led to the warden of the F/eet, was debito coding-, ad- modo cotnniijfus to the King's Bench ; this will not be fufficient, judged, and without alleging an adtual commitment, for he cannot be com- J"<^gfn«nt mitted on a habeas corpus, and the debito modo will not help it. cordingiy. (i) MA. obtains judgment againft B. in B. R., and alfo another judgment in C. B., upon which he Is taken in execution and committed to the Fleet, and afterwards he removes himfelf to the Marlhalfea by habeas corpus cum cauja, if the marflial fufter him to efcape, he is liable to both debts. Dyer, 152. If by habeas corpus the body of J. S. together with a plaint en- Cro. jac. tered againft him in the court of Norwich, be removed before the -°^- ^^'■* chief juftice of B. R., who upon the return of the writ accepts Baflbt." ball, the acceptance of bail, though before the filing thereof, is a difcharge of the prifoner ; and though afterwards a procedendo fliould be awarded, yet the (heriff cannot be charged with the efcape. If a perfon out upon ball renders himfelf in difcharge of his Salk. 272. bail, and a reddititfe is entered in the judge's book, and a commit- Pf; 3- iitur filed in the office, and the prifoner afterwards efcapes ; yet if sutton. no notice was given the marftaal of fuch render, nor any entry made of the commitment in his book, the prifoner fhall not be deemed in cuftody fo as to charge the marihal with an efcape; but it feems this matter cannot be infifted upon after trial. It hath been held, that entering a committitur upon the roll was sij. 220. not fufficient evidence to charge the marftial with an efcape, with- ^^'>- 775- out proving an adual imprifonment ; but that proving the party .^^^^^^ to be adlually in prifon, though there be no entry made in the IQ marftiars ;5i2i CBfcapc in Cibil Cak^* marflial's book (without which he pretends he knows not how to take charge of them) is fulBcient. Wightman [In an a£lion againfl the marfhal for an efcape, it was laid, that V. Mullens, jj^g prifoucr being brought before Sir Williatn Chappie^ one of the juftices of our lord the king, at his chambers in Serjeants /«//, was there committed to the cuftody of the marflial at the fuit of the plaintiff, as by the faid commitment may more at large appear. To this the defendant demurred, and fliewed for caufe, that it did not appear the commitment was of record. And on argument the court held it ill ; for he is not in point of law in the marfhal's cuflody, till the commitment is entered on record ; nor can the court take notice that Sir U^iIHam dapple had any power to com- mit him, he being only flyled one of the juftices of the king, which every common juftice of the peace is.] And now for the greater fecurity of creditors, and the better to enable them to prove the actual cullody of the prifoner, by the 8^9 Tf^. 3. c. 27. it is enadled, " That if any perfon, defiring to " charge any perfon with any adlion or execution, fhall defire to ** be informed by the marfhal or warden, or their refpeftive de- *' puty or deputies, or by any other keeper or keepers of any ** other prifon or prifons, whether fuch perfon be a prifoner in ** his cuftody, or not, the faid marflial or warden, or fuch other ** keeper or keepers of any other prifon or prifons, fliall give a •* true note thereof in writing, to the perfon fo requefting the ** fame, or to his lawful attorney, upon demand, at his office for *' that purpofe, or, in default thereof, (hall forfeit the fum of 50/. ** and if fuch marfhal or warden, or their refpedtive deputy or *^ deputies, exerclfing the fiiid office, or other keeper or keepers . •* of any other prifon or prifons, (hall give a note in writing, that ** fuch perfon is an adlual prifoner in his or their cuftody, every ** fuch note fhall be accepted and taken as a fufficient evidence, 5* that fuch perfon was at that time a prifoner in aclual cuftody." (B) What Degree of Liberty, or going at large, fhali be deenied an Efcape : And herein, 1. "With what Striclnefs Prifoners are to be kept. Plow. 36. "C^Very perfon in prifon by procefs of law is to be kept hi falva li^ft ''"g'j ^ {a) artia cujlodia, in order to compel him the more fpeedily Roll. Abr.' ^° pay his debts, and make fatisfaftion to his creditors. 8c6. {a) And by Weftm. a. c. ii. C^rari mancipentur in frris, which, my Lord (^oke fays, was en- abled in order to oblige them to a moie fpeedy compliance wich their duty. 3 Co. 44. a. and 2 Inft. 381. in his comment on this ftatute, he fays, that though prifoners, if need require, may now be kept in irons, yet that it could not be done by the common law. — And Co. Lit. 260. a. he fays, imprifon- ment muft be cujiodla & non fcena, for career ad bam'wes cuJiodicndoSf non ad funiendos, dari debet. Roll. Abr. Therefore, If the flieriff or other officer who hath the cuftody of Vr^ .. a prifoner, either bail him when he is not bailable by law, or fuffer ^^°''^' him OBCcapc in Cibil QLaM. 513 him to go out of the (a) limits of the prifon, though with a keeper, Plow. 36. and for ever fo {hort a time, it is an efcape. 2^"' ^^^' ' ^ ^ _ Hetly, 34. {a) For the limits of the Fleet prifon, vide z Mod. 221, 222. But the law and provlfion made by Wejlm. 2. c. 11. being eluded [{b) This by the a<3:s and contrivances of flieriffs, and other keepers of pri- f^^^^"^^ ,^^7u' fons, by the 8 ^ 9 /f^. 3. f. 26. it is enadted, " That all prifoners, j-utes to a:\ *' either upon contempt or mefne procefs, or in execution, who intents the *' are or fhall be committed to the cuftody of the marfhal of the ^^.jof'^'jfg " Kings Bench prifon or warden of the Fleet, fliall be actually de- prifon, it " tained within the faid prifons of the Kings Bench and Fleet, or follows, that " the refpedtive rules (b) of the fame, until they fliall be fiom V" ^'""p^ ** thence difcharged by due courfe of law \ and if at any tmie the without the *' faid marflial or warden, or any other keeper or keepers of any mar/hars *' prifon, fliall permit and fuffer any prifoner committed to their ca^rl^n^t^br* *' cuftody, either on mefne procefs, or in execution, to go or be at confidered «' large out of the rules of their refpedlive prifons (except by vir- as a voiun- *« tue of fome writ oi habeas corpus, or (r) rule of court, which rule Bona'j-J'f y' *' of court fhall not be granted, but by motion made, or petition Walker, " read in open court), every fuch going or being out of the faid ^ Term " rules fhall be adjudged and deemed, and is hereby declared to (^^''Thein- " be, an efcape." tent of a day-rule is, that the prifoners may be brought to Wertminfter-hail, and by indulgence they ha%'e been allowed to go to any of the inns of court, to confult with their counl'el or attcmies ; but fuffering them to go on theis pleafure, as to a playhoufe, &c. is an efcape. 2 Show. 298. pi. 300. 2. What on this Account fliall excufe the Sheriff, Gaoler, ilfc, when adling in Obedience to fome Authority, as removing a Prifoner on a Habeas Corpus, &c. The writ of habeas corpus is an [d) ancient writ, and what the {d) Cro. fubjeft is by law entitled to; yet {e) if a (heriffor other officer, n^ jj '^'1,^ v/ho hath the cuftody of a prifoner, by colour thereof, fuffer the goS.* prifoner to go at large, it is an efcape. (0 Hob. 202. 3 Co. 44. Cro. Car. 14. As, if a habeas corpus be returnable the next term, and the Hard. 4-6. flicriff or gaoler in the meantime fuffer the prifoner to go at large, ^T''p7.,f it is an efcape, though he appear at the return of the writ ; for Baron, and the writ only empowers the gaoler to bring him directly to the the whole court, and if he gives him any liberty in the meantime, it is at '^^^^^' his peril. So, where a habeas corpus ad {/) iejiificand. was dire6led to the Mod.iig." marjfjal to carry one Reynolds to the affifes at IVells in SomerfetJIjire, Mofedel's who after the affifes was fuffered to go fixty miles beyond Wells; rujed upon though he returned again to the marpal, yet it was held an evidence, efcape. ^"'I ^H , ^ plaintiff had a verdid for 6200/. 3 Keb. 305. S . C. ( /") If j*. 5. is in execution, and a hahe.is corpus ad tejlijican- dum is diredled to the gaoler, who, according to the command of the wjit, carries the prifoner to give kis teftimony ; thii is an efcape. Sid, 13. faid by Twifden to have been adjudged by all the judges. Vol. II. L 1 ^o^ 514 crcapc in Cibil Cafcjef* Mod. 116. So, if the gaoler carry him round about [a) a great way for the firiiih. accomniodation of the prifoner, it is an efcape; but he is not lofo 1 '^' bound to bring him the direfl way for fear of being refcued. (j) Thit he is to bring him in convenient time, and the mofl convenient way j and this is to be judged of by the judges. Cro. Car. 14. Dait. Sheriff, 561. 3 Co. 44. Alfo, it hath been adjudged, that if the IherifF hath one in ex- Mitton's ecution, and a habi'as corpus iflues to have his body in court fuch '■*'** a day, and before the return of the writ the fheriff brings the prifoner to an inn in Smithfield in his way to We/Iminjler, and the prifoner of his own liead goes without any keeper to Southwarhy and next morning returns again to the fheriff, fo that at the return of the habeas corpus the flieritl" dehvers the prifoner into court, this is no efcape. rianck V. [If a Jlieriff, having arrefted a defendant on meftie procefs, keep Anderfon, \{^^-^ jj^ his cuftody after tlie return of the writ, and then carry ^ J"™ him to prifon, he is not liable to an a£lion as for an efcape, if the jury find, that the plaintiff has not been delayed or prejudiced in his fuit.] DaitonShe. As the fheriff muft be careful that he does not give the prifoner riff, 4S6. more liberty tlian by law he onght to do, when he ads in obedi- ence to a lawful authority ; fo he mull take care that he does not let him go at large by colour of a void authority. Dyer, 297. Therefore, if one in execution at the fuit of the king and a *• ^^^'' private perfon be, by warrant from the lord chancellor or trea- Abr.^80 . ^y^gj.^ fuffered to go at large with a keeper, in order to collecl the money due to the king ; this is an efcape, as to the private perfon, although he return again to prifon ; for the king himfelf cannot licenfe one in prifo-n to go at large with a keeper. jCro. Eliz. So, where the fneriffs of Tork pleaded, that they let the prifoner £93. Col- gQ j^j. i^i.g(. \yy virtue of a writ of privilege directed to them from R^o'TsInd the council of Tork ; and it not appearing to the court that the Levet. xvrit was a fufTicient wartatit for that purpofe, or that the council ^^^'.f^' of Tcrk could in fuch cafe difcharge a prifoner, the plea was held Privilege. o i - * ill. Salk. 173. If an a£l of parliament is mane for the relief of confined debt- *'• 5- ors, and purfuant thereto the judices of the peace are enabled to [intraTy^was dlfchargc fuch and fuch prifoners, if they authorize the fheriff to adjudged in difcharge a perfon that does not come within the defcription of Sir Thomas ^^it act, and he lets the party go at large, it will be an efcape (b). Qroy scafc, i j «j <-■ 1 Ld.Raym. 3. 4 Mod, 353. ; but Lord Raymond quertions the !awof liie dccifion, becaufe, if the fun* for inrtaiice, exceeds that which the (Idtute allows r. difchaigc for, the jufticcs have no jurifdidiun, and the fheriff is bouad to take notics at his peril for what fuoi his prifoner is charged in execution. J Langton v. [Debt was brought by the plaintiff, executor of J., againfl the Waiiis, iLd. defendant as executor of -S. formerly flieriff of the county of Z>. f Luuv.^'^^" Upon ;/// debet pleaded, the jury found a fpccial verdict, t'/s. that fSz. S.C. A. recovered a judgment againfl F. and fued a capias ad fat'isfaci-' endum directed to B. then flieriff, ^r., which writ was executed by the under-fheriff, and F. being in cuftody, affigned a term for \ears to the uuder-ftieriff ia fatisfadion of the money recovered by OBfcapc in (ITiDil Cate.sf, 515 tlje judgment, and to be difcharged out of execution, which alliguinent was to be void upon payment of the money recovered by the judgment at a dav, after B.'& ofRce would detern)ine. Upon this B. was difcharged out of execution, and at the day, ^c. he paid the money to the under-iherill" 5 but the under-flieriffdid not pay the full money to ^. B. died ; and J. died ; and the plaintiff as executor of A. brought this aclion. — It was adjudged, that it did not lie ; becaufe the releafe of F. out of cuflody was an efcape in the fheriif, and the receipt of the money afterwards could not purge it.J 3. What by Conflrudion of Law (liall be deemed an Efcape, though the Party be ilill in Confinement. The marflial of the King's Bench being fued to judgment, if he Style, 465. be afterwards taktn in execution, he can be admitted to no other ^"^y^l^^V^ prifon but the Marpalfea ; and if he is committed to that prifon Dalco^Sh'e- whereof he is keeper, without fecuring the prifoners there firil, it riff, 487' will be an efcape in law of all the prifoners. If a woman warden of the Fleet prifon marries her prifoner, or Plow. 17, if a fherlff, isc. marries a woman in execution with him, in either cafe it will be deemed an efcape in law. If a man hath judgment againfl two (a) perfons, and both are Roll. Abr. taken in execution, if the flieriff fuffer one of them to efcape, he ^J°g^ .^ fhall be anfwerable for the wliole debt, though he hath one of them baron°and ftill in Cullody. feme are taken in execution, it the feme efcapes, the iherif!" rtiall anfwer the whole debt, though the baron continues ftifl in execution. Roll. Abr. 8io. Cjo jac. C57. S. 1'. By the 8^9 W. 3. c. 27. it is enaded, " That if the marflial «» or warden for the time being, or their refpeclive deputy or de- *' puties, or other keeper or keepers of any other prifon or prifons, *• Ihall, after one day's notice in writing given for thatpurpofe,refufe ** to fliew any prifoner committed in execution to the creditor, at <* whofe fuit fuch prifoner was committed or ch^ged, or to his *' attorney, every fuch refufal Ihall be adjudged to be an efcape «« in law." (C) Of the Difference between voluntary and negli- gent EfoJ.pes. iT was formerly held, that where the OierifF fuffered a prifoner Leon. 73. ■* in execution to make a voluntary efcape, the prifoner was in ^^^^f^ fuch cafe abfolutcly difcharged from the creditor, and that the tham.^Hjb. right of aclion was entirely transferred againft the (heriff, who 202. s. p. by means of fuch efcape became debitor ex delicto, ^m^^shtl riff of Effex's cafe. But the latter refolutions have been contrary, and it has been {h) SiJ.330. {h) adjudged, that where a (heriiF fuffered a voluntary efcape, the fj^^gji';,^^ L 1 z plaintiff 51(5 ^fcape I'n Cifeil Cnfcj^, Show. 174. plaintifF might have a hew aftion of debt ox fcire facias quare exe Buxton and cutionem noti acrainft the prifoner. Home, " * a Mod. i>6. BaH'et and Salter, Vent 269. z Jon. 21, 22. Mod. 194. Compton ap.d Ireland. 2 Lutw. 1264* Sudal and Wyiham. Alfo, the (latute 8 13* gU^ 3. c. 26. hnth taken nway all diftiiic- tion between voluntary and permifTive efcapcs with regard to the plaintiff's remedy ; for thereby it is enadled, ** That if any pri- *' foner, who is or Ihall be committed in execution to either or *' any of the faid rerpe6Hve prifons, ihall efcape from thence by ** any ways or means howfoever, the creditor or creditors, at ** whofe fuit fuch prifoner was charged in execution at the time *' of his efcape, (hall or may retalce fuch prifoner by any new ** capias ox capias faiisfacietid. or fue forth any other kind of execu- " tion on the judgment, as if the body of the prifoner had never ** been taken in execution." Carter, ;i2. But yet there remains a difference as to other purpofes between [2W!if.295. permifTive and negligent efcapes ; for if a fheriff fuller a priforier l.^"^ -vl/e voluntarily to go at large, the fheriff cannot retake him even upon theautho- ftefh fuit ; and if he does, the prifoner may have an a6lion of talcs/ufra.] trefpafs againfl him. Ravenfcroft [And where the efcape is voluntary, nothing afterwards can ^',?,?,l^'' purge it -, for whenever a gaoler commits a voluntary efcape, from that moment he commits a tort.j 3 Mod. 146. If the marfhal of the Kings Bench or w-arden of the Fleet, or any Carter, 212. other who hath the keeping of prifons in fee, fufFer a voluntary efcape, it is a forfeiture of the olhce. And now, by tlie 8 ^" 9 W. 3. c. 26. a further penalty is added, which cnaifis, " That if any marfhal or w^arden, or their refpec- *' tivc deputy or deputies, or any keeper of any other prifon with- ** in this kingdom, fliall take any fum of money, reward or gra- *' tuity whatfoever, or fecurity for the fame, to procure, affift, ** connive at, or permit any fuch efcape, and fhall be thereof ** lawfully convi6led, the faid marflial or warden, or their refpec- '* tlve deputy or deputies, or fuch other keeper of any prifons, as ** aforefaid, fhall for every fuch offence forfeit the fum of 500 /. •' and his faid office, and be for ever after Incapable of executing ** any fuch ofhce." (D) Of the DIfFerence between an Efcape In Mefne Procefs and Execution. 2 RoM. Abr. iF the flieriff fufFer a perfon arrefled on mefne procefs to efcape, 99' ^^7- * an atlion lies againll him at [a) common law, from the delay Lumiev. ^f'^^l prejudice which the party fufiers thereby. M()or/8s2. Cro. Eliz. 62V 652. 86S. Cr0.Jac.2S0. (j) And by theexprcfs word5 of 8 & 9W. 3. c. 26. [2 Bl. Rep. 1049.] " 2 Rnit. But there is this difference between an efcape on mefne procefs, Abr. 807. gj^^ execution, that if the ihcrifF arrefts a perfon on mefne procefs. Ion. 2«7. ' * * , CBfcape in diDiI (tafej^. 5^7 and he is refcued by J. S., he may return the refcne, nnd fuch Roll. Rep. return is good, and no aclion of ercape Hcs againfl him after fuch 383. return i but the court will iflue procefs againft fuch rcfcuer, or fine him ; for in this cafe, though the Iheriff may, yet he is not obliged to raife the pcjfe comitatus. But after an arrelt on a capias ad fatisfadend. tlie flierifF cannot Roll. Abr. return a refcue, for in fuch caf;.', the (heritTis obliged to raife the ^°7- -^"^ poJJ'e comitatus, if needful j and therefore, if he return a refcue, an rities .wl. a£lion of efcape lies, or a new capias (a), for the return of an in- {a) Cro. efFe£lual execution is as none. ^*''* *'^°*„ 155. Rcll. Abr. 904. 8 Co. 141. [Upon the fame principle the gaoler will bs liable for an efcape upon the refcue of one brought out oi gaol by babeas corpus between judgment and executiu.i. Crom^^tjo T. Ward, I Str. 419.3 Alfo, upon an arreft on mefne procefs, the (heriffis obliged to 2 Mod. 177. take bail by the ftatute it, H. 6. c. 10. therefore, if the plaintiff £"'« »n>i declares, that the defendant being fhcrifF of T. did arreft J. S. at rough,* ad. the fuit of the plaintiff, and afterwards did futfer him to go at judged. large; and the defendant pleads the ftatute, and that he took ^ Mod. 2:7. good and fufficient bail, and the plaintiff replies and traverfes, i Freem. that the defendant took good and fuificient bail ; this action does 2»9- S. C. not lie; for quoad the plaintiff, the fufBciency of the bail is alto- .^^'^'q' gether immaterial, it is for the fecurity of the ftieriff ; and if the cce i Ld. party does not appear, the plaintiff need not take an affignment of Raym. 425. the bail-bond, but proceed againll the ilienff by way of amerce- g ^4„d^J^2 ment, and leave the flieriff to take his advantage againft the Noy, -ji. ' \)z\\, Semb. «n. tra. (E) What Perfons are anfwerable for, and to be charged with an Efcape : And herein, I. Of the preceding or fuccecding Sheriff, Warden, Ss'r. TT THERE a new fhcriff is appointed, his predeceffor ought to Hob.a66. ^^ deliver over by {^) indenture all the prifoners in his cuftody, ^*^°^^' charged with their relpe£live executions ; for the prifoners,. until cro.Eiiz,' they are turned over to the now iheriff, remain in the cuftody 365 of the old flieriif, and if he omits to deliver them over, every ^^'''ft-To* omilFion will be deemed an efcape, wherewith he will be charge- ^co. 71. * able. (^) See the fjrm thereof, Dalt. Siieriff, j8. As, where one Buf.ard was in execution in the cuftody 3 Co. 71. of the defendants, then fheriffs of Lofidori, as well at the fuit of W'l'tley^ ^, as at the plaintiff's fuit, and the defendants at the end of the -^ T^at year delivered over the body of Bi/Jhrd to the new (herifi^'s by in- fuch notice denture, wherein the execution at the fuit of ^. was mentioned, '"^y ''^ ^V 11 - . • 1 I r word only, but the execution at the planitifr s iuit was omitted, and after- or by fome wards BuJIardy in the time of the new fiieriiTs, efcaped ; it was note in refoWed by the whole court, that the defendants being the old jj^'^'^^^^" fheriffs fhould be charged with this efcape, for that the old thenffs ihcriffs ought to have eiven (c) notice to the new fheriifs of all hand, or 5i8 Cfcape in Citiil Cafeflf, hand of his the exccutions wherewith any perfon was charged in their under-fl.e. cuftodv. riff, and ' need not be by indenture, unlcfs the new fhcviff require it. Moor, 689. Dalt. Sheriff, 16. CrOt Jac. 588. 3 Co. 72. But if the fheriiT dies during his fnrievahy, the new flierifF, as [By ftat. ^QQp ^5 ]^^ jg appointed, muft take notice of all perfons in cuftodv, c. ic!*^8. ^'^^ of the feveral executions with which they are charged; and the duties of this he muft do out of neceflity, for there being nobody to inform the office of j^^^^ j^^ mull himfclf take notice hereof at his peril. ihenft are, ' .... in this cafe, to be executed by the under-fheriff, until a fuccefl'or is appointed. And it is not ufual t* appoint a ncwflieriff till the end of the year.] aLev. 109. y. 5. being in execution in the Flcet^ was fufFered to make a Lenthaiand voluntary efcape, after which he returned again to the Fleet ; and adjudged. *^^ defendant being made warden in the place of the former war- 3 Keb. 487. den, J S. was turned over with the other prifoners, and afterwards ^* ^' fufFered to efcape ; and the queftion was, Whether the voluntary James ^d' cfcapc fuffWred by the former warden did not fo entirely difcharge Pierce. . the cxecution, that the prifoner could not be retaken, nor judged ?",^' f"^' , in execution, by law, even though he fhould yield himfelf to it .'' judged, and . , . , 1 . 1 • !• 1 11 • - i- 1 the cafe of And it was held, that it did not, and that tne lucceeding watden the flierifF {hould be chargeable with the efcape fuffered in his time. of Z (Tex, in Hob. 20Z. [ante C) cont. denied to be law. 6Mcd. i8j. So, in the cafe of one Gratit, who being in the cuflody of the Grant v. former marfiial was fuffered by liim voluntarily to efcape, after Stra.4J3. which he returned voluntarily to prifon, and being found in pri- fon, the fucceeding marfhal detained him ; and in an a£lion of falfe imprifonment brought by him, the court held that he might, and that if he had fuffered him to go at large, it would have been an efcape. 2. Where Sheriffs, Wardens, ^c. their Superiors or Deputie;?, are ILible, at the Election of him who is injured by the Efcape. (a) Butln Where one hath the cuflody of a gaol of freehold or inherit- what cafes g^ce, and commits it to another perfon, who is infufficient, the law, and («) fuperior is anfvverable for all efcapes fuffered by his inferior j upon the but if the inferior be fufHcient, the a6lion muft be brought againft him, and not againft the fuperior. the rule of rcjpar.deat Jupcrkr will hold, -vide 2 Inft. 382. 466. 9 Co. 98, 2 Jon. 60. 2 Lev. 1^8. Vent. 314.. z Mod. 119. fiolt. pi. xi. 3 Keb. 591. 656. 701. 754. 758. 773. Noy, 69. Comb. 95. Alfo, by the 8 ^* 9 W. 3. c. 26. it is enaded, " That the offices *' of marfhal of the Kings Bench prifon, and warden of the Fleets ** fliall be executed by the feveral perfons to whom the inheritance ** of the prifons, prifon-houfes, lands, tenements, and other here- ** ditaments of the faid prifons of Kings Bench and Fleet, or ei- *' ther of tii'-tn, iliall then belong or appc^rtarn refpeclivcly, in his <* or their itfpcctivc proper perfon or perfons, or by hh or tlieir *' fuiiicicnt ftat')te of Weftm. 2. Cfcape in €M} €^kfS, , 519 ** iufficient deputy or deputies, for which deputy or deputies, and *' for all forfeitures, efcapes, and other mifdemcanors in their '* refpeclive offices by fuch deputy or deputies permitted, fufFered, ** or committed, the faid perfon or perfous in whom tlie aforefaid g "^ - ** inheritances refpe£livcly are, or lliall then be, iliail be anfwer- c. 17. the *' able, and the profits and aforefaid inheritances of the faid feve- power of " ral offices (hall be fequeftered, fcifed, or extended to make fatif- Ji^J'^^ *' faction for fuch forfeitures, efcapes, or mifdemcanors refpe£live- of the *• ly, as if permitted, fufFered, or committed by the perfon or K-ing's " perfons themfelves, or either of them, in whom the refpc6live r4"fted^in *' inheritances of the l^iid prifons ffiall then be *." the crown. If the (a) bailiff of a franchife fuiJer an efcape and be infuffi- * Erownl. cient, the lord of the franchife fliall anfwer for him. 5°' f"' '»- tarn cur. 2 Lev. 160. S. P. (a) If his deputy fufters an efcape, he fliall anfwer for It himfelf. Lit. Rep. 33. per curium. If a gaoler, who is the (herifT's fervant, fuffers a prifoner to 2 Lev. 159, efcape, ths action mufl be brought againil the (lieritF, not (1^) ^J^n-fi*' agaiiift the gaoler; for an efcape out of the gaoler's cuftody is by (^x "j/jI^^ intendment of law an efcajx: out of the fheriff's culiody, for by 5 Mod. 414. the 17 E. '3. c. 10. flieriffs are to put in fuch keepers of gaols as '*-'^' ^^' ...I- n. 11 /• r Raym. 424. they Ihall anlwer tor. Saik. -inz. pi. a. where it is faiJ in general, that gJokrs are li.ible for efcnpes ; but the queftion being there touching ihe efcape of a perfon committed for a criminal offence, muft be underilood of efcapes in thofe ca'es, for which whoever dc faEio occupies the of5ce of gaoler is liable to anlwer ; nor is it mareiial, wliether his title to the office be legal, or not. Hale P. C. 114. 2 Roll. Rep. 146. 2 Hawk. P. C. c. 19. § iS.&f -vidt Hard, zy to 3^., that where ailions for efcapes are faid to lie agjinft gaolers, fuch abfolute gaolers are intended, as writs aie diieiled to- So, an arreft by the (herifFs officer Is In judgment of law the 5 Co. 89. (r) fame as if the arreft were by the (heriff in perfon •, and if fuch ^''■"^^" •^^'■* officer fuffisr the party arrefted to efcape, the action muft be ufou h in brought againft the fheriff. lavy the cuf- tody of the bailiff be the cuftody of the flieriff ; .yet the flieriff" cannot return, that fuch a one was in his cuftody, and refcued cat of the cuftody of his baillfts, becaufe of the repugn.incy ; but he may return, that he was refcued out of his own cuftody, alihough he was never in his adual cuftody, or out of his baiiift"'s cuftody. 3 Salic. 5S6. pi. 2. fs" i/j^f Sid. 332. 2 Jon. 197. But if the flieriff dire£ls his warrant to his bailiff, and afterwards Cro. Eliz. J. S. puts in his own name as fpecial bailiff, and thereupon arrefts ^-^ 5'. P^'^* the defendant, who efcapes ; here J. S. fliall be only chargeable, ri^ha'h * and not the flieriff, becaufe the defendant was never in the flieriff's be^nrepeat- cuftody, but only in the cuftody of J. S. ediyhoiden, a fpecial bailiff is appointed on the nomination of the plaintiff" in the aflion, the fherifl"is not anfwet- •bU for xhe. a£ls of I'uch bailiff. Ue Moranda v. Dunkin, 4 Term Rep. 120. 1 So, if a writ comes to the flierlff, and he makes out his mandate Roll, Abr. to the bailiff of a liberty, who takes the party, and after fuffers 9^' 99 E"""* him to efcape, [d) an adion lies againft the bailiff of the franchife, Noy,''2-'!°' and not againft the flieriff. [(^Mn'dif the bailift" ifi fuch raf; remove the party to the county gaol fituatc out of the liberty, and there deliver him into xi.f cvift. dy of the flieriff', he will fujjedl himfelf to an adion for .;n efcape. Cooihmau v. Earl of SiJr y, a Term Rep j. J L 1 4 So, 520 Cfcape in Cibil €ak0. Cto. Eliz, So, where a capias ad fatisfaciend. was awarded to the fheriff" of *^- ^tfr^j- to arreft J. S. who then was in cuflody of the mayor and burgefles of IF. and thereupon the (herifFmade a warrant to the mayor, isfc. to take him, and afterwards they let him efcape ; it was clearly held, that the mayor, ^c, and not the iherifF, were chargeable with the efcape. Roll. Abr. If a capias ifTues againft A. out of the {herifF of LondoiH court, 806. Dunn dire£led to one of the ferioants, v/ho arrefts A. and lets him efcape Sid. 3 1 3.' before he is carried to the counter, the ferjeant, in this cafe, and 5. P. not the (lieriff, is chargeable with the efcape ; for the fheriff is judge of the court, and not a minifterial officer. But if A. had been carried to the counter, and efcaped thereout, the fherifF would then have been anfwerable, as gaoler or keeper of the counter. Roll. Abr. So, if a ferjeant at mace arreft a man by virtue of a warrant *^^' iffuing out upon a latitaty and afterwards fuffer him to efcape be- fore he brings him to the counter ; in this cafe, an a6lion lies againft the fherifF only for this efcape, becaufe he was in the cuftody of the fheriil prefently upon this arrefl ; and the fherifF is the ofHcer of the court of King^s Benchy and not the ferjeant. Cro. E!iz. If upon a plaint levied in the court of B. before the bailiffs of V^\hnltn ^' according to the cuftom there, a warrant is direcled to the adjudged. ' under-bailifFs, to take y. S. ita q::od haheant corpus ejus coram hall'i^ vis ad pro::, curia/ii, and the under-bailifFs take him and commit him to the iprKon J'ul^ cujlodid of the gaoler of the prifon of B. ; if they have him not at the day, is'c. an adion lies againft them, and not againft the gaoler ; for there was no commitment to him by any lawful authority, and that cuftody the gaoler had was only as a fervant to the under-bailifFs. Carth. 14^. A priibner in Wood-Jlreet Counter^ upon a mefne pro,cefs on a Edwin^^"'^ plaint levied againft him, ISc efcaped, whereupon the plaintiff brought his action againft both fherifFs of London \ and, upon a demurrer to the declaration, the plaintiff had judgment; and it was refolved, that though the plaint v/as levied before one of th,e defendants only, and the prifoner efcaped out of his counter, and by his negligence alone, yet that both fherifFs had the cuftody of the prifoners in both counters, and by confequence, the action was well maintainable againft both. Cro. Eliz. If there are two fherifFs of the fame place, and an atlion of v^'he^She°." ^^^^P^ ^^ brought againft them both, if one of them dies, yet tlie riffs of the writ fhall not abate ; for it being in nature of a trefpafs, and City of (a) merely perfonal, the party can only have remedy againft the JX^'v. * furvivor *. no adlion lies againft the executor or affminiftrator of a perfon who fuffers an efcape, becaufe it Is a per- fonal tort, ami comes within the rule «r/':;nj/ij mor/Var faffj/ifrysna, '"> ^- **♦ damages. The facts of the cafe were as follows : — The plaintiff ^^153^ '^' had recovered againft one Faheney a debt of i i,©oo /., but at the time of the efcape, a writ of error was pending, and final judgment not entered up. On Friday the 24th of Noveviher laft, the deputy warden of the Fleet (the warden himfelf being not in town) received a notice in writing (which notice it was in proof was duly ferved) from the plaintiff, to difcharge Faketiey. The deputy warden having fome doubts whether the notice were really the handwriting of the plaintiff in the fuit, and thofe doubts being increafed by its having been brought by one Knight, a man of very bad characier ; he did not immediately obey it, but employed himfelf in inquiring into the matter, and endeavouring to difcover whether this were actually the handwriting of the plaintiff, or not. On the Saturday, the next day, he met the plaintiff's attorney, who told him, he was not enough acquainted with plaintiff's handwriting to be able to give any opinion on it. On the following day, Sunday, in the afternoon, he met the ^lamtiff aud his attorney i the plaintiff then ^ckno\v=» J22 (Sfcaps in €Ml CaftjOf. acknowledged that the notice which defendant had received was written by him, but after feme converfation, fwdre that he liad been made a dupe of in giving it, and immediately ferved the defendant with a countermand of it. The defendant difrcgarded this countermand, and that evening difcharged Fakeney. Lord Loughbc rough' ^ idea at the trial was, that this firft: notice could amount to nothing more than merely to entitle Fakeney to Tn./upef" fciltaSi that it by no means warranted an immediate discharge, and therefore as the defendant had taken upon him to judge of the legal clTecl of it, he tliought he ought to take the confequences, and told the jury that they fhould lind for the plaintiff. Bond^ Serjeant, moved, that a nonfuit fliould be entered upon the above evidence as it appeared on the judge's notes. He infilted, that by the letter of diTchargc all claims by the plaintiff on the defendant for tlie detentioii of Fakeney were put an end to, and that that letter of difcharge could not be countermanded For in the firfl place, this notice from tlie plaintitf was a legal dif- charge : a parol direction to the gaoler by the plaintiff in the fuit, to let the prifoner go out of prifon, is a good difcharge, Broivnt Anal. 29.; and fuch direclion is a good defence by the gaoler in an action for an efcape. 2 hij}. 382. Lord Coke, commenting on the yvotAsftne ajjeufu dotnini, fays, this affent may be by parol, and fhall fee a fufhcient bar in an adlion of debt for the efcape. Dy. i']i.a. Cro. Car. 329. J^ezey v. Harris and wife, Gouldf. 81. Thefe cafes prove, that where there is the confent pf the plaintiff, a difcharge without writ is a fufficient defence in an a£lion againfl the gaoler for an efcape. But this order of difcharge having been thus pro- perly given, could not in law be countermanded. To fee whether it were countermandable or not, it will be necell'ary to fee what was to be its operation on the prifoner. As with refpe£l to him, k was a grant of liberty, a grant of an intereft of the higheft nature, and therefore not countermandable. For wherever a valu- Jible intereft is given by grant or manumilhon, it cannot be coun- termanded. A villein enfranchifed for an hour, is fo for ever ; an rxprefs mannmiffion of a villein cannot be upon condition, for once free in that cafe, and ever free. Ca. Litt. 274. b. Finch. 29. The law invariably makes the diftin£tion between matters of profit or intereft, and matters of pieafure, eafe, truft, authority, and limitation ; with refpe£t to the former it allows of no counter- mand J with refpe£t to the latter, they may be countermanded, I though a power of revocation be taken away in the moft pofitive terms, for a man cannot by his own aft make that not counter- mandable, which by law and in its nature is countermandable. This was fettled in Finer s cafe, 8 Co. 82., where it was determined that a fubmiffion to an award is revocable, though the party have declared it to be irrevocable ; but the grant of a valuable interctb is in its nature irrevocable. Sheph. Abr. tit. Coimtertnandy 4<54, SceFrtche If I prefent J^. 5. to a church, I cannot after vary and prefent V, Buhop of ajiew, for a kind of intereft pafleth out of me. Finch. 32. Dyer^ HouicQf 34?' ^' In Plotoil. 2,6. a. it is Hated ar^wf/u'/o, that if a perfonal Loids. thing €fcape in Citil (Hafcjef* $^3 thing be once in fufpenfe, or the perfon of a man be once dif- charged for a perfonal thing, that is a difcharge for ever. From %. A cafe all thefe authorities then it is clear, that where a valuable intereft ^^^^'^ ^''**™ is derived to a party, it is not fubje^ to a countermand". And * ° ■ 3S* further, by this order of 24th of Novembery Fakcncy can never be deprived of his liberty again for this debt. It is faid in the cafe ol Alatifou V. Biithr, cited in Shoiv. 177. that in an efcape by confent of plaintiff, neither the plaintiff nor the (heriff can retake, though the debt be unfatisfied. And in Fretm. 213. in the cafe o£ Boffet V. Salter y Norths C. J. fays. Since the law is fo ftri£l that matters of deed (hall not be difcharged but by deed, he wondered that the law fliould permit an execution to be difcharged by a miflake of the plaintiff's ; as he cited a cafe, where a creditor ■went over to the King's Bench to treat with a prifoner, and brought him over the water to a tavern to treat, it was held that he could never take him again, and fo the law is clear when he is once difcharged by the confent of the plaintiff. S. C. in 2 Mod. 136. Thefe words ought to have the more weight, becaufe the C. J. feems to exprefs a diffatisfa£lion in declaring the law to be fo fettled. But when this order was delivered to the warden, he was bound to obey it, otherwife he would have been guilty of a trefpafs, and he actually was guilty of one, in detaining Faketiev till the Sunday. That the a£lion of trefpafs will lie in this cafe is determined in 3 Bidjlr. 96. Withers v. Henly. But if the defend- ant is chargeable in an aclion at the fuit of Fakeney for detaining him, he cannot be chargeable in an aclion at the fuit of Holland for difcharging him. On the other fide it was anfwered by Adair^ Serjeant, that as to the firll fet of cafes which were cited by the council for the de- fendant, and which went to prove that an interefl once granted cannot be revoked ; admitting that pofition to be true, yet liberty is not the intereft meant in thofe cafes •, all thofe cafes relate merely to property. That as to the cafe that was cited from Freetn. 213. and 2 Mod. 1 3.6. in the fecond fet of cafes, which flruck the court as prefTing rather hard upon the plaintiff, where it was held, that if a creditor had once taken his debtor out of prifon, though for the exprefs purpofe of a compromife, he could not afterwards detain him -, in that cafe it fhould be con- Cdered that there was an aftual difcharge, not as in this, a mere affent to a difcharge. There is another diftin£tion, which was exceedingly material ; and that is, between a party in prifon under an execution, and under mefne procefs *, execution is much more like an intereft than a detention under mefne procefs ; for the dif- charge of the party under mefne procefs by no means annihilates the debt ; for the creditor, though he cannot arreft the debtor again, yet he may fue him for the deist, and then take him in execution. An authority to a gaoler to difcharge a prifoner on mefne pro- cefs is merely a licence ii.ct coupled with an intereft, therefore may be countermanded. Lord 3^4 (JBfcape in Cibil CafCjcr, Lord Loughborough. — The point made at the tibial was this, that a dilcharge once given, no matter by what means obtained, whether by fraud or fairly, was irrevocable ? I did not leave it to the jury to inquire whether there had been any fraud ufed in obtaining the difcharge, but fummed up the evidence without adverting to that part of the cafe. I thought the counfel extremely judicious in not prelling upon that ground, as I was Itrongly of opinion that the plaintifr had been grofsly impofed upon, and Ihould moil certainly have fummed up to the jury with very ilrong obfervations. The queftlon therefore now comes be- fore the court, bearing as an admitted fact upon the face of it, that the plaintiff had been duped, and therefore it is for the defendant's counfel to contend that the original order of difcharge was eft'ec tual, notwithftanding ;he difcliarge had been obtained on the ground that the plaintiff had been duped. The defendant's counfel, after feme hefitation, contefled that if the cafe were put upon that ground, they fliould be unable to fup- port it, and not choofing to let the whole go again to a jury, the yule was difcharged.] l^a) The By the i Ann. c 6. it is enaded, " That if any perfon com- nmnor^' *' fitted {oT rendered to, or charged in the cuft.ody of the mar- granubie for *' ^^^ ^f the ^leen's Bench for the time being, or to or in the any con- « priion of the Fleet, either in execution, or upon mefne procefs, BoTp^''-'^'^ " °^ "P°" ^"y contempt in not performing orders or decrees (a) forming " made by any of her majefly's courts at Wejhniiijier, and fnch an order. « perfon fhall at any time after fuch commitment, render, charge, v.'payne ^ " °'' ^^^"8 i" execution, and before he fliall have made pay- j Str. 99!] " ment or fatisfa£lion to plaintiff or plaintiffs, creditor or cre- (i) If a per- « ditors, or fhall have cleared himfelf of fuch contempt, as in^execu-^ " ^^ ^^^^ ^^ charged with at the time of fuch commitment, ts'r., tion in the " make any efcape] from the cuftody of the marflial of the ^leens King's cc Bench for the time being, or from the prifon of the faid ^teens tamed over *' Bench, OX from the prifon of the Fleet y or either of them, it fliali to the Fleet, " and may be lawful, upon oath thereof in writing, to be made and he ef- i< ^y one or more credible perfon or perfons, before any one of the a judge of *' judges of [b) that court where fuch a£tion was entered, or judg- the King's " ment and execution were obtained, or where the party was fo Bench or c< committed or charged as aforefaid, to and for fuch judge before Pleas may '* whom fuch Oath Ihall be made, as abovefald, and fuch judge is grant an ef- *' hereby authorized and required from time to time to grant unto cape \var^-^ ) Vide 2 Show. 424. p]. j^i. Therefore if, upon a judgment obtained by the teftatcr, the exe- Carth. 14S. cutor brings ayi-/rfyd'i7«j, and has judgment, whereupon a capias ^o.d and ad /litis fac. ifiues, and B. is arrcfled, and fullered to efcape, the -^m^' ,£. plaintiff in an aQion againll the fheriff for this efcape may declare S.c. briefly upon the judgment in x\\Q f.-irefacias^ without {hewing the ^^°' ^''^• gradual proceedings at length, as is ufually done in an adlion of adjl'j.'^'d. ' debt upon a judgment. But if the plaiiitiff declares, that lie fucd cut a writ of execution Sauni. 57, agaiiift J. S. without fetting forth any judgment, and that the 3*- _ Jo"^- defendant fuffered him to efcape; this is an incurable fault; for ^"v'Ti* by this means he loll: the benefit of pleading- nul iitl record U)j andiSiii, which he might do, if the plaintiff had fet forth the judgment. 3c6. s. cv ° * •■ ° but the plaintiff had leave to diTcontinue. (f) S Co. 141. Dfury's caf?. If A. recovers as executor againfl B, and has him in execu- Vc\:m. §93, tion, and the (herlff fuffers him to efcape, the action mufl be Glover aad brought as executor in the {d) detinet only, and not in the debet and adjudged, detinet. Comb. 114. S.C. ad- judged. [Bat fee Bonafojs V. Waiker, 2 Term Rep. 126. cc-nfrj.'j ( breach of purfuant to thc declaration. a condition, that he was turned out of his houfe by two, and the jury find that it wjs done by one only. Cro. Jac. 475. Hingen and Pain, adjudged, Cro. Jac. iSo, in an acllon on the cafe for the efcape of j4. where the jury 580. King found that J. was taken by J. S. the former (herllF, and not by the Idjud"geT"''' <^efendant, the prefent fheriff; but finding that he was legally in Sid. 5. S.C. his cuftody, and that he fuffered him to efcape, the plaintiff had cued. judgment. ^Lcv. 85. The plaintiff declared, that whereas he had good caufe of a£lion bunter and againft j4. and fued out a latitat againft him ; the defendant being r/rMm fheriff arrefted him, and fuffered him to efcape ; upon trial at fii/t Rep. 61 r. prii/s the plaintiff was nonfuit, becaufe he could pi-cve no caufe Alexander V. ^f a^ion againft J. j but Haley Ch. Juft. faid, that if the plaintifi' S.p!i^^' ^^^'^ declared of a debt of 40/. and upon evidence could prove but 30 J-. it had been fufficient ; but the book adds a quarey it be- ing a fpecial acftion upon the cafe. Bhtch y. [In debt againft the ftierlff for an efcape, the indorfement of Archer, fjQfj pj} inventus upon the capias ad fatisfaciendinn^ is fufficient eviw Cowp. 63. jjg„(^g of Jtg having been delivered to him. So, the bailiff's name iiidorfed on the writ is fufficient evidence, that he was authorized by the fheriff to arreft, without proving the warrant.] By the 8 ^9 /f^. 3. r. 27. reciting, that the way of proceeding againft the warden of the Fleet prifon, by bill in the courts of ' Common Pleas and Exchequer at Wejlminjlery is found to be very dilatory ; it is enacted, " That it (hall and may be lawful to and «* for any perfon or perfons, having caufe of action againft the . . ** warden of the Fleet prifon, upon bill filed in the faid courts of ** Common Pleasor Exchequer againft the faid warden, and a ** rule being given to plead thereto, to be out eight days at moft " after filing fuch bill, to fign judgment againft the faid warden *' of the Fleeiy unlefs he plead to the faid bill within three day* ** after fuch rule is out." (H) Of the Party's Defence who fuffered the Efcape: And herein of pleading frefh Suit. 5.66. |.F the prifon takes fire, by means whereof the prifoners efcape, ?-°"* ■■• this fliall excufe the ftieriff, and he may plead it. SE.6. 15. Roll. Abr. 8c8. 4 Co. S4. So, if the prifon is broken by the king's enemies, this fhall ex- Roii. Abr. (.yfg j-}^g fheriff, for he can have no remedy over againft them. 4'Co. 84. But if the prifon was broken by rebels and traitors, the king** Roll. Abr. fubjeOs, this fhall not excufe -him, for he may have his remedy over againft them. Cro. Jac. If a prifoner in execution efcape without the affent of the *5"- fheriff, ll^c. and he make frefh purfuit and retake him (/>) before Roll. Mr. ^"y ^<^i^" brought againft him, this fhall excufe the fheriff. SffcS. {And a voluntary return of the prifoner, before ai^ion brought, is equal to a retaking upon iielh CBCcape in CiDil Cafej^, 529 ftfA parfiiit- Bonafous v. Walker, 2 Tcim Rep. 126.] {h) But if he retake him ^fter the z&'ion commenced againft him, this fliall not exculc him ; nor can it be pleaded to an adtion that was well attached bet'ore. Roll. Abr. 8o5{, 809. Jon. 145. Cro. Jac.657. Harvey and Reynell, adjudged. [iStr. 873. Stonehoul'c V. MuUins, ij. P.] So, the (lierlff may plead, that the prlfoner efcaped the fixteenth Roll. Abr. day of Deiembcfy and that he made frefli fait, and retook him the ^^9- feventeenth day of Deccmbery and retained him in execution ; for riff 562/" it is fufficient, if he did all he cculd, tliough he loft fight of him in the night, or otherwife. So, if a prifoner efcapes, and feveral days after, but as foon as Roll. Abr. the flierli}' has notice of it, he makes frefli fuit, and retakes him ^°^• ^^^ before any adtion brought, this fhall excufe him. .r-j -n ^ *""' ^*'o ' ° ^ J'^deY.nl. 195. 19S. If in debt upon an efcape the plaintiff fets forth in his declara- Vent. 211. tion a voluntary efcape, the defendant may plead that he took V]\ ^"" him upon frefli purfuit, without traverfmg the voluntary efcape ; vy^s^cafc°' for it was impertinent for the plaintiff to allege it, and no ways [2 Term Hisceffary to his adion. ^^P- ^-6. ' Bonatous v. Walker, S. W Under a count for a i--Jur.tary efcape, the plaintiff may give evidence of a neglirent efcape. Hid.] It was formerly held that the (heriff, ^c. might give frefli pur- i^iJe Mod. fuit in evidence, and need not have pleaded it. ^'6. ^ Sid. 13. But now by the 8 fff 9 ?/^. 3. c. 27. §5. it is enacted, " That [(c) An af- ** no retaking on frefh purfuit fliall be given in evidence on the ^^^a^it thac *' trial of any iffue in any adtion of efcape againft the marfhal or mendoned *' warden, or their refpeclive deputy or deputies, or againft any in the deda- ** other keeper or keepers of any other prifon or prifons, unlefs ""on, {,/ ** the fiime be fpecially pleaded ; nor fliall any fpecial plea be "cjietierf' ** taken, feceired or allowed, unlefs oath be firft made in writing -was,) hap- ** (r) by the marflial or warden, or their refpedlive deputy or de- psne^ with- ** puties, or by fuch other keeper or keepers of any other prifon fendlnt'/" " or prifons againft whom fuch a£lion fhall be brought, and filed knowledge, *< in the proper office of the refpedlive courts, that the prifoner "af^aiiowed *' for whofe efcape fuch aclion is brought, did, without his con- cient-^for " fent, privity, or knowledge, make fuch efcape ; and if fuch affi- ifthede- *' davit fhall at any time afterwards appear to be falfe, and the p"^^"^ " marflial or warden, or other keeper or keepers of any other pri- thinpW any ** fon or prifons, fhall be convidled thereof by due courfe of law, efcape, he is ** fuch marflial or warden, or other keeper or keepers of any other ?°^ ^° ^^ ** prifon or prifons. fhall forfeit the fum of 500 1." admit by his affidavit that an efcape has actually happened. Weft v. Eyles, 2 Bl. Rep. 1059. 1 If an a£):Ion of efcape be brought againft the fheriff, and the 8 Co. 14s. judgment upon which it is found be reverfcd, before fuch time as ^^'^' ^^^" the defendant is forced to plead, he may plead (d) tml tiel record^ \d)\l. debt for [e) collateral things executory are as if no judgment had ever foranefcape been, when reverfed. of one com- mi tied on 1 (af\ai uitagatum, the /heriff may plead nul tic! record. Hob. 7.09. Brownl. 5I« {e) But if, iadebt» upon elcjpe, the plaintiff recovers, and hath execution, and after the firft judgment is rtverfed, jet chc judgment for the efcape remains in force. 8 Co. 142. b. 3 Mud. 3:5. S. C. cited. Vol. II. M m If S7,o (J^fcapc in Cii)il CafCi2f» For this If n prifoner taken on a capias adfatisfaciendiim pays the debt to vJeCro. tl^g marfiial for the ufe of the plaintiff in the original action, and Mo'd.TcM. '^ thereupon difcharjiied, yet he cannot plead it to an a£lion brought 2 Jon. 07. againft him for the efcape ; for the marflial had no authority to Lut. 587. receive the money, the words of the writ being quod capias, iffc. et 399. eum Jalvo cujicdias txa quod habeas corpus ejus coram jujiiciar. tiel jOur * Vet, qu. ad fatisfaciemhim the plaintiff*. If the court, on motion, would not flay proceedings on payment of debt and cofts, for what can the plaintiff require fa.ther ? €0ate in ifee'Q'mple* TiMaaia Bnn'— - fa) Ir WIS a {a)[b) JjEE-SIMPLE is an eftate In {c) lands, tenements, 6ff. common ji j.q qj^^ ^^^^^ ^as heirs for ever. Alfo, where a corpora- among the ^lon fole or aggregate are capable of holding in fucceffion, and Northern lands are given to them and their fucceffors, they are faid to have a nations that feg.fij^ple. invaded the ■' Roman empire, for the lords, who held great diilrifls, to give lands to fuch perfons as had behaved themfelves well in the wars, fomeiimcs for life only ; and when they married their daughters to any of thole ibldieri who were ufually their vaflai^ or tenants, they gave the lands to them and the illlip of that ir.aniage, which brought in the notion of fucc fijon among;t us. Dig. lib. I. tit. i. How from this notion of fiicccirnn a f:'e-fimple arofe, by letting in all heirs, whether lir.eal or collateral, of the ex- chifion of the afcending line, baftards and the ha!f blood, and why the male line was preferred, I'idt title Defcents, ante. {h) My Lord Coke divides fee, which he fays fi^nifies the fame with in- heritance, into fee-fimpls or abf.-^lute, conditional and qja!ified, or bafe. Co. Lit. 21. b. ; and this, ■which is the moll ample eftate of inheritance, may be in things (t) real, p^rfotal, or mixed-, real, as in lands or tenemtnis ; perfonal, as when an annuity is granted to one aiid his heirs j mixed, as when aa ea:l is created of fuch a county. Co. Lit. I. b. 2. a. In Fee-fimple we fhall confider, (A) Who may purchafe or inherit fuch Eftate. (B) The Import of the Word Heir that creates the Eftate. 1. When it Is a Word of Limitation. 2. When it is a Word of Purchafe. (A) Who Cliate in iTec=(impIc» 531 (A) Who may purchafe or inherit fuch Eftate. A N alien cannot purchafe any lands In England ; the reafon is, v.iu.2i7i ■^^ becaufe every perfon is prefumed to have a natural and ne- ^^'" ^ Co. cefTarv allegiance to that fociety that firft protected and preferved Over, 2. him -, and therefore he cannot pay any allegiance to any other fo- pi- 8. ; but ciety, unlefs he be afterwards received into it. , *orthis W< •' ' head of Aliens. All perfcns attainted of treafon or felony arc incapable of pur- chafing. Felony, by the ancient feudal law, was a [c) crime for (a) Co, Lit. which a vaiTal forfeited his feud to the lord, becaufe he broke his ^' ^ °f ^ oath of fealty in the higheft manner : his body with which he had ^^^^^ ^^^^ engaged to ferve the lord is forfeited to the king ; and his blood many by the is faid to be corrupted, becaufe no man can reprefent Ills perfon, ^"f'f"^'^"" that perfon itfelf being forfeited by tlie law, a!id the note of infa- vvhich lids my refting upon his family; fo that no reprefentative of his can Digeft. Feu- be received to do any feudal fervice : f-jch tenant, therefore, dying y°^^^\i^ without heirs, the land is in the lord by forfeiture. But if the 23* 24. tenant commits treafon, the lands are forfeited to the king, becaufe Vigeiiius, there is an exception in the oath of fealty that faves his allegiance ^'^^{J'J'^' to the king; fo that if he forfeits his allegiance, even thofe lands ciofl*. 214, held of another lord are forfeited to t]:e king, for the lord himfelf ^ii- Co. cannot give out lands, but upon that condition, as appears by the '^* ** refervation in the oath. If a man be attainted of felony, and after purchafe land, and Co. Lh. die, the king (hall have it by his prerogative, and not the lord of *' ''* the fee ; becaufe his perfon being forfeited to the king, he cannot purchafe but for the king. If there be grandfather, father, and fon, and the father be at- Nay, 153 tainted, the fon cannot inherit the grandfather, becaufe the father ^o'Li't 8 cannot be reprefented ; but if the father be attainted, two brothers 4 Leon.' may inherit each other, becaufe there is no difability in the one to pi- ai- be reprefented, or in the other to reprefent ; if the father be at- j) ^^aS.^^' tainted, the fon may inherit the mother ; if the eliieft fon be at- tainted, and the father die in the lifetime of fuch eldell fon, the younger cannot inherit, becaufe there is the line of the elder brother in being before him ; but if the elded fon die in the lifetime of his father, without ilTue, the younger brother fiiall inherit ; but if he leave iffue, neither the iiTue nor younger brother can in- herit. If the father be attainted and die during the life of the grand- Co. Lit. «. father, yet the fon (hall not inherit the grandfather, becaufe he * Co. 'o. mult reprefent his lather, who cannot be reprelented : but it the f-ik. grandfather be feifed in tail, and the father be attainted of treafon fmce the 26 H. 8. c. 13. and die in the lifetime of the grandfather, the fon {hall inherit the grandfather * for the fon is heir per formam doni to the tail, which is originally not forfeitable, and by that ftatute the f.ither only forfeits the lands and right that he hath in him. JNI m 2 If dEGatc in jTcc^ftmple. Co. Lit. S. But if a man be attainted, and .itttr pardoned by If a man attainted be pardoned by a£l of parliament, he is t<5* tally reltored and inheritable to all perfons ; but if he be pardoned by charter, he may thenceforth purchafe lands, but cannot inherit his former relations ; for the king's charter cannot alter the law> charter, the qj. faj^g awav tlic ri'dit of others, or reftore the relation that was children . „ born he fore l0»t. fuch- purdon fhall not inherit ; but it" t!ie'' tall, the chlL'ren born after fuch pardon maj' inherit him, for the pardon m^ices him capable ot new relations as well as ot new puichafcs, though all the old legal be - neiits aod relations are loll, Noy, 170. Pollejc. 617. 4 Ktb. 4^1. 4^6. zVent. 38-9. 2 Brown. Co. Cop. ^ 5i>> (.ont. Leon. 1. Puliex. 61 5 to Oil. Co. I.'K. J but lor this f,Je lieaJ ol' Baitardy, Notvvitli- ftanding tlie charters and immunities grantrd to ■the jews, yet their whole efta^es vie^e taxable at the plca- fure of the k'tng, and mijhc at All cufliomary eflates are within this rule, unlefs there be fome particular cuftom to the contrary, as in gavelkind, becaui'e the per- fon is dvillter nwytuus by the attainder, and therefore is difiibled to have or hold any eftate, or to have any property in any thing : and therefore if a perfon be feifed in fee of a copyhold, and be at- tainted of treafon or felony, the copyhold is in the lord without any prefcntment of the homage, becaufe it is againfl; the nature of a court-baron to inquire of criminal matters or oflences againlt the king, and fuch homage is at the will of the lord, and often influ- enced by him : but if a copyholder be convicted of felony^ and prefentcd by the homage, by fpecial cuilom, the eflate may be for- feited to the lord ; but this is only by the fpecial cuftom, fmce tha copyholder is not dlfabled by the conviction to hold the eftate, as he is if he were attainted ; and therefore, fince it is by the cuftom only that fuch forfeiture accrues, it muft be in the manner in which the cuftom fettled it, wliich is by prefentment of the homage. But if a copyhold is granted for life, and by another copy the reverfioa is granted to another, hahtudum after the death of tlie firft copy- holder, or furrender, forfeiture, or other determination of the firlt eftate, the llrll copyholder commits murder, and is thereof attainted, and the king pardons the murder and the attainder, and all forfeitures thereby ; in this cafe, he in the reverfion is entitled to the eftate \ for the king cannot have it for the bafenefs of the tenure, fince he caimot be tenant at will to any perfon •, and the lord cannot liave it, becaufe he cannot be tenant to himfelf ; there- fore the particular eftate of tenant for life being extinguiftacd, the reverlion immediately commences. A baftard cannot inherit, but if he hath got a name by reputa- tion, he mny purchafe by it, for all furnames were originally ac- quired by reputation. vol. I. 510- J I. As to Jews, thc-y were tranflated from Roan, by William the Conqueror, ob niinteratiun pretium, and were allowed by feveral kings following the Conqueror, becaufe they dealt with one ano- ther clileflv in money, and to drew a great ileal of money into the klnv^fiom, which they let out to Chrillians on ufury, and were tax- able to the king at his pleafure. Richard the iirft ere«Sted a court where all their real and perfonal eftates were regiftered ; which all, upon the death of any "Jeiu^ came to the king, but was redeem- able by his children, paying their fine, and all the children equally inherited ; the wive? fued for dower in this court, and could not- 2 fue CPtatc in J7ce=rtmplc. Sj^ fue at common law for It ; and therefore if a Ji"iu born m England any time be took to wife a Jfiu zMo born in Englatul, if the huibanj was con- '^.'°'* ''> verted to the Cliriftian faitli, ami purchafecl lands and enfeoffed the"isE°K another and died, the wife could not demand dower at common wh.-n ihcir law againft a Chrillian. uiuricand extoiiions were very grievous to the people, they were baniHieJ by proclamation, and chc'r eftares felfeJ to the king, and a Itatute made againfl their takini^ ulury in thi.~ land, r r ever afterwards; b.it now all th* records touching their courts, their immunities, and the power oi" the crjwu over them, a^e lo:t and obfolcte, fo that thof; that are born here feem inheritable at this day ; but quan how fir thofe oid laws, of which there ate footfte^s in hi'.lory, may be levived upjn them r Hollingiljead, vol. 3 p. 15. Co. Lit. 31, 32. z Iiift. 5c6, 507. /•'/Jtf Molioy, 357 to 4 10. a g od account of tiie Jews [jews, it feems, were not incapacitated from taking gifts or land, unL-ls there wj. .m expref^ claul'e, ufuai ia former limes, in the original charter, forbidding an alienation to ihem. Bract. 13 1 As to papifts, there hath been an acl made to prevent the dan- n & n w. gerous growtli of popery, when there was a pretended title in a j;.'^ ^z,^^ popifli prince, which difables all, who after the 29th day of Sc-p- \\u\^^^\tts. tember 1 700, attaining the age of eighteen years, do not within fix and I'opiflx months after take the oaths, ilfc. to inherit, or take by defctnt, R«uiants, devifey or limitation, isc. any lands, tenements, tffc and that during the life of fuch papift, or until he or (he do conform, the next of his or her proteitant kindred (hall hold and enjov the laid lands, without being accountable for the profits, fubjecl to wilful waftes, and that from the tenth day oi ^ipril 1700, all papifts fball be dif- abled to purchafe any manors, lands, life, and that all eftates, terms, interells, i^c. made, fuffcred, or done, to or for their ufe, benefit, truft, or behoof, mediately or immediately, (hall be utterly void to all intents and purpofes. Religious perfons are prohibited to purchafe in mortmain. '^'^-' tit. " Chari- table Ufes and Mortmain." Vllleias and bondmen have power to purchafe lands, but cannot Co. Lit. z. retain them againft their lords. As to perfons who are naturally incapable to purchafe or in- Co. Lit. 8. Iierit, a monfter not having human Ihape cannot purchafe or inherit : but an hermaphrodite fhall inherit or purchafe ft'cimdum pr^valentiam fexus incalefcetitis. One born deaf and dumb may in- herit ; fo may any born deaf, dumb, and blind, becaufe it is for their advantage ; but they cannot contract, becaufe they cannot underltand the figns of contradilng. An infant, an idiot, and a perfon oi non Jane memory may inherit, becaufe the law, in com- paffion to their natural Infirmities, prefumes them capable of pro- perty J fo alfo an infant, or a pcrion of iion fane memory may pur- In/l 2. chafe, becaufe it is Intended for his benefit; and the freehold is -ye"t. 'oi* in him till he difagree thereto, becaufe an agreement is prefumcd, tit. Infancy it being for his benefit, and becaufe the freehold cannot be in the and age, grantor, contrary to his own acl ; nor can it be in abeyance, for ^""^ idioti, then a ftranger would not know agalnlt whom to demand his right : if at full age, or after recovery of his memory he agree thereto, he cannot avoid it ; but if he die during minority or lu- nacy, the heir may avoid it ; for the heir (hall not be fubje} That is, if the king takes ihcm in his royal politick ca- pacity, jure corona."^ Co. Lit. There are likewife particular kinds of laws within the kingdom, '°' ^" that allow of the transferring of inheritances without the word /?e!rs, as the law of the forcft, which dependeth on the mere plea- fure of the king, and not on the folemnities and forms of a con- Co. Lit. 7. tract j and therefore, if the king granted an afTart at a ju(lice-feat, habend. ilf tenend.Jihl in perpetuum^ the party had a fee without the word he'ii's^ inafmuch as the king had fignified his pleafure, that the party fhould have the privilege of tillage for ever. Co. Lit. 9. In wills and tellaments, where the mind of the party appears to But for this transfer a fee, for the mind of dving perfons delivered in liade •vide tit. , .' , . . ' . ° ^ Devifc?, ought to reccivc a benign interpretation, 2. When it is a Word of Purchafe. Lit. §57?. Tlie firft rule to be obferved is this. That where the anceflor iRoli. Abr. takes an eftate for life, and a limitation is afterwards made to Co. 104..'' his right heirs, there, the anceftor has the reverfion executed in himfelf, and the right heirs are not purchafers ; as if a leafe for life be made to >^., remainder to -B., remainder to the right heirs of v^., fuch remainder is executed in A. and he may grant it over ; but if a leafe for years be made to A.y remainder to the right heirs of A.^ this is a contingent remainder to the right heirs of A.., and A, himfelf takes nothing by fuch limitation ; and the reafon of the difference is this ; in the firll cafe A. having an eftate for life is fioffatus within the ftatute quia emptoresy izc^ and confequently, capable of performing the feudal fervices ; and then to make the right heir a purchafer would be to fufpend the fervices of the feud during the life of A. who is capable of performing them ^ which would apparently tend to the weakening of the tenure and (late of the kingdom ; and therefore fuch interpretation ought to. be made as bed fupports the tenure, when the words will bear both fenfes ; for if, after fiich limitation to the right heirs of tenant for life, he ftill continued but barely tenant for llfcj he would not be in the homage of the lord, nor would he be obliged to venture his life in the wars for fuch eftate ; and he in remainder would not be obliged tp do the feudal fervices, tecaufe, during the 104. '. as original purchafers, and not by derivation from him. If a leafe for life be made to A., remainder to the right heirs of Roll. AU. B-i this is a good contingent remainder if livery be made, becaufe 4»S. fuch a6l of notoriety delivers over the freehold to A. at the time it is made, and thereby creates a tenant, who \sfecffatus within the flatute to hold of the lord, who is capable of doing the feudal fervices, except homage, and on whom the lord jnay avow : and by tliis conftru6lion there is no inconvenience, or fufpenfion of all (he feudal fervices ; for if A. fliould die during the life of B.y the contingent remainder would become void, becaufe there would be - failure of iflue ; and therefore they conftrued the words of the R""--'^^''' feudal donation not only as a hmitation but condition, which the ^ imt. 333. feuditary was obliged to perform before he had an abfolute power over the eftate ; for fuch donations were generally made for the propagation of families, and therefore it beft anfwered the dcfiga of fuch gifts, to fuppofe the power of alienation to arife on the begetting of iflue, becaufe in fuch cafes the ftuditary had the con- tingencies of a family ; for when iflue was had, they looked upon the lord's poflibiiity to be at a great diftance, and they admitted of an abfolute power of alienation : therefore, if a man had aliened before iflTue had, the lord could ijot have entered for a forfeiture, becaufe that would have been contrary to his own donation, \vhich carried it to the feuditary and his defcendants ; and therefore, if defcendants were afterwards born, the lord was excluded during the continuance of fuch iffue, and the iflue born after the aliena- tion cculd not have entered, becaufe they only claim as reprefeiit- atives to their anceftor, and therefore his actual alienation barred them. But if fuch tenant had aliened before iflue had, and afterwards Plow. 2-5. had iflue, and then the tenant and fuch iflue had died, fuch all- ^'^- ^'=- 19- enation had not bancd the donor of his xvsVx of reverter^ becaufe the 540 €(late in Call the condition wiS not performed at the time of the alienation, fo that the tenant had not an abfolutc property veiled in him for the purpofe ; wherefore, fmce the ahenation was before the tenant had fuch power, it was fubjecSl to the lord's claim as if no fuch alien- ation had been, and, by confequence, the lord might have entered as in his reverter, as if the tenant had died without iflue, and the fubfequent birth ot the iflue is not a fufficient performance of the condition to make the precedent alienation valid, imce that were to allow of the alienation of a perfon who had no power to alien. 7 Co. 34, But if a gift was made to a man and the heirs of his body, and jv ♦^o- the donee had died leaving iiTue, fuch iflue, without having iflue, ' '9' ^' jy^ight have aliened, becaufe, coming in by dcfccnt, he had the fame power over it as he had over other eftates defcendible ; and fucceeding into his ancefl;or's ellace, who had an abfolute power of alienation, he took it in the fame manner difcharged of any re- ftraint from the condition, and the rather, becaufe otherwife the iflue could not have made the necefl'ary provifions on his own marriage by a family fettlement : but if the iflue had not aliened, it had followed the limitation of the firfl donation, becaufe the eflate had continued in the fame condition without alteration, and confequently, on failure of iflue according to the flrll dona- tion, the lord had been in, in his feudal right of reverter. Co. Lit. And as the feuditary had power to alien the land after he had tj°*ii"ai i^^ue, fo likewife might he have charged it with a rent, common, Sao.' ' ^^' foJ^ this power nccefl'arily follows an abfolute and entire pro- perty ; for if he might have aliened the feud from his iflue, it is but part of that power to tranfmit it to his iflue under any charge or incumbrance he thought fit. Co. Lit. 19. So, the feuditary, by having iflTue, might have forfeited the feud ^;. ^t"* for treafon or felony. AoT. 840. J Co. Lit. 19. If there was no exprefs rcfei-vation of fervices in the firfl: feudal except where donation, the donee held of the donor as he held over. a man made 3 gift in frankmarriage, for in fuch cafe the donee held free from all fervices till the fourth degree was pait ; becaufe thefe gifts being made by the feuditary on the marriage of his daughter, or fome other re- lation, fuch promotion was thought a fufhcient confideration for the gift, without an acknowledgment of an annua! fervice, or where the tenant in grand ferjeanty made a gift in tail generally, without any ipecial refeivation. Co. Lit. 23.3. 600.40. a. Thus the law flood till the 13 Ed. i. r. i. when the flatute de Sir Anthony ^^„;j. cotulitionaHbus was made, which deprived the feuditary of his cafe. ancient power of alienation, upon his having iflue, or periorming Co. Lit. 21. the condition. The pretence of making this flatute, as appears Mo"'\' ^-^6 ^^°"^ ^^^ preamble, was to comply with the will of the donor, who Vent. 299. ' i^ 3II fuch grants intended that the feud ftiould be tranfmitted to a Mod. J 3 1, the defcendants of the feuditary in the fame plight he received it; Co. Lit. 392. ^j^j ^p^j^ failure of the defcendants, that it fliould revert to the donor himfelf : but the real defign of making the ilatutc was to introduce a perpetuity to other purpofes ; for, towards the end of the baron's war, the crown took up a new method of politics to break the interell of the baronage ; for when any feud that was then fubtuling in large diftri(i^s ^im\ territories efcheated, or was forfeited (ffittatc in Cait. ^41 forfeited to the crown, the king divided it, and gave it out iil lelVer feuds, thereby to deftroy the power of the peerage : this the barons faw would tend to the ruin of their body, and therefore pafled this a£l to make all fuch new feuds unalienable, and by that means not forfeitable for treafon, though the conditioa fhould be performed by having iflue ; and from the time of this ftatute, the donor's poffibility or right of reverter was turned into a reverfion ; and the donee, who before had a fee-funple condi- tional, has now but an eilate-taii. Under this Head we fliall confider, (A) What Things may be entailed within the Statute de don'is conditioiialibns, (B) What Words are requifite to create an Eftate- tail in a Deed or Gift. (C) Of the feveral Sorts of Eftates-tail. (D) How far Tenant in Tail may charge liis Eftate, and what Adts of his relating to the Inheritance {hall bind the liiiie, though the Entail continues. (A) What Things may be entailed within the Statute de donis condition alihus, 'T^ H E ftatute makes ufe of the word tenementum^ and therefore Co. Lit. 19, ■* the eltate to be entailed may be as well incorporeal as cor- ^- ^°- ^ poreal inheritances, becaufe the word tenementum comprehends the one as well as the other, and, confequently, not only lands may be entailed, but all rents, commons, eftovers, or other profits arifing from lands. But it is not neceflary that the thing to be entailed Ihould ifTue Co. Lit, out of land ; for if it be annexed to lands, or any ways concern "°* '* or relate to them, it may be entailed witlun the ftatute j and there- fore offices and dignities may be entailed ; and accordingly it has been [a) refolved, that if the king creates a man earl of D. to him [a) 7 Co.^ and the heirs male of his body j this is a good entail of the dig- 33- N***' « nity within the ftatute, becaufe the title or dignity relates to lands; and anciently they were computed from their pofTeffions, as a baron's fee, an earl's fee, ^c. So offices may be entailed ; as the office of earl-marflial of Co. Lit. England \ or the office of a fteward, bailiff, or receiver of a j°^^^i"i manor, becaufe thefe are demandable in a pradpe^ ut tenement,!^ Abr. 83?. and being excifable within the manor, are therefore looked upon 7 Co. 33. as members or branches of it. An plow. ,2. b. Jlaxwcl's cafe. Roll. Abr. S37. Plow. 3. a. Roll. Abr. 837. [FiJf tit. ' ' An- nuity and Reut- ■charge. 542 CBCtate in CaiL Hard. 465. An cquit)' of redemption is entailable, becaufe the mortgage being a pledge for money, equity looks upon the eftate in the fame plight as it was before, Co. Lit. 20. Charters may be entailed, becaufe they are muniments belong- ing to the land itfeif ; but if the entail be barred by collateral war- ranty, then the hf ir (hall not have detinue for them, for then he cannot make title by \irt:ue of the entail. Co. Lit. But tilings merely perfonal, which only charge the perfon, and neither iflue out of land nor relate to it, nor can be demanded t/t tenoncfittim in T^pradpe, cannot be entailed within the ftatute •, and therefore, if I grant to B. and the heirs of his body, to be inafter of my hawks, or keeper of my hounds, with a fee or falary an- nexed to it, this is no entail within the ftatute, becaufe this can no way fall within the notion of tenemeutum. So, if A. for him and his heirs grants an annuity to B. and the heirs of his body; this, having no manner of relation to land, is no entail within the ftatute, for fuch grant only affe£ls the perfon of tlie grantor. Tom. I. 177. no;e.] Co. Lit. No chattels real can be entailed, and therefore, though a man, *°' ^- poflefTed of a term for years, fhould devife his term to J. S. and Roll. Abr! ^^ heirs of his body, yet the term would go on in its old chan- 8;7- Cro. nel to the executors, and the iflue of the body of the donee has no intereft in the term, and J. S. may fell or difpofe of it as he pleafes ; for this beiPig no tefievieutum within the ftatute, the de- Vent. 194. vifee is not tied up fron-i alienating it by that z€t. So it is of a 2 Chan. truft, for a man can no more entail a term in grofs by way of but for this truft, than by way of devife. But a term for years, which is -vide plus, created or kept on foot to attend the inheritance, is allowed in tit. eviie. Chancery to wait upon the entail of the inheritance. feem efleniiai to an entail within the ftatute de donis. One requifue is, that theJubjeH be land or Come (Kber thing of a r^^j/ nature. The other requifite is, that the tf.jte in it be an inheritance. Therefore, neither eftates fur autre -vie in lands, tiiough limited to the giancee and his heirs during the life of ajiuy que "li" , nor terms for years, zte. entjilable any more than perfonal chattels ; becaufe, as the latter not being interefts either in things rejl or of irhnitan^e, want both recjuifites ; fo the two former, though interefts in things real, yet not being a!fo o\ i':bcr!;ance, are deficient in one requifite. However, eilatej fur autre nife, terms for vears, and perfonal chattels, may be fo fettled, as to aufwer the purpofes of an ent'^i ,and be rendered unalienable ahisofl for as longa time as if they were entailable in the Itri^ fenfe of the wDti. Thus, ellates pur autre -vie may be devifcd or limited in ftri£l fettlement by way of remabiner like eftates of inheritance ; and fuch as have interefts in the nature of eftates-taii may bar their iflue and ail remainders over by a'ienii'.i^r. of the eflate pur autre -vie, as ihofe, who are ftridlly fpeaking tenants in tail, m.iy do hy Jinc and reoi.e'-y : but then the having of ilfue is not an cflential preliminary to the power of alienation in the cafe of an e(laie^;/r autre -vie limited to one and the heirs ofh s body, as it is in the cafe of a conditional fte, from which the mode of barring by alienation was evidently borrowed. The manner of fettling term.": for yeais and perfonal chattels is different : for in theno no roKalndcn can be limited ; but they may be entailed by executory de-v:Je or by deed of truft, as efFeftuaiiy as eftates of inheritance, if it is not attempted to render them unalienable beyond the duration of lives in being, and 21 ;ears atzir, and perhaps in the cafe of a puftimmous child a few months more; a limitation of t me not ijrbitrariiy prefcribed by our courts of julVice, but svifely and reafonably adopted in analogy . to the cafe of freeholds of Inheritance, which cannot be fo limited by way of remainder, as to poftpone a complete b.ir of the entai! by fine or recovery for a longer fpace. It is alfo proper to obfcrve, that in the cafe of terms of years and perfonal chattels, the "vcjiir.g of an intereft, which in reality would be an eftate- tail, bars the ilTue and all the fubfequent limitations, as eflcftually as fine and recovery in the cafe oi eftates entailable within the ftitute de dinis, or a fimplc alienation in the cafe of conditional fees and zdites pur autre -u'.e ; and further, that if the executory limitations of perfonalty are on contingencies too remote, the whole property is iri tlie firft taker. Upon the whole, by a feries of decifions within the laft two centuries, and after many ftrugglcs in n-fpcdl to perfonalty, it is at length fettled, that ev«ry fpecies cf prcj-erty is in JuIJijnie ec^viiUy capable of being fetticd in the way of email j and chou^ the modes vary acco[dinj{ Eliz. 143 Chanc.Rcp 200. ar aafnr fie, fee 2 Vern. 1S4. 225. 3 P. Wms. 262. i Atlc. 524. 2 Atk. 259. -576. 3 Atk. 4.64. 2 Vcz. 6S I . As to the entail of terms for years and perfonal chattels, fee Manning's cafe, SC0.04. Lampet's cafe, loCo. 46. b. Child and Bailey, W. Jon. 15. Duke of Norfolk's cafe, 3 Ch.Ca. I. acafe in Carth. 267. andone in I P. Wms. i. Foley v. rSurnell, i Er. Ch. Ca. 274. Hargr. note, Co. Litt. 20. a. b. — The doftririe upon this part of the fubjedl is ftateJ in the above note with futh neatnefs, perfpicuity, nnd fuccinctnefs, that the editor, feeling it impoflible to deliver it in fewer or better' words, has taken the liberty of tranfcribing it at length.] As to the entail of copyholds, vide tit. Copyhold^ vol. i. 709. (B) \Vhat Words are requlfite ta create an Eftate- tail in a Deed or Gift. ■XTT THEN the notion of fuccefiion prevailed, it vi^as neceflary in For the ' ' feudal donations to ufe the word heirs to diftinguifli fuch vvvards whick defcendible feud from that which was granted only for life, but as gj^^;, f^^ to the word bodyy it was not necefHiry to make ufe of that in the will, -vidf donation, but it might be exprefied by any equivalent words ; ^"^- 5^^'''^' and [a] therefore, a gift to a man, and kizredibus ds fey or de earner ^^^ ^Qo. ' quos fibi contigerit habere, ox procreavit, is a good efhate-tail, for 41. b. and thefe fufhcientlv circumfcribe the ^oxdi heirs to the defcendants of ^'''^ 5'^^'i:!'? , -. ,. ■' ofthedif- the feudltary. ferencei., for that inheritantes being only derived from the law, the h%7 requires the word heirs that comprehends the whole notion of fnch legal reprefcntation ; but the limiting of the inheriunce to the aelcendants of this or the other body, is only the particular intention of the pcrfon that forms the gift, and therefore the lav. .'eaves every man to exprefshimfelf in fuch manner as may manifeft that intention. Therefore, if lands are given to a man ^ h^redibus, quos fibi 7 Co. 41, contigerity habere de uxore fud ; this is an ellate-tail, though the 4-*' word body be omitted : fo, if the gift had been to. him y haredi- bus fuis de prima uxore fuiiy for this confines the word heirs to the defcendants of his body, fince his heirs, who can inherit that gifr, muft be of his wife, which no collateral heir can pof- fibly be. A feoflrnent was made to the ufe of A. for life, remainder to Cro. Eilz. the ufe of B.y and of the heirs male of the faid B. lawfully be- '*7-- gotten, and for dtifault of fuch IfTue, remainder over, A. dies; 7 Co. 41. this is no eftate-tail in i?., but a fee-fimple, becaufe there are no s. c. words to fliew from whofe body the heirs male of B. muft pro- ''/J"'?° , -. , . r n •! • • T \ Abraham ceed ; tor, to the ci'eation or an eltate-tail, it is requuite that and Twieg. there be words fufficient to (hew from what body the heirs men- Lit. Rep. tioned in the gift are to proceed, though the word body be not ex- ^|''^. prefsly ufed j for in this cafe fuch may be heirs male of B, as 3 Leon. 5.* were never proceeding from his body, fince the words of the do- Hob. 31. nation leave it at large, and do not require that they (hould be be- ^^' . \^^ [^ gotten by any particular perfon. would be otherwife in a will, which being made without the afiiftance of a lawyer, receives always a favourable interpretation y vide dtle Devife. So, where A. feifed in fee of a copyhold, furrendered the fame 2 Saik 610. to the ufe of hlmfclf for life, and after to B, and C. his wife, fj^-^^ ^ ^ pro j44 <2B{tate in Call 2Ld. Raym. pr9 ts^ durante tervvno vitarum fiiartint natuvaliuvi ^ h,tred. Cs^ 1144. S.C. qlfigtiat. prttdiH. B. ^ C. id" pro dvfeEln talis ex'itus^ to the ufe of 70 S.C.* li*"if<^lf "^^"^^ his heirs ; it was held by //c//, C J. and two judgCvS, I'afch. againft Gould, that B. and C. had a fee-fnnple, and that pro 4 Ann. m (fcfeBu tnlis exitus imported nothing of their dying without iflue, * ^^^. 5t i, but was to be taken generally, and every heir is the ilTue of the rather a fomC body. fee-fimple In this cafe, becaufe of the word ajfigns, for an eftate-tail i& not adignable ; but Gould cont, becaufs the intent of the party was to create an eftate-tall. Carth. 343. But if A. feifed in fee makes a voluntary feoffment to the 5 Mod.z66. jfj-g Qf himfelf for life, remainder to the ufe of J. S. and his loi. ^slilc. I^eirs for ever •, and for default of iflue of tlie body of J. S, 337. S.C. then to the ufe of the right heirs of A., this being in a con- adjudged veyance by way of ///?', which is always conllrued like a will, Leieh and 3"^ according to the intention of the party, gives J. S. but an Brace. Hii. eflate-tail. € W. 3. m B. R. and fame point faid to have been adjudged unon this very deed in C. B. between Coke and Roberts. HiJ. 2 W. 3. 7 Co. 41. If land be given to A. and B. his wife, and their lieirs, ^ aliis hi^rcdibus of tlie faid A. Ji di6li hxredcs de A. ^. B. exeuntei oh'ter'uit fine haredibus df fe, this is a good eftate-tail, though the word body be omitted, becaufe there are words equivalent, which equally circumfcribe the general import of the word heirs to the defcendants of the body of A. and B. Roll. Abr. If lands are given to a man and tlie heirs of his body, remain- ^}^'.. tier to J-S. ■Ar\A\\h\\&\xs\n fortnd pr.rdicld ; this is a good rc- 20.* b. * mainder in tail to J. S. for by a neceflary relation the mind is [A fettle- carried to the words of the firft gift, which circumfcribe the heirs ™'^"'^^* of the donee to the defcendants of his body : fo, if the remainder for life, re-' ^'^'^ been limited to J. S. in forma pr^difl. this limitation, with- mainder on out the word /:eirs, had veiled a good eftate-tail in him in remaiu- j. and the ^^^ . ^^.^ jj- ,^ j^^^^ £^^ jj^^ j^^j hctn made to A., the remainder to of his body, B. and the heirs of his body, remainder to J. S. iti eddem formd^ with, power thefe words, having fuch a neceflary relation to thofe words which ot f^^°"- immediately precede them, reprefent to us the intention of the of £.'s re- donor as plainly as if he had exprefl'ed himfelf in all the terms o^ znainder— the firll limitation. A. reciting the fettlement to been B. and lii? heirs male, omitting the words of his body, revoked the old ufcs, and by the new deed iimiieJ :ht jaU fjiate in U-ffaiJ dful r,.tmeJ to B. and liis heirmale, omitting the words cf his body, and fubjedled the cftate thu? liariited to a charge of 100/ It was holdcn, that this was % good revocation, and a good limitation nf a new crtate-tail ; for thit tlie rfciral, though inaccurate, re- ferred to the limitation in the fettleinciit to the hciis of the bjdy ; the revocation svas of thofe ufes which the recital had referred to and profelTed to itate j and tb: new limitation was of the eftate defcribcd in the fettlement, fubjc<£t only to the charge of 100/. Gilmore v. Harris, 3 Lev. 213. Carth. 292. S.C. Skin. 315. S. C] Co. Lit. But if a gift be made to A. for life, remainder to B, and the *°* ''• heirs of his body, remainder to J, S. in fnridpr^tdifl., this, ac- cording to my Lord Coke, 'n, a void limit>irion to jf. 5.; for, though the mind is carried to the former limitations, yet finding no ne- ceflary relation to one more than the other, it can determine no- thing Cflatc in eail 545 thing pofitlvely as to the Intention of the donor, and therefore * Note : fuch limitation is void for uncertainty*. g" ^^'^ " If a man letteih lands for life, the remainder eUdem forma, tVi's is a good eftate-tail, ^ui/r,/ iflue by the prefent huiband. "^'^'"S^ f " J * teme by tlic hiilband begotten, whether this had been an eftate-tail in them both, ii lett ai^ [Where an eftate for life was limited to 5. wife of L , re- c,(>'X.vje v. m.iinder to the licirs to be begotten on the body of S. by L. her l^y'^^^ huiband, no eilate being previoufly linuted to tlie huflviud him- ^'■^'^' fcif ; it was holden, that the word heirs related to both their bo- dies, and confequently, did not create an eflate-tail in S. Sir R. J'\ on the marriage of his fon levied a fine, and declared Frtgmoiton the ufes to himfelf during the joint lives of himfelf and his foil " J^^har.cv, L. I'., and after the deceafe of cither of them, to the ufe of 5. C. p^^p ^..^ N n 3 for ^ 550 (CCtatc tn tUml aBi.Rep. for her life, nnd after her deceafe to the ufe of the IfTuc maleVof ^ w'lf *"" ^^^ ^'''^ '^' '^"'^^ ■'"' '^"'■' ^^'' heirs of their bodies, and in default of "J44'. s'.^c! ^^^^'^ iffue, to the ufe of the heirs to be begotten on the body of 5. by the faid L., remainder to the right heirs of the faid Sir R. F. The marriage took effect, and iS. died leaving fix daughters, but no fon. Sir R. died leaving L. his fon and heir. A queflion arofe on the ellate which L. took ; and the court refolved, tliat, if he had been joint-tenant with the wife for life, this had been an eflate-tail in both ; as the word heirs is not applied to any body particularly, as Litt. § 28. Secondly, that neither the hufband nor wafe had an eftate-tail : not the hufband, becaufe he had no prior eftate for life : not the wife, becaufe though (he took aii ellate for life, yet the heirs are not applied to her body. Denn v. On a marriage the hufband covenanted to Hand feifed of lands Giiiotr, jQ {jjg ^^^ pf himfelf and his intended wife for their lives, and Jiep. 4-1. the life of the longer liver, remainder to the ufe of the heirs of the hufband oJi the body of his faid intended wife by him lawfully to be begotten, remainder to the ufe of his own right heirs. The hufband having furvived the wife, levied a fine of the lands, and after his deceafe, a queflion arofe on the operation of this fine ; which depended on the point, whether the words " to the *' ufe of the heirs en the body of the wife by the hufband to be ** begotten'* gave an eflate-tail to the wife only, or a joint eflate- tail to both ? It was decided, that the limitation gave an eflate- tail to both, as well upon the authority of tlie above cafe in Styles^ Co»Lit. 26. as of the cafe cited by Lord Cokcy from 35. 3. c. 32., where, upon a gift to /. and M. uxor i ejus et huredihus quos idem I. de cor- pore ipjtus M. procreavety Is'c. it was adjudged an eftate-tail in both, becaufe the eftate was equally entailed to the heirs of the baron, as to the heirs of the wife. Rofe V. A freehold eftate was fettled on hufband and wife for life, and ^ri'^'r' ^"^ ^^^ furvivor, remainder to the ufe of the heirs of the hufband 1:28. ^" ^'^^ body of tlie wife to be begotten, remainder to the right heirs of the hufband. A copyhold eilate in borough-englifh was likewife fettled to the ufe of hufband and wife and the heirs of their two bodies to be begotten in like manner and to the fame ufes as the freehold was fettled and conveyed. T)e Grey^ C. J, This »s an eftate executed," and feems to be an eftate-tail in the hufband and wife. Blachjloiiei J. I think the freehold is clearly veiled in the hufband only in fpecial tail j the copyhold In both hufband and wife.] I-it. §24. And' it is to be obferved, that In all inftances of fuch fpecial tails, which limit tlie lands to one particular fort of heirs, no de- icendant of the donee can make himfelf inheritable to fuch gift, unlefs he can convey his defcent through that particular fort of heir to which the fucceffion of the land was firft limited ; there- fore if lands be given to a man and the heirs male of his body, and he has iflue a daugliter, who has iiTue a fon, this fon fhall never inherit that gift ; for the fon, being obliged to claim through the daughter, mufl necefTurily fhew himfelf out of the words of the llrfl donation, wliicli liaiiled the lauds only to the heirs €Glat0 in Call 55 i heirs male of the donee, which the daughter cannot pofTibly be taken to be. For the fame reafon, if the lands be given to a man and the heirs Co. Lie, male of his body begotten, the remainder to him and the heirs ^s- '»• female of his body, and the donee hath iflue a fon, who hatli ilTue a daughter, who hath iflue a fon ; this fon can inherit neither of thcfc gifts : not the tail male, becaufe whoever claims as heir to fuch a gift, mufl convey his dcfeent wholly through males, which the fon cannot do in this cafe, becaufe he m.uil neceflarily (hew himfelf a defcendant of the daughter, before he can make himfelf heir to the lirlt fon ; nor can he inherit the tail female, becaufe that limitation being to that particular fort of heir, no male, though the immediate defcendant of a female, can inherit, becaufe he is another fort of heir than isdefcribed in the donation : but if, in this cafe, the gift had been to a man and the heirs male of his body, remainder to him and the heirs of his body ; fuch fon may claim under that gift, becaufe every defcendant ot fuch donee may claim under the remainder, it not being limited to one fort of heir more than another. [Lands were fettled to the ufe of hufband and wife for their Denny, lives, remainder to the ufe '•'■ of the heirs of the hujlaud on the hcdy f^^bf.n, of the wfe laiifiilly hcgotteti or to be begot ten ^ the male to be preferred 2609. * before the female^ and the elder before the younger." Th.e lefl'or of the 2 Bl. Rep. plaintiff claimed as heir male under this fettlement, that is, as c^^u^/x^' fon of the fecond fon of the marriage : the defendant claimed as on Ertatcs, heir at law, that is, as the fon of a daughter of the eldeft fon of ch. F.ftaies the marriage. It was argued on behalf of the defendant, that ^'"^* there was nothing to hinder the defcent to the l:eir at law, chough claiming through a female ; that the limitation was to all the heirs 9 and that the words of regulation were referable merely to the immediate children of the marriage, to fliew how they fhould take. But the court faid, that if thefe words had any meaning, they de- fcribed an eltate-tail ; and it was not to be fuppofed, that they were inferted without any meaning at all. If lands be given to a man to liave and to hold to him and the Co Lit. heirs male of his body, and to him and the heirs female of his ^^''' '* body, the eftate to the heirs female is in remainder, and the daughters fhall not inherit any part fo long as there is ifllie male ; for the eftate to the heirs male is firft limited, and fhall be firfl ferved -, and it is as much as to fay, and after to the heirs females, and males in conilru^lion of law are to be preferred.] Land given to a man and his wife ^ haredi de corpore t^f uni Venr. 21$. haredi tantiim^ was adjudged an eftate-tail, though the limitation be to the heir in the fnigular number, becaufe the word heir is ncmen colkcllvHiii^ and extends to all that defccnd from him.. Nn4 Ss^ CCiate in CaiL (D) How far Tenant in Tall may charge his Eflate, and what Atfts of his relating to the Inheritance Ihall bind the liTue, though the Entail continnes. T 'HE flatute (le donir affef^lng a perpetuity reflrained the donee in tail, either from aHenating or charging his eftate-tail ; and by that a6l the tenant in tail was like wife to leave tb.c land to his heirs as he received it from the donor •, aJid the lieir in tail might have avoided any alienation or incumbrance of his anceftor \ and as the law ftood upon the acl, fo might he in reverfion, when the heirs of the donee failed, who were inheritable to the gift. The crown long ftruggled to break through the perpetuity winch was «Co. 40. edabliihed by this law ; and in the reign of E. 4. we iind the pre- joCo. 3r. tended recompence given againil the vouchee in the common recovery to be allowed an equivalent for the eltate-tail ; and be- caufe this recompence was to go in fucceflion as the land in tail lliould have done, therefore they allowed the recovery to bar the reverfion as well as the iflue in tail, becaufe he in the reveriior, was to have the recompence upon failure of ilTue of the donee. «Tnft. 336. The flatute de donis^ by an exprefs claufe, provides againft the Plow. 57. b. operation of a fine, and by that law a fine levied by tenant in tail thefe reco- amounted to no more than a difcontinuance, like a feoifment /"'/ veries or pals by tenant in tail at this dav. fines aft'sft * the iflue in tail, or him in reverfion or remainder, vide tit. Recoveries, and tit. Fines, Lit. H13. At the common law the tenant in tail could not grarit or alien, But how iar Q^ nrake any rightful efhate of freehold to another, but for term of intaii'may his own life ; for though a feoffment in fee, or for life, made by atthisrime tenant in tail, are good againlt the tenant himfelf, becaufe the law 'iT e b allows no man to avoid his own a6l ; yet after his death the iffue making in tail, or thofe in severfion after failure of iflue, may by proper j^aies pur- adlions avoid fuch feoffments, and recover againil the feoffee. fuant to the 3i H. 8. c. 28. 'Vide tit. Lesfes and Terms for Years. Bro. Con- The tenant in tail is mafter of the inheritance, and as fuch has ^ Co^^' power over all the lafting improvements growing on it ; fo that he Poph. 194'. ni.iy cut down the timber-trees, and difpofe of them as he pleafes, without barring the entail. But this mud be underflood with this reflridlion, that, if tenant in tail fells the trees growing on the inheritance, the vendee muft fever them during the life of tenant in tail \ for if he dies before they are cut down, his heirs in tail fbal! ln^.ve thcni as part of the inheritance, and the vendee, though obliged to pay the whole furn contracted for, yet fhall not be allowed to cut down one tree after the death of tenant in tail ; for as th.e tenant in tail has power over the inheritance but during his own life, fo he can delegate that power to another but for the fame time-, and confequcntly, whatever remains part of the inheritance at the death of the tenant in tail, at which time his power €ftatc in Cail 553 power over it ceafes, muft necefl'arily go to the heir to whom the inheritance belongs. So, if tenant in tail grant eftovers to another, or the veflure of Roll. Abr, his woods, thefe grants determine with his death ; for as they arc ^+^' ^*^' charges on the inheritance, fo they muft necefl'arily ceafe when his power who granted them is determined. If tenant in tail acknowledge a ftatute or recognizance, upon Roll. Abr. which the land is extended, the ilfue may ouft the conufee after H^- the deatli of his anceftor ; for the tenant in tail can charge the en- tail but during his life, becaufe the ftatute dc donis preferves it free from all incumbrances for the iflue in tail ut voluntas dormtoris cbj'crvetur. But if tenant In tail acknowledge a recognizance, and die, and ^'Qv^^\.^^^. the conufee bring z fcire facias againft the heir in tail, who pleads ^'^^^''^^ *"■* rieus per difcent in fee-fimple, and pending the fare facias make a leafe for years to f. 5., and the jury find the iftuc in tail had land in fee-fimple by defcent, the conufee fliall extend the land againft the iflue In tail, and J. S. cannot falfify ; for after tlie vcrdi£l the iflue fiiall not be allowed to fay, that he is tenant in tail ; but the verdidl, though a perverfe one, fliall bind him, and be in force till difproved by attaint ; nor can the lefl'ee falfify, becaufe the leafe v/as made after verdi^l given, when the iflue himfelf was bound, and, confequently, all that claim under him muft be fo too. Yet if a difleifor make a gift In tail to ^., and ^. in confidera- Co. Lit. tlon of a releafe from the difleifee of all his right to tlie land, 343 b. grant him a rent-charge In fee ; this (hall bind the iflue, for this 842.' turns upon the reverfe of the former cafes •, for as the iflfue in Plow. 436. tail rnay avoid thofe grants and charges, becaufe they tend to the ^° ^°' 37* prejudice of the IflTue and deftruftlon of the entail ; fo this grant to the dilTcifee is good to bind the ifl"ue, becaufe It tends to the advantage of the donee and his ifllie by ftrengthening their title, and making that an Indefeafible which before was a precarious eftate. So, where a devife was made of land In tail, upon condition that Cro, Jac. the donee ihould grant a rent-charge out of the land to another '^-^ ^"^to" and his heirs, the donee granted the rent purfuant to the condi- Rdu^Abr'. tlon ; and adjudged the I'ent ihould not determine with the death S^ja. of the donee, but ftiould bind his iflue, for this Is in prefervation of the entail, and for the benefit of the iflfue, and Is not contra formam doniy but in compliance with the will of the donor. A. feifed of lands in tail, agrees with B. that he and his heirs Chan.Caf-;, fhall enjoy the entailed lands, if A. and his heirs may enioy his '7'- ^^^'^ lee-limple lands; this agreement is executed accordingly; and ridem. B. has a decree againft A. to levy a fine, and fettle it purfuant " Agree- to the acreement : but A. dies v/ithout doing of it : though it was ""^"'"'" decreed that A. himfelf was bound by his agreement to convey, " ' "*■" yet fince he died before he executed the fine, his iflue was not bound by the agreement ; but if the lifue in tail had approved of his anceftor's agreement, as he did in this cafe, by entering 011 the land of i?., then it becomes his own agreement, and, confe- quently, in equity he Oiall b? obliged to perform It^ [ 554 ] caate^afi after iSoffibilitp of 3ftnt e;rtin(t. (A) Who may be Tenant in Tail after Poflibility of Iffue extinct, and how their Eftates are to be created. (B) The Power this Tenant has over the Inherit- ance, and in what Refpeds he is confidered as a bare Tenant for Life. (A) Who may be Tenant in Tail after PofTibility of Iffue extind, and how their Eftates are to be created. Lit. §38. ^UCH perfon is tenant in tail npres poflibilI(,y of iffue ex- P***^' ^ *3 tiii<^ («)> as furvives the perfon by whom, or on whom, the [(«)'« ihis ifl^c was to be begotten ; as where lands are given to a man and Joag peri- his wife in fpecial tail, if the hufband dies without iHue, the wife phraiis, Jir -g tenant in tail after polFibility, $5°f. becaufe the hulband, by Biackitone v.hom the ifTue inheritable to fuch fpecial tail was to be begotten^ faith, the is dead, fo that, there being no ifl'ue living at his death, there is iffe Tf'Vs*^ now no poflibility of any by him : fo e converfoy if the wife dies abfoiuteiy withcut ilTue the hufbnnd is tenant in tail after poflibility, becaufe necenaiy to fl^e being the perfon on whom the ifliie inheritable to the eftate- ^uTte Wea^oV ^^^^ "^^^^ ^^ ^^ begotten, when flie dies without iflue, there is no luchper- poflibility of the hufljand's having any ilfue by her inheritable to fon's eflate. the tail. Far had it called him barely tenant in fee-ta'il fpecial, that would not have diftrngui/hed him from others ; and be- fides, he has no loriger an efiate of inheritance or fee, for he can have no heirs, capable of taking />fr f'H-mam don't. Had it called him tenant in tod luithout ijp'f, ihis had only related to the prefent faft, and would not have excluded the poflibility ot future iffue. Had he been ftyled teuar.t ii tail luithnut pojphi'ity cf ijicc, this would exclude time paft as well as prefcnt, and he might under this defcription never have f)3i Co.So.h, does fuch an acl, fhat he fhall have the land but for life ; fuch donee, upon breach of the condition, is but barely tenant for life, and not tenant in tail apres poflibiliry, ^c. becaufe here by his own a6l it becomes impoflible to have ifliie inheritable to the tail, which by his own atl he has deftroyed and forfeited. A feoff'ment was made to the ufe of a man and his wife for n Co. 80^ their lives, remainder to the ufe of their next iflue male to be be- ^\' ^*'- gotten in tail, remainder to the ufe of the huftjand and wife and Lg^.;, * '* the heirs of their two bodies begotten, they having no iflue male Bowie'j at the time of the feofl'ment j in this cafe the hufband and wife "'^* are tenants in tail executed •, and upon the birth ot any iflTue male, their eftate opens, and they become tenants for life, remainder to the iflue male in tail, remainder to themfelves in tail ; and if the hufband dies without having any other ifTue, the wife continues but tenant for life, becaufe the eftate-tail, which was once exe- cuted in her and in her hufband, was changed into an eftate for life by their own aft ; yet Ihe fliall have the privileges of tenant in tail apres polFibility, fcfc for the inheritance which was once \\x her ; for this is not like the former cafe, where the breach of the condition refpedts what was granted ; for in this cafe the birtli of iflue 55^ Cftate in Call after si.i. iffue male flull not be prefumed to diveft the privileges of tenant in tail, which were once legally vefted in her. Co. Lit. Lands were given to a man and his wife and the heirs of the body of the huA)and, remainder to the hufband and wife and the heirs of their two bodies begotten ; upon the death of the hufband without ifTue, the feme (hall not be tenant in tail apres poflibility, is'c. for by the iirfl. limitation (lie took only an eftate for life, and the hufband an eflate in tail general, and the remainder over was a void limitation, becaufe it could never take effecl ; for whatever iiTue the hufband and wife had mull inherit by force of the firft limitation of the tail general, becaufe all fuch iflue are of the body of the hufband ; and when the tail general is fpent in him, there cannot poffibly be any ifTue to inherit the remainder in tail fpecial, becaufe fuch iflue muft be of the body of the huiband and wife ; and while there is any iflue in being of the body of the hufband, it inherits by force of the general tail ; fo that the remainder being void in its original creation, the wife had never an eflate of inheritance in her, and, confequently, cannot be tenant in tail apres poiiibility, ^c. becaufe fuch an eflate can be carved only out of an eftate-tail. (B) The Power this Tenant has over the Inherit- ance, and in what Refpeds he is confidered as a bare Tenant for Life. Co. Lit. 28. TF tenant in tail apres pofl]ibi]Ity, ifc. alien in fee, it is a forfeit- Voo'sc^'^' ^^^ °^ ^^^ eftate, becaufe, having no longer a defcendible Stud. 60. eflate in him, he cannot transfer it to another, without the pre- judice and diflierifon of him in remainder. Co. Lit. If tenant in t..il apres poflibility be empleaded, and make de- ^^'q'q . fault, he in reverfion fliall be received, as upon the default of any Deft. & other tenant for life, becaufe he having the inheritance in him Stud. 60. only fliall be admitted to defend it. Co. Lit. An exchange by tenant in tail apres pofTibility, ^V. with a bare ^^C^'s b *^"''"^ ^°^ ^if^> is good, becaufe both their eftates are of equal continuance and duration only : fo for the f^ime reafon, if any eflate of inheritance in reverfion or remainder defcends upon him, the eftate-tail apres poffibility, is'c. is merged, becaufe as to its duration, it is merely an eftate for life, and in thefe refpe£ls we may call him but tenant for life ; yet in other refpedls he has the privilege of one who has an eftate of inheritance. Do(£l. & For he is difpunifhablc of wafte, lb that he has power over the Stud, 61. lafting improvements of the land ; for fince he formerly had the 2,.'b. * inheritance in him, which the adl of God has flripped him of, II Co. 80.3. without any default of his, the privileges and benefits of the in- IButacourt iiejita^ce flill continue in him. Beiides, to punifli this tenant icitrain him for waftc, fecms to be againft the delign and intention of the firft atieaft from donation ', for by that the donor gave the inheritance and an abfo- Bi^7i[?yus"^ lute po'Aer o\er th<; lafting improvements, which are looked upon as IpofTibilit^ of JlTue mtna* 557 as part of the inheritance for their duration, and, confequently, it and extrava- can be no injury to him in reverfion, nor befide his intention in E^nt wafte. the donation, if the donee exercifes the power he was intruded y_ gybij with by the donor ; nor can the donor revoke it, becaufe the 2 Freem. authority given by the gift muft continue as long as the gift to ^^P- 53- which it was annexed continues. Abr. tit.' Wafte (A), pi. I. S. C, a Show. 69. S. C. Anon. 2 Frcem. 278. S. P, He fhall not have aid of him in reverfion, becaufe he having Co. Lit. originally the inheritance by the firft gift, has likewife the cuftody '^\}^\ of the writings which are neceiTary to defend it. • • . For the fame reafon he may join the mife in a writ of right, Co. Lit. becaufe, the deeds belonging to the inheritance lying in his ^7* ''• hands, he may make out his title without calling in the re- " °* • verfioner. The writ of entry ifi caufa confimili doth not lie upon his aliena- Co. Lit. tion, as it does for him in the reverfion, upon the alienation of ^7- b. any other tenant for life, becaufe this cafe is not conftmilis to p. n.b. * that of tenant in dower, becaufe this tenant had originally the 206. inheritance in him, which the tenant in dower never had. Booth. 199, If upon the death of tenant in tail after pofllbility, l^c. a Co. Lit. ftranger intrudes, yet no writ of intrufion lies againft fuch in- -7- ^• * I u c L- •.. ■ • 1 . J • iiCo.go.b. truder, becaule this writ js given only upon an entry and in- Booth. iSi. trufion after the death of a bare tenant for life, which this tenant is not. He ftiall not be called tenant for life in a precipe brought by or Co. Lit. againft him, becaufe his original infeudation, by which he claims, *^p'*% was of an eftate of inheritance, not of an eftate for life. Cffate for 3ttfe anJ3 C^ccupantp. (A) What Intereft or Property in Land the Law calls an Eftate for Life, either when there are exprefs Words in the Deed, or when the Law- creates it by Implication. (B) Who upon the Death of Tenant for liife is to enjoy the Land j and herein of Occupancy : And, I. Of what Things a M.ui may make himf^lf a Title to by Occup.uion. 1. What 558 €Gate for Life anti £Dccupanc^ 2. What makes an Occupant. 3. The Way to prevent the General Occupant j and herein of the Special Occupant, and the Alteration made in the Common Law by the Statute 29 Car. 2. r. 3. (C) How far Tenant for Life may difpofe of his Eftate, either fingly by himfelf, or by joining with him in Reverfion : And herein of his For- feiture, either by Common Law or Statute. (A) What Intereft or Property in Land the Law calls an Eflate for Life, either when there are exprefs Words in the Deed, or when the Law creates it by Implication. lit. § 56. JF a man lets lands to one for term of life of the leflee, or any Ji other, in this cafe the ieflce is tenant for term of life ; but in common fpeech, he, who holdeth for term of his own life, is called tenant for term of his own life j and he, who holdeth for term of another's life, is called tenant for term of another man's life, or tenant per outer vie. Co. Lit. So, if a man lets land to another for term of his own life, and ^V,''" the lives of A. and B., the leflee has a freehold determinable upon Qto.'ESizT his own death, and the deaths of A. and B.y nor can there be »8a. any merger of the freehold during the lives of A. and B. into the eftate that the lelTee has during his own life ; becaufe, though the eftate for a man's own life is greater than an eftate for another man's life, yet here the lefTee has not two diftin£t eftates in him, but only one freehold circumfcribed with that limitation as the meafure of Its continuance. Roll, Abr. If a leafe be made to a corporation aggregate for life of the 843. But if lefloj.. this is a good eftate for Ufe, becaufe the life of the leflbr, made to a which is Wearing and vvill determine, is the meafure of its con- corporation tinuance. aggregate for their own lives; this is no eftate for life, but a fee-fimple ; for the leafe being made to them as a body politick, which has a continued fucceffion, and never dies, a leafe made to them during their lives is equal to a grant made to them while they continue a body politick, which by reafon of the perpetual fucceflion of its members is in law looked upon to be for ever ; and therefore, this is a good gift in fee, without the word JucceJIois, becaufe the leflbr cannot have the land againft his own grant till the corpo- ration is difl"olved ; for till their diffolution they are in being and have a continuance, which is to be alive within the words of the leale. 2j E. 4.. 76. Roll. Abr. 843. Lit. § 283. If a man leafes lands to another, without faying how long the Co. Lit 4a. leffgg {)^^ii gnjoy them, he iliall have them for his own life, i£ Abu Lt!* livery be made, becaufe every man's gift is taken moft ftrongly himfelf. OBaate for £ifc anD £DccMpanc^* 559 lumfelf, and for the benefit of the grantee, to avoid all equivo- cation. But there is a difference between fuch a leafe made by tenant in fee-fimple and tenant in tail ; for if tenant in tail makes a leafe generally with livery, the leflce fhall have the land but during the life of the tenant in tail, for that is the greatefl eftate he can lawfully make, the power to leafe ceafing with his life ; and where a man's a6t will bear different conftruftions, the law, for no confideration, will make that conftruclion which mult be injurious to another. ' So, if leffee for term of his own life makes a leafe generally Co. Lic.iSj. with livery ; this the law conftrues an eftate for his own life only ; for if it were to be taken an eftate for the life of the leffee, the leffor, without any explicit aft of his own, would not only difcontinue tlie reverfion, but alfo forfeit his own eftate, whi; }i conftrudlion would make the conveyance ufelefs and ineffe£lual ; for it would be in the power of him in the reverfion to enter into the land for the forfeiture -, and the law will make no conftruftion to do wrong, or in doubtful expreffions prefume a wrongful in- tention, it being alfo moft for the benefit of the leffee, that he fiiould have a rightful eftate. So it is of things which lie in grant, as rents, reverfions, com- Roll. Abr. mons, ^c. for if a man grants thefe things bv deed, without men- ^f 5- <-'»• O * ' Lit* A2 3 tioning any particular eftate, theg rantee hath an eftate for term of scoTss-b. his own life, becaufe a man's own a6l is taken moft ftrongly ngainft himfelf ; and where the words of tlie deed will bear two fenfes without injury to any one, the purcliafer who comes in upon a valuable confideration deferves the moft favour ; and the con- itruftion that moft enlarges his intcreft is to be preferred : befides, being granted to him, it cannot be fuppofed out of him, as long as the fame perfon continues. But if the king grants land or rent, and limits no particular Roll, Abr. eftate in the gift, the patentee has no freehold, either for his own ^+5' f'"'' 1' c 1 i'" r ^ !• iincc the lie or the lite or the king. jj^i^^^, ,5 fgi, dom known to make market of his titles, his grants proceeding from his own bounty, and not fronrj any Taluable confiderarion of the patentees, ought nut to be taken in a larger fenfe than the words oi them- lelves import ; and therefore, where he has not explicitly fet forth the extent of his bounty, the hw, with reafon, conftnies the grant in favour of the king, who is beft judge of the I'ervices of his fubjeds, and how far he intended to reward them, where the words of the grant do not declare it 5 and therefore fuch grant, being capable of a double conftnidliyn, is void for the uncertainty, and fliall not pals fu much as an eftate at v.ill j becaufe moft grants proceeding from the infligation and application of the fubjeft,they ought to know what they alk 5 and if that does not appear, nothing ftiall pafs from the king for the un-. certainty. Roll. Abr. 845. Dav. 43. 45. Co. 43. 49. If an eftate be given to a woman dum folafuer'it^ or durante vi- Co. Lit. diiitatt'y or to a man and woman during coverture, or as long 4^' *' a^ the grantee fhall dwell in fuch a houfe, or fliall pay lo/. yearly to the grantor ; in all fuch cafes, where there is no fixed time appointed for the determination of the eftate conveyed, the grantees have eftates for life, if the ceremony required by lavtr to pafs a freeiiold be obferved •, as if livery be made in cafe of things corporeal, or a deed be perfeded in cafe of things in- corporeal. If s6o (ZBftate for Life anti ^fccu^^f^mn. Ron. Abr. if I make a leafe to another till I go to We/ItninJIer, the hWet *44- has ail eftate for life. So if J. leafes to i?. till ^. makes J. S. bailiff of liis manor, B. has the freehold in him ; for fiiice there is no particular time fpecified, but it is left indefinitely, when I fliall go to Wcjlminjlery or J. S. be made bailiff of the manor, and thefe contingencies may or may not happen during the life of the leffee, and the livery transfers the freehold to him ; fo he muft, confequcntly, by the words of the gift, enjoy it during his life, if none of thefe contingencies happen m that time, upon which his eftate is to determine. Co. Lit. If an office be granted to a man, to have and enjoy fo long as R^ii^Ab ^^^ ^^^^ behave liimfelf well in it, the grantee hath an eftate of 3^^.' " freehold in the ofiice ; for, fince nothing but his miftiehaviour can Cafes in determine his intereft, no man can prefix a (horter time than his Pail. i6i- ]j£^^ ^-^^,g jj j^^^jI^ i^g j-|jg Q^,j^ ^r^^ (which the law does not prefume 4 Mod. 173. ^^ forefee,) which only can make his eftate of fiiorter continuance than his life. So, if the office had been granted to a man quam- diufe bene gejferit tantinn^ his eftate had not been lefs for tlie word tantum; for a grant to a man for fo long time as he fhall behave himfelf well, and for fo long time only as he ftiall behave himfelf well, are of equal extent, and his mifbehaviour in each cafe deter- mines his intereft. Co. Lit. If a man grants a manor worth 10/. per annum to J. S. till he V"u\i. ^'^s received 100/., this is an eftate for life, if livery be made ; for 5^5,' * though at the time of the grant the manor be worth 10/., and by 6 Co. 35. b. that computation the 100/. muft be paid in ten years; yet fince the profits are uncertain, and may rife or fall, there can be no de- finite time fixed for the limitation of the leffee's eftate ; and there- fore, fince livery is made, he muft have a freehold in the manor determinable upon the levying of the 100/.; but in this cafe, if no livery had been made, the lelTee had been only tenant at will ; for it cannot be a leafe for years, becaufe the determination of it is uncertain, and there can be no freehold without livery. Roll. Abr. But if I grant a rent of iq/. to J. S. till he has received 100/. ^*5 this is an eftate for years in the grantee, for the determinate fum, 4zi a. which is payable yearly, muft neceflarily in ten years amount to the 100/., and, confequently, it is evident at the commencement of the grant, when the intereft of the grantee is to determine. Roll. Abr. If I grant to another common of turbary in ray land, to dig and ^^' carry away at his will, there being no particular eftate limited in the grant, it nuift be conftrued in favour of the grantee, to con- tinue during the life of the grantee, for the words, at his ivUl, cannot refer to the eftate in the common, but to the privilege given to the grantee to dig and carry away, which by the grant he may ufe at his will and pleafure. Roll. Abr. if a man feifed of land in right of his wife for life, bargains ^+5« and fells it by indenture enrolled, the purchafer has an eftate for his life determinable upon the coverture ; for the conveyance being by bargain and fale transfers no more than the hulband may lawfully pafs, which is an eftate during the coverture j for fo long (Sftate for Life anD Occupancy, 561 long he has an eftate in the freehold of his wife, and may law- fully difpofe of it ; and fince it cannot be forefeen when the corerture will be dilTolved, the leflee mud, confequently, have the freehold determinable with the coverture, fince the bargain and faie upon the llatute is equivalent to livery at law, to transfer the freehold. If the king grants an office at will, and grants a rent to the Co. Lit. patentee for his life, for the exercife of his office ; this is no '^^' *' abfolute eftate for life, becaufe the rent being granted on account of the office, and in difcharge of the duty of the place, when- ever his intereft in the office ceafes, the rent is determined, be- caufe it was firft granted for the exercife of the office which he is no farther concerned in. And here it may be proper to obfcrve, that though, by the 29 Car. > common law, the inveftiture of livery was the only folemnity re- ^' 3* quired to convey the freehold, yet now, by the ftatute o( frauds and perjuries J it is enaBed, That all leafes^ ejlates, interejls of free- holdi l^c. in any landsy tenements^ or hereditaments y made or created by livery and feiftn only^ and not put in ivriting, and figtied by the parties fo making or creating the famcy or their agents thereunto law- fully authorized by luriting, Jhall have the force and effeEl of leafes or eflates at nvill only, and Jjjall not either in laiv or equity be deemed or taken to have any other or greater force or effeB. (B) Who upon the Death of Tenant for Life is to *J^'yl^^ enjoy the Land : And herein of Occupancy*. following •' '' cafes as to occupancy are how law,, fince tht alterations by ftatute, which t-'ide pojf. But they fliew the learning relative to occupancy, which may, on lome occafions, beof ufe. |F a man leafes to J. S., and J. S. dies, the land returns to the Co. Lit. -*• leffiDr, becaufe, the life being fpent for which the land was J[^''jj;,^ granted, it muft neceffarily come back to the old proprietor. But jgj^*, if the leafe had been made to J. S. during the life of ^. and the leflee had died living cefm que vie ; or if in the former cafe f. S. had granted over his eftate to B., and B. had died •, in thefe cafes, he that firft took poficffion of the land was lawfully the tenant ; for the reverfioner could not claim in either cafe, becaufe he had pai'ted with it during the life of A. in one cafe, and of f. S. in the other ; and J. S. cannot have any right, for that were to a£b contrary to his own grant, and to claim an intereft which he had transferred to another ; and the tenant pur auter vie being dead, his defcendants could not claim it, becaufe they were not com- prehended in the words of the feudral donation ; and therefore the firft occupant muft be the rightful tenant, fince this, like all other things which are derelict and without an owner, belongs to the firft occupier or pofTeflbr. But, the better to underltand this matter, we (hall confider, I. What Things a Man may make himfelf a Title to by Occupation* Vol, II. O 0. a. What :62 OBftatc foi* Life ant) £)ccupanc^» 2. What makes an Occupant. 3. The Way to prevent the General Occupant; and herein ..of the Special Occupant, and the Alteration made in the Common Law, by the Statute 29 Car. 2. c. 3. I. Of what Things a Man may make himfelf a Title to by Occupation. Vaugh.199, There can be no occupant ( a. in maig. S. C. a Roll.Abr. B6. 403. Cro. Jac. 696. Eafl-acc and Scawen. SirWm. Jones, 55. b.C. Therefore, if a rent be granted to ^. during the life of B.y and ^. die, living B., the rent is determined ; becaufe the grant being originally made to A. only, when he dies, no body can claim it as occupant, becaufe there can be no entry into it to pcflefs ; nor by the deed, becaufe no one was party to it but A. ; it muft follow, therefore, that when nobody can take by the grant, it muft ceafe as a void grant, or as if it had never made j and, confequently, tlie reverfion muft neccflarily commence. If a rent be granted to A. during the life of B.y remainder to C, if A. dies living ce/Iui que vie, the remainder which was limited to C. commences immediately, for the particular eftate in the rent muft determine, when nobody can enjoy it ; and, confe- quently, the remainder muft take place, which was to commence upon the determination of the particular eftate. But if a rent be granted to A. and B. during the life of C. to the ufe of C, if A. and B. die, C. (hall enjoy the rent during his own life ; for the rent granted to A. and B. to the ufe of C. is by the ftatute of ufes executed in C as an eftate for his own life ; fo that the lives of A. and B. are no ways material ; for the eftate being executed by the ftatute to the ufe which was limited to C. of his bodv, and fuch eftate fliall defcend, and is not fur outer -vie • 1 • 1 n r ? fettles the withm the Itatutc de dotiis. term to the ufe of himfeif in tail, remainder to J. S. equity will not fupport fuch remainder for the benefit of J. S. Vern. 225-6. a Lev. 138. If lands in borough-englifh be given to ^. and his heirs for the 3g^^^-475- life of B.J and J. die in the life of B.y leaving two fons, the Vaugh.201. youngeft (hall be the fpecial occupant, becaufe the heir, that is reprefentative of the father as to land of that nature, muft be the occupant, fince the heir muft take by defcent, and not by purchafe. Dyer, 328, Jf a leafe be made of la fid to J. S. his executors and aflTigns, ?5^.f and'' ^^^'^"g t^^ 'i^^ °f ^•' t^e executors of J. S. Ihall be the fpecial it wasaffets occupants, if he dies in the life of B. ; for though it be a freehold, in their which in courfe of law would not go to executors, yet they may f j're t'he flat. ^^ dcfigued by the particular words in the grant to take as occu- 29 Car. 2. pants; and fuch defignation will exclude the occupation of any *^'v' .,, other perfon, becaule the parties themfelves, who originally had ^ [ 'sAik.466" ^^^ pofleflion, have filled it up by this appointment. And now fince the ftatute, if an eftate /)«r auter -vh' be limited to a man, his heirs, executors, admini- ftratois and afligns, and be not deviled, it defcends to the heir as a fpecial occupant, and of courfe the 1 erfonal repieientative of the perfon laft feifed cannot recover the title deeds from the perfon laft feifed. Atkinfon V. Baker, 4Teira. Rep. 219.] 2 Roll. But if a rent be granted to J. S. and his executors, during the Abr. 151. j-fg q£ _g^^ |jy jj^g ^g^jjj ^£ j^ ^^ ^^^ j^g^j. .^ determined, becaufe the CBGate foe life anti Cccupancp. 567 the executors cannot take as fpecial occupants, fince the nature of the thing lying in agreement is not capable of occupation, nor can they take by the grant, becaufe then they muft take as reprefenta- tives, which they cannot be of a freehold; and the law will not permit people at their plcafure to vary the courfe of defcents. So, if a rent be granted to A. his executors and affigns, during Vaugh.199, the life of ^., and A. die inteftate, the adminiftrator cannot claim '^°' ^^"• the rent ; not as occupant, becaufe no man can make himfelf a mo. 664.* title to rent by way of occupancy : not by the deed, becaufe he is Yeiv. 9. not aflignee within the words of the grant by the letters of admi- |^'^" ^"^ niftration, therefore the rent is determined, fince none can claim ' ' ' it as occupant. Yet if the rent be granted to a man and his heirs during the Vaugh.201. life of another, and the grantee die, his heirs fliall take as fpecial - ^°''* occupants ; for though in point of property the rent is not capable Buui.^i?'?, of occupation, yet fince the heirs are included in the grant, and Cro. Jac. they are capable of taking the freehold as reprefentatives of the *^^- ^o^^"'" grantee, which the executors are not in the form.er cafe, it is but veiv. o"/* reafon the rent (hould not determine while any perfon comprifed in the grant is capable of taking. So, if an annuity be granted to A. and his heirs during the life Bulft. 135, of ^., if A. die before i?., his heirs fhall have the annuity, becaufe ^°^ ^^'' the heirs oi A. being the proper reprefentatives to take the free- 2 rou' hold defcending from him, fince they are comprifed in the grant, Abr. 151. the grant cannot ceafe or be void while they are in being, and the life not fpent for which the grant was made. But though all or moft of the above cafes might formerly have 29 Car. 2, been good law, yet now by the ftatute q{ frauds and perjuries it is f^v^j> vnT'ii enabled. That any eitate pur auter vie fliall be devifable by will be anecs only in writing, figned by the party fo devifing the fame, or by fome to pay debts other perfon in his prefcnce, and by his exprefs diredlions, atteil- j-7g(.ia"j|. "[^ ed and fubfcribed in the prefence of the devifor, by three or more which ihe witnefies ; and if no fuch devife thereof be made, the fame ihall l^eir is be chargeable in the hands of the heir, if it fhall come to him by ^^^\^^l^ reafon of a fpecial occupancy, as [n) afl'cts by defcent ; as in cafe by iimpie of lands in fee-fimple ; and in cafe there be no fpecial occupant contiad. thereof, it fliall go to the executors or adminiftrators of the party jf tep"a,ic' that had the ellate thereof by virtue of the grant, and fliall be aflets pur auter in their hands. ""'" '^'" '": tefta'e, and adminiftratlon is granted to J. S. the adminiftrator is not obliged to diftribute this term amonglt the next of kin, as part or the intcftate's peilonal eftate, but {hall have it himfelf as occupant, for it ftiU conti- nues a ficehold ; and the alteration made by the 3^ Car. 2. c 3. was only with refped to creditors, that is, if it comes to the heir as fpecial occupant, lie /hail be anfweiable for his anccilor's debts as f.ir as he is bou.id j and if to executors or adminiftrators, they for all debts generally ; but it fliall not be afTets to pay legacies, except fuch as are particularly devifed thereout. Mich. S Will. 3. in B. R. between Oidhnm and Pickering. 2 Salk. 464. per totam cur'um. But fee now 14 Geo. 2. c. 20. § 9. whereby diftri- bution (hall l*e made of ellates/a?- autcr •vie, wJici-ewf there is no fpecial occupant, and which are not de- Vifcd. O 04 568 (Kftate for life anO £»(cupancii» (C) How far Tenant for Life may difpofe of hia tftate, either fingly by himfelf, or by joining with him in Reverfion : And herein of his For- feiture, either by Common Law or Statute. Digeft.Feud- 13 Y the ancicnt feudal law no man could alien wrthout licence lib. 2. tit. J_) fj-Qm the lord of the fee ; but any alienation or difpofition was Vigelii'as*^' t^<^" ^ forfeiture ; but in Etigland^ where the allodial property pre- lib. 5. vailed in the Saxon times, they were allowed to alien in [a) fome Caufe,32. cafes, which privilege was not only confirmed, but alfo enlarged Staunf. s"'^ made general by magna charta; fo that by tliat a6l the feu- Praer. aS.a. ditary might alien to whom he pleafed, provided he left fufficient {a) ift, In ^Q anfwer the lord's fervices, which feems to have been a privilege ncmjcr-vhii, mightily coutendcd for. that i?, for fervices done to the feud, as for fervices done in the wars by the feudal tenant, or In peace, by ploughing the feud at home ; both thefe being either for tiie profit or honour of the feudal lord, they tormerly valuing thernfeives upon the nunnber and honour of their tenants, adiy, In frar.k mairi.iee with the daughter of tlie feuditary, or fome other of his blood, becaufe this multiplied tenants to the lord. 3dly, In frankalmolgne or free aims, the fuperlFition of the times allowing it for the good of the foul. Glanvil, lib. 7. cap. 1.44.. Siaunf. Prsr. 27, 28. a Inft. 65. Yet notwithflandlng this law, if tenant for life aliens in fee, this Roil. Abr. jg ^ijj ^ forfeiture, for that ftatute only permits a lawful difpofition, Lit. 251. * but does not allow any alienation to the prejudice of him in rever- fion, and therefore where tenant for life takes upon him to transfer the fee-fimple, it is a renunciation of the feud, and contrary to his oath of fidelity. So, if tenant for life aliens to another for the li,fe of the alienee, this is a forfeiture, for it can be no lawful alienation within magna charta^ becaufe it is palpably to the prejudice of him in the reverfion. Roll. Abr. If A. leflee for life leafes to B. for the life of B.y if A. lives fo ^54- long ; this is a forfeiture of A.'s eftate, becaufe B. has an eftate for his own life, though under a contingency, which mud necefl'a- rily dcveft the reverfion. Cro. Jac. But if A.^ leflee for life, levies a fine to B. for the life o^A. to the ^°n ^^^^^ ufe of B. for his own life, this is no forfeiture ; for the eftate grant- Roll. Abr. cd by the fine was only for the life of A.^ and the limitation of a 254- greater ufe can be no forfeiture, for the eftate out of which the ufe arifes is only during the life of A. Cro. Elii. Hufband feifed of lands in right of his wife for life, and they ^31' P'ers both by deed of feoffment convey the land to J. S. and his heirs. So, if baron hdheud to him and his heirs, to the ufe of him and his heii's, for the and feme be life of the wife ; this is a forfeiture of her eftate ; for there being j."^"" *°'' a fee-fimple conveyed to J. "S- by the deed and livery, the words they both of reftraint for the life of the wife refer only to the limitation of join in a the ufc, fo that the fee-fimple remains ftill in the feoffee j but this i-otiment, -^ feems is a forfeiture only during the coverture. or the huf- ■' ° band alone j ihele are forfeitures, but they affeft the wife only during the coveiture 5 for fhe can b; buund by no i.QL uf hcij without examinacioa in the (Ourt of record. Roll. Abr. S51. 8 Co. 44. If €llate for Hifc anD Occupancy 569 If tenant for life makes a leafe for years, this was never looked 8 Co. 4.5, upon to be a forfeiture, becaufe the lelTee for years was originally Co.Lit. but a bailiff to the freehokler, and the tenant for life only had the * freehold, and was to anfwer the fervices, and he in reverfion was nowife affected by it, becaufe there was no inveftiture or other acl of notoriety done to difpoffefs him of his reverfion. But upon ^the death of tenant for life the termor's interefl: ceafed, becaufe the perfon from whom he derived his authority as bailiff being dead, the authority muft neceffarily ceafe with the perfon that granted it ; and in this cafe, if tenant for life enters upon his leffee, and makes a feoffment to another, this is a forfeiture of his whole eftate, but the term for years continues, becaufe the wrong- ful aft of tenant for life fliall not prejudice a ftranger's intereft ; and if he in reverfion enters, he muft take it fubjedl to the charges lie had power by law to lay on it ; yet in this cafe, if tenant for life had entered and committed walte, this had been a forfeiture of his eftate, and the term had been loft too ; but this is by the But for th« cxprefs words of the ftatute of Gloucejlery which gives the place '^'^^' wafted as a penalty to him in reverfion, and cannot be done if the term continues notwithftanding the wafte. Of things which may be transferred without the notoriety C0.Lit.a51. of livery and feifin, fuch as rents, advowfons, l^c. which lie in ^°- ^* grant, a man cannot by any difpofition or aft in pais forfeit them j g ° '* and therefore, if a man feifed of a rent, advowfon, or common for life, grants them by deed to another in fee, this is no forfeiture, for this can be no way prejudicial to him in reverfion, becaufe, ihould the grantee claim an eftate in fee, he can make no title without the original grant made to his grantor, by which it muft appear what intereft he had, and confequently, what eftate he could convey •, and fo the grantee, notwithftanding the grant in fee, can claim no larger eftate than his grantor had power to make, and fo he in reverfion can receive no prejudice. So, if tenant for life of lands, by indenture enrolled, bargains 6 Co. 14. b. and fells them to J. S. and his heirs, this is no forfeiture, but the bargainor paffes only what he may lawfully pafs ; for though by the ftatute 27//. 8. c. 10. deeds enrolled grew a comipon con- veyance for transferring of lands, which could not pafs at common law without the inveftiture of livery j yet being a manner of con- veyance known before at common law, it was conftrued to have no new effeft given it by the ftatute, but what the ftatute expreffed. But if a man be feifed of a manor for life, to which an advow- Roll. Akr. fon is appendant, and he alien one acre, or the whole manor, with ^5+- the advowfon in fee •, this is a forfeiture of the advo>vfon ; for as it is a forfeiture of the acre or manor to which it is appendant, fo it muft be alfo of the advowfon, fince the alienation makes no feverance of them. If leffee for life of lands aliens in fee upon condition, and Roll. Abn enters for the condition broken, yet the kffor may enter for the !.56- - 'J J Co Lit.aji, forfeiture. Faim. 20*. So, if cenant for life aliens upon condition, that if he himfelf pays xo /. ihat he QxtW re>CDter], and cJut Co. Lit. i$u b. Roll. Abr: 852. C0.Llt.251. Vigellius Caufe, 32. 1 287-8. ^jo (ZBflatc for Life anti i©ccupancg» if he fails in pjyment, that then the alienee fiiall have the fee fimple ; thongh he pays the money, yet the reverfioner may enter for the forfeiture, becaufe the fte was transferred immediately upon the alicna- tjoo> which was a renunciation of the feud, and confequently a forfeiture. Roll. Abr. 856. If tenant for life levies a fine, by which the reverfion is deveft- ed ; this is a forfeiture, becaufe it is a more folemn renunciation of the feud than any alienation in pais can be. So it is of a rent, advowfon, or any thing elfe that lies in grant : for if tenant for life of them levies a fine, it is a forfeiture : for though the fine being of a rent, Cffr. pafTe^ no more than it may lawfully pafs, yet being a publick and folemn renunciation of the eftate for life, in a court of record, this amounts to a forfeiture, and fo differs from a grant in pais. Another way of forfeiture in a court of record is, by claiming a greater eftate than he had by the feudal donation, or by affirm- ing the reverfion to be in any other perfon than his lord. This feems to be grounded on a rule in the old feudal law, that if a vaflal denied that he held the feud of his lord, and it was proved againft him, fuch denial was a forfeiture. Now this denial may be when the vaflal claims the reverfion himfelf, or accepts a gift of it from a ftranger, or acknowledges the reverfion to be In a ilranger ; for in all thefe cafes he denies that he holds the feud from the lord : but, as by the feudal law, the vaflal was to be convi6ted of this denial, fo in our law thefe a£ls which plainly amount to a denial muft be done in a court of record, to make them a forfeiture ; for fuch a6l of denial appearing on record is equivalent and equally conclufive" as a conviction upon folemn ' trial ; and all other denials, that might be ufed by great lords for trepanning their tenants, and for a pretence to feife their eftates, by our law were rejected, for fuch convidlions might be made by fuch great lords where there was no juft caufe : but the denial of the tenure upon record could never be counterfeit, or be abufed to any injuftice ; and therefore this notorious and folemn a6l of the tenant was retained as a juft caufe of forfeiture by our law. And therefore, if tenant for life be diffelfed, and bring a writ of right, this is a forfeiture of his eftate ; becaufe by fuing a writ of right he admits the reverfion in fee to be in himfelf, and by confequence denies that he holds over. So it is, if, in a writ of right brought againft him, he fliould join the niife on the mere right ; for by taking upon him the privileges of tenant in fee, he admits the inheritance in him, which is a denial of the tenure. 7 Co. 55. Co. Lit. 251. b. So, if in a juid juris clamat brought againft him he claims the fee- fimple; this is a forfeiture, Roll. Abr. 853. a Co. 68. b. Dyer, 148. C0.Lit.252. Roll. Abr. 852. 9 Co. 106. aLev. 202. Smith and Abell. If tenant for life accepts a fine ccirie ceoy Isc. of a ftranger, this is a forfeiture of his eftate ; for tliis is a denial of the tenure on two accounts : i/?. In admitting the reverfion to have been in the ftranger to convey. 2^/y, In accepting of it himfelf to the pre- judice of him in reverfion. If A. be tenant for life, remainder to B. for life, and A. levy a fine to 5., this is a forfeiture of both their eftates ; for by their own act on record, they have denied the reverfion to be in the lord, the firft by giving, and the luttcr by receiving it. 6 If (JBGate for Life anti ilDccupanc^, 571 If tenant for life be diiTeifed, and the difTeifor make a leafe at iCo. 55. will, and tenant for life levy a fine come ceoj ^c. to the leffee ; ^°°/' **3* this is a forfeiture, and he in the reverfion, though he had but a cafg. Co. right, may take advantage of it. Lit. 252. a. If a ftranger bring an action of wafte againft tenant for life, Co.Lh.zs*. and the leflee plead nul wajle fatty in bar to the aftion ; this is a ?"°''' ^'"^* forfeiture, becaufe by his plea he admits the ftranger to be the proper perfon to punifh the wafte, if there had been any committed. If the demandant in a real aftlon recovers againft the tenant Co. Lit. for life by default or tuetit dedire, or by pleading covenoufly to the ^5^- »• difherifon of him in the reverfion ; thefe are forfeitures oF his g ° ' * eftate ; for tenant for life is intrufted with the freehold, and is to anfwcr to ftrangers precipes, and defend his own as well as the reverfioner's intereft ; but when he gives way to the demandant's action, he admits the right of reverfion to be in him, and, by confequence, denies any tenure of his reverfioner, which is a forfeiture. If tenant for life prays in aid of him in reverfion, and has It RolL Abr. granted him, and j. S, comes into court without procefs, and ^53- . fays, he is the perfon of whom aid is prayed, and that he is ready ' ■*^** to join in aid ; but tenant for life denies him to be the perfon, and is adjudged to anfwer fole ; if this be the perfon that has the reverfion, tenant for life has forfeited his eftate by his denial of him, becaufe the prayer in aid being always of him in reverfion, and the tenant denying him to be the perfon of whom he prayed in aid, he has denied the reverfion to be in him, and, confe- quently, has denied to hold of him. So it is if he had at firft prayed in aid of a ftranger 5 this had been a forfeiture for the fame reafon. If a ftranger grants the reverfion by fine, and the conufee Co. tit. brings a quid Juris clamat againft the lefl~ee, who attorns to the ^S^* a. grant; this is a forfeiture, becaufe he thereby admits the rever- g,./ Con to be in a ftranger ; but if he be erroneoufly adjudged by the court to attorn, and he does it in obedience to the court, this is no forfeiture, becaufe he was bound by the judgment to attorn and did nothing wilfully to the prejudice of him in reverfion. Where he in reverfion is party to the conveyance, there, tenant Co. LH. for life may by folemn inveftiture convey a greater eftate than he 4** *• had by the firft feudal contra£l : as, if A. tenant for life makes a leafe to B. who is in reverfion, for the life of B.^ this is neither a furrender nor forfeiture : not the firft, becaufe A. has not wholly parted with his own eftate, but hath left a reverfion in himJelf after the death of B.^ who may poflibly die firft ; and therefore; if B. takes a wife, ftie ftiall not be endowed of fuch eftate, bec;iure B. is but tenant for life by the conveyance : a forfeiture it can- not be, becaufe he in reverfion is party, who cannot take ad- vantage of it as a forfeiture, contrary to his own concurrence and approbation, for that were to render his own a6l void and inefFeclual. If 572 CBftate for Iffe anu £)(cupanctn Co. 76. h. If A. tenant for life enfeoff B. in remainder for life ; this is a ^T ^ s p f'*'^''^"^^^ J fo'^ ^ forfeiture it cannot be, becaufe B. in remainder *" * ■ ■ was party, and A. can have no reverfion, becaufe he conveyed the whole eflate. 4.'Aff. pi. a. But if A. be tenant for life, remainder to B. in tail, remainder Co Ltt ^* ^° ^* "^ ^^^» ^"^ ^* "'^^'^^ ^ feoffment to B. and his wife, and ^, ' a. ' their heirs, and then B. die without ifTue, C. may enter for the Roll. Abr. forfeiture : for this could be no furrender, becaufe the feme, who *i5- had no interefl in the land, was party to the feoffment, and fhe muft claim under the feoffment, which being made to a ftranger, muft necefTarily devefl the remainder, which is a forfeiture of AJs eftate, and, confequently, C. may enter, fince the eftates of A. and B.y which hindered him, are fpent and determined. Roll. Abr. Therefore, if tenant for life, remainder in tail, remainder in ^37- fee, and the tenant for life enfeoffs him in the laft remainder, the mean remainder-man may enter, becaufe this devefled his re- mainder, and by confequence was a forfeiture. Roll. Abr. If tenant for life makes a feoffment in fee to baron and feme, *55- feifed of the reverfion in right of the feme ; this can be no fur- render ; for whatever vefts in the hufband by the feoffment, muft necefTarily be devefled out of the wife, and when (he enters into the land (he is remitted to her former right. Roll. Abr. If baron and feme, feifed in right of the feme for life, leafe for Co^ Lit. ^'^^ ^y indenture to him in reverfion, being within age, for the life of the hufband ; this is a forfeiture ; for though he in rever- fion be pai-ty to the leafe, yet being an infant he is not bound by the contraft to his own prejudice ; but if he in reverfion had been of full age, the leafe had been good, becaufe he had dif- penfed with the advantage of the forfeiture by his acceptance of the leafe. Co. 76. The next thing to be confidered is, where tenant for life and he Plo°*'^*o* in reverfion join in the conveyance: and this has a different operation, as the feoffment is with or without deed ; for if it be without deed, then this is conflrued to be a furrender of the eflate for life, and the feoffment of him in reverfion, for no other inter- pretation can make the feoffment effe£tual ; for if the eftate pafles from the tenant for life to the feoffee, it will be a forfeiture of his eftate, whereof he in reverfion may take advantage, notwithftand- ing his joining ; for he having only the reverfion had nothing to do with the freehold, and by confequence could make no feoff- ment or livery : and it cannot be a grant or confirmation of him in reverfion for want of a deed : therefore, to make it effe£lual, it is conftrued the furrender of the tenant for life, and the feoffment of him in reverfion. To. 76. But if tenant for life and he in reverfion join in a feoffment by f.uw. 140. join in a feoffment Co. 76. b. by deed ; this is nodifcontinuance, but each gives only his own j 77- *♦ and upon the death of tenant for hfe and him in remainder in taili the iflue, or thofe in reverfion may lawfully enter, becaufe then the eftate that pafled is determined : but if -fuch feoffment had been by parol, then it had been the furrender of the tenant for life j and the feoffment of him in remainder, which would have made a difcontinuance. A. tenant for life, remainder In tail to^., remainder In tall to C, Co. 76. A. and B. join in a fine come ceOf ^c. to a ftranger ; this is neither Sf^^^on'* a difcontinuance nor forfeiture, for each gives what he may law- '^^\\z,%i^°' fully difpofe of; the tenant for life his eftate, and B. a fee deter- Mo. 634. minable on his eflate-tail ; and to prevent any difcontinuance or ^^"^' *^°' forfeiture, It {hall be lirft conftrued to be the grant of i?. in re- mainder, and then of A. the tenant for life. But If A. tenant for life, and B. in remainder for life, join In a Dyer, 339, feoffment ; this Is a forfeiture of both their eftates, and he in re- ^°''* •^'"^* mainder or reverfion may enter prefently, becaufe this feoffment ic'o. ^g. paffed a greater eftate than both of them could lawfully make, and confequently muft dcveft the reverfion ;r remainder In fee, and fo amount to a forfeiture. So it would be if a remainder had been to C. in tail, remainder to the right heirs of B. for the feoff- ment conveying a fee In poffeffion, which B. had not in him, muft neceflarlly deveft the remainder to C, and, confequently, be a for- feiture, whereof he may take advantage. So, if B. In remainder for life, with fuch laft remainder to his [Between right heirs, levy a fine covie ceo, i^c. to a ftranger ; this is a for- Pr "^^ "' felture of his remainder for life, becaufe the fine conveys a fee- Roii/Ai)r. fimple In poffeffion by eftoppel, agalnft which he can make no 855, Sty. averment ; or by making fra<5lions of the eftate, fay, he only pull ^^-- ^' ^* an eftate for life in prcsfenti, with a fee-fimple expectant on the divided ■ and death of C. without Iffue, becaufe the fine fuppofes a precedent the reporter gift In fee-fimple, which he could not lawfully make whilft the ^^^ r^"'^ eftate for life of A. and the Intermediate remainder of C in tail ment was" were fubfifting ; and therefore fuch fine Is a forfeiture, though given ■'s.c. during the life of A., C. can take no advantage of It. ^^ j^„ ^^ ^^ ^Tc^^nl} Tenant for life, the reverfion in fee being an Infant, they both Co. 76. b. join In a fine, which Is afterwards reverfed by the Infant for his ^^"^ '^'^* nonage ; yet the conufee ftiall hold during the life of tenant for Hfe, becaufe diftinft Interefts paffed from each of them, and the defeat In one fiiall give no advantage to the other. If tenant for life and he in rtverfioiL join in a gift in tall, 6C0. 15. a. Teferving rent ; this can be no forfeiture ; becaufe he in the re- verfion joined, and the tenant for life ftiali have the rent during his life, becaufe the rent comes in lieu of the land, and there- fore ftiall go according to the eftates they had refpe£tively in the land. "^renant for life and he in reverfion join In a Icafe for life, the Co. Lit. leffee commits wafte, they both fti:\Il join in an ::£tion of v/aile, 4^ ^• and the tenant for life fli.ill recover the place wafted, becaufe he in reverfion 574 Co. Lit* 4z. a. 6 Co. 14. b. Treport's cafe. Mo. 72. Co. Lit. 45. a. Dyer, 234. b. ass- Mo. 72. Newdigate's cafe. 6 Co. 15. a. Co. Lit. 45. a. Lady Whet- ftone V, Saintfbury, 2 P. Wms. 147. Pr. Ch. 59'. S.C. {^) So, Letheuillier y. Tracy, 3 Atk. 728. (J^Uate fctr life anti Dccupanc^* ireverGon by joining hath admitted a reverfion to be In the tenant for life, and confequently the forfeiture to belong immediately to him : but he in the reverfion fliall have the treble damages, be- caufc they are given for the wafte and deftrudion done to the inheritance where vv'ith the tenant for life has nothing to do. If yf. and B, jointenants, and to the heirs of £. join in a leafe for life, ^. has a reverfion, and fhall join in an aftion of wafte ; but the writ muft be ad exharcditationetji of B.y becaufe he only hath the inheritance. If A. tenant for life, andJ5. in remainder in fee join in a leafe for years by deed ; this, upon the delivery of the deed, is the leafe of j4. during his life, and the confirmation of B. for A. being tenant in poflefllon, the pofTeffion could only pafs from him ; and the leafe being made by deed carries the approbation of the re- verfioner, and therefore is conftrued his confirmation ; and there- fore, where the leflee declared of a joint demife by A. and B.y it was adjudged he had failed of his title, becaufe during the life of A. it was only his demife, and B. having only an intereft in re- verfion could give the leffee no intereft in pofleffion. But in this cafe, upon tfie death of A.y it becomes the fole de- mife of B.y for it can be no longer the demife of A.y who is not in being, and whofe intereft in the land determined with his death ; but the leafe does not determine by the death of A., be- caufe, though A, could transfer the land only during his own life, yet the term having the approbation of B.y who has the ab- folute property, fuch joining and approbation has made the leflee's intereft abfolute and indefeafibler during the term j and therefore upon the death of A. it becomes the demife of B.y for B. has the fole and abfolute intereft In the land, and the leflee can hold of none elfe ■, and therefore it fecms that if B. brings an action of wafte agalnft the leffee, he may declare of a demife by himfelf, without taking notice of A.y becaufe upon the death of A, it be- comes the fole leafe of B. [By marriage fettlement lands were conveyed to truftees and their heirs to the ufe of huftjand for life, remainder to the ufe of truftees to preferve contingent remainders, remainder to the ufe of the wife for life, remainder to the firft, ^c. fon of the marriage in tail male. The huft)and and wife levied a fine, (they having then a fon an infant,) and mortgaged the land to J. S. The huft?and died ; J. S. brought a bill agalnft the wife and fon then of age. The fon pleaded the fettle- ment, and infifted that his mother's eftate was forfeited, and equity ought not to relieve. The lord chancellor upon argument allowed the plea. But the caufe coming on to be heard by the mafter of the rolls, he obferved, that the ufe and the legal eftate were vefted in the truftees ; and the limitations to the huftaand, wife, and fons, were but trufts ; and a truft for life is not for- feited by a fine (a), and fo the plea falfe, not being warranted by the fettlement. He therefore decreed the plaintiff to hold and enjoy during the life of the wife-] [ 575 3 As in publlck judicatures it Is neceflary to fearch Into the truth of fa£ls as they really arej hence, whatever may be exhibited to a court or jury, whether it be by matter of record or writing, or by the teftimony of witnefles, in order to enable them to pronounce with certainty concerning the truth of anv matter in difpute, whether fuch matter relates to a perfon's life,'liberty, or property, is called evidence. As the difcovery of truth is of the utmoft confequence to the good of fociety, fo it lays men under the flrongeft obligations, when called upon to give their evidence, to adhere inviolably to truth ; and this is a matter, not only enjoined by the precepts of religion, but alfo by thofe of reafon ; the violation of truth being a fm againft human fociety, as it breaks in upon that correfpond- ence that is neceflary to fecial creatures, by deftroying the end of language, which is the common tie and band of fociety ; and as raifing a different idea in the mind of the hearer from that which is formed in the mind of the fpeaker, deftroys all intercourfe be- tween mankind ; fo it prevents that truft from being repofcd in them which is fo neceffary to their own prefervation and the good of others. From the importance therefore of this matter, the wifdom of our laws has laid down feveral rules relating to evidence, which we ftiall confider under the following heads : (A) Who may be a Witnefs : And herein, I. Whether a Hufband or Wife may be Witnefs for or againft each other. 2' Whether a Judge or a Juror may be a Witnefs. 3. Whether a Counfel, Attorney or Solicitor, may be a Witnefs againft his Client. 4. Whether Plaintiffs or Defendants in the Caufe may be Witneffes. 5. Whether an Accomplice in a Crime may be a Witnefs for or againft his Companion. 6. How far a Perfon is difabled from being a Witnefs in refpe£l of his having been attainted or convidled of a Crime. (B) How S'j6 €Dit)ente. (B) How far a Perfon is difabled from being a Witnefs in refpedt of his being interefted in the Succefs of the Caufe* (C) Of the Number of Witneffes required in our Laws* (D) Of compelling a Witnefs to appear and give Evidence. (E) Of the Manner of giving Evidence : And herein, 1. Where the Examination Is in open Court, and herein of fuch Queftions as may be afked a Witnefs. 2. Of Examinations and Proofs in Chanceryi (F) Of written Evidence : And herein of admitting Exemplifications or Copies of Records, tsfc, in Evidence. (G) Whether Parol Evidence is to be admitted to explain what appears on the Face of a Deed or Will. (H) Of Prefumptive Proof. ( I ) Where the Law requires the higheft Proof the Nature of the Thing is capable of. (K) Of Hearfay Evidence. (L) Of the Party's Confeffion* (M) Of Similitude of Hands. (N) Whether the Depofitions of WitnciTes in another Caufe may be given in Evidence. What evidence will maintain the plaintiff's aflion, vide under the titles of the feveral actions ; and what the defendant muft plead, and cannot give in evidence, vide alfo under the titles of the feveral aflions and head of Pleadings. (A) Who may be a Witnefs. Co. Lit. 6. ALL per fens may be witnefles who appear to have fu.^cient {a) An in- i\ ^^^ difcretion, and who from their [b) principles muft be pre- 4" of nine fu^ed to havc a right fenfe of the fanitity of an oath (,ted frum their anfwers toquellions propjundeJ to them by the court. But if they are found inc impetcnt to take an oath, their teftiiiony cannot be received. Rex v Braficr, Leach's Cafes, i8o- rovveli's caf.-, Jd. io\. Mr. J. Roske, in a criminal profecution that was com- ing on to be tried before him at Gloucelter, finding rhat the principal witnefs was an infant, who was wholly incompetent to take an oath, poftponec] the trial till the fol owing aiTizes, and ordered the cnild to be inft u6ted in the n-.ein tims by a clergyman in the principles of her duty, and the nature and obliga- tion of an oaih. At tiie next affizes the prifoner was put upon his trial, and the child was produced as a witnefs, and being found by the court, upon examination, to have a proper fenfeof t'le nature of an oith, was fworn, and upon her teiilm juy, the prifoner was convitled, and afterwards executed. Mr. J. Rooke mentioned thisac the Old I'aih-y in i 795, in tlie cafe of Patrick Murphy, who was indidted for a rape on a child of fevcn years old j and the leatnea judge added, that upon aconferencc with the other judges upon his return froiu the circuit, they had unaninioufly approved of what lie had done.] [l/] But an infidel can- not be a witnefs, i. e. fuch a one as neither believes the Old or New Teitjment to be the w ird of God, on one of which our laws require the oa'h (l\ould be admini:tered. 2 Keb. 314. 2 Hawk. P. C. t.46. §2&. [Ail that the law of t.ngiand requires is, that the witnefs fhould profcfs a belief in a fupreme being, and his moral piovi.lence, and u^ptial to his omnifcience for thetiuch of his atteftation. The form of tlie o.uh i-; not of the eifence of it. 2 Sid. 6. It is immaterial what may be its external form, provided it a&'cct the confcience of the party. An infidel therefore, that is, one not believing in. revealed religion, is, in general, an ajmilfible witiieA, if fwoin according to the ceremonies of his religion, OmychunJ v. "Barker, i Aik. 21. i \Vi:f. S4. But men wholly without religion (and many fuch, at WaW profijfcdly fuch there are at prefenr) ni.ill not Le pcnnitted to bear teilimony in any cafe wjutfo- ever. j Atk. 44. Nriiher fiia 1 a perfon excommunicated be a witnefs, becaufs being excluded out of tlie church, he is fuppafed not to be under xhz influence of any religion. Ball. N. P. 292. 3 Bl. Comm. J02. .A man deaf and 'Jumb, with whom communication coud be held by means of figns, &c. was admitted to give material evidence aga'n.l a prifoner at the Old Bailey, January Seflions 1786, by Mr. J. Heath, af:er an argument againit his competency. (c) The folemnity of an oath is requireJ from all ranks. Lords of pailiament, when they give their teftimony, mult be fworn. Their privilege to proteft upon honour tnly is confined to their anfwers in c urti as defendants. Sir W. Jon. ? 53-4-5. Cro. Car. 64. 2 r«1oJ. 99. 2Salk. 513. i i*. Wms. 146. In th-:; cafe of the king, his telliminy has in one inllance been admiHed without oath. This was in the reign of James the Firft, whofe certi- ficate under his fign manu.ii, v/as receivt-d as evidence in a Chancery luit without exception. Abignye v. Clifton, Hob. 21 3. Bat the l.-galiry of admit. ing tiiis evidence, was jufrly qucilioned by a great contem- porary authority. 2 Roll. Abr, 636- In one c.ifc the law difpenfeth with t'oe formal manner of being fworn in favour of certiin feels of our own people, and allows their affirmation to have the fi)rce and efFcdl ofan oath. But this indulgence it confines to civil actions. Stat. 7 & 8 W. 3. c. 34. 22 Q, 2. c. 30. Perhaps the affirmation of one of thefe feiftarics may be read in defence of a criminal chavg* againft the fefitary himfelf, but not where his evidence is collateral, and in exculpation of a third perfon, the fedary himfelf not being charged at ail. zBiiirr. 1117. J [In the fecond year of Charles the firft, the Houfe of Lords re- 7 f^rl, ferred it to the judges generally, whether, in cafe of treafon and ^^y^^j^j^f. felony, the king's teftimony is to be admitted: but the king pro- j-yg. hibited them from giving their opinion. As to appearing perfon- Com, Dig. ally, and being fworn in court, that fccms wholly inconfillent ^^„iJ„*^^" with the royal dignity. (A. i). Lunaticks may be witnefTes in lucidis intervaUis.'\ But as our Uw has difabled feveral perfons from being wit- nefTes, who may be fuppofed fo far binlTed as to be induced to go beyond the truth, I fliall confider this matter, I. In relation to Hufband and Wife, and whether they may be WitnefTes for or againft each other. Hufband and wife are confidered as one and the fame perfon in Co. Lit. 6 b. kw, and to have the fame (a) afFedions and intereft j from whence ^„^°"",^''^* TT TT * T-. • Dig. pi. Am Vol, II. P p It ' ^ si^ dElJibence^ H.P.C. 163. it has been eftablinied as (^) a genernl rule, that the hufband cart-» Hutto"n f 'g "°^ ^^ ^ vvitnefs for or r.p aiiill the wife, nor the wife be a witnefs Raym/i ^^r or ag.iinft the hufband, by reafon of tlie implacable diiTenfion aKeb. 403. which might be caufed by it, and the great danger of perjury froin P^c^c.'aS ^^^^^^?- ^^^ oaths of perfons under fo great a bias, and the extreme f *ifi.' ' hardfliip of the cafe. [2 Term Rep, 265. 262. 4 Term Rep. 678. The biifb-ind cannot hz a vvitnefs for tlie wife even on a queilion touching her feparate eftate. j "urr. 414. J (a) But no other degree of kindred or affeftion, as thit of parent to a child, &c., will difable a peifon from being a witnefs. Sid. 75. Salk. 289. pi 28. [b) And holds a; well in the ourts of equity as in the common law courts, ft Chan. Ca. 39. 2 Vern. 79.— — But where, from the nature and difficulty of the cafe, the wife's evidence being corroborated by other circum.tances, was admitted to be read againft the huftand, "vide Abr. Eq. 226-7. Raym. i. Hencc it hath l>een adjudged, that the hufband cannot be a State Trials, •vvituefs againlt the wife, nor the wife againft the hufband, to prove 754." S. P. ^^^^ fi'^ft marriage, on an inditliment on the ftatute of i Jac. i. admitted in c. II, for a fecoud marriage •, but the fecond hufband or wife may Fiedings |jg allowed to give evidence, fuch fecond marriage being void, and 3 Keb. 490. therefore they were never hufband and wife. S. p. admitted in Sir John S^viTs cafe, who was convifteJ of marrying a feccnd wife. [Bvoughton v. Harper, 2 Ld. Rajm. 752. b. P. s Term Rep, 263. S. P.] {c)FideS]d. ^^it feme exceptions have been allowed to this general rule, 431- efpecially in cafes of (<:) evident necefTity ; and therefore it hath ^sl^'^Fu^ ^^^" (^^ adjudged, and is the conftant pradice at this day, that wood's cafe. On an indi61:ment for a forcible marriage grounded on the 3 H. 7. 'Vent.24'j-4. c. 2. the wife may be a witnefs againlt the hufband. So, (e) where stra°6 7'. hufband or wife have caufe to demand fureties of the peace againft (e) 2 Hawk, each other. P. C. C.46. §16. Hutt. 116. Alfo, in Lord Audley^ cafe, who held his wife's hands and legs, p ^^*^;, while his fervant, by his command, ravifhed her, the wife was But in ^" admitted an evidence. Raym. i. this cafe is denied to be law ; and in 'v'ent. 244. it is doubfed of by my Lord Ch. Juft. Hale, becaufe here is a wife de jure, and fo not like the cafe, where a woman is admitted to prove a forcible marriage. (/)Raym.r. Alfo, In {f) Rnyni. I. it is faid, that a hufband and wife may {g) Brownl. i^g witnefles againft one another in treafon ; but the contrary is 47-; and j- 1 j • / \ i? / ^ with this adjudged m [g) i Brozunl. laft book, a Hawk. P. C. c. 46. § 16. note feems to agree, J Brownl. [And by ftat. 21 y. i. r. 19. § 6. the wife of a bankrupt may *''• be examined by the commifRoners for the difcovery of his eftate : the contrary whereof was holden to be law before the paffing of this a6l of parliament. Salk. 289. But no other relation Is excluded, becaufe no other relation is "■•925' abfolutely the fame in intereft : therefore in P^/z^r^/- and P^«^r^/, before Lord Raymond^ which was an iflue out of Chancery to try whether the plaintiff were heir to T. 0., the marriage and birth being admitted by order, the mother was admitted to prove the Str. 940. father had accefs to her. So, in Lomax and Loviax^ before Lord Hardivicke^ the mother was admitted to prove the marriage ; and in an ejci^ment againft Sai-ah Brodie at Hereford 1 744, Mr. J. Wright JFrtght admitted the father to prove the daughter legitimate ; her title being as heir to her mother. In Lord Valentias cafe in the Houfe of Lords, where the April 2-4 queition was, whether the Earl of Anglefea was married to the '77i' Countefs Dowager of Anglefea^ on 15th September 1741, prior to the birth of Lord Vakiitia their fon, who was born in 1 744, the countefs dowager, having no interell, was admitted to prove the fad: of the marriage. So, where the quedion was, whether the Goodrlght leflbr of the plaintiff was the legitimate fon of Francis and Mary "■ '^"'^' Stephens^ or was born of Mary before their marriage ; the court determined, that general declarations by the parents, and the anfwer of the mother in Chancery, were good evidence, after the death of fuch parents, to prove that the leiTor of the plaintiff was born before marriage. But they fliall not be permitted to fay after mar- riage that thev have had no connection, and therefore that the offspring is fpurious, more efpecially the mother, who is the* offending party. But the wife may be permitted to prove the fa6l Rex r. of adultery with lier, though not to prove the baron had no ^^'[|'^ . aCCeiS. Rex V. Reeding, 8 G. 2. fcrh^. Hardwicke. A father who was a freeman of a borough by fervitude, was iWlif. 33a, admitted to prove the cullom whereby his fon was entitled to his freedom as eldelt fon of a freeman. — If a legacy be given to a fon, a father may be a witnefs to prove the will. Per cur. ibid.~\ 2. Whether a Judge or a Juror may be a Witnefs. It feems {a) agreed, that it is no' exception againft a perfon's (a^zHawk.' giving evidence, either for or againft a prifoner, that he is one of ^•^- *^-46« the (b) judges who is to try him j and therefore in the cafe of ^^) Acom- ic) Hackery two of the perfons in the commiffion for tlie trial mimoner.by came off from the bench, and were fworn and gave evidence, and J','^^)^j^jon did not go up to the bench again during his trial. outofchan- oery, may himfelf be examined as a witnefs at the ccmmiiTion, but then he muft be examined firft by the other commiffioners, alter which he may proceed in the execution oi the commiffion. [c] Kelynge, iZt Sid. 133. Style, 233. Nor is it any exception to a witnefs, that he is one of the jurors ; but then he is, if called upon, to give his evidence on oath openly in court, and not to be examined privately by his companions. 3. Whether a Counfel, Attorney, or Solicitor, may be a Witnefs againft his Client. It feems agreed, that [d) counfellors, attornies, or folicitors are Style, 449. not obliged [e) to give evidence, or to difcover fuch matters as ^^^' 5^5- come to their knowledge in the way of tlieir profeffion ; for by the (^'iThat the duty of their oflices they are obliged to conceal their clients' fe- fame rule crets ; and every thing that tl^ey are intrufted with, is {f) fub ftgillo ^^^^^'^^^^'^^ cofifejforis : for were it otherwife, no perfon could ever witli fafety wiiohasaa- employ a counfel, t^fc, ed as counfa or attorney, gkin. 404. [And to a perfon who «(ts as interpreter between the attorney and cli«nt. Madajn du Barre's P p a caic. S^o CBUinence cafe, 4Term Rfp. 756. (1) In i Vez. 63. Lord Chancellor Hardwicke is made to Tsy, "that tliaKgk *' an attorney or counfel concerned f^or one of the paaies, ni.iy, if he pleafe>, viemur to his being examined " as a witnefs; yet if he confcnls, the court will not rcfufe the reading of his depofiiions : ihat the ** objeftion had been often made; a' A though fome part'c lar judges had doubted, it was aiwiys over- *• rulfd." It ftiould feem from hence as if therigiicto ub|eai: he is tnating for his client about a pur- chafe or mortgage, has notice of a prior title, fuch notice (hall n;,it .;ftect hrs-client, though notice before, or in another tranfaftion fhall. 2 Vern. 474. f L$ut it feems now to be fettled, that fuch notice to a in.in's fcrivener, attorney, agent, or counfel, is fufhcient notice to the paity liimfelf. Merry v. Abney, 1 Ch. Ca. 38. Brotherton V. Hatt, 2 Vcrn. 574. Jennings v. Moore, /J 609. i Br. F. C. 244- S. C. Le Neve v. Le Neve, 3 Atk. 646. Sh-ldon v. Cox, Ambl. f 24. The notice however, mull be in the Jame tranfaftian. The examination of a title by a counfel, or folicitor on a former occafion, (hall not be fcch a conAiuftive notice, as to aiYe£\ a client in a (ubfqiient trinfaiStion. Fitzgeiaid v.. Falconberg, Fitzg. 207. Warrick v. Warrick, 3 Atk. ztji. Afiiley v. Bail.ie, 2 Vez. 36S. Steed v. Whitaker, Barnard. Ch. Rep. 220.] Vent. 1^7. But as the inconveniency would be very great, if a counfel, ts'c. Skin. 404. xvQxe not at all to be made ufe of as a witnefs ; (for by this means Dee V. every fuch perfon's evidence may be taken off by giving him a Andrews, fee ;) fo the courts have come to tliis mean, viz. upon every quef- s °^df ^d^^' ^^^^> ^° ^^ ^^"^ ^^ ^^^ knew it of his own knowledge, or from his Remington, client, &c. for though the oath is general, to fwear the whole a Vez. jun. truth ; yet the intention thereof, and of the law, is only, that Ire Sa and"*^^ fliould declare what he knew of his own knowledge, and not Seal's cafe, tevcal what he was intruded with by his client. [Collateral fails. Bull. N.i\ and a6ls done by his client in the courfe of the bufinefs in which %)'Re\ V ^^^ ^^-^^ been employed, he is bound to give evidence of: nay, an Watkinfon, attoi'ncy has been obliged to prove his client's having fworn and 2 Str. 1122, finriied thc anfwer upon which he was indicted for perjury (a). , contr, Cobdcn V. It hath been adjudged too, that he was at liberty to give evidence Kendrick, ^f ^ convcrfation between him and his client touching the juftice Rep. 431. ^^ ^is fuit, after a writ of inquiry executed on an interlocutory In this cafe judgment, and a compromife thereupon; for the purpofe of the the com- f^jj. ji^ving been obtained, the communication could not be faid munication- , ,*^, r-io- ,- in- 1 r was made to be made by way or mltruction ior conouctmg the caule. after the fuit was at an end, and it was that which the judgment of the couit turned upon. Had he acquired his information, pending the fuit, during tli» time lie ailed as attorney, he would not have been permitted to difclofe it ; for in that cafe, the obligation to fecrccy continues after the determinaliun of the I'uit, and indeed csafeth at no period oi time, 4 Term Rep. 759. Wiifon V, So, where It appeared that the attorney propofed to be examin- Raftall, gj^ though confidentially and profeljioiially coniultcd with by one of Rep. 753. the parties, In parts of the bufinefs which couftituted the fubjeft- matter of the fuit, was yet not aftua^iy employed as his attorney in that particular caufe, it was adjudged, that he ought to be ex- amined, for that the privilege of a client only extends to the cafe of the adling attorney for him. Buchefs of This privilege is coniined to the cafes of counfel, folicitor, and Mf^.^iiSt! ^"°^"sy> ^"'l ^oes not extend to any other profeffions.] Tr.243. '4TcnnRep.7s8-9. 4« Wheiher CBbiDcncc, 581 4. Whether PlaintltFs or Defeiulants in the Caufe may be Wlt- ned'cs. In an a£lion of trefpafs afjainft feveral perfons, one of them, Sid. 441. whom the plalnthF defigned to make ufe of as a witnefs, was by but for this miftake made a defendant j and on motion the court gave him Jq/ 'q^* leave to omit liim, and have his name ftruck out of the record, Savii, 34. though after illue joined, in order to have the benefit of his tefti- - |^°'h ™ Abr. 6SC. [And therefore, where in an information for a mifdemeanor the Bull. Ni. attorney general {Trevor) offered to examine a defendant for the I^»''2*^S* king, which the court would not permit, he entered a tioli profequiy and then examined him. So, where two were indi£led for an p.flault, and one fubmitted, Rex v. ■and was fined one fhiilHng, the Chief Juitire admitted him as a f 'etcher, witnefs for the other. ^ ^^' ^^' Jf any perfon be arbitrarily made a defendant to prevent his Bull. Ni. teftimony, it is faid, that if nothing be proved againil lum, he (hall P'^'t^^S* be fworn, for he docs not fwear in his own juilification, but in juftification of anotlier. But qud-rey whether a verdict (hould not be firll taken for him ? If a material witnefs for the defendant in ejectment be alfo Dormerand made a defendant, the right way is for him to let judgment go by Fi'"^'^^^* default: but if he plead, and by that mean admit himfelf to be n,'d. tenant in poirefiion, the court will not afterward, upon motion, (Irike out his name. But in fuch cafe, if he confent to let a ver- di£t be given again ft him for as much as he is proved to be in pof- feffion of, there feems to be no reafon why he fhould not be a witnefs for another defendant. In trefpafs, the defendant pleaded in bar of the a£tion that Popletv. jR. M. named in the JJ/nu/ cum paid the plaintiff a guinea in fatif- ]^"^^^' faction, and iffue was joined thereon : the defendant produced i/,/j, R. Irl. and per Eyre, C. J. he may be examined, for what he is now to prove cannot be given in evidence in another action, and in effeft he makes himfelf liable by fwearing he was concerned in the trefpafs. But if the plaintiff can prove the perfons named in t\\t Jtmul Reafon v. cum in trefpafs guilty, and parties to the fuir, v/hich muft be by ^^^^nk, producing the original or procefs againlt them, and proving an in- peromne's effectual endeavour to ferve them, or that the procefs was loft, ;'"/. ibid. the defendant fliall not have the benefit of their teftimony.] According to the law and practice in the courts of equity, de- 2 Chan, fendants in a caufe may be witneffes, for they are forced into the '^' *'''■; caufe ; and if their being made parties fliould abfolutely invalidate ^ their teftimony, it would be in the power of any one who had a mind to opprefs another, to deprive him of his defence, by making the moft material witneffes defendants in the fuit ; and therefore afly of the defendants to a fuit may be examined as witneffes, faving juft exceptions to their credit. But plaintiffs cannot examine each other as witneffes In the Vern. sjo. caufe i becaufe if the caufe mifcarries, the plaintiffs will be Abr. Eq. P p 3 liable ^ 5S2 (2Bt)itfence» liable to cods, and therefore their fwearing is to exempt theni-i felvcs. And the praflice is, that if a plaintiff wants to examine a de- fendant as a witnefs, he muft obtain an order by motion or peti- tion for that purpofe. This order is of courfe, and muft be ferved on the adverfe party's clerk in court. The defendant too may ob- tain the like order to examine a co-defendant as a witnefs for him. But all thefe orders are upon fuggeftion, that the defcrndant is not concerned in joint of intere'it in the matters in queflicn, and they are never granted but with a claufe of (faving jull exceptions to the other fide); and thefe muft be made at the hearing of the caufe. The order for examining a defendant muft be produced at the commilfion ofEce, or in the examiner's, when the defendant attends to be examined, for without it he cannot be examined, as it is by virtue of that order, and the authority given them by the court, that they are empow'ered to examine him, and they cannot do it othcrwife. Ibbotfon V. [If there be but one witnefs againft a defendant's anfwer, the ^E ''"a court will direct a trial at law to try the credibility of the witnefs, Abr 229. 2nd in fuch cafe will order the defendant's anfwer to be read to a Vera. 354. the jury.] 5. Whether an Accomplice in a Crime may be a "Witnefs for or againft his Companion. As to this, the following particulars are laid down as law by. () I: is now fettled, t'rjat it is the infamy of the crime which deftroys the ccmpetency of a witnejs, and not the natuie or mods of the puniihment. Pendoclc v. Mackender, ? VVilf. iS.] But no fuch convittion or judgment can be made ufe of to this 2 Hawk, purpofe, unlefs the record be actually produced in court (f). Alfo, ^■^' '^-^^ it is a general rule, that a witnefs fhall not be aiked any queflion, ?(f)*And it the anfwering to which might oblige him to accufe himfelf of a is not fuf- crime, and that his credit is to be impeached only by general ac- ''"^"'^ '<> ri-1 o 1 ■ 1 \ < c produce the counts Oi his cnaracler and reputation, and not by proors or par- conviaion ticular crimes whereof he never was convicted. aio'ie , it miiit be followed up by the judgment to confummate the incapacity, Cowp. 3. J It Is alfo agreed, that outlawry in a perfonal a£lion is not a 2 Hawk, good exception againll a witnefs, as it is againll a juror; and P-^''C.46. that a perfon convicted of felony, who Is admitted to his clergy [(^z) in the and burnt in the hand (^), is thereby re-enabled to be a wit- cafe of the nefs. lf"\ Warwick, one French, who had been convidled of manflaughter and allowed his clergy, but not burnt in the hand, was holden by the judges nott.j be a competent witnefs ; f)r that though the ftatiite operates as a pardon ; yet the I'ords are, that the orteiider, after the allowance of his cler.^jy and burning in the hand, /hall be enlarged out of prifon 5 and therefore both conditions ure precedent, and until they are complied with, the par'y ■■emains convifl of felony, and confequently his teftimony cannot be received. 3 P. V/ms. 456. The ft.it. 19 Geo. 3- c. 74. ^ 3. fubftituics a difcretionjry power of hning, or ordering to be whipped, felons convicted, and liable to be buroc ia the hand in lieu of the latter puQi/hmeat \ and ordains, that P p 4 fuch 5^4 OBUiticnce, Co. Lit. 6. Sid. 137. fuch fine or whipping fliall have the fame cfTcfl in reftoring them to their credit. But ftbns S where trie queftion is merely touching the fettlement of the tenant. Rex v. the landlord may be received to explain the terms of his demife. Woodlands, So, where in atlion of covenant for rent upon a leafe by ^. to Rep!262. B., the point in iflue was, whether C. (whofe title both admit- ted) demifed firft to ..^. or to another perfon, C. was allowed to be ti competent witnefs to prove that point. It hath been ufual in acSlions on policies of Infurance, not to Ridout v. admit underwriters on the fame policy to be witnefles for each Jofinion; other. But this is now treated rather as an objedlion to the ere- pj-,. '^g,* dit, than the competency of the witnefs.] (0 Bent v. Baker, 3 Term Rep" 27. So, where the mafter of a (hip brought an a6tion againft the Skin. 174. cuilom houfe officers, for refufing to clear his fhip and re -deliver P'* +• his cockets; it was held, that ihe owners of the goods on board theCuftom- could not be admitted as witnefles to prove him mafter, &c. for houfe Offi- that they were all concerned in {d) one bottom, and in one ad- venture. cers. (d) But one mariner may be admitted as a witnefs to prove wages due to another, for there the contrails are feveral. Skin. 174.. pi. 4. feems to be admitted. And this is certainly law, andevery day's pradtice. In an a£l:ion againft the mafter of a flilp for fo negligently Sa'k. 2S7. pianaging the {i)ip> that it ran over the plaiutifF's barge ; it was J^'Hoi^'** held, ' ° * 586 (2Bln'Dence* ch. jufl:. held, that the pilot could not be a witnefs, becaufe he was anfwer- i'oo ^!"'^'"' ^^^'^^ ^^ ^^^^^y '" itcering, to the maiter (a). {a) But he might have been releafed by the rr.after and owner, and made a good \vitnef$ On anaftion brought againft a malter, for a carman's driving his cart negligeni'.y, ^i/- f^uaj, i^c. the carman was ad- mitted witnefs for his mafter on fh-w'ng a releale fiom him. Jaivis V. Kayes, Stra. .o%i. [But with- out a releafe, the teilimojiy of tlie urv-in!; in fuch Cafe is not adiuiiribie. Green v. i he New Kiver Company, 4 Term. Rep. 559.] Skin. 403. The mafter of a fiiip took a prize, and difpofcd of 100 chefts of Fk I .u lemons to A., for which he broucrht his adtion, and a mariner I xjuc cncrc . - , ^ , jire many was allowcd to be fwom as a witnefs, though it appeared, that by cafes where [he Admiralty law he was to have a fhare of the prize; for the faHo^rs" Hiaftcr is accountable to the mariners for their Ihare, which they though ihall recover from him, whether he recoyers in this adlion or parties in- not. terefteJ, will be admitted ex nccejjitate. In aftions by informers for felling coals without meafuringby the bufheJ, the fervanti are witnefles for their mafte, notwithftanding 3 Geo. 2. inflidti a penalty upon them for not doing it ; ihaugh Eyre, C. J. did on that account, in two or three inftances, refufe to receive them. Per Lee, C.J. in E.I. Company v. GoUing, Bull. N. P. 189. So, wher*^ the qiieftion was, whetljer the jhaiier had deferted the (hip without fufficient nrcefilty .? a failor, who had given a bond to the mafter (as a truftce for the company) not to defeit the fiiip during the voyage, was admitted evidence for the mafter, it appearing all the failors entered Into fach bonds. Ib.d. So, if a man p.iys money by his fer- vant, the fervant may be a witnefs from the necciTuy of the thing, Tybbald v. Tregott, 4 Mod. 26. So, where a fon, having a general authoiity to receive money forhiifathtf; rrcel.ed a fum, and gave it to the defendanfj the fon was admitted as a good witnefs (his teiliinony being qorroborated by other cir- cumftances) for his father in an adtion of Uover for th.; m )ney. i Salk. 289. So, in trover againft a pawn-broker, the fervant embezzling his mafter's go^ds and pawning them, will be admitted to prove the fadl. Mich. 1752. C. B. at Weftminfter, liuU. N'. p. •290. So, in an adlion to recover mor.L'y from a lottery-office keeper which the plaintiff's cleric had embezzled, and paid to the defendant upon the chances of the coming up of tickets in the fta.e-lotiery, contrary to the lottery aft, the clerk was admit- ted as a witnefs to that faft. Clark v. Shce, Cjwp 197. In this cafe indeed the clerk had a releafe from the plaintiff and his fureties : but q-j. if he would not have been admiffibie without .i reijafe .'' So, in aftions by mafters for affaulting a fervant, per q-uod Jcr-v'iiium, &c.,.it is ever) day's practice to admit the fcrvant as a witnefs for the matter. Duel v. Hardinj, i Str. 595 Lewis v. Fog, 2 Str, 94.4. Cock v. "Wartham, Id. 1054. TuUidge v. Wade, 3Wilf. 18. contr. i^auliey v. W.-ftbiowne, i Str. 414. So, for the fake of trade and the comrnon ula^e of bufincfs, an interelted fervant will be admitted. As, a porter 4s evidence to prove a delivery of goods : a banker's apprentice to prove the receipt cf money. Bull. N. P. 289. So, a faftor, who made the agreement between the parties, was allowed to be a witneft to prove the contraft, though he was to have a (lulling in the pound ; for, as faftor he was concerned both for vendor and vendee, was a mere go-ifctwa/;, and might be a witnefs for either. Dixon v. Cooper, 3 Wilf. 407.] Hard. 331. It fecms agreed clearly, that a legatee in a will cannot be a wit- 2 Salk. 691. j^g^g j-Q ^^j prove the (c) will, becaufe he is (d) prefumed to be par- {b] But he ti^l in fwearing for his own (t) intereft. may be a witnefs againft the will, for when he fwears againft the will, he fwears againft his own Intereft, and is therefore the flrongeft v.itnefs. 2 Saik. 601. pi. 5.' So, freemen of a corporation were allowed witneffcs againft the coiporaticn. 2 Show, 146. pi. 1:7. (c) Yet he may be examined as a witnefs to prove a deed or other thing which ha; no relation to the will. Style, 370. So, if the par- fon Cues one of his parilhioners for tithes, who pIcaJs a m dus, the other parlfliioners, though they cannot be vvitncffes a; to the cuftom, yet they may be witneffes as to the value of the tithes, {d) But if the legacy be foinconfiderable, as that he cannot be prefumed to be biaffed by it ; as if it be 5 s, to a private perfon, or 5 /. to a nobleman, it is faid that he may be a witnefs for the will. Vern. 254. But it is fettled, that the minutenefs of the intereft is no anfwer to the objeftion, and that therefore where the party is concerned in intereft, though never fo fmall, he cannot be a witnefs, 2 Vern. 317. 4 Burn's E. L. 95, Vent. 351. (e) Where a witnefs hath a leg.'.cy by the will, by a releafe of the legacy, though at the tria', he becomes difinterei'ied, and fo is a good witnefs. Sid. 315. [See tit. " Wills and Tef- taments" (D), and 25 Geo. 3. c. 6,] So, a biokrupt, who has affigned and releafed all his eftate and right to the aflignees, may be exaniined a'; a witnefs tor them. 2 Vern, 6-,7, [^^t in a qtn tarn aftion on the ftatuteof ufury, againft the affi^jnee of a bankrupt for taking ufurious intereft on a loan of money to the bankrupt before his bankruptcy, the bankrupt is not a competent witnefs to pTove the offence, if he has not ob'ained his certificate, or re-paid the- money ; notwithftaading he is ready to re- leafe to his afiigtiees all beriefic wLich may arife from tliis acbt in particular, ^d sAi ciaim to allowance and CBbitience* s^7 %TiA furplus in general ; and nonvithftanding the aflignee has proved his demand for the money lent undtf the commiflion. Mafters v. Drayton, 2 Term Rep. 496. J So, if J. S. devifes lands to A. and the will is figned, fealed, Carth. 514. and publilhed in the prefence of the faid J. and B. and C. who ^.^^^^^^^ ^^* attefted the fame ; yet this is no good will to pafs thc/e lands ; for ^ue tic. * the itatute of frauds requires three or more competent witncfles, Wilis. which A. cannot be, being: concerned in intereft as devifee of the ^' ^^y"* lands, and therefore not a credible witnefs. It is laid- by Ha/e, Ch. Juit. that he knew it to have been ad- Mod. 107. iudecd, that an executor in a caufe (a) concernine the teftator's L^n^^'^"- J c' ' \ / c ^ tor m trult eftate, if he hath not the furplufage given to him by the will, may i, a good be a witnefs for the will. witnefs for the will. And though in the cafe of a truftee, it hath been ufual to have arelsafe, yet that is not neceiTary, forfuch perloa hi\> in fact no iiueieft to releaffi. Nor is it any objection to a.i executor's teftimo y, that he may oe liable to aft.ons as executor djfon tort. Lowe v. joU ft'e, I SI. Hep. ;65. Holt v. Tyrrell, I Barnard. 12. Goodtitle v. Weiford, Dougl. 139.- Baiil.e v. Vvilfon, 4 Eurr. 2254. In Gofs v. Tracy, Cane. M 1715, Lord Cowper determined, tJiat a grantee, where he appears to be a bare truftee, is a good evidence to prove the execuii >n of t'lc deed to.iiniielf. i P. Wms. 2)^7.] (a) That the children of an inteitate caii'iot, by reafon or their in ereil, under the ftatute or diftribucions, be wit- Be/Tes in any thing relating to the inte.tate's eitate Skin. 223. [An informer under a penal ftatute, who is entitled to part of Rex v. the penalty, cannot be admitted a witnefs againll the offender. ^ Ld°R 1545. Rex V. Piercy, Andr. iS. Rexv.Blany, Id. -z^o. Rex v. Tilly, 1 Str. 316. — But feme linoaern ftatutes declare the informer to be a competent witnefs ; as the aft of 32 Geo. 3. c. 56, § 7, for preventing the counterfeiting of ceriificatei of the charadters of fervants. The plaintiff had been appointed hufband of a fliip by a deed French v. executed by all the joint owners; by which deed he was im- Backhoufe, powered generally to lend or advance money, i5fc. He infured l-2,j. ' for all the owners; and brought fcparate a61:ions of covenant (^) Accord- againft two of them : they were each of them charged for the '"^ to this amount of the whole fum paid. It was agreed, that a direction the court* to infure given by one part-owner did not bind the reft, without confidered an 3xprefs or implied authority for that purpofe from the reft, a^i^^g^eft'^d The plaintiff did not pretend that any exprefs general direction to in tbe e-vent infur? had been given by all the owners; but infilted that they ofthecaufei were all informed of it, and acquiefced in it, and called a wit- g°j"^^ r nefs to prove it. This the defendant denied, and offered to dif- in the cafe prove it by calling the defendant in the other caufe, infifting, that of Walton v. he was a competent witnefs, becaufe he was not interefted in the ^ .|.J^ event of that fuit, for that each of the two caufes was to ftand Rep. 303. on its own evidence. But Lord Alans/ie/J, at the trial, and after- ""ts the wards, the court of K. B. rejected this witnefs as incompetent ; havingpro. for unlefs there was a general direction to infure, the plaintiff could ceeded upon not recover in this action; and a verdicl againft one of thefe "J^e ground joint-owners would affect the other of them; becaufe that other ^"^/^,f^;„ would be obliged to contribute [b). the quefiion. His words are, •< In that cafe, the fecond defendant was certainly not Interefted to fupport the defence in the firft *' caufe ; for if the plaintiff had recovered in that, the fecond defendant, who was offered as the witnefs, ** could not have beea charged with any part of the danaases recovered ia the firft adion." A' gave Tie'awnpy ^. jjavc 3 jijcneral bond to B. for ti;e payment of a fum of mo- ^ H ^Rr^** ney. It appeared upon examining A. on a voir direy that it was 203* underftood between them, that this money was to be applied to- wards indemnifying B. from the expences of an election in which B. was a candidate. In an aclion brought by C. agaitdl Z)., an aclive member of a committee for carrying on i^.'s eleOion, for money advanced and fervices performed in fupporting the interefl: of B. »t the requeil of 1).^ it was holden that A. was not a com- petent witnefs ; for he was interefted in the event of the caufe, inafmuch as by procuring the plaintiff to be nonfuited or a ver- di6l againft him, he would fave himfclf from the confcquences of this action, fnice, if he fucceedcd, as the defendant would call upon B. to be reimburfed the damages and cofts, A. would be liable by his engagements to B. ; and if the plaintiff, having failed in this action, Ihould bring another againft B.,A. might tender to B. the amount of the plaintiff's demand, and thereby efcape the cofts, for if B. ihould proceed againft him on the fecurity, he would be reftrained in equity from having execution for more than the da- mages recovered by the plaintiii in the former ailion, which would have been tendered.] Cf>. Lit. He who borrov/s money upon an ufurious contrail, cannot be ^- ^- a witnefs upon an information for the ufury (unlefs he hath paid Abr. 6*85. '^^e money) («), whether fuch information be brought by himfelf Raym 191. or anv other; for if in fuch cafe a man might be a witnefs, he a Hawk. •would in effe£l fwear for himfelf, by proving a matter which may P. C. C. 45. ^ ' J IT O J ^ 24. avoid his own contract. [Shank f. t. v. Payne, i Str. 63'^. S. P. (a) In which cafe he I? a comperent witnefs, though the faft of payment flioald be proved by no other perlon but himleif. Abiahams v. Bunn, 4 Burr. 2251. J Hex V. Hence alfo it hath been held, th.^t he, who by a fliglit has been ^'ll^'"!', impofed upon to fet his hand to a note for more money than he r.l. 12." ^' intended, is no good M'iinefs on an information for the cheat; Ld. Raym. becaufe a conviction may be a means to avoid the note, by being 396. Rex T[^'^(\^ ufe of by the partv when fued upon it, as a motive to influ- V. Nunez, , . ■' , . ? ^ 111 1 i 1-1 i Str. 1C43. eiice the jury, which cannot well be prevented, though in law it S. P. but be no evidence. ■vide Rex v. Ellis, Id. i\c^. S.P. Rex V. Parris, SId.4-;i. Vent. 49. 2 Keb. 572. [Rex v. Broughton, sStr. 1229. eontr. In the cafe of the King v. Bray, Ca. temp. Hardw. 350, Lord Hard wicke faith^ that if the cafe of the King and Whiting were examined into, it would be found to be rather an ob- jeftion to the credit than the competency.] Salk.aS]. Alfo, It feems generally agreed, that he, whofe property may iH^R* ^^ prejudiced by a ((^) forgery, is no evidence to prove it on an „j5 ' ' indictment or information. [Shanke q. t. v. Payne, i Str. 635. S. P. Rex v. Rhodes, 2 Str. 728. S. P. Though a perfon, as it js faid, whofe hand is forged, is not admiflible to prove the forgery, yet under many circumrtances, he may be admitted, where he is not dire£lly interefted In the <]ucftion ; as in VVells' cafe, who was indi£led for forging a receipt from a mercer at Oxford, the mercer having before recovered the money in an adlion againft Wells, was admitted by Willes, C. f. to prove the forgery. Bull. Ni. Pri. 289. So, wher« Newland fcrged a bank-note in the name of William Lander one of the cafhiers ; Lander was admitted, nuitkout a rdeaji, to prove thai it was not his fignature; becaufe the inteieft and liability to pay muft be immediate and apparent either upon the face of the inftrument forged, or on a •voir dire ; and Lander^ the calliier, was only mediately liable over to the bank upon his fecurity. O. B. 1784,-— A bond was forge^l by Dr. Dodd in the name of Lord Cheileriield, and the obligees executed a releafe j upon which his kis brd/lip was admitted to prove, that the fiijnature was not his hsnd-writlng. Leach's Hawk. 2 vol. c. 46. ^ 24. Bote. But on an indictment for forging a feaman's will, a psrfon rameJ executor in a will of a fi.bfequent da:e, was holden an incompetent wjtneli to prove that the name of ti.e teltator to the firft Wfil was a KTgery ; for that went to eltjhiifh the fecund will in which he was named executor. Rhodes' cafe, Leach's Lr. Caf 25.] (i) And if it be a forgery within <; Eliz. c 14. a larther leafon i> given »n 2 Hdwk. P. C. c. 46. § 24. why fuch perfjn cannot be an evidence, becaufe he may have an adlioa on the ftatute. So upon this reafon it hath been adjudged, that he, againft 2R0II. Abr. whom a verdicl is ^^iven, cannot be a wif.iefs to prove pjerjurv in ^^5- ^" S. P. I3ut fee Rex v. Broughton, 2 Str. 1229. con/r. However, in the cafe of Rex V. Eden, LotS Kenyon held, that the defendant in the orig'nal aftion, againlV whom the verdidl went, wai an incomi.eient wiinefi, he not having paid the debt ano cofts. Hil. liG.;!. Efpinafle'8 Ca. at Ni. Pr. 97.] Yet notwithftanding thefe cafes, and the force of thefe rea- Sid. 21 1. fons, there are fcveral inilances, where, in cafes of (a) neceffity, *37- a perfon, whofe {b) damage an indiclment or information concludes Saik. zleT to, has been allowed and admitted an evidence, and his credit left pi. 20. to the jury. zLd.Raym. 1179. 6 Mod. ■501. 31'. 7 Mod. 110. (a) On the ftatute of robberies, a man fwear^ hrmfelf, becaufe there can be no other witnefs. -, Mod. i -4, u^. per cur. (/>) As in an inuidlment for a battery, &c. 2 Ha^k. P. C. c. 46. ^ 24 W'r.ere a perion rcfcued was ad.Tutted a witnefs f r the perfon againft whom an adlion was brought fcr the rsfcue, and his c:edit left with the jury. 6 Mod. 211. If the warden of the Fleet fufTers a voluntary efcape, and an % Saik. 690. inquifitlon, by virtue of a fpecial commilFion iffuing out of Chan- P'; 3- The eery, is taken thereof, which he traverfes ; the perfon efcapinsr, ^"!f ^"rlr L L 1 L 1 I ■/- • , . ^. ^' '^"'■d- [See though he gave a bond to be a true pnloner, is a good witnels to Fiteg. 80. prove tlie efcape ; for this docs not make the bond void, as a con- '^^'r ^'"S vidtion on the ftafote of uiury dees ; bvffides, this is a matter pri- Hu'?"?n= vately tranfa6letl between tlie party and officer, of which there can s. p." ru'ed be no other evidence. , ontheau- thority of this cafe, j Upon this rule, that an intcrefted perfon cannot be a compe- (c) where tent witnefs, it has been often Uoubted, how far (r) freemen of a ^"^''^ ^^f corporation, the inhabitants of a hundred or pavifh, fliould be puTebe-'* admitted as witneflls in matters wliich concern thofe places; and iween tw« here it is (d) faid, that no general rule can be laid down, but that «^""nt'fs» every cafe mult Itand upon its own particular (e) circumftances, ]^l_ viz. Whether the interefl: be of that nature, or fo confiderable as (d) By by prefumption to produce partiality in the witnefles. rl'-^f^r'A 2 Lev. 231. (?) Where the party releafed all his right to the corporation, and this ma^e them good witr.efles. 2 Jon. 116. 2 Lev. 236.— *'Ihe ufual way is tJ disfianchife thofe, a corporation calls as witnefles.* Hence in an information in nature of a quo wan-ofito, for taking 2 Lev. 281.' \ d. /)^r chaldrcn for all f^a-coais brought to Lofid^.n, where the The King v. defendants prefcribed for the duty, upon which ilTue was taken ofLondon'!, and tried at the bar, it was held, that the freemen oi London were [(/) The good witnefles to prove the prefcription, though the mayor, k^c. f =''"""'" of have the whole profit of this toll, which is for the benefit of the notaffedl corporation, of which all the citizens and freemen are members ; the i.afe at for it cannot be prefumed, that for an advantajje fo fmall and fo ^"" 'f'^- 1 111 -1 1 • 1 ,-1 , r\ P*'''y ""^'S remote, they would be partial and perjure themlelves (/), anyintereft, hi is difabled from being a uitne.'s. Ikncs, where a corporation, being lord of a mar.ir, had approved 590 Ctiitfcnce* part of a common, and leafed it, referving rent tc; the corporation, a freeman was not admitted t# prove, that there was a fufficiency of common -lift tor the commoners. Burton v. Hinde, 5 Term Rep. 1 74. J Vent. 351. So, in the cafe of the c\ty of London y concerning the duty of In 1 Vern. water-bailage, where the mayor and commonalty brought an iti- heid gene, debitatus ajfumpfit agahill A. B. for 5 /. for fo much due to them rally, that for divcrs tous of winc brought from beyond the feas to the port freemen of q£ /.j,;;^^;;^ ^j- /^d. per t^n ; and fome freemen being produced as tion'c'arnot witnefles, it v/as objc£led, that the commonahy of London com- be wanefles, prehending all the freemen, this made them interefted in the fuc- and this cafe ^^^^ q£ ^y^^ caufe ; but it was held by three judges againft one, cited, as a that fo fmall and remote an intereft did not difable them from being cafe in competent witnefles. However, they were laid afide by ccnfent. which fach evidence was rejected, and fo faid to be refolved, 2 Vem. 317. [4 Burn's E.L. 95.] The Com- [A perfon, who has a£led in breach of an alleged cuftom, is not panyofCar- ^ competent witiicfs to difprove the exiftence of the cuftom; for v^ H^ywardj ^^ ^he cuftom fliould not be eftablifhed, he would be difcharged Dougi. 374. from any a£lions he may be liable to for the breach of it.] 7 Mod. 63. At a trial at bar concerning boundaries of lands -, the parfon o£ Lord Whar- ^.j^g ^^^ parifti, the land lying in two pariflies, was reje£led, be- Tohn Ro- caufe he might enlarge his own parifli, and by confequence the binfon. tithes ; but one, who about feven years before had taken the pro- fits, under the title of one of the parties, was received as a witnefs, becaufe now he might plead the ftatute of limitations. 2 Sid. 109. It is faid in 2 Sid. to have been ruled on evidence at a trial at Townftnd [j^Yy that if a remainder after an eftate for life be limited to the (") Butln niinifter and churchwardens of a certain pavifh, for the ufe and 2Vern.3-7. benefit of the poor of the parilli, (a) that any of the parifhioners where the j^^,, j^g witnelTes to prove this devife. queftion re- ' *■ lated to the lofs and mifapplication of a fum of money given for the benefit of the parifhioners, it was held, that an inhabitant of the parifti could not be a witnefs ; and that the cales where the party was con- cerned in intereft, though never fo fmall, have always pre*ail..d. Vent. 351. In an adion againft the hundred, upon the ftatute of Winton, ?1?\',^^'*' an hundredor (b) cannot be a witnefs. (6)Mod.73. ^ ' S. P. though he be poor, and pays no tsxes, or parifli duties ; for when the money recovered of the hun- dred comes to be levied, he may then be v/orth fometfaing ; but fervants, and thofe who receive alms, may be wrtnefTes. zKeb. 73. S. P. [But now by flat. 8 Geo. 2. c, 16. §15. inhabitants of hun- dreds are made competent witneCes at trials on the ftatutes of hue and cry. J Vent. 35T. On an indidlment againft the county for not repairing {c) a (0 ]f there brifirre, It has been doubted whether an inhabitant of the county le a uilpute ,", \ • r between two COUld DC a Wltncls. pariihes, which of them fliall repair a certain highway, the inhabitants of neither of the pariflics caa be witnefles. 4 Mod. 43, 49. But now by the i Ann.Jl.x. c. i8. reciting, That whereas many private perfons, or bodies politick or corporate, are of right obliged to repair decayed bridges, and the highways thereunto adjoining ; but becaufe the inhabitants of the county, riding, or divifion, in "which fuch decayed bridge or highways lie, have not been allowed, upon ijiformatiofls pr indiO;meiat5 brgught ^gaiiift fuch perfon or i^ perfons, perfons, bodies politick or corporate, for not repairing fuch de- cayed bridges and the highways thereunto adjoining, by the judges before whom fuch information or indictment is to be tried, to be legal witneifes ; it is enacted, " Th.at in all informations or iii- *' diclments to be brought and tried in any of her Majefty's " courts of record at Wejlminjler^ or at the aflizes or quarter- ** fefiions of the peace, the evidence of the inhabitants, being cre- ** dible perfons, or any of them of the town, corporation, county, ** riding or divifion, in which fuch decayed bridges or highway " lie, (hall be taken and admitted in all fuch eafes in the courts " aforefaid." And by the 3 £5* 4 ?F". 3. r. 11. "In all actions to be brought ** in the courts of IVeJhn'niJler, or at the alhzes, for money mif- " fpent by church-wardens, the evidence of the parilhioners, ** other than fuch as receive ahns, fiiall be taken and admitted." On this rule, that an interefted perfon cannot be a witnefs, the Skin. 586. time and manner of a witnefs's becoming interefted feems alfo P^'S* material ; and therefore it has been held, that it is no good ex- ception againft a witnefs, that he hath a promife of a reward, on condition of giving his evidence, efpecially if fuch reward be not promifed by the perfoti for whofe benefit he is to fwear, and by way of contract for giving fuch and fuch particular evidence. Alfo it has been held, that a witnefs's laying a wager about the fuccefs of the caufe is no obje6lion againft his being fworn as a witnefs, for the party hath an intereft in his teftimony, which to deprive him of by his own a6l Vvould be unreafonable. Hence it hath been held, that on -2. fcire facias againft the king's Mod. 21. patentee, a perfon, who has a promife of being made a deputy, ^ ^^\'P^' may be a witnefs. a trial ai bir by three fudges againft Twifijcn, who held, that it was like a man's promifing another, tlia:, if he re- covered the lands, he fliould have a leafe of them, whigh, he faid, disabled him from being a witnefs. But it has been held, that if feveral perfons lay wagers at a jLev. i;z, horfe-race, l3c. and an a£tion is brought aeainll one of them for ^53- ^^f- w c* _ COUS 311(1 the money loft, that a better on tlie fame fide cannot be a witnefs wiiiiams, for him who loft ; but if fuch perfon acknowledges that he loft the adjuig^d, wager, and pays the moHey, he may be a witnefs. ^^ lu""* held, that laying a wager, or being a better, did not deftray the teftimony of the witnefs, but went only to his credit. [See Baron v. Buiy, Vin. Ab-. tit. livldence (I), pi. 33 S. P. and feme diftinclions as in tl;e text. In Str. 652. Rex v. Fox, on an indiftment for an afiault, it was proved, that the profecutor had laid a wager that he fhouid convi£t the defendant : And Lord C. J. Raymond held him to be a good witheis lor the king, though ic might go to his credit. And the better opinion feems to be, that it is noobje-flion to the cimpeter.cy of a witnefs, that he has laid a wager on the fubjedt of the fuit, through it may affeft his credit, Cowp. 7^6. -3 Term Rep. 37. And it feems now to be a fettled rule, i^at where a perfon m )kes himfeif a party in intereft after a plaincitl'or defendant has acquired an intereft lii histeftim •. y, he ihall not by this deprive the plaintiff' or defendant of the benefit of his teftimony. Therefore, a » oker who underwrites a policy after getting it under- Written by otliers, is a competent witnefs for the defendant in an aftion againft any of thofe who under- wrote before him. Ecnt v. Baker, 3 Term Rep. 27. j It has been held In Chancery, that if a perfon is examined as a aVem. 659. witnefs, who is no ways concerned in intereft, and afterwards he [s-^'s^c^1 becomes heir at law, and thereby interefted in ;he matter, thnt Abr.EqszV ootwith- S02 dBUlJzmici [2 Atk. notwlthftandlng, his depofitions, when thus difinterefled, may btf ^^5-^ read, even (a) at a trial at law ; and that it was like the cafe. Tally's where the only furviving witnefs to a deed becomes the party in* cafe, terefted {d), or where a witnefs to a deed becomes blind, in which zLd.Raym. Q^fes his hand may be proved at law. 1 Salk. 286. Holcroft v. Smith, I Eq. Ca. Abr. 224. Baker v. Lord Fairf.^x, i Str. icoi. contr. But depofitions have been allowed to be read at law, where the witnefs wjs beyond the reach of judicial procefs. Lord Altham v. Lord Anglefey, Gilb. Ca. in Eq 6. Ii Mod. 210. S. C. So, wnere he could not be found, or was difabled fr.m attending by ficknefs. Fry v. Wood, 1 Atk. 449. Bull. Ni. Pri. 239.] {a) But at a trial at bar in C. B. on an iffue diie£led out of Ch.incery, ihe judges re- fufed to have fueh depofitions read, becaufe the witnefs was iVill living. Aitffc. 220.^^''"* Vent. z^T, Carth. 141. £ Salk. (547. pi. j. Hence it hath been eftabliflied as a fundamental rule in the Vern. i6i. courts of equity, that a decree cannot be made on the teftimony ^ d^n. ca. of one fingle witnefs againfl the flat and pofitive denial of a fai^ (^Yfanex. by the defendant's anfwer ; (/>) becaufe the oath of the party is ecatrixtoa ever looked upon, in equity, to be as good as the oath of a fingle ^"^ huftand person. fTcin^and a bill is exhibited againft them to difcover a truft, and they, in their anfwers, difagree in the matter, the wife cor:fefling what the huILand denies, and whjt the plaintiff" can prove oijly by one wilncfs, the plaintiff can have no relief j for one witnefs is not fufficient againll the hufband's anfwfr ; and the wife's confeiTion will not avail, for (he can be no witnefs againft her hulband. a Chan. Ca. 39, jP.Wms. 238. Yet cafes may, and do often f^ll out, that the court may viJeiVtm. ground a decree upon the oath of a fingle witnefs, attended with ■'.54' ^^t- other circumftances to corroborate it ; as where the anfwer of the j Atk.%. party appears to be notorioufly falfified, by which means it zAK\t..^\iou. Vol.. II. Qji 594 Cbitjcncc. (D) Of compelling a Witnefs to appear and give Evidence. T T is hclil to be maintenance ^cr a pcrfon officioufly to give evl- ■* dcnce in a caufe, without being called (^it) upon to do it: alio, if a man, who is not fuhpcsnaed, happens to be in court during a trial, he Ihall not be forced to be fuorn againft his will j but if he confents, the want of ■xjuhpcciKi is not material : and in cer- tain cafes, the court will, in difcretiou wait, till z. fubpoena can be procured. Ste 4 Term Rep. 340 ] From hence it follows, th:^t the parties have [h) a right to pro- cefs to bring in their witneires, and to this purpofe it is enabled by 5 FJiz. c. 9. § 12. *' That if any (f) perfcn or perfons, upon " wlioni any prccels out of any cf the courts of record within ** tl^Is realm, or Wales, fhall be [d] ferved, to teftify or depofe ** concerning any caufe or matter di pending in any of the fame " courts, and having [e) tendered unto him or them, according " to his or their countenance or Cidling, fuch {f) reafonable " fum of money for his or their cofts and charges, as, having " regard to the diftance of tlie place, is neceffary to be allowed " in that behalf, do not appear according to the tenor of the faid *' procefs, having not a lawful and reafonable let or impediment *^ to the contrary, that then ti'e party in making default to lofe *' and forfeit for every fuch ofrence ten pounds, and to yield fuch " furtlier recompence to the pa;ty {g) grieved, as by the difcre- " tion of the judge of the court ov.t of which the faid procefs " iliues fliall be awarded, according to the Icfs and liindrancc " that the party which procured the faid procefs fhall fuflain, by " reafon of the non-appearance of the faid witnefs or witnefTes; " the faid feveral fums to be recovered by the party fo grieved *' againfb the offender or ofTcnders, by a£lion of debt, bill, " plaint, or information, in any of the queen's majedy's courts judged. " ^f record." (t lie, unlafj fuch recompence hath been prcvioufly afTefied by the court out of which the prccefs ilfued j neither the jurv, nor the judge at ri/t frius being competent to do it. Fearfon v. lies, D- ugl. 556. Upon fucb mu^tinXRt deibt njay be brought* livwever, tbt more ufual way is to itvCcs^I by attachniem againft ih^ witiieC^ iiH. 6. 6. a. II H. 6. 4. b. Bro. Main- tenance, 5. 51. » Roll, Abr. 118. [{.0 This is now not iaw (h) And th-refore *vitnt.-(fes arc privileged etduio Cif rcdeurdOf for which H-idf tit. Privilege. {c'j A Jeme covert is witliin the ftatute, unA if fnc be ferved with tijub^cena', and refufe to appear, the aiftion lies aga'nil the huibjnd and .life. Cro. Y-Vti. 122. Havithlome andHarvy, adjudged. Jon. 430. 5. C. and S. F. ad- CBDitcncc. 595. \\'*r.cri npglefling to attend. But in or-icr to ground xhU Cummsrv rnoJe cf jTocecdine, ic ts necelTary tc (jrove chat the wilncfs was perfonaliy ferved. Sma't v. Whitmi.l, j S;r. ic-i. Wakefii-ld't cjfe, Cq. ttnip. Hiiidw. 313. and that his reafonable expcncei were psiJ or tendered to him. Cbai>man v. I'ointon, 2 Sir. 1150. Stephenfoii v. Brookei, Barnes, 33. Uowles v. Johnf;ii, I Bl. Rep. 36.] If a perfon, who can give evidence againft one who is nccufcd D::!t. juft. of felony, refufes to be bound to give evidence, at the general ^'^' gaol -delivery, ^c. the jullice of peace may either coinmit to prifon fuch perfon fo refufing, or may bind him to his good bcliaviour, and to appear at ilie next gaoI-dellvery or quarter- feffions. Lord Prejlon was committed by the court of quarter- felTions Snlk.^jS. for rcfufing to be fworn to give evidence to the grand jury oii an P'" '■ indi'flment of high trcafon ; he was brought by habeas corpus in B. R.; and Ho/ty C. J. faid, it was a great contempt, and that had he been there, he would have fined him, and committed hiin till he paid the fine ; but being otherwife, he was bailed. [Where a witnefs is detained in prifon, a habeas corpus ad fejli- Ti.id'sPr. jicniidum is neceffary to bring him up j for which an application is P, p . made to a judge, upon an afhdavit, fworn to by the party apply- 3,,6. ing(«), ftating that he is a material witnefs, and willing to attend(^) : (^) Cowp. Upon this application, the judge, if he think proper, will grant fV'i^^ his Jiat for the writ, which is then fued out, figned, and fealcd(i:). i;. n. But a habeas corpus ad ttylijicandum will not lie to bring up a pri- i^) Rougl. foner of war [d)\ and where the application for it appeared to be t^.^, ^^.^^ a mere contrivance to remove a prifoner in execution, the court 144.0. refufed to grant it {e). The writ being fued out, fliould be left ^ ^'■- '''^• with the fherifF, or other officer in whofe cuftody the witnefs is Iii'.^.'whe- detained, who will bring him up, on being paid his reafonable tner the Chafres ( /"). 1 . . officer may ^ vy / -I not require an indemn'ty .-^gainft the prifjiier's efc3ps ? Id. Ihid* It feems tliat by the common law the defendant, in capital 2 Hawk, cafes, had no right to any procefs againft his witnelTes, without T.*"''^"*^' a fpecial order of the court ; but now by the 7 JF". 3. £-.3. ic is ^ ^ enadled, that all perfons accufed and indicted for any high trea- fon, whereby any corruption of blood may enfue, (hail have the like procefs of the court, where they fliall be tried, to compel tlieir v.itnencs to appear for tliem at any trial or trials, as is ufually granted to compel witnelles to appear againft them; and now fince the ftatute of i Atuic, c. 9., which ordains, that the witncHes for the prifoner fliall be fworn, procefs may be taken out againft them of courfe in any caufe wh;itfocver. On a commilfion iffuing out of Chancery for the examination of witnefTes, there muft be z.fuhpoena ad teft'ificandum taken out, diredled to the witneflcs, and a fummons from two of the com- midioners, of the time and place wbere they are to be examined ; and, if the witnefs fo furnmoned and ferved do not appear, the court will grant an attachment againft him, unlefs he come up at his own expence to be examined before the examiner ; or if he be furnmoned by the commiffioners v/ithout ixfubpaena adte/Tificanduviy and do not appear, the court will oi'der fuch witnefs to attend at his own expence, and to be examined ; and if he dilobey fuch order, then an attachment ftiall go againft him. 596 (3BDiUcnce» (E) Of the Manner of giving Evidence : And herein, 1. Where the Examination is in open Court -, and therein of fuch Queilions as may be allced a Witnefs. ' I "HE examination of witncfTes viva voce, in open court, is juftly •■- efteemed one of the greateft excellences of our law, not only from the awe and reverence which the folemnity of the manner is fuppofed to produce in the witnefs, and the regard which from thence he muft have for truth, but alfo from the benefit of crofs- examining : and further, the air and manner of giving evidence often carry fuch convictions with them, as will induce the court and jury to believe or rejecl wliat the witnefs has fworn. Hence it hath always been held as a fettled rule, that in cafes 4^' of life, no evidence is to be given againft a prifoner, but in his prefcnce. Alfo in a civil caufe, where the jury withdrew to confer about their verdi£l, one of the witnefles, that was before fworn on the part of the defendant, was called by the jurors, and he rccit-!d again his evidence to them, and they gave their verdi^ for the de- fendant; and comphuiit being made to the judge of afiife of this mifdemeanor, he examined the jury, who confcfled all the mat- ter, and that the evidence was the fame in efFe£l: that was given before, tsf mn alia tiec diver fa ; and this matter being returned upon the poflea, the opinion of the court was, that the verdidt was not good, and a venire facias de novo was awarded. But it is faid, that a witnefs, who by reafon of ficknefs, ex- treme age, or {a) other caufe, cannot come to a trial, may, by or- der of court (3), be examined in the country before any judge of the court where the caufe depends; and the teftimony fo taken ^ fliall be allowed to be given in evidence at the trial. relies may *> fee examined before ajuogp, by leave of the court, as well in criminal caufes as in civil, wliere a fuf- Acient rcaf in appears to the court, a^ going to fea, fefi-. and then the other fide may crofs-exJminc them ; but Tor this vide Keb- 36. 549. 787. 2. K.cb. 13. [(«) The order for this purpofe cannot be obtained wi;hout cjnfent; the depofjtion* or' witnclles, upon interrogatories, not being the bell evidence the nature of the cafe admits of. Tidd's F'r. >^7.^. The court, however, will do every thing in their power t(j make the parties confent, when ncceffary ; as by putting oft' the trial, at the inftance of the defendant, if the plaintifF will n it confent, Cowp. 174. Dougl. 419. j and if the defendant refufes, the court will not give him judgment >:> in cafe of a nonfuit. Tidd's Fr. 529.] Hob. 375. Hale's R ill. C.L.2S3. &259. Pref. to Fortefc. Rep. ii. to ir. Vaiigh.Rep 143, 144. » Hawk. P. C Cro, Eli*. iSo. Metcalfe and Dciin. Style's Praft. Keg. 671. 67a [a") In Comb. 63. it is faid, that wit- But if a witnefs going to fea be by rule of court examined upon interrogatories before a judge, and the trial come on before he is gone, his depofition fhall not be read, but he muft appear ; for the rule was made on fuppofal of his abfcncc. Every perfon produced as a witnefs muft, before he gives his evidence, be fworn to depofe the truth, the whole truth, and nothing but the truth : this the law required in all cafes, {c) ex- cept on indiftments for capital offences, where by {d) imme- morial prafti£e, the witnefles againft the king were not fuff"ered to be fworn. tatutc, ancient author, book; ofc or record, that in criminal cafei the party accufcd ibould not have vtitRtiTet ■J Salk.651, pi. 4. {() Cro. Car. 29*. 1 Bold. 147. {d) But my Lord Coke fays, that he never read in any CBtiiDrnce. 597 witnelTes fworn for him ; and rherefore that iheie is not fo m'jc>i »sJarf!/U Jur'is againft it. 3 Inft. 79. And in H. V. C. 264. it is faid, that there is no known law a^amil jr. gut in 2 Hawk. P. C. c. 46. ^ 29. it being the conltan: pradice not to foffer witnefits to be fworn againft the king upon in- didlmcnts of c.ipitdl crime.', the judges prefumcu it foundrd originally on lume ftacuie, or o:L«r gos4 foundation, and were there.'orc lender of depaniiig from me fittled prsdVice. But now by l Anne, c. 9. it is enabled, " That every perfon ** who (liiill be produced, or appear as a witnefs on the behalf of " the prifoner, before }ie or llie be admitted to denofe, or ** give :!ny manner cf evidence, Oiall firll take an oaili to depofe " the truth, the whole truth, and nothing but the truth, in fuch *• maimer as tl«e witnefies for the queen are by law obliged to •* do J and, if convi wards fwear to the fadl from recolleclion : but if he cannot fwear ^ -,^^^ to the fact from recollection any further than as finding it en- tered in a book or paper, the original book or paper muft be pro- duced.] 59S 2. Of Examinations and Proofs in Chancery. Gilb.For. By the civil and cnnon law it was abfolutely neceflliry, that Rom. 115, t]iere fliould be a citation taken out agviinll the defendant previ- ' ous to the examination of witneOcs ; and the rcafon is, that the defendant, if cited, might either examine or objedl to their cre- dibility, or put fuch crofs-interrogatories to them, as might bring out circumltances in his favour, whiih he would not have an opportunity to do, if he were not cited ; but it was not necef- fary for the defendant to appear, becaitfe the citation is in his favour, and he might renounce a privilege introduced in his favour. Hence it is, that in Chancery, after the plaintiff lias replied to the defendant's anfwer, before he proceeds to exannne any wit- neflts, he mu(l take out ^.ftibpcciia aj^aind tiie defendant to rejoin ; but if the plaintiff ferves the defendant with a fubpoEna to rejoin before he has hied a replication, the. defendant appearing upon inch fuhpcetia fliall have his cofts taxed, becaufe the plaintiff has not clofed the contell of the anfwer before he ferved the fuhpceua to rejoin. The defendant being ferved with Tifuhpcsrm to rejoin, the plain- tiff, of courfe, upon producing an ailifiavit thereof, is to have an order for the dci'^ndant to rejoiii and join in commiffion in four days, giving the defendant's folicitor notice thereof; and the plain- tiff thereupon may, in eight days afterwards, leaving his commit- honers' n-inies at the ofBee, have, at his own colls, a commiffion ex parte directed to two of the plaintiff's conimiffioners, and two' ■fuch as the officer fliall think fit to nominate, Alfo, it is ufual to apply by petition or motion, that zfuhpooift to rejoin return, immediate may be awarded againfl the defendant ; and that fervice thereof on the defendant's clerk may be deemed good fervice of the defendant; and to this i^ often added, efpe- tially in a country caufe, that the defendant may join and ftrike commiffioners' names fometimes in four days, fopietimes in a weekj that the plaintiff may h^ive a commiffion ex parte, directed to his own commiffioners ; and all this is of courfe. But the more ufual way is for each party to name four com- miihcncrs for the examination of witnefles, and two a-piece are llruck out pf each fide ; and if a defendant joins in a com- miffion and names commiffioners, and yet afterwards refufes to flrike, the court, upon petition, v^-ill flrike out fuch two of them as they pleafe, and the commiffion iliall go to fuch of the four as are left Handing. But here it is neceffary to obferve, that there is an ofHce called the Examiner's Office, which exttnds irf If, and has a right to examine all witneffes in town, or within ten miles of the town, which is the circuit of the court; and if any commiffion be made put, or wiinefles examined v^ithin that diitri^l:, the depofitions taken by commiffion will, upon complaiiu, be fuppreffed, and the (;lerk who made cut the commiffion will Hand committed for a, fliilbclraviour, and brc^ach of the known duty of his office, Whci^ €tiit!cncc* 599 When interrogatories are filed in the examiner's oflicc, the wlt- nefsis carried to the feat of the examiner, and a note in writing is there taken of his name and phice of abode, to the end the other fide may crofs-examine, if they think fit ; and, to prevent tlie pcr- fonating of any witnefs, he is conilantiy carried in perfon, and, fticwn at the feat of the adverfe party's clerk in Ch.incerv; this being done, he returns back to the examiner's olHce, and is th.ere examined. If uitcrrogatories are filed for his crofs-examinntion, tlie party wlio produces him mufl fee that he Hays, or returns, and attcjids to be examined ; but if no fuch interrogatories are filed, or he is not demanded to be crofs-exaniined at the fame time when he is under ex;miination, and if he goes away about his buGnefs, tl'.e party who intends to crofs-examine him mud get liim examined as well as he can; and the adverfe party is not in that cafe bound to produce him over again, to attend to be crofs-cxamined, fince it was the party's fault he had not his interrogatories ready to have crofs-examined him whilfb he was under his former ex- amination. If the examiner is ferved with an order whereby publication is to pafs on fuch a day, he cannot afterwards examine any wit- nefs, though it often falls out, that three or four witnefies have been before that time fworn to the interrogatories, but have not attended to be examined : in this cafe the party cannot examine them without leave of the court, which is ft^ldom denied on jnotion. If a witnefs is f\\x\y fubpoznaed to attend and be examined, and he refufes to attend, then, upon a certificate from the examiner, that interrogatories are filed, and the witnefs hath not attended to be examined, he fliall Hand committed, unlefs he attends and iji ex^ amined in four days after notice ; and this is fometimes allowed as a good caufe for enlarging publication or putting off the caufe; but where publication is actually pafled, and depofitions are deli- vered out^ if the party moves for enlarging publication, he mud offer good renfonsj by affidavit, of fome material witnellls whoaa he hath to examine, and the reafons why they could not attend and be examined before publication pafied. And in this cafe the plaintiff or defendant, as the cafe falls out, mud make oath, and fo mult his clerk or folicitor, that they have neither feen, heard, read, nor been informed of any of the con- tents of the depofitions taken in that caufe, nor will they fee, hear, read, or be inform.ed of the fame, till publication is duly pafTed in the caufe; and upon fuch an affidavit it is ufual for the court to enlarge publication, and give the party an opportunicy to examine his witnefies : but he is to be limited to a time, and fo as not to put olf the hearing of the caufe j for otherwife it would be hard to put the defendant to hear his caufe without proof. If the party examines fome witnefies in town, and others by commiflion, he is not obliged to exhibit or file his whole fet of interrogatories in the examiner's office -, he only files fuch and fuch alone as he hath occafion to examine in town j for if this were Q q ^ ptherwile. 6oo (2BtJiticncc» m ctherwife, it would put the plaintiff to a double expeiice of paying for copies of the whole interrogatories twice over. Ciib. For. Here alfo we muft obferve, that anciently the examination was Rom. 1 17. before a judge of the court, who was to confider whether the witnefs anfwered readily, or whether he brought a ftory, formed, to the judge : the examination in Chancery was originally before the mailer of the rolls, who was one of the judges of the court j and therefore it fliould feem that the examination might be upon the bill without interrogatories drawn gnd framed, as the exa- mination with the canon ids may be upon the libeUus ariiculatus i but afterwards the mailer of the rolls having left the examination of the witnefles to his clerks, as the barons of the Exchequer did to theirs, thenceforward the judge did not, but the counfel for the party, whofe witnefles were to be examined, framed the inter- rogatories upon which the clerks examined j and fo thencefor- ward it became the praclice to fend the commifTion to the com- miihoners to examine upon interrogatories, as the examiners did above, Jd. nS. But as witnefl"es often lived remote from the court, it was thought more convenient to appoint commilTioners to examine fuch witnefles, the court fending a notary of their own, who was often in commiflion with them, and with thofc commiflions a copy of the articles. The commilhoners are to examine them- felves,. and cannot delegate their power, for dehgata potejlas tion potejl delegari. fd. i^id. The commifljoners were likewife to be indifferent, for, upon exception to the partiality of any of them, the court will fup- )ly their places by putting in others ; for though they are named )y the parties, yet that is but by way of propofal to the court ; for they are the minifters of the court, and therefore muft be impartial, (a) Rwt Thefe commilTioners were to have their charges, and the (a) rule there feems ^.^s, that rich perfons were to have their expences only, becaufe luieordif- they were not to be paid tor their duty; but the poor were to tina",on at havc, not only their expences, but the price of their labour this day, ^^^^ ^^^ above, that they might not be damaged for doing their fore it hath duty, be n relolvej, tliat a commlflioner may maintain an aftion for the labour and pains he h;is been at in the execution of the commiflion. Canh. 208. The interrogatories were anciently annexed to the commiflion, and fo now they are fuppofed to be ; but by confent of parties they are delivered to the commiflTioners at the opening of the com- piiifion ; and this is the prefent pradlice. The commiflioners can only examine upon the fet of interro- gatories that are firft put in before them, and no new ones can be examined upon before them, without leave of th^ court, becaufe their commiflion is to examine upon fuch interrogatories as are fuppofed to be ainiexcd to the commiflion, or fuch as are delivered \n at the opening of the commiflion. But before the examiner they may examine upon a new fet of interrogatories, bec<\ufe that is prel'umed to be the examipation of the €t3itience» 6oi the judge ; and the judge might examine upon interrogatories ex re nat& out of the articles. The plaintiff has regularly the carriage of the commifTion, and fo is to appoint time and place ; but if the defendant fuppofes that the plaintiff will aggrieve him by fuch appointment, he may move for a duplicate of the commifHon, and that the officer may ap- point time and place. But if the officer appoints time and place, yet the commiffioners may agree to adjourn, becaufe the appointment of the mafler is only for the opening of the commifTion ; an.!, therefore, if the commiffioners agree, they have yet power to make proper adjourn- ments. If the plaintiff, or his commiffioners, abufe the carriage of the commiffion, by making unneceliary adjounmients, or an irregular examination of the witneflcs, that will entitle the defendant to a commifTion or his own, and he may have the carriage of it him- felf, becaufe he fliall not be obliged to produce and examine his witncffi^s where it cannot be done impartially. The fair examination by commiffioners is not to adjourn with- out neccffity, becaufe that would be to harafs the defendant by obliging him to travel from place to place to crofs-examine ; but if it be necefTary, they may adjourn, not only as to time, but place. And this affair mufl be performed as far as it is poffible uno aBuf that there may be as little opporturnity as poffible to divulge the depofitions, that neither fide may better their proof. When a witnefs is produced, he mufl firfl be examined upon the interrogatories of the producer, and then forthwith, without fuf- fering him to go abroad, upon the crofs-interrogatories of the other fide ; and the depofitions are to be read over to him, every (heet whereof he is to fign, that fo they may have the fenfe of the witnefs, without being tampered with. The depofitions, thus taken, are to be bound up, and figned and fealed by the commiffioners, and fent by a mefTenger of their own to the court out of which the commifTion ilTued, who is to fwear that they were not opened or altered fincc they were deli- vered to him. If there be due notice of executing the commlffion, and at the day appointed the commiffioners meet, and the commiffion be opened, but no witnefTes examined nor adjournment made, the commiffion is lofl ; but if it be not opened, they may give nev/ notice, and proceed, unlefs in the mean time the court be moved, and order be made to pay the coils of the former day before they proceed. And the reafon of this rule feems to be, that the not adjourning is a refufal of the commiffioners to adl any further upon it ; for though the court itfelf never adjourns, becaufe it is always open ; yet the delegated power mufl adjourn, becaufe they have no ftanding and conltant power, as the feal has, but their power arifes from the words of their commiffion, which are quod mandamus qucd od certcs dies ^ locos quos ad hoc provideritis tejlei prad> coram vobis venire faciatii i^ advocetiss fo that if they do 6o2 » when witnefles were very old and infirm, or fick and in danger pertnuam of death, or were going into other countries ; in this cafe it was '"'.' "^""^'f** ufual to file a libel, and without ftaying for the /iiis cotitejlatio^ i>:de \crn.* the plaintiff examined his witnefles immediately, and gave notice, 105. 1S5. if it were poffible, to t;ie otlier fide, of the time and place of the 33'' 354* examination, that he might come and crofs-examine fuch wit- Abr. £q.^ nefles if lie thought fit, and thefe depofitions ftood good, in cafe 233.4' the witnefs died or went abroad ; but the plaintiff was obliged ^ '''^^' 5?'* edere nclionem within a year, otherwife thefe examinations went Wm's. 117.' for nothing; but if the v.'itneffjs lived, or did not go abroad ' Bi.Ch. into other countries, then they were to be examined pojl litem ^^^'Sy' conleJIatariJ. 16 j. The examination in perpetitam rei meworiam in meliori formd is ad tvanfumindn inflrumcnta; and in this cafe there mult be a litis 4 aniejlatio 6oS €t)ftience» eontejiath before the examination, becaufe there is no need of fa much in proving inftrumcnts, as there is where the witnefles are likely to die, or are going into remote parts ; in thefe cafes they are not confined to proceed in any a£lion upon thefe inflruments within a year. f A wTtnefs , But now the ufual method is, where one man brings a bill •"•'y^^"- againft another, and hath a mod material witnefs to examine, hene tfji on upon affidavit made, that this witnefs is in a languishing condition affidavit that or danger of dying before he can be examined in chief, or where the ihmg xo j]^g witnefs is going a long voyage to India^ or other remote parts, DC cXdmincQ f m * 11*1*1 *i into lies in "om whencc he cannot return by the time he is to be examined the know- in chief, and to which place he is bound, and cannot poffibly (lay ; ledge only j^^ either of thefe cafes, the court upon motion or petition of nefs, though either party will, and never denies to make an order as of courfc, there be no for leave to examine fuch witnefs de bene ejfe^ faving juft exccp- affidavit of j-^j^g ^Q ^Yit other fide. Ills being old, or infirm, or in danger of dying. Shirley v. Ferrers, 3 P. Wms. 7S. Hankin v. Middleditch, aBr.Cb.Kep. 641.] If the witnefs lives till he can be examined in chief, he muft be examined over again as other witnefles in chief are ; but if he dies in the mean time, then, upon producing and proving the regifter of his death, the party for whofe benefit he was examined, may apply, by petition or motion, for an order, with liberty to publilh his depofitions, (for they cannot be publiflied without fuch an order) \ and to the petition muft be annexed a certificate of the death of the witnefs, and the party muft fhew that he died before the time that he could be examined in chief; and hereupon the court makes an order, not only to publifh his depofitions, but to read them as a witnefs at the hearing, faving exceptions ; and notice of this order is always given to the adverfe clerk to prevent fur- prife, and give him an opportunity to object thereto, as he Ihall fee occafion. If the witnefs beyond fea be not returned, there muft be an affidavit of it, and that the party had not heard from him of fuch a time, nor doth he know whether he is living or dead ; and in this cafe there will be the like order, as in the cafe of the witnefs who died before he could be examined in chief. (F) Of written Evidence : And herein of admitting Exemplifications or Copies of Records, ^r. as Evidence. Co. Lit. ^T^HE word evldeticiy as has been obfervcd, comprehends not 283. a. -■' only the teftimony of witnefles, but alfo matters of record, ( court of Chancery have for convenience allowed their office copies to be evidence in their ov\'n court, and have empowered their ofiicers to make out fuch copies as ihould be evidence, but the particular rules of their court are not taken notice of by the courts of common law. C'niH ar^d Where a fine with proclamations is to be a bar to a ftranger, there Pound. the proclamations mult be examined from the roll, for althoueh the Ttiii. Afl. 1 . ^ , . 1 • J 1 1 , 1 • ,_QQ chirographer is authorized by tiie common law to make out copies to the parties of the fine itfelf, yet he is not appointed by the Itatute See Til per to copy the proclamations, and therefore his indorfcment on the Pi.s, 209. l^at-'K of the fine is not binding. Having thus (hewn how the record is to be given in eviilence, by the proving of a copy, we mull in the next place fee in what manner, and in what cafes, they ought to be evidence. And here, m the firll place, it is regularly true, that when the record is pleaded and appears in the allegations, it muft be tried on tlie ijTue ku! tie/ record; but where the ifllie is upon iacl, the record may be given in evidence to fupport that fact. Sryie, 22. When the ifiue is nid tiel nvcrd^ the record mult be brought Siu. 145. ft/l? pcdt; JigiUi; but where the record is olTered to a jury, any of the forementioned copies are evidence. SKI. 145, But out of this rule there is an exception, that where the record ^■i^' is inducement, and not the gill of the adtion, there, it is not of itfelf traverfable, but muft be given in evidence on the proof of the action ; for nothing can be of itfelf traverfable, that doth not make a full end of the matter in queftion, Tri. per When any perfon produces a record, it muft be fo much at leaft Pais, .66. jjg concerns the matter in queftion, for it is no evidence unlefs .-.ud.'jii.' you Ihew the vi^hole import of the matter; for the preceding or .■^nt.23. following words may give it quite another face. Mud. 117. Where a recovery is ancient, you need not prove any feifin in the tenant to the pra:cipey but otherwife it is in a modern recovery j for in an ancient recovery, the prefumption is for the recoveror, • for the recoveror fhall be fuppofed to be feifed ai the time of the recovery, fince he iiath been feifed ever fince •, but in a modern recovery the feifin muft be proved, becaufe the prxcipe doth not lie againft the perfon that is feifed of the freehold, and fo the re- covery wants a foundation, becaufe the aclion is not profecuted. againit the tenant of t'ne freehold. Green v. Tenant for life, the remainder in fee ; he in tlic remainder troud, j,,j f^.j, f^iff^.j-s a common recovery witli fingle vouclier, and this Vent. tt-. ' t> ' recovery recovery is ancient : The court will prefumc a furrender of the It is laid tenant, becaufe when there hath been a conftant enjoyment under '*'^^" '" '''^ that recovery, it (hail be fuppofed to be a lawful foundation, for renv.Grea- unlefs there had been a lawful tenant to the prtscipe, it mud viiie, iSu. be fuppofed, that it would have been controverted and over- ^'^9- ^^^^ .1 ' ' After a reco- thrown. very of 40 years ftanding, the court will, ivlthout any other circumjlances, prcfume a furrenHcr of the ertate for 1 fc But in that very cafe, the court did admit otiier evidence of the furrender, nainely, the attorney's book, the attorney himfelf being dead, wherein, amon^ his charges for fuftbring the recovery, wee t-vo ift-wj for drawing and engroliing a furrender of the life-eitate. Neither duth the above cafe of Crien v. Froud, (for there polTeflioa hn, and on the death of the widow on the remainder ; on which the rcveifijner bi ought an ejeilment to recover this remain, der, on the ground that there was no furrender of the wiuow's life-cllatc j for that no adtual furrender was proved, and no fort of evidence having been oti'ered to make fuch furrender probable, it could not be prefumed ; the court of K. B. held, that the length of time was not to be reckoned from the date of the recovery, but from the poireffion going with the recovery : that in this cafe there was no poH(:lijon after the death of the tenant for life, for the reveriioner brought his ejectment immediately : that where the perfon fuft'ering the recovery, has a right to fuftisr it, the court will prcfume all things to have beea regular, unlefs the contrary appsar j but that, here, the recovcror, being only tenant in tail in remainder, and the life-eftate under the fame fettlemcnt ilill fubfiiring at the time of furfering the recovery, it V;-as moft clear he had no power to alien or bar. — And even where the perfon fuffering the recovery, has 3 clear right to alien, yet the couit will not, from mere length of time, prefa-ne proper tenants to the pracipcs, where it appears from the deeds that proper parties did not join, and the ufes are declared t» bave been warranted by thofc deeds. Keen v. Earl of Effingham, 2 Sir, 1267. But if tliere be tenant for life, the remainder in fee, and he in Venr.257. remainder fuffer a conmion recovery with fiugle voucher, and this recovery is modern, this record will not give a title, for the tree- hold is in tenant for life, and the precipe ought to be brought againft him ; and fo there is no lawful aiUon commenced. If there be tenant for life, with remainder in tail, and they both Monr, gjg;^ ioin in a common recovery with finiile voucher, this will not bar ^^^'^^'^ ' the tail, becaufe the remauider-man is not tenant to the pr^ape ; .^.^ j,- - and in this cafe the pracipe is brought againft them both as joint- of kec. 36.. tenants, and he in remainder hath no immediate eftate of freehold in him, and the remaint!er-man is not bound by the recovery had ; againlt the tenant for life, unlefs he comes in upon the aid prayer, . though the remainder is turned to a right by fuch recovery. But if there be tenant for life, the remainder in tail, and they 2 Roll. _ fuffcr a recovery, and come in as vouchees on the double voucher, ^^^- 39*'' then he in remainder is barred, becaufe he in remainder is as pro- perly called in as vouchee, as if he had been called in on the aid prayer of tenant for life, and then when he takes up the defence, and makes default, he muft be barred by the judgment, as for the want of a title appearing ; for where any perfon is pro- perly in court, and doth not defend his title, he is as properly- barred as he who hath no title at all 5 and when tenant in tail is barred for want of title, the iiTue can never after recover in his for tiiedof:, Altliougl', regularly, no recovery or judgment is to be admit- Bull. N. P. ted in eviiitnce but aiiainit parties or privies, yet under fome ^3'- circumilaiiCCS they may j as in an information in nature 01 a ^J^ '^ ^^^* ^lii v.'an-.a.tOy a ju.lgmcnt of oufter was allowed to be given in nog. R r 3 evidence Andr. 589. 6i4 5 Term Rep. 72. Lewis and Ci r^es. Term Pafch. >70o. Tiial at bar. J-ewh and Cierges. JUJ. See Stra. 308. »Str. 1151 See Carth. 79. 181. 5 Mod. 386 5.Jones,i2i 3 Mod. I4X * Sid. 325. <5Bi3iDence» evidence to prove the oufter of a third perfon, the mayor, by whom the defendant was admitted. And fuch evidence is con- clufive, unlefs the judgment can be impeached as obtained by fraud. As to verdicts ; if a verdi£l be had on the fame point, and be- tween the fame parties, it may be given in evidence, thout^h the trial was not had for the fame lands •, for the verditl in fuch cafes is a very perfuading evidence, becaufe what twelve men have al- ready thought of the facl, may be fuppofed fit to direct the de- termination of the prefent jury ; for to go contrary to what a former jury have decided in relation to any fadl, is to arraign tlie honefty and fincerity of their judgment; and there is that com- mon credit to be given to twelve men of the country, difcerning of any fa6l upon their oaths, that no fecond jury ought raflily to depart from their judgment: Their verdi6l alfo further Hands in credit, becaufe the jury muft be fuppofed honeft men, and men of clear reputation, their verdidt not having been attainted by thq party againft whom it was given. But then the verdi6l ought to be between the fame parties, be- caufe otherwife a man would be bound by a decifion, where he had not the liberty to crofs- examine, and nothing can be more contrary to natural juftice, than that any body (hould be injured by any determination that he was not at liberty to controvert ; for that is to fet up a decifion unexamined, in prejudice of a caufe that is under examination. Befides, one that is not party to the trial has no redrefs for the injury if the verdift M^ere falfe, for he cannot have an attaint, and therefore ought not to be injured by the verdi£l. But it is not neceflary that the verdidl (hould be in relation to the fame land, for the verdi6l is only fet up to prove the point in queftion -, and if the verdi£l arife upon the fame queftion, then it is no doubt a good evidence; for every matter is evidence that amounts to proof of the point in queftion. In an action of trefpafs, the indi£lment for the fame trefpafs and verdi£l thereupon, fhall not be given in evidence, if the indictment be only found on the party's own oath ; for if the party's oath be no evidence in his own caufe (as we fhall here- after fhew that it is not) then cannot the verdidl be any evi- dence that is founded only on the party's own oath; for what cannot be evidence dire£lly, cannot be made evidence by any fuch circuity. But where the verdi£l on the indidment is founded on another evidence, befides the party's own oath, there, the verdi£l may be given in evidence ; for, there, this verdi£l feems to be under the fame general rule with all others, and there the judgment of twelve m.en on the fa£l ought to fway in determination of the Objeaion. fame fa£l, whether the verditl be on indiice ex relatione Mr. PhippS, 1700. founded, the verdlf^ cannot be produced In corroboration of the evidence on tlie a£lion. It is tnic, this doth in part take off the force of fuch evidence; Anfwer. for, as when a verdict is produced in evidence, it may be anfwered, that it did not arife from the merits of the caufe, but from fome formal defect of the proof, and that makes it no evidence, toward gaining the point in quellion ; fo a verdift may be diminillied in point of authority, by fliewing that it was in part founded on the oath of the party intereilsd in the adlion ; and the jury are to re- fpeft it no further than as they prefume it given, and fupported by the credit of other tcilimony that arc not concerned in the caufe. Yet others Jiave faid the verdi6l given on the indiftment can- not be given in evidence, bcciufc on that profecution there ts no liberty left to the party to att;unt the jury, as he hath power to do, if injured on a civil action ; therefore quxre. A verdict in a criminal cafe, where the matter was capital, was denied to be given in evidence in a civil cafe; as where the father was acquitted on an indictment, for having two wives, this could not be given in evidence, in a civil cafe, where the validity of the fecond marriage was controverted : the rcafon feems to be, be- caufe much lefs evidence is neceflary to maintain the action, than to attaint the criminal, and therefore his acquittal was no argu- ment that the fact was not true. If a verdict be given againit the defendant on the fame point, Trin. Aff. though another party were plaintiff, yet in fome cafes it may be ^>'°'' given in evidence ; as if there be a trial of title between A. leflee of E. and B.^ and afterwards there be a trial of the fame title be- tween C. leflee (j{ E. and B.; C. may give the verdict found agalnit £. in evidence upon the trial between him and B., for this was tlie fenfe of a former jury on the fa6t. In which trial B. had the liberty to crofs-examine, diough the fame fact had been already decided againft B. If there be feveral ejectments brought againft feveral perfons, 3 Mod J42. though for lands under the fame title, and there be a verdiCt ^'^' ^^J'"" o _ ... . . 1292. againit one, that verdict cannot be given in evidence againft the vein. 4.J3, reft, for it is the party againft whom the verdict is given that can Ch. Pre. have relief by attaint, inafmuch as tlie refidue are not prejudiced ; i'\joj and thefe parties fliall not be injured by a verdict they had not 3(9. 339. the power to controvert. 'o Mod. '^ 292. Gilb. Rep.2. Stra.1151. SeeCarth. 79. i8r. 5 Mod. 386. 2jones,22X. 2 Mod. 14.1. L. E. (^i, pi. 23. If a man has tv.'O wives, and be thereof convi£ted, and dies, 3 Mod. 164^ and the fecond wife claims dower, the verdict and conviction can- ^^- ^^)^' not be given in evidence, but in this cafe the writ muft go to the ^'Q_ ,j^,_ biftiop j for whether the marriage be lawful or not, is the point in 12 Mod. 35. controverfy, and that is of ecclefiaftical jurifdittion, and is not to 4-°- 3'9' be decided at common law. 610. II Mod. 224. 10 Med. ;86. S Mod. iSi. GUb. Rcp. 156., &c. Fitzjib. 164. 175. 276, &&, 304-, &c. Sua. 79. I Sera. 960, 961- R r 4 But 6i6 OBtiiticnce* But the verdict maybe mnde an exhibit in the can fe before the bifhop to induce him to believe there was a former marriage. Ca. terrp. The record of a conviftiqn in a civil caufe, cannot be given in Hardw. evidence in a criminal profecution. 312. '■ Lord How- But this rule of giving verJicls in evidence on the fame point, ard and jg jq ^g taken wlth great reilrictlon j for no body can take benefit quiff, i"oo.' ^y '^ verdicl that had not been prejudiced by it, had it gone con- Hard. 472. trary; and therefore if a termor for years had recovered againft JJ. the revcrfioner might give fuch verdicl itn evidence, for B. has no prejudice, becaufe he hath the liberty to crofs-examine the wltnefl'es, and to attaint the jury, and it is fit the reverfioner fliould make ufe of the verdi£l, and have benefit by it, fince he had been difpoflefled by the verdi£l, if it had gone againft th'^ termor, and therefore he may offer it in evidence. So, ii" there were tenant for life, the reverfio.n in fee, and B. bring his action in ejedlment againft the tenant for life, and a ver- dict be given againft the plaintiff, it feems that the reverfioner might have given this in evidence againft B.j becaufe he would have been prejudiced in cafe B. had recovered, for his reverfion v^ould have been turned to a naked right in him. ^larcy ct I'ide infra. Hard. 47a. But a perfon that hath no prejudice by the verdift can never give it in e\idence, though his title turns upon the fame point, becaufe if he be an utter Itranger to the fa£t:, it is perfectly res nova between him and the defendant, and if it be no prejudice to the plaintiff, had the fate of the verdi£t been as it would, he can^- not be entitled to reap a benefit ; for it would be unequal, that Tmce the caufe is a new matter between the parties, the jury fliould be fwayed by any prejudice ; for the letting in of pre- judgments, fuppofes that the caufe has been already decided, and that it is not tried and debated as a new matter, but as the effe6t of fome litigioufnefs in tlxe defendant that holds out the poffefiion, when the caufe has been decided againft him, and this prejudice ought not to be thrown upon him on a new- Inquiry. Hid. As if A. prefers a bill againft B., and B. exhibits his bill, Ruchworth, jj^ relation to the fame matter againft A. and C, and a trial ofpembroke ^t law IS directed, C cannot give in evidence the depoiitions «nd Courier, in the caufc between A. and B., but it muft be tried entirely at h. E. 108. ^^^ ^^^^^ pi. bi^, A. leffee of B. brings an eje£tment againft D. and the verdidt goes for the defendant ; this may at any time be given in evidence againlt 5., for the puffeffion of Jj.'s lelTee is his ou-n poffeffion^ in- afmuch as the Icffce tend in noinine alicno, and B. miglit in this cafe give any thing in evidence, as well as the plaintiff hlmfelf, and challenges might have been made to the jury for confangui- nity to B. the reverfioner : now then fince //. hath the poffeffion of £. as his bailiff, if tliere be a verdict againft that pofleffion, it muft conclude i^., fince he hath in this cafe, all liberty to crofs- examine (CblDence, 617 tsamme as well as A. himfelf, and by confequence, this verdict mud be evidence againft any other lelTee of B. But if there be a recovery againft tenant for Hfe, by verdift, Hard. 426. this is no evidence againft the reverfioner, for the tenant for Hfe /"''■GiynQ. is feifed in his own right, and the pofl'cfTion is properly his own, and he is at liberty to pray in aid of the reverfioner or not, and the reverfioner cannot poflibly controvert tlie matter where no aid was prayed, for he had no permiflion to intereft himfelf in the controverfy. If a verditl were given againft J. S., and then judgment were a Roll, arrefted, and then J, S. alien to J. iV., it feems that the verdidt ^^^' ^^°' given againft J. S. may be given in evidence againft y. N.y for the Ant* 53^' alienation of J. S. cannot put J. N. in a better condition than J. S. was, for the fubftitute of J. S. can but fucceed into his place, and at the time of the alienation the verdlcl might have been given in evidence againft J. 5., and J. S. cannot by aliena- tion deftroy the advantage that his adverfary ought to derive from the verdi(Sl ; for though J^. N. had not the liberty to crofs-exa- mine upon his title, yet J. S. had, and J. N. has but his title, and therefore cannot be fuppofed to make the fa6l better on the examination. On an ancient verdi£l in prohibition, where the cuftom of tith- P^roplnl. j. ing is fet out, whether it might be given in evidence againft ano- ^°^' '"j^*"^ ther pariftiioner that was not party to the verdi6l, nor had the vicar of lands in queftion, was doubted ; but by the better opinion it might Rolvend. be given in evidence, becaufe it could not be fuppofed to have been a contrivance to alter the cuftom, it appearing to be ancient, and becaufe there can be no other proofs but of this fort of what was then thought to be the cuftom. The exception of its being res inter alios aHa Is not allowed Bull. N. P. againft verdicts in cafe of cuftoms and tolls ; for the cuftom or toll ^J5- is ley. lociy and facts tending to prove that may be given in evi- dence by any perfon, as well as thofe who have been parties to fuch fa6ts or to fuch verdi6ts as have found and determined them. And it Is not material in this cafe whether fuch verdicts be recent or ancient. A commifiion under the feal of the Exchequer, and the inqui- Tookee v. fition taken thereupon, is admllhble, though not conclufive cvl- ^"''^,°' dence •, and fo are depofitions taken thereon, though the parties , Burr. 146, in the caufe had no notice of it, nor any opportunity of defend- ing it. Where the fa£t to be proved is fuch, whereof hearfay and re- Bull. N. p. putation are evidence, a fpecial verdict between other parcies *33- ftating a pedigree would be evidence to prove a defcent ; for in fuch cife^ what any of the family, wlio are dead, have been heard to fay, or the general reputation of the family, entries in family books, '^c, are allowed. And of this opinion was Mr. Juftice Wright in the Duke of AthoFi cafe; which opinion is generally iStr. 1151. approved, though the tletermination by the relt of tbe court was contrary ; perhaps founding themfeives cm the caio of Sir IViUlam Clargcs 6iS Cbitiencf* Ca. K. B. Clarges and Zherwin^ where, in a trial at bar, the onlv nueftton 343- was on the legitimacy of the Duke of Albemarle^ and the court would not fuffer a former verdift between other parties concern- ing other land depending upon the fame queftion and title to be read in evidence. But there, it did not appear, either from the ifluc or verdi6t, that the fame queftion was inquired into or deter- mined. Befides, the giving a verdift in evidence to prove a par- ticular liicl:, viz. that John had a fnn Tkcmas, is very different from giving it in evidence to ftiew the opinion of a former jury, which is only their deduction from a variety of fa£ls proved to them. Bull. N. p. A verdicl, with the evidence given, in an action brought by '43- the carrier for goods delivered to him to be carried, may be given in evidence in an a£lion brought by the owner againft the carrier for the fame goods, for it is a ftro^ig proof againll him that he had the plaintiff's goods. Id.i-i,/^. But a verdict will not be admitted in evidence without likewife ^*v"cMic P'^O'^i^'-'ifg ^ copy of the judgment founded upon it, becaufe it may 1745, a": the liappcn that the judgment was arrefied, or a new trial granted. This pelegates. rule, however, does not hold in the cafe of a verdicl on an iffue direfted out of Chancery, becaufe it is not ufual to enter up judg- ment in fuch cafe ; and the decree of the court of Chancery is equally proof, that the verdi£l was fatisfa^tory and conclufive. »Roli. Abr. In an information by the attorney general for the king, when 679. pi. 10. j.]-jg jyj.y j,^g ready to give a verdicl, the attorney general may Raym. 84. withdraw a juyor, for this is part of the prerogative, and is in room aStr. 984. of the nonfuit of the fubjedl, for the king cannot be nonfuited, • Hoicftys being always in court, and this prerogative is derived out of a opinion of general reafon of the king's employment for the publick fafety •, aiithejudgcs and therefore if he hath failed in any point of proof, fo that dif- tha^lfiTuirt ^tivantage may be expelled from the verdict, it fliall be at his be by con- cleftion, whether he (hall receive his verdict or not, and there- ftnt. fore in a fecond information, none of the firft jury fliall be admit- a K. b "^07* ^^^ ^° 8^^^ ^" evidence, that they were agreed in their verdict, for fuch evidence would be of the fame weight, as if the verdi£t had been given, and thereby the king would be difpoffeffed of the benefit of his prerogative, a Roll. But if the king aliens the eftate on which the trial was had, fo jftbr. 680. j.|j3|. j(. conies into private hands, there on a fecond trial between Trials per . ^ , *^ r 1 • 1 • • • pais, Z13. private perlons, the agreement ot the jury may be given in evi- dence, for the prerogative is annexed to the crown, and cannot extend to any private perfon, and therefore they take the eftate with the difadvantage of having a verdi(5t againfl them. tRolI. Abr. ^ But then on fuch trial they muft have the record of the pro- •79' *• 3" ceedings, on the firft information, becaufe as a verdidt cannot be given in evidence, without the record, which gave authority to the jury to proceed, no more can they give in evidence the agreement of the jury without the record on which they were impannelled. But a verdidt cannot be thus avoided in criminal cafes : for there the party muft coiifent to the withdrawing of a juror; fince he plainantj much more Godb. 726. is the anfwer againft the defendant, and carries dill a higher ^j-^-^'o'^' weight of probability along with it, becaufe this is delivered in ^ ' ^'' upon oath, and therefore over and above the fingle confenion it has an authority from the fanS' is not againft his alienee : nor is it any evidence for the defendant in a court of law (except fo ordered on an iffiie out of Chancery) Bourn v. unlefs the plaintiff make it evidence by producing it firft. As, Sir Thomas where on an iflue out of Chancery to try the terms of an agree- Salop."i°74-'. J^ent, which was proved by one witnefs, but denied by the de- fendant, the witnefs being dead b-fore the trial, the plaintiff was under the necefllty of producing the bill and anfwer in order to read his depofition, and by that means made the whole anfwer evidence, Sparin v. which was accordingly read by the def^endant. But where an anfwer Drax, M. {^ Chancery of the witnefs was pr jduced to (hew him incompetent, C.B. at bar. ^^ having there fworn that he had an annuity out of the land in queftion, and Serjeant Alaytiard iiiufted to have the anfwer read through, the court refufed it,as it was produced only to fhewthat he was not a competent witnefs in the caufe, and not to prove the iflue. Brochman's Analogous to this is a man's own voluntary affidavit, which may cafe, Trm. gj^Q jjg given in evidence againft him. fer Gold. Str. 35. Will. Rep. 675. But there is a very great difference between the evidence of an anfwer, and that of a voluntary affidavit. Michae'imas An anfwer cannot be given in evidence without producing the Term,i7i4, ^j|j^ bccaufe without the bill there does not appear to be a caufe ij.wr Roch depending. But if there be proof by the proper officer that the bill ^ has OBbitience. 623 bas been fearched for clUIgently in the office, and cannot be found, & Rlx, Ad- there, the anfwer hath been allowed to be read without a fight of '"'"'ft'^tors the bill; and this Lord Ch.:incc\\oT Broderick allowed, though the & ai!'*" lofs of the bill was not proved by the proper officer, but by the clerk only who wrote in the office, and fwore he fearched carefully with the officer and could not find the bill. An anfwer is proved by (hewing the allegations in the court, Hil. Air. viz. by (hewing the bill which is the charge, and the anfwer '7''-'0- which is as it were the defence to the bill ; and this in civil cafes fhall be intended to be fworn, becaufe the proceedings upon fuch defence are upon oath. And fince the proceedings of any court of judicature within the kingdom are good evidence in other courts, and the proceedings in this cafe are upon oath, it follows of confequence, that in all civil cafes the anfwer is to be taken as an oath, without any further proof but from the proceedings in the caufe. But a voluntary affidavit is not part of any cnufe in a court of Vern. 53. juftice, and therefore it muft be proved to be fworn ; for if you +'3- ^'^^ only prove it figned by the party, the proof goes no farther than n^l^'^^^' to fuppofe it as a note or letter, and as fuch you may not give it z Ld.R»ym- in evidence without more proof, for a note or letter is a bare ac- ^93- 936- knowledgment under the hand of the party, and this is no more 'e^^j^.'^i^L^' unlefs you prove it to be fworn alfo, for it cannot be prefumed to 5^1. 603. be fworn, being not filed as an oath in a court of juftice. ch. Pre. 59. 3 Mod. 36. 9 Mod. 66. 11 Mod. 210. 262. 12 Mod. 136. 231. 305. 310. 319. 339. 3^2. 375. 394. 414. 494. 500. 521. 555. 565. 579. 607. L. £. 121. pi, 92. Such are the affidavits made before a Mailer in Chancery by the vendor of the eftate, in fatlsf;iction of the purchafcr, that the cftate is free from all charges and incun^brances. In an a£lion of covenant brought agaii.ll two, the affidavit of vfcary> one of them was given in evidence as an acknowledgment of them ^'^^" ^^ both, becaufe the acknowledgment of one of them where they had a joint intereft was to be looked upon as a truth relating to them both, and the confideration of the matter is to be left to the jury how far it is evidence againft the other. The fecond difference between them is, tlut the copy of an 3Vfod. n5. anfwer may be given in evidence, but the copy of a voluntary '^'''^' S^' affidavit cannot ; the reafon is, becaufe the anfwer is an allega- tion in a court of judicature, and being matter of publick credit, the copies of it may be given in evidence for the reafon formerly mentioned. But a voluntary affidavit hath no relation to any court of juftice, and therefore is not entitled to publick credit, and being a private matter, the affidavit itfelf muit be produced as the beft evidence. Befides, it muft be proved to be fworn, which it Bull. N. P. cannot be unlefs it be produced. Therefore, where in an action ^'^'^C for a malicious profecution, the plaintiff to increafe damages Robinfon offered the office copy of an affidavit made by the defendant in Tr. laG. ». Chancery of his being worth 2,500/.; Lord Raymond xcfufcd to let it be read, and the plaintiff was obliged to fend for the original which was filed in Chancery. And r.otwitliftandiiig the office . copy 624 aiit- =78. being. . 'V/!^^\ o 4 Mod. 146. S. C. Show. 363. ?. Salk. 555. 691. T. Raym. T70. See Kob. 112. 2 Ro. Rep. 67^. Hardr. 232.315. T. Raym. 335, 336. Lil. Abr 3SS. 554. 5 Mod. 9. 163. 277. 2dly, Where a witnefs is fought and cannot be found, you may, Godb. 1526. upon oath of the matter, ufe his depoiitions •, for when it ap- -L-E. id6. pears by oath that he cannot be found, it is the beft evidence that polhbiy can bo had of the matter-, for when a witnefs is fought and cannot be found, he is in the fame circumllances as to the party that is to ufe him, as if he were dead. 3dly, If it be proved that a witnefs was fubpoenaed and fell fick Mod^iSj, by the way, his depofition may be allowed to be read, for in this ^^\. ,, cafe the depofition is the beft evidence that poUlbly can be had, and 210. 21*5, that anfwers what the law requires. ^'^^- 2^5- Fiizgib. 197. i^ Mod. 215. 231. 205. 319. 339. 375. 403. 607. Will. R'-p. 288, 289. 4f4, 415. 557. 2 Wil. Rep. i;63. Ld. Raym. 7:9, 730. 734, 735. 2 Ld. Raym. «73. ii66. 1371. Venj. 331. 413, Pie. Ch. 64. Eq. Abr. 227. 2 Stra. 920. L. £• iSo. pi. 13. But depofitions taken thirty years fince were admitted to be read Chnn. Caf* in Chancery, though the parties were not the fame, inafmuch as ^3j^ ^^"J; the caufe related to the fame land, and the tertenants were parties pi. a'."''* to it, and thofe witneflcG were fince -dead, the plaintiff 'ti title then Vol. 5[= S f not 626 CtiiDence. not appeavlr.g. And this is an indulgence of the Chancery be- yond the ftri(£l rules of the common law, and is admitted for the pure neceihty, bccaufe evidence fiiould not be loil : befides, Chan- cery hath great faith in its own examiners, who are fuppofed in- different p:rrfons that by themfelves take the fenfe of the par- ties fl:ri£lly, fo that by that means the depofitions ftand the fairer to be read at any time. ^;,:re. Hard. 472. 4thly, A depofition cannot be given in evidence againft any perfon that was not party to the fuic, and the reafon is, becaufe he had not liberty to crofs-examine the witnefles, and it is againft natural juftice that a man fliould be concluded in a caufe to which he never was a party. jy,j, 5 thly, A man (hall never take advantage of a depofition that was But in cnfes not party to the fuit*, for if he cannot be prejudiced by the depofi- ** j^t n'"* tion, he fliall never receive any advantage from it, for this would and,ingene- Create the greateft mifchief that could be •, for then a man that lai, in all ncvcr was party to the Chancery proceedings, might ufe againft hear'fav aiid ^^^ advcrfary all the depofitions that made againft him, and he in reputation his owH advantage could not ufe the depofitions that made for aieevideiice, hini, becaufc the other party not being concerned in the fuit had und^r'thef-' ^*°^ '•^'^ liberty to crofs-examine, and therefore cannot be encoun- ci;cum- tered with any depofitions out of the caufe. Itinces, may be given in cvidLncc. Raym. 335. 6thly, Depofitions before an anfwer put in are not admitted to , '^''*" be read, unlefs the defendant appears to be in contempt, for if a caufe do not appear to be depending, then, are the depofitions confidered as voluntary affidavits; for unlefs a fuit is fhewn to be commenced, it doth not vippear that the adverfe party had liberty to crois-ex..nine : but if the adverfe party be in contempt, then the depofifions of the witneiTes (hall be admitted, for then it is the fault of the objeftor that he did not crofs-examine the witneflcs, iijice he would not join the examination of the witneflLS. Ch.Caf. When the bill is difmifTed, the rule as to the reading of the ''>• ^^' depofitions is this : where the bill is difmiiTed becaufe the matter BackliQute 13 not prcper tor equity to decree, yet the depofitions on the tact and Middle- in the caufe may be read afterwards in a new caufe between the '^"* fame parties : for tliough the matter is not proper for equity to de- cree, yet there was a caufe properly before the court; for it is proper for the jurifdi6lion of equity to conuder how far the law ought to be relaxed and moderated; and where there is a caufe pro- perly before the court, for whomfoever that caufe be decided, yet the depofitions in that caufe muft be evidence, as well as iu all others. Cha. Caf. But if a caufe in equity be difmiiTed, for the irregularity of the ^75- complaint, the depofitions in that caufe can never be read ; as where a devifee, on a fuit pending by his devifor, brings a bill of revivor, and feveral depofitions are taken, and then the caufe on the hearing is difmifled, becaufe a devifee claiming as a purchafer, and not by reprefentation, cannot bring a bill of revivor ; in this cafe, and in a new original bill exhibited, the devifee cannot ufe the the former depofitlons ; for In the firft caufe, miu:aking the bill that he ought to bring, there was no complaint before the court, fince the court doth not allow any devifee to complain in that manner by right of reprefcntation, and there being no caufe re* gularly before the court, there could be no depofitions in it. In crofs caufes in equity, an agreement was proved in one of ltd. 236, the caufes, and in that caufe it was not fet forth in the allegations of the bill or anfwer : in the other caufe the agreement was fet forth in the bill, and not proved in the caufe ; and an order was obtained before publication, that the fame depofitions (hould be read in both caufes : and by the better opinion this might be, but fince the order was before publication in the fecond caufe, the defendant had liberty to crofs-examine the witneffes on which particulars he pleafed, and the fight of the depofitions was to his advantage. If a witnefs, after his depofition taken, become interefted, his iSalk.aSQ. depofition fhall net be read ; for the intent of taking fuch depofi- tion is only to perpetuate his teltimony in cafe the witnefs die. If a witnefs be examined de bene ejje, and before the coming in Hard. ^15. of the anfwer, the defendant not being in contempt, the witnefs ^°^'-^^^* die, yet his depofition fliall not be read, becaufe the oppofite ^i^^l^^,^-', party had not the power to crofs-examine him, and the rule of 2 Will. Rep. the common law is ftricl to this, that no evidence (hall be ad- 5^^- ^''^' mitred, but what Is or might be under the examination of both parties. But in fuch cafes as thefe, the way is to move the court of 2 Jon. 164^ Chancery, that fuch a witnefs's depofitions fliould be read, and if \- E- "3* the court fee caufe, they will order it, and this order will bind the '' ' parties, to afient to the reading of fuch depofitions, though it doth not bind the court o{ tiift prius : and this is thought juft, be- caufe the wltnelTes are examined by the cfhcers of the court, who are fuppofed to favour neither party. Formerly, they did not enrol their bill and anfwer, but as itfeems aKeb. 31. the bill was left' loofe in the oflice with the clerks of the olBce, L^-^- "3' and was thereby fubjedl to be lolt ; and therefore ancient depo- fitions may be glveii in evidence Vvithoiit tlie bill and anfwer. 80, Hob. 112, depofitions taken by the command of Queen Elizabeth^ upon petition, without bill and anfwer. Were, upon a folemn hearing in Chancery, allowed to be read. The ancient pra£tice was alfo, that they never publlfhed the de* Praaice of pofitions in the lifetime of the witnefies, becaufe the depofitions in ^"•"'- ''• perpetuam ret memoi-iam were of no ufe till after the death of the witneiTes; but this practice was found very inconvenient, becaufe witnefles became thereby fecureinfwearingwhatfoever they pleafed, innfmuch as they could never be profecuted for perjury, the effecit of their oaths not being known till after their deaths. On an information for perjury, the depofitions in Chancery 3Mod. n6, figned by the comminioners are not fufficient evidence, without ^^7- proof, that the party f>vore them ; for there is no proof of the S f 2 identity 628 €t)iI3encc, identity of the perfon, but by the compnrifon of bands, which {a) Scd-v'tde is not a fufBcient evidence in a criminal cafe («), for another man injra. might peribnate me, and thereby fubjedl me to the penalty of perjury. Styl.446. From what has been faid, it is evident, that a voluntary affi- Sacheveiel Javit before a niafter in Chancery is no evidence between llran- verei " * %,'^^^i becaufc here is no crofs-examination, fince there appears to 5Mar.i7i6, be no caufe depending; and therefore fuch evidence cannot be acDeiegates. admitted, except in thofe cafes where a confelTion of the perfon May K.B. making the affidavit would be evidence, as, where a widow came at bar. for adminiftration, the marriage being contefted, an affidavit of the man hlmfelf was read. So, on an iiTue directed out of Chan- cery to try the legitimacy of the plaintitF, the father's oath before the judges on a private bill was allowed to be evidence. Bull. N. P. As the fpiritual courts are not of record, depofitions taken In \^^' ^^°''- them cannot be read in evidence, though the witnefles be dead. Abr. 679. ' " Lit. Rep. 167. I Lev. 180. Depofitions taken before commiffioners of bankrupts cannot be SirT. Jones, j.p^j j,^ evidtucc, bccaufc there cannot be a crofs-examination. j.^ Anfon Hovi^ever, by the ilatute 5 G. 2. c. 30. § 41. which dire6ls proceed- V. wilfon, ings on commitlions of bankrupt and the certificates to be entered Dougi. 244. of record, true copies figncdand atteiled as therein required are to be V. Lang. given in evidence. Therefore an office copy of the depofition of the worthy, witnefs who fwore to the a6l of bankruptcy was admitted after 5 ^^™ the witnefs's death, to be evidence to prove the precife time when ' ^ ' the atl of bankruptcy was committed. And where an examinant produces a deed before the commiffioners, under which he claims a title to the bankrupt's goods, the examination may be ufed after- wards in a queilion between him and the affignees as evidence againft him to prove the execution of the deed, without calling the fubfcribing witnefs. If witnefles examined on a coroner's inqueft be dead, or beyond fea, their depofitions may be read •, for the coroner is an officer appointed on behalf of the publick, to make inquiry about the matters within his jurifiiiction ; and therefore the law will pre- fume the depofitions before him to be fairly and impartially taken. And hy I P.& M. ^.13. and P. & M. c. 10. juftices of the peace fliall examine of perfons brought before them for felony, and of thofe who brought them, and certify fuch examination to the next gaol-delivery ; but the examination of the pvifoner fhall be with- out oath, and the others upon oath, and thofe examinations ffiall be read againfl the offender upon an indictment, if the witnefles be Woodcock's dead. However, if the olfender be not prefent at the time when "^'^', , the witnelTes are examined againll him, the examinations catinot Leach s , ..... ° caies, 397. be received in evidence. 12 Mod. Another way of perpetuating the teflimony of a perfon dc- .318. See ceafed Is by giving the verdidt in evidence, and the oath of the Bjrnard. " party deccafed. Where you give in evidence any matter fworn at K. B. 243. a former trial, it mull be between the fame parties, becaufe other- wife CBUiDcnce* 629 M^fe you dlfpoflers your adverfary of the liberty to crofs-examine : beiides, otherwife you cannot regularly give the verdl6l In evi- dence, and where you cannot give the verditl: in evidence, you cannot give the oath on which it was founded, for if you cannoi (hew there was fuch a caufe, you cannot fliew that any perfon was examined in that caUi>, and without fhewing there was a caufe, no man's oath can be given in evidence, inafmuch as it appears to be merely a vohmtai y affidavit. Wliat a man himfelf that is living has fvvorn at one trial, can 12 Mod. never be given in evidence at another trial to fupport him ; though 3'^- what the witnefs has faid in difcourfe may be given in evidence tez'toziz, to fupport him ; becaufe the fame oath at another trial is no evi- 2 Hawk, dence of the truth of any man's fwearing ; for if a man be of ^- ^- ^'i°' that ill mind to fwear falfely at one trial, he may do the fame on zKtb!*3S4. the other on the fame inducements i but what a man f-vs in dif- courfe, without premeditation or expectation of the caufe in quef- lion, is good evidence to fupport him : but if a man hath fworn at one trial ditterent from wuat he hath at another, this is good evidence as to his difcredit. A witnefs was fworn in a trial at bar in C. B. between the fame Creen v. parties on the fame ifTue, and he was fubpa:naed bv the defendant f't'*=**^^» 1 ,- 1 • 1 • 7- T> 1 1 • 1 ' - Mich. to appear at a lecond trial m A, is. and his charges were given z^Ca-.z. him ; but he not appearing, perfons were admitted to give evidence Bu,i. n. p. of what he fwore in C. B., for the court faid, they would pre- ^^3' fume he was kept away by the plaintiff's practice. This pre- fumptlon was ftrengthened by his having been produced by the plaintiff at the former trial. On an appeal of murder, the appellant cannot give in evidence 2 sid. ;?i5. the indiclmcnt, and what a perfon deceafed fwore at the trial ; * Hawk. for in this cafe we have already fhewn that the indictment cannot ^ g.L^E be given in evidence againfl the defendant, and, by confequence, 31. pi. 66. the oath cannot be given in evidence on the indiclment : beiides, ^Ro^'-Rep. the appeal is tried as a new caufe, and therefore it is neceffary to Se^zVeb. have his accufers face to face. 384. If the indiclment be given in evidence for the prlfoner, and Sid. 325. the oath of a perfon deceafed, the account of that oath mull be ^" ^* 5i« upon oath ; for nothing can be given in evidence as an oath but ^ ' upon oath. A decree in Chancery may be given in evidence between the 2 Mod. 231. fame parties, or any claiming under them, for their judgments 2S"-9^=>> mull be of authority in thofe cafes where the law gives them a Abrlsi-*^* jurifdiclion ; for it were very abfurd that the law Ihould give &c. ch. them a iurifdiclion, and vet not fuffer what is done by force of ^■■^- 59- 64. that jurifdiclion, to be a full proof, for that were to fuppofe they joMod.42, were incompetent judges, where they had jurifdiclion. 43. 44« 74* loS, 109. 126. Vern. 53. 413. 2 Vern. 471. 591. 547. 555. 603. Fitzglb. 197. Ld. Raym. 734. S93. 936, \V;11, Rep. 414, iij. 8 Mod. 75. i8i. 322. 9 Mod. 66, 11 Mod. 210 to 212. Gilb. Eq- Rep. a^ 203. &c. 12 Mod. 24. 85. 135. 215. 231. 305. 310. 319. 339. 342, 543. 375. 394. 4.4. 494* 500. 521. 55;. 565. 579. 607. Stra. 95. 162.308. See Barnard. K.. B. 243. i btra. 960. 1151 J2|2. 2 Roll. Abr. 679. L, E. 125. pi. loi. S f 3 So. 630 (KbiDcncc. I Keb. 3 J. So, a decretal order in paper with proof of the bill and anfwer, or without fuch proof (if they are recited in the order) may be read. Bull. N. P. Wherever a matter comes to be tried in a collateral way, the ^'^'^- decree, fentence, or judgment of any court, ecclefiaftical or civil, "" having competent jurifdi£lion, is concl^ifive evidence of fuch mat- ter •, and in the cafe the determination be final in the court of which it is a decree, fentence, or judgment, fuch decree, fen- tence, or judgment will be conclufive in any other court having concurrent jurifdidlion. But here the following diftinflions mu(t Pef'De be attended to. — The judgment of a court of concurrent jurif- Grey, C. J. dj^tion cUreclly upon the po'wty is as a plea, a bar, or as evidence 261 Carth cox\c\'d^\ve. between the fame parties y upofi the fame matter direEtly in ■xz^. Lane point in another court. And the judgment of a court of exclu- %•• Degberg, fj^g jurifdiftion direcily on the point is in like manner conclufive •5.' Bull.' '^/'<'" the fame matter., beitueen the fame parties coming i7icide)itally \n N.P.244. queftion in another court for a different purpofe. But neither the aShowajz. judament of a court of concurrent ';r exclufive iurifdiftion is evi- Cowp! ~\'. dence of any matter which came collaterally in queftion, though Bull. N. P. within their jurifni6lion ; nor of any matter incidentally cognif- "1"^; 5- able, nor of any m.atter to be inferred by argument from the iudg- ^ Salk. 290. ' ■' JO JO I Show, 6. ment.- As to the proceedings in the fpivitual court, thefe are in cafes matrimonial and teltamentary, and all other ecclefiaftical caufes. How thefe courts gained the jurifdiclion in caufes teftamentary, which M'as originally of temporal conufance, is not here to be confidered further than is neceflary to determine the weight of credibility that is to be given to their fentences. The way of au- thenticating teftaments by the civil law w^as this : The teftator and his witnefies fubfcrlbed the will, bound it up and fealed it with their feals : after the deceafe of the teftator it was opened in the prefence of the prsetor, and he delivered copies of it, and kept the original in a public treafury ; and hence it is, that the fpiritual court keeps the original vvill, and gives out the pro- bate, which is but a copy of the will under their feals. But originally among the Germans^ the goods as well as the feud itfeif belonged to the lord : afterwards it was thought fit that the feudary ftiould difpofe of them, and then the will was proved iii the country courts before the alderman and bifliop, and if any man died inteftate, they were diftributed among his kindred : but after the Conqueft, the probate of the will and the commilfion of adminiftration was indulged to the biftiop, who never had it in the times of the empire, under pretence that the provifion would be better made for tne fouls of the deceafed. If the fpiritual courts ex- ceed their commifilon, they have plainly no authority, and therefore they muft confine themfelves to die bequeft of the perfonal eftate : for the feud was not devifable until the 32 if. 8. for reafons men- tioned in another place. Rpll. A\>r. Therefore, if a man devife lands by force of the ftatute of wills, f 78. Nor Q~ Xjy t^uftom, the probate of the will in the fpiritual court cannot ^riipiiiica-' be given in evidence, for all their proceedings, fo far as they re- tion of the late to the lands, ;\re plaifily cornm von judice^ for tlicy have no power t power to authenticate any fuch dcvlfe, and therefore a copy pro- will undpr iluced under their feals is no evidence of a true cony. ^'^^ great^ ■' ' fell be evi. dcnce of it : Comb. 46. in queftions relative to lands deviled, the original will ought always to be produced. But the probates of wills are good evidence as to the perfonal Roll. Abr. eftate, and they are the records of that court, and therefore a ^7j*- copy of them under the feal of that court muft be good evidence: ({^^^ j,g, and this is itill the more reafonable, becaufc it is tlie ufe of the court to prcferve the original will, and only to give back to the party the copy of that will under the feal of the court. The ecclefiaftical court never grants an exemplification of let- Kcmpton ters of adminiftration, but only a certificate that adminiftration p* S[ q^' was granted : therefore, when a leflee pleads an affi^^nment of a k. b. term from an adminiftrator, fuch certificate is good evidence. So, i Lev. 25. would the book of the ecclefiaftical court, wherein was entered the order for granting adminiilration. So, would the copy of the Smaitle v. probate of the will be evidence of y. S. being executor, but a copy ^'n'^J^^p of the will would not be evidence of it. 246.* Where a perfon in eje6lment would prove the relation of father Polhill and and fon by his father's will, he mufl have the original will, and f"'^'^'' 1 1 1 r 1 1 • • 1 • • 1 • 1 Hil. 170!, not the probate only, tor where the original is m being, the copy is no evidence, and the probate is no more than a true copy under the feal of the court of a private inftrument, and the law which feeks the bed evidence, will not allow of the copy only : befides, this is not proved to be a true copy, for the feal doth not prove the truth of the copy, unlefs the fuit relate to the perfonal eftate ' only. But the ledger-book is evidence in fuch cafe, becaufe thefe are Polhill ani not confidered merely as copies, but they are the rolls of the court il'-l'""'^ itfelf; and though the law doth not allow thefe rolls to prove a j-o*,_ devife of lands where the claim is by the words of the devife, for Under par- the reafons already given, yet when the will is only to prove a '"^"'j''' '^"■- relation, the rolls of the fpiritual court, that have authority to the iedg°r- enrol all wills, are fufficient proofs of fuch teftament. book may befvideiiC3 even in the devife of a real eftate: as, where in an avowry for a rent-charge, the avowant could r.oi produce the will under which he claimed, that belonging to the devifee of the land 5 hut producing the ordinary's regifter of the will, and proving former p.iyments, it was holden to be fufficient evidsncs againlt the plaintiff, who was devifee of the land charged. Caf, K. B. 375. But the copy of the ledger-book was not allowed to he read in this cafe, becaufe common pra£lice had prevailed that it fhoukl not ; though my Lord Holt faid that fince the original would have been read as a roll of the court without further atteftation, it was fit the copies fliouid be read, and that the practice fliould be al- tered. And the practice feems to be founded on the miftake, that the ledger-book is read as a copy, and (o the copy of that is but the copy of a copy, whereas the ledger-book is read as a roll of the Prerogative Court. In a fuit relating to a perfonal eftate, the probate of tlie will R3ym.4c4 under the feal of the court is fufticient evidence, and no evidence ^"sid.^' contrary to it can be given, that fuch will was not the laft will lct. 235.' S f 4 and 6y €l)itiencr. 2 Keb. 337. and teftatnent of the party decenfcd, for the fjiirltual court are the 343. 641. proper juJges of what is, aiul vhat is not the will of the tclVator ; 150. Anon. ^"" ""^^ ^'^^ authority oi judging is committed to them, the tern- Ld. Raym. poral courts are bouiul by their judgments. a63. Stta. 481. Will. Rep. 388. L. E. 125. pi. 103. Ray:r.404 But the advcrfc party may give in evidence, that the probate is a°std. '59, ^°'^gC'^> becaufe fuch evidence fuppofcth that the fpirituai court hath given no judgment, and fo there is no reafon for the tem- poral court to be concluded, fince the fpirituai court hath made no judgment in this matter, for a forged probate is none at all. Raym. 404 So, they may alfo give in evidence, that fuch probate w^s ob- Tstl^ro. *^'"^<^ ^Y fvirprife, for that is as much as to fay,, that the fpiritua^ court hath made no legal decifion in the matter, and therefore that the tcm.poral court ought not to be concluded by their authority. aSid. 359. So, if letters of admlnidraiion be fliewed under feal, you may give in evidence, that they were revoked ; for this is in affirmance of the proceedings in the fpirituai court, and doth not at all con- trovert the righteoufnefs of their decihons. IVod. 117. A will that hath partly the form of a will, and partly the form Vein. 257. of a deed, may be given in evidence as a will, for if tht; intent of ie zDanv! ^^^ p^rty fufficiently appear to make adifpofition after his deceafe, j\b,. 539. the informality of the words lliaii not vitiate it. L. E. 85, pi. i3. Keb. 40. Where a will remains in Chancery, by order of that court, z "e 2^6^ ^"Py ^^y ^^ given in evidence, for then it becomes a roll of that pi. 106. " court, and, by confcquence, a copy of it is fufiicicnt evidence. Seq more of wills after. Hli. Aff. The rolls of a court-baron arc evidence, for they ai-e the publick 1701- rolls, by wliich the inheritance of every tenant is prcferved, and they are the rolls of the manor court, which was anciently a court of juflice relating to all property within the diftridl. I Keb. 567. A copy of a court-roll under tlie Reward's hand is good evi- Comb. 138, ^^^"'-^ ^° P'^°''^^^^^ ^'^py^"'°^^£^'s ellate. Comb. 337. So, an examined copy of the court-roll is good evidence, if jzMod.z4. f,vorn to be a true one. Jenkins v. If copyhold-rolls make mention of a furrender to the ufe of the B,!rker, tenant's laft will, and then admit A. as devifee under the will, yet 1705. ' this is no evidence of the feifin or title of yl. without the will itfelfj becaufe the land doth not pafs by the furrender without the vi-ill, and therefore the will mufl be (hewn us the bed evidence of -^.'s pofl'efTion and title, JRoe V. An entry in the court-rolls of a manor is admiiTible evidence of Parker, ^.j^^ mode of dcfccnt of lands in the manor, althoutih no inftances Rep. 26. of any perfon having taken according to it be proved. Denn v. A cuftomary of a manor, which appeared to be of great anti- "P"^' ciuity, and had been delivered down with the court-rolls from Rep. 466. fteward to fteward, was admitted to be good evidence to ptove the courfe of defcent within the manor, notwithftanding it was not {jgned by any one. JhiJ. 1700. The regifter of chriflenlngs, marriages, and burials is good c'odoV" evidence, or a copy of it. The rogillcr began in the 30 oi H. 8. '45' Jjy €t3itience* 6^^ hy the infVigation of the Lord Cromwell^ who at that time was Noy, 146. vefted with all the authority that the pope's legates formerly had, Bi'ownl- under the title of vicar general to the king, and all wills that were Abr. iic. above the value of two hundred pounds, were to be proved in this pI. ii. court ; and therefore it ferved his purpofe to fet on foot a regiftry ^^°- •^'''^' of all perfons that were chriltened and buried. And this might be Moor, 451. very well appointed by the king's authority, as fupreme head of Saik. 281. the church, fince chridening and burying are ecclefiaflical a£ls : l^^o^.S^. and when a book was appointed by pub!ick authority, it mull be pi". 2' * • a publick evidence. This was afterwards confirmed by the in- Godol. i6a. ]\xv\€t\ox\ oi Edward 6. and the particular manner of regiftering appointed ; as that the regiilering fliould be in the prefence of the parfon and churchwardens on Sunday, and that the book lliould he ^Str. 1073. kept locked in the church, to which the vicar and churchwardens Ihould have keys. Though it appear in evidence that the regiflcr was made from a Str. 1073. a day-book kept by the minifter for that purpofe, yet the day- book will not be admitted to contradi£l the entry in the regifter, e. g. to prove a child bafe-born, where no notice is taken of it ia the regifter, which would therefore be evidence to prove him legitimate. On an indictment for entering a falfe marriage in the regifter 2Sid.7r, book, the defendant was fined two hundred marks : for fince the ?s;- „ yegiflev is publick evidence, it mufl be guarded by the law, that 2, Geo. 2. it be not COnterfeited. c. 33. § 16. makes this a capital ofFencc. The pope's licence without the king's has been held good evi- Palm. 427. dence of an impropriation, becaufe anciently the pope was held to ^^^ ^' ^- ^' be fupreme head of the church, and therefore was held to have a difpolition of all fpiritual benefices with the concurrence of the patrorj, without any leave of the prince of the country ; and thefe ancient flatters muft be admitted according to the error of the times in whiqh they were tranfadted. A pope's bull is no evi- Palm. 38; dence on a general prefcription to be difcharged of tithes, becaufe that fliews the commencement of fuch a cuflom, and a general prefcription fhews that there was no time or memory of things to the contrary, {o that the bull doth itfelf contradidl fuch pre- fcription. But the pope's bull is evidence on a fpiritual prefcription, Palm. 38. when you only lay the lands belonged to fuch a monaftery as was difcharged of tithe at the time of the diilblution, for then they continue difcharged by adl of parliament. But the copy of the bull v>ill not be allowed in evidence 9 the Bre" *■. bull itfelf mull be produced. Z-'\ r ' Winch. 70. If the queftion be, whether a certain manor be ancient demefne Hob. iS8. or not, the trial fhall be by Domes-day book, which fl}all be infpe6l- p'.'" P^"" ed by the court. Ancient demefnes are the focage tenures that were in the hands of Edward the ConfefTor, which JVilliam the Conqueror, in honour of him, endowed with feveral privileges : Pomes-day book was a terrier or furvey of the king's lands, which was ^34 OBbiDence* was made in the time of the Conqueror, and which afcertains the particular manors which had this privilege. Term. To know whether any thing be done in or out of the ports, p,ifch. there lies in the Exchequer a particular furvey of the king's ports, ^^aa'ario. which afcertains their extent. An o'd terrier or furvey of a manor, whether ecclefiaftical or temporal, may be given in evidence, for there can be no other way of afcertaining old tenures or boundaries. Boll. N. P. A terrier of glebe is not evidence for the parfon, unlefs figned *4^' by the churchwardens as well as the parfon ; nor even then if they be of his nomination : and though it be figned by them, yet it feems to deferve very little credit, unlefs it be likewife figned by the fubftantial inhabitants. But in all cafes it is flrong evidence againft the parfon. J Wilf. 170. A furvey of religious houfes taken in 1563, upon the difTolution of monalleries, was allowed to be good evidence to prove a vicar's right to fmall tithes. Yates and An old map of lands was allowed to be evidence, where It came Harris^ Hil. ^jong with the writings and agreed with the boundaries adjufted ' ' ' in an ancient purchafe.] Skin. 6z3. A publick hiftory or chronicle may be given in evidence to prove P'- ^7- a matter relating to the kingdom in (o) general, becaufe the nature pi, ', " ' of the thing requires it. fa) So, a year-bock may he evidence to prove the courfe of tlie court. Salk- iSi. pi. 9. — So, Speed's Chronicle was given in evidence to prove tiie death of Il'abel, Queen Dowaj^er to E. a. Skin. 15. Salk. 281. But thefe will not be admitted as evidence to prove a particular P'" ?■ right •, and therefore where the queftion was. Whether, by the Burgefles'of cuflom of Droltwich, falt-pits could be funk in any part of the Droitwich. town, or in a certain place only ? and on a trial at bar, CamdetCs Skin. 613. Britannia was'ofFered in evidence, it wasrefufed. pi. 17. ' S. C. fo ruled. But for this But the books of heralds are admitted as evidence to prpve pe-. a'k' ^686°^'* f^ig^^^s, becaufe the nature of the thing will not admit of better Yelv. 34.' evidence ; alfo, this is their proper bufinefs, and about which they a Jon. 164. are converfant, and therefore deferve the more credit. 124. Salk. 28r. pi. 9. Comb. 63. and Skin. 623. pi. 17. where it is faid, that, from the negligent manner of keeping the.Ti, they deferve but little credit*. * This is certainly true, yet there are exceptions, as a vifuation made by heralds, entered in their books, and kept in their office, has been admitted evi- dence of a pedigree. Pitton v. Walter, H. 5 G. Stra. i6». So, the minute-book of a former vifit- ation, figned by the heads of the feveral families, and found in a private library (Lord Oxford's). Ibid. Cro. Eiiz. An [b) almanack is fufficient evidence to prove a day Sunday, 227. Leon, fsj', 242. S. C. and S. P. Sid. 300. 6 Mod. 41. S. P. (^) That the almanack to go by is that annexed to the Com- mon Prayer-book. 6 Mod. 81. Raym. 84. So, an almanack, in which the father wrote the nativity of his Herbert and {-q^, was admitted and allowed to be ftrong evidence at a trial at bar, to prove the nonage of the fon, [So, €tiricnce» 62s [So, an entry in a father's family bible, an infcrlption on a tomb- Cowp. 594. ftone, a pedigree hung up in the family nianfion, are evidence in queftions of pedigree. The rcglfter of the Navy-OfBce, with proof of the method there Ex din. ufed to return all perfons dead, with the mark Dd. is fufficient ^^;^""n'»» • 1 r J 1.-1 P- 6 Ann. evidence 01 a death.] C. B. B.N. p. 249. So, books belonging to a publick company are good evidence j 7 Mod. 125. and therefore a party concerned in intereft may, on motion, have ^^- ^^y™* copies of them to be made ufe of as evidence ; for, being tranf- cttry and actions of a publick nature, the publick is concerned in them. Hopkins, on a motion for copies of the books of the Ealt India Company, (^ tide 5 Mod. 391;. Ld. Raym. 3-7, [Jt is efTential in motions of this kind, that the party applying fliould be concerned in intereft. He muft therefore be a member of the company, or tenant of the manor, the books of which he applies toinfpedl. Hodges v. Atkis, 3 Wiif. 39S. 2 Bl. Rep. 877. S. C. Mayor, &c. of Exeter v. Cole- man, Barnes, 228. Anon. aVez. 620. Shelling v. Farmer, I St.--. 646. Murray v. Thornhill, 2 Str, 717. Rex V. Dr. Dridgman, Id. 1203. Allan v. Tap, 2 Bl. Rep. £50. Bifhop of Hereford v. Uuke of Bridgewater, Bunb. 269. Smith v. Davis, i Wilf. 104. Smith v. Tiliebois, cited 3 Term Rep. 142. But in Mayor of Lynn V. Denton, 1 Term Rep. 689., Corporation of Barnltaple v. Lathey, 3 Term Rep. 303., and Mayor, &c. of London v. Mayor, &c. of Lynn, i H.Bl. 211., the courts feem to have over-ruled the cafes of Hodges v. Atkis, 3 Wilf. 598. and Mayor, Sec. of Exeter, &c. V. Coleman, Barnes, 22S., and to have holden, that in fuch a£lions as are brought to fcpoort claims of duties msde by a corporation upon the publick, of the vaiiaity of which the bed evidence muft be in the dxuments ot the corporation, and of which docuinents equity would grant an infpeclion ; fuch, for jnftance, as claims cf tolls ; that, in thefe cafes, individuals who are interefted to difpute the claims have an intereft in the books which will entitle them, upon motion, to an infpeftion of the entries relating to the fubjeft-matter of the difpute. — Or, if the party applying be not a member, the books muft be the common evidence of the tranfadlions bet.veen him ar.d the body in whofe cu'.rody they are, fo as to be for this purpofe the books ot both. Such are the cafes of entries in the cuftom-houfe books, of the India Company, Bank itock, and transfer books. Geery v. Hopkins, 2 Ld. Raym. 851. War- riner v. Giles, 2 Str. 954. Crew v. Saunders, Id. ico^. But the courts will no: grant thefe motions linlefs the evidence contained in the books be diredly material in the caufe, nor will they permit the party applying to infpe£t and copy any more than what relates to himfelf. Cenfon v. Port, cited. I Wilf. 240. I Bl.Rep.4c. S. C. Mayor, &c. of London v. Svi/inland, l Barnard. 455. Crew v. Saunders, 2 Str. 1005. Rex v. Fraternity of Hoftmen, &c. Id. 1223. Tenants of a manor feem to have a tight to a general infpeftion of the court-iolls. Rex v. Shelly, 3 Term Rep. 141. How far corporators have fuch right with relpeft to the corporation-bor.ks ^eems doubtful. Rex v. Babb, 3 Term Rep. 581. Nor will the courts permit an inlpecfion for the purpofe of collecting evidence to fupport a criminal profecution. Rex v. Worfenh.am, i Ld. Raym. 705. Crew v. Saunders, 2 Str. 1005. Rex V. Cornelius, W. 1210. Rex v. Meid, 2 Ld. Raym. 927. Rex v. Dr. Parnell, i Wilf, 329. I Bl. Rep. 37. S. C. Rex v. H«ydon, i Bl. Rep. 351. Roe v. Hanway, 4 Burr. 2489. J By the 7 Jac. i. c. 12. reciting, That whereas divers men of Although trades and handlcraftfmen, keeping fliop-books, do demand debts ^^^ ^^- of their cuftomers upon their fliop-books, long time after the fame fhop-b'ook hath been due, and when, as they fuppofed the particulars and fhaiinotbe certainty of the wares delivered to be forgotten, then either they ^|'"^,°"u^ themfelves, or their fervants, have inferred into their faid fhop- year^ vec books divers other wares fuppofed to be delivered to the fame par- this does ties, or to their ufe, which in truth never were dehvered -, and this ^^l^^^^^c of purpofe to increafe, by fuch undue means, the faid debt ; and' itfeif within whereas divers of the faid tradefmen and haiidicraftfmen, having the year, received all the juft debt due upon their faid fliop-books, do often- T^ ''".'^ times leave the fame books uncrofTed, or any way difcharged, fo cumftances. as the debtors, their executors, or adminiftrators, are often byfuit 2Saik. 690. of law enforced to pay the fame debts again to the party that tioVby"^^" traded the faid wares, or to his executors or adminiftrators, unlefs brewer, his he or they can produce fufficient proofs, by writing or witnefles, nrjannerof of the faid payment, that may countervail the crecit of the faid prov'^lto** 5 fliop- 6;^6 (IBDiDcnce. be, that the fhop-books, which few or none can do in any long time after the draymen faid payment ; it is therefore enaclcd, " That no tradefman, ox night to /he " handiciaftfman keeping a Ihop-book as aforefaid, his or their clerk of the " executors or adminiltrators, fhall be allowed, admitted, or brcwhoufe, n received to give his fhop-bookin evidence in any a6lion him'an ac- ** for arjy money due for wares hereafter to be delivered, count of the « or for work hereafter to be done, above one year before the hTd^ deliver " ^^n^e adion brought, except he or the}', their executors or ad- ed out, " miniftrators, fhall have obtained or gotten a bill of debt or ob- which he " hgation of the debtor for the faid debt, or Ihall have brought or a*^bookl-ept *' P^^''^^^^ 3gainft the faid debtor, his executors or adminiftrators, forthatpur- " fome a6tion for the faid debt, wares, or work done, within one pofe, to « year ^ext after the fame wares dchvered, money due for wares ■which the #/• j i- j i i j> draymen " delivered, or worK done." fee their hands, and that the drayman, wlio had fo fet his hand, was dead ; but that this was his hand which w.iS Cet to the book ; and this was lield jjood evidence of a delivejy ; otherwjfeof the fliop-boak itielf fingly, without more. Salk. 285. pi. 18. a td. Raym. 873. 6 Mod. 264. Frice v. the Ear) of Torrington.— So, in aninJibitihus oJJUtnjyJit on a taylor's bill, a iTiop- book was allowed for evidence, it being proved that the fervant who wrote the book was dead, and that this was his hand, and he atcuitomed to make the en- tries therein, a Salk. 690. Pitman and Madox, ruled by Holt, C. J. [I5ut wlien the plaintiff to prove delivery, produced a bock which belonged to his cooper, who was dead, but his name ftt to feveral article:, as winedelivered to the defendant, and a witnefs was ready topro^ehis hand-writing; Lord C.J, Raymond would not allow it, faying, it differed from Lord Torrington's cafe, betaufe. thtre, the wit- jjels faw the drayman fign the book every night. Clerk and Bedford, M. 5 G 2 Bull. N P. 28'..— Upon an iffue out of Chancery to try whether eight parcels of Hudfon's Bay rtock, bou^.ht in the name of Mr. Lake, were in trufl for Sir Stephen Evans, his affignees (the piainnfis) fticived, firft, that there v,?.s no entry in Mr. La\e's boiks relatmg to this tranl.sftion. Secondly, fix ot the receipts were in the hands of Sir Scephen Evans, and there was a refeience on the back of them by Jeretny Thomas (Sir Stephen's book-keeper) to the bock B. B. of Sir Stephen Evans. Thirdly, Jereniy Thomas waj proved to be dead, and upon this the qncHion was. Whether the book of Sir Stephen Evans referred to» in which was an entry of the payment of the money, fliould be re.id ? And the cou; t of K. B. at a trial at bar, admitted it not only as to the fix, but likewife as to the other two in tiie hands qf Sir Biby Lake, ;he fon of Mr, Lake.] t( Provided that this d.€t fhall not extend to any intercourfe of ** trafnc, merchandizing, buying, felling, or other trading or ** dealing for wares delivered, or to be delivered, money due, or *' work done, or to be done, between merchant aud merchant, •* merchant and tradefman, or between tradcfman and tradefman, * for any thing dire£tly falling within tht^ circuit or compafs of ** their viuiual trades and merchandize ; but that for fuch things *' only they and every of them fhall be in cafe as if this a£t had *' never been made ; any thing herein contained to the contrary *' thereof notwithftanding." Smartlev. (_Befides the cafe of fhop-keepers' books, there are other cafes Wiiiiarns, y/herc cutrics in private books or memorials are admitted in evi- £ull ^N IT 283. Comb, fience to afFetSl the rights of third perfons, upon proof that the 249. S. c. M'riter is dead, and that they are in his hand-writing. Any entry 1 Ld.Raym. ^nder fuch circuniilances is admifTible, when it is in reilraint, not V. Bcbbing- "1 advanccm.ent of the right of the party who made it ; as where ton, 4 Term the party charges himfelf by the entry witir the receipt of money, Stladv"^' ^^"^ ^^^^ entry in thig cafe derives its authority from the improba- Heaton, biiity that he would commit a falfehood to writing which muft Jd. 669. operate to his difadvantagc. An entry again is admifPible in thofe i-^-^^'inVhc ^^^*^^ where heai fay evidence of the writer's declarations refpecft- > MieofScarie iiig the fame fact would be received in evidence (a). And in the cafj cafe of ecclefiafllcal dues, it is every day's pra£^ice to admit entries v. Lord in the parfon's books as evidence for his fucceflbr ib). Barrington, the indorfement of the payment of intereft made under the hand of the obligee witliln the twenty years from the date ot the bond, was admitted as evidence in an aftion on the bond by the reprefentative Of the ebligee to repel the pvefumption arifing from length of time of its being fatisfied. a Vez. 43. — . («) Liil Fr. Reg. 552. Woodnoth v. Lord Cobham, Bunb. iSo. Glynv Bank of EngianJ, 2. Vez. 40. Outram v. Morewood, 5 Term Rep. 123. In a recent cafe in the Exchequer, the efFeft of this kind ot evidence was very aCientivcly confidered. The plaintift' cl.timed the lands in queftion as part of old jn- clofures demifed for ninety-nine years under a rent refeived to the lord of the manor, which term was alleged to be expired. In fupport of his title, he produced the rental of the family of fifty years date which ch.irgcd the lleward with tiie leceipt of fuch and fuch fums, and cxpiefl'ed that thirteen fliillings and fourpeiice had been annually received fjr thele premifcj by the name of inclofure on leafe. The de- fendants contended, that the rentals weie evidence only of the receipt of fo much money, but were not admilVible to prove in what right it was received, whether as a conventionary or a quit-rent. Anii it was urged, that if they were admitted to that extent, a fteward of a manor, by fuch infertions in his rentals, might convert ali the quit-rents in the manor into conventionary rents on terms for years, and might even exprefs when fuch terms would expire, and fo get all the freeholds into the pofTeflion of the lord. But the court, fix. Smythe, Chief Baron, Perrott, Eyre, and Burland, brrons, faid, fraud is not to be prefumed J and the rentals are admiirible not only to prove the receipt of the money, (which was agreed on all hands,) but alfo to /hew in what right i: was received. For otherwife the receipt of a grofs fum of money proves nothing j it muft be allowed to fhew, that it was in relpedt of certain lands, which is evidence of tenure j and therefore it may rtiew the particular kind of tenure. The rentals in tlie hands of executors are evidence to charge or difcharge them , which they could not do, unlefs they were allowed to fhew the particular right in whlcii the money was received. The fteward, if living, would be a competent witnefs : as he is dead, this is the next beft evid'^nce, and therefore admi/Tible. Harpur V. Brook, Tr. 14. G. 3. on a motion for a new trial. 3 Wooddes, 33a. (^) 2 Vcz.4", Bunb< 46. 1i A. be feifed of the manors of B. and C, and during his feifin Bridgman v. of both, he caufe a furvey to be taken of the manor of B.^ and J'^""«".S'> afterwards the manor of B. be conveyed to E., and after a long i,. ' '*''"" time there be difputes between the lords of the manor of B. and C, about their boundaries ; this old furvey may be given in evidence. Secus, if the two manors had not been in the hands of the fame perfon at the time the furvey was taken.] On a conteft in Chancery concerning a promife made by the Hoh. 21-. Lord Abigney^ to fettle lands on the Lord Clifton and his lady, who Lord Abig- was the daughter of the Lord Abigney ; the king's certificate under ^^H, c^jb.' his fign manual, fignifying the purport of the faid promife, was 199. s. p. held fufficient evidence of it. , ,„, but 2 Roil. Abr, 626. feems contrary. [With refpe6l to deeds, the general rule is, that where any per- fon claims by a deed in the pleadings, there, he ought to make a profert of it to the court ; and where he would prove any f«£l in > iilue by a deed, the deed itfelf mud be fliewn. The deed confills of three things : ift, Of fealing by the par- ties. 2dly, Of delivery to the party to whom tlie deed is made. 3dly, Of a right transferred, or obligation created. I ft. The feal was very ancient in the Roman and Grecian go- vernments, and from them it came to the northern nations, who anciently pafled all manner of right, by the a£tual tradition of the ^thing itfelf ; the feal followed from the invention of coins, and is a derivation from the fame convenience ; for as coins were in- vented as tickets, to facilitate the exchange of all manner of com- modities, fo when coin was wanting, or not ready for pavment, tickets were given by impretlion in wax, and thefe palfed inllead of 'the coin itfelf, and thefe impreflions were made with great diftinc- 13 tion. 638 Ctiitience* tion, for they contained the arms or fome notorious fymbol of the perfon contradling ; now when fuch diflinftions were taken up and found of ufe, they were at lafl required in the authenticating of all manner of written contrails, and from hence the law grew, that there could be no folemn contract without the dillindlion of the feal. 2dly, The delivery was always a folemn (ign ufed by the northern nations, in the transferring of right, and as they anciently delivered the thing itfelf, and by that delivery made the alienation ; fo, when contracts took the place of the things themfelves that ■were to be delivered, they annexed the folemniiy to the contrail, and the contrail was completed by the delivery, and from thence it became neceflary that a delivery fhould be made of all con- trails. 3dly, In every contrail there mufl be fome right transferred, or obligation created, and therefore there mud be apt words to ftiew what right was transferred, and to whom, to (hew what ob- ligation was created, and to whom: and the fcnfe and fignification of the words mull be expounded by the law, fince it is the province of the law to determine the forms and folemnities, and operation of all manner of contrails ; for the operation artd effeil of a con- trail cannot be determined but by the rules of law that are appoint- ed as the meafures of transferring right, and of creating obliga- tions ; and without fuch dated rules in every fociety, no man could be certain of any property, for then the fenfe of the con- trail mufl be at the mercy of the judge or jury, who might con- ftrue or refine upon it at pleafure. There mufl therefore be a profert made of all folemn contrails in any aclion founded on fuch contrails, -ift, For the fecurity of the fubjeil, that what right is tranf- ferred, or what obligation is created, may be judged of according to the rules of law. adly, Becaufe all allegations in a court of juflice, mufl fet forth the thing demanded : now the thing demanded cannot be fet forth without the inflrument (hewn, upon which the demand arifes, for fince the demand is by the inflrument, there can be no demand at all without fiiewing that from which it arifes. Co.Llt.az6. Therefore parties to a deed cannot found any claim without fhewing a deed to the court. Jbu. ^67. Nor can privies in eflate take any advantage of a deed without loCo. gi. fliewing it. Hid. 93. As, if there be tenant for life, remainder in fee, and there be a releafe to him in remainder, tenant for life cannot take advantage of it without fhewing the deed, for fince the right pafTed merely by the deed, to fay any perfon releafed without deed will not be . a good plea. 6 Co, 3S.a. "When a man fhews a title in himfelf, every thing collateral to that title fliall be intended whether it be fhewn or not, for though the law requires an exailnefs in the derivation of the title, yet ■when that title is fhewn, the law will prefume all collateral cir- cumilanges in favour of right j for when lawful conveyances, which are are made with care, and on confuleration, are brought forward, It would create too great nicety to require an exa£lnefs in the {hew- ing of every collateral xnatter, and would tend to the entangling of right with too many difBcuities, and therefore by the benignity of jullice, they {hall be intended : befides, a matter collateral to a title is what doth not enter into the e{lence or being of a title, but arifes aliunde j fo that there muft be a good derivation of your right without it. As, when a man declares of a grant or feoffment of a manor, the Co. Lit. 3x0, attornment fhall be intended ; for when a title is flaewn to the ^"^ ^''^• manor, attornment of the tenant which is collateral to that title, ^^An. c. iL fliall be intended till the contrary is {hewn on the other fide *. § 9. where- by all at- tornments of tenants are taken away. So in trefpafs, the defendant conveys the houfe in which, {5V. 6 Co. 38, by feoffment from J. S. and juflifies damage feafant ; the plain- ^'"'J^^- tiff" replies, that J. S. before the feoffment made a leafe to y. N. who alTigned to him ; the defendant rejoins, that the leaie was made on condition, that if J. N. affigned over without licence, by deed from jf. S.y that then J, S. fliould re-enter ; the plaintiff fur- rejoins, that y. S. did give licence by deed, without any profert of the deed, and yet this furrejoinder was good, becaufe the plain- tiff's title was by alfignment of the leafe from J. N.^ and, confe- quently, the licence from J. S. is but a matter collateral to the affignment, and, by confequcnce, the deed muft be intended to be well and legally made, though it be not fhewn to the court. But if the matter be collateral to the plaintiff's title, then there 6 Co. 3?^ is another difference, and that is where the deed is neceffary expro- vifioiie homhiis.y and where it is neceffary ex injiitutioiie legis ; for where the deed is neceffary ex injlltntione legisy there, you mull fhew it, for it is repugnant that the law fhould require a deed, and not put you to fliew that deed when it is made ; as if you are obliged to fhew the attornment of a corporation, there you muft fhew a deed, Inafmuch as corporeal bodies, by the rules of the law, can- not a6l but by corporeal inftruments ; for the body confifts in agreement and union, by creation of law, by patents or inftruments under feal, and there is no a£l of the aggregate body but in the fame manner, fo that there can be no attornment without a deed, and the law cannot allow the attornment of fuch a body without it; there- fore no attornment is fliewn, unlefs a deed is fliewn alfo. But when a deed is neceffary ex provifione hofnwis, there, when it Ibid. is collateral, as in cafe of the licence before mentioned, it need not be fliewn, for the private a£f: of the parties fhall not controul the judgment of the law, that intends all fuch collateral matters with- out {hewing. There is a difference to be taken between things that He in livery, and things that lie in grant ; for things that lie in livery may be pleaded without deed, but for a thing that lies in grant, re- gularly, a deed muft be fliewn. I ft. Of things in livery •, it is well known that livery was the ancient conveyance, which was a folcmu delivery of land in fight of 640 (Sbitience* of the inhabitants; andbecaufe this was done coram pnrihuf ciiriif) and the tenant ever after refided in the poffefhon, it was reckoned the moil notorious way of conveyance; and fince this was the ancient Gcthick way, and becaufe they reckoned it of itfelf moft manifeft, the folemnities of a deed were not neceiniry. s Roll. ■ And therefore a man may plead that J. S. infeoffed him with- ' out faying per indenti/ram, and yet give the indenture in evidence, becaufe the indenture is not the feoffment, but the feoffment is made by the livery, and by that only the party is invefled with the feud, and the indenture is only evidence of fuch feoffment. /&/. But if a man pleads, that J. S. hath infeoifed him per fait ^ whether a man may give a parol feoffment in evidence, hath been reafonably doubted, becaufe he has bound himfelf up to a feoff- ment by deed, and If the jury have only evidence of a parol feoff- ment, and yet find the iffue, the deed may be ufed by way of eflop- pel ever after, where in truth there was no fuch deed. a Rol?. So, a demife may be had without deed, as well as a feoffment^ Abr. 6Sz. £qj. 2^gj.g |.j^g party refides In the poffeffion, and therefore the old way of contradling governs in this cafe ; and fo a man may plead a demife without deed, and give the indenture in evidence, for the indenture may be ufed as an evidence of the contrail that would be good, whether there were any indenture or not ; but if the de- mife were laid by indenture, it feems that tliey could not give a parol demife in evidence. C0.LIt.352. Livery alfo is an efloppel, and is by Cole called a^n ejloppel in pais, becaufe it is a fa6t a man cannot impeach or deny, and this is from the notoriety of the ceremony ; for when folemnities are fettled for transferring a poffeffion, they ought to be held as facred by the law ; and therefore a man is concluded from deftroying tliac of which he himlelf is the author, or from impeaching that which is held as facred to transfer all poffeflions. iJi^. 225. Therefore, if the defendant pleads the livery and felfin of the Lit. §365. plaintiff, the plaintiff cannot reply that the livery was conditional, without (hewing the deed, inafmuch as the plaintiff is eflopped to defeat his own livery by a naked averment and parol evidence only. C<».Lit.2a6. But the jury are not eflopped on the general iffue, from finding Lit. § 366. {^q\^ a conditional feoffment, for the jury are men of the neigh- bourhood that are fuppofed to be prefeat at the folernnity, and they are fworn ad veritatem dicenda?:!, and therefore they cannot be eftopped from finding the truth of the matter, and, by confequence, may exhibit the condition on the feoffment. But fince the ufe of the folemnities before the men of the country had ceafed, by allowing fecret liveries only In the pre- fence of two witneffes, therefore the ftatute of frauds ?.nd perju- ries hath enafted, that no leafes, eftates, or interefts ■*5f fr'.'ehcld, or for a term of years, or uncertain intereft (not being copyhold) fiiall be affigned, granted, or furrendered, unlefs it be by' deed or note in writing, under tiie hand of the party or his ;; jt'nr there- unto lawfully authorized in writing, or by a£l and of Buck's cafe, law, fo that by this ftatute the ceremony of livery ferilv i^ 1 ' ■ -f- Trin. 1701.. * \^ ' :.\i.X nclent to pafs eftates of freehold or terms for years ; but it is not ■'lecelTary to fet fortli fucli contract on the pleadings, for they are, as they were iorrn«tr\y,/tc^avit ct demij'.t. A man may plead a condition to determine an eftate for years, Co.T.it.^ie, without deed •, for this begins without any livery, and therefore ^'^- h 3'*5' the party is not eftopped by any not;orious ceremony from averring the condition. But where a man fets out a feoffment, the other party may- reply, that it was by deed, and llicw the condition, for then there is an cftoppcl ; and fo the matter is in equal balance, and therefore muft be determined according to truth. 2dly, Of things lying in grant, — and thefe are all rights, as fairs> markets, advowfons, and rights to lands, where the owner is out of pofreflion ; and thefe being rights, they cannot pofTibly pafs by invefliture of the pofleflion, becaufe they cannot poflibly be de- livered over, or poflefled, and therefore they muft pafs by the next fort of grants that holds the fecond place, in point of folemnityj and that is by grant under the hand and feal of the party. Now a perfon that claims any thing lying in grant, mud fliew his deed from the party that had the original grant, or otherwife he muRprefcribe in the thing he pretends to,and the prefcription being immemorial and fuppofing a grant, fupplies the place of the grant. He alfo that has a particular eftate, by the agreement of the 10 Co. 9$. parties, muft (hew not only his own conveyance, but the deeds paramount, for there can be no title made to a thing in agree- ment, but by fhewing fuch agreement, and the particular tenant ought to covenant to have the power of the deeds, inafmuch as he has no title, unlefs he can derive the eftate that arifes in agree- ment, up to the firft original grant. But where any perfon claims any eftate, by particular aft in law, 10 Co. 93, there, he may make his claim without iliewing the deeds j as 94* tenant in dower, or by elegit, or the guardian in chivalry, may claim an eftate in a thing lying in grant without the deedj for when the law creates an eftate, and yet doth not give the parti- cular tenant the property of the deeds, it muft be allowed that the eftate be defended without them, otherwife the creation of the eftate were altogether in vain. So, they may plead a condition without fliewing the deeds, Co.L!:.22j. becaufe they claim an eftate by the a6l of the lav/, and therefore are not eftopped by the livery ; fo that they may claim an eftate defeated by the condition without a deed : alfo, they are not fun- pofed to have the deeds and muniments of the eftate, and there- fore for the reafon formerly given, may do it without deed. Nate; 10 Co. 94. does not warrant this diftinclion, between tenant in dower, and tenant by the curtefy generally, but only in the cafe of a releafe made to the wife. But tenant by the curtefy camiot claim an eftate lying in grant, 10 Co. 04. ■without deed, becaufe he has the property in and cuftody of the ^°l]''^' deeds, in right of his wife, and that property cannot be devefted out of him, during the continuance of his eftate. Vot, IL T t 2o 642 <:B'Dit)ence, 10 Co. 94.. So alfo he cannot defeat art eftate of freehold without fliewing Co. Lit. ^}^g deed, nor can the lord by efcheat do it without (hewing the ^* * '* deed ; for the a6l of livery is an eftoppel that runs with the land, and bars all perfons to claim it, by virtue of any condition without the condition appears in a deed, for the notoriety and folemnity of the a(St is that which makes it obligatory to all perfons, fo that they cannot impeach it, without (hewing a precedent title, for that livery cannot be defeated, but by (hewing fomething equally notorious ; and fmce in both thefe cafes the cuftody of the deeds refides with them, they mult (hew the condition. C0.Lit.z67. So that the general rule is, where any perfon ought to have the J0C0.94. b. cuftody of the deeds, there, where fuch perfon is compelled to fhew his title, he ought to make a profert of thofe deeds to the court, for every man ought to have his deeds, and cannot take advantage of his own negligence in lofing them ; therefore in the cafe formerly put, of tenant for life, the remainder in fee, and a releafe is made to him in remainder, in fuch cafe tenant for l?fe ought to make a profert of the deed, for in this cafe they have both parts of the fame feud, and therefore tenant for life is fuppofed to be equally entitled to the deeds as he in re- mainder. C0.Lit.226. But where a perfon is an utter (tranger to any deed, there, in Styi. Rcgr. pleading, he is not compelled to (hew it ; for where he is not fup- *°^* pofed by the law to have the cuftody of the deeds, he cannot be compelled in pleading to fhew fuch deeds to the court, for that were to compel the party to impoffibilities. Co. Lit. As, if a man mortgageth his land, and the mortgagee leafeth 126. a. fj^g jg^fi fpj. years, refcrving a rent, and then the condition is performed, the mortgagor re-enters •, the lellce in bar of an a£tiou of debt (liall plead tiie condition and re-entry, without (liewing the deed^ for the lelTce was never, nor could be, entitled to the cuftody of the deed, and therefore it wers altogther unjuft to com- pel him to produce it. C0.Lit.226. So, if a man bring z pracipe againft y/., he (hall plead that he was only a mortgagee, and that the mortgage was performed, fo that he hath no longer feifin of the eftate, and this without (hew- ing the deed ; for upon performance of the condition, the pro- perty of the deed was no longer In the mortgagee, but it ought to be re -bailed to the mortgagor, and having no longer any title to the deed, he may plead the condition, without (hewing it. 10 Co. 94. So, in an a£lion of wafte, or in difcharge of the arrears of Tent, the tenant pleads a grant of the reverfion and attornment, after fuch wafte committed, or fuch arrear due, the tenant cannot (hew the grant, cnufa qua fupra. 5Co.74.b. A deed enrolled muft be olTered to the court in pleading, though the deed be enrolled in the fame court in which the plea is depending, for this is no record but a deed recorded ; for a re- cord muft be tlie a£t of the court, and therefore the decifions of juilice by the court, that lie as precedents for future obfervation, are the record of the court, and letters patent, which are the king's €tJi'tJcnce* 643 king's aftS) are the higheft fort of records ; but a deed enrolled is only a private acl of the party authenticated in court ; and from thence this difference is drawn, that letters patent enrolled in the fame court, or records of the fame court, need not be profered to the court, but a deed enrolled niuft ; for all records that are publick a6ts, and that lie for the diredlion of the court, in mat- ters of judicature, muft be taken notice of, and therefore they need but refer to it v/ith a prout patet per recordmny for the court will take notice of the courfe and orders of court, upon reference to them ; but deeds are no more than the private acl of the par- ties authenticated by the court, and they do not lie for the direc- tion of the court, but take hold of the authority of it to give them credit ; and therefore the court doth not take notice of them, unlefs they be pleaded; But the letters patent of another court the 10 Co. 94* court doth not take notice of, unlefs they be offered, for fince they ^'"' S^°* are none of the records that are direded to this court of juftice, it is not the office of the court to take notice of them, and therefore it is their duty to offer them as they do all other allegations. To a deed acknowledged in court, a man cannot plead non eji fa6lum^ for being done in the court, the truth of the fa£l is fo far to be credited, that he fliall never deny the deed, but he may avoid the operation of the deed by pleading re'ms pnjfa par le fuity for that doth not impeach the credit of the court, in which it was acknowledged. Since the term, to avoid the entering up the feveral continuances 5 Co. 74, of bufmefs, is reckoned as one continued law day, therefore deeds 75- pleaded (hall be in the cuftody of the law during the whole term,this being confidered as the day wherein they are pleaded; and being then before the court, :iny body may take advantage of them. But fince they belong to the cuftody of the party, if the deed be not denied, it fhall go back to the party, after the term is over, and then no- body can take advantage of it, without a new profert ; for then it is not before the court ; and therefore the plaintiff in the King's Bench may take the advantage of a condition in a deed in his re- plication, becaufe it is et pradtclus A. dicit, as of the fame term ; but he cannot take advantage in a repUcation of a deed in the Common Pleas, becaufe they enter an imparlance to another term : but where the deed comes in, and is denied, it remains in court for ever, becaufe that is the only point in debate on which the decifion of the court is founded, and therefore like all other dccifions, it muft remain among the other records of the court ; and becaufe it is tied up to this court, and is impof- fible to be removed, it (hall be pleaded in another court without fhewing. As no party fhall take advantage of his own negligence, in not Co.Lit.2|6. keeping his deeds, which in all cafes ought to be fairly pro- j^^j'" ^' duced to the court ; fo his adverfary (hall not take any advantage in his violent detaining of them ; for the one by a violent taking away of the deeds gives a juft excufe to the other for not having them at command, and no man can ever make any advantage of his own injury j and therefore it is a good plea for one party to T t 2 fay. 644 €t)it!cnce» fay, that the other entered and took away the cheft wherein thtf deeds were. Cn.Jic, 3z- In an action of debt upon a bond, it is matter of fubftance to make a profert of the deed, becaufe this is the contract on which the court ought to found their judgment, and therefore it ought to be exhibited to the court, a Saund, It is not matter of fubftance to fliew letters of adminiftratidr^ t^K i fi ^"°^ whether they are legally granted or not belongs to the fpi- zS:ri'ti6i. ritual courts, who are governed by the rules of the civil law, and therefore their legality cannot be weighed at common law, fiuce it has di3erent meafures of judicature. Evidence of Deeds. icCo. 52. Secondly, of giving deeds in evidence to the jury— and here ^- 93* the general rule is, that where any thing is to be proved, the deed itfelf muft be given in evidence, and not the copy of it j and the deed muft regularly be proved by one witnefs at leaft. RrKH.i7i&. This is now to be underftood where the deed is of a late date, indveExck f^j- [( j-j^g deed be of thirty years Handing, w^hich now makes an fjT jriaK, ^j^^jgj^j. dggjj^ and the perfon to whom the deed was made, or thofc deriving under him, have been in polTeftion under the deed, fuch ancient deed ftiall be read, without proof, though the witnefs to it be alive ; and this the Lord Chief Baron Gilbert declared to be the rule of evidence at ///// prhis : and if the perfon to whom the deed was made hath been in poUeflion of the lands contained in the deed, fuch poiTeflion ftiall be prefumed to be under the ancient deed, unlefs the contrary be proved. Firft, the deed ought to be given in evidence, and not the copy only, for though in records the copy was admitted in evi- dence, yet the law will not regularly allow it in private deeds, for they are not within the fame reafon as copies of records, for a record is fixed in a certain place, and therefore the original can- not be had, and, by confequence, the copy is the beft evidence. But deeds are only private evidences, and not fixed or confined to a certain place, but are lodged in tiie cuftody of the party, and not of the law, and therefore they muft be produced in evidence ; for the law requires the beft evidence that the nature of the thing is capable of, and the deed is much better evidence than the copy of it ; for the rafure and intrriineatiou that might vacate the deed, might appear in the deed itlelf, and the very oft'ering a copy carries a prefumption, as if the original were defective, and therefore the copy is not to be admitted : befides, fince the deeds are in the cuftody of the party, the deeds themfelves mud be produced, for a man cannot make his own fault in lofuig the deeds, any part o^Jiis excufe. But there are fome Exceptions out of this General Rule. icCo.92. I ft, And that is where they prove the deeds themfelves to bf \w/.V94- ^^''^"^'^^ ^^^^ ^"^^» ^^^ ^^^s proof of this matter will excufe the 1;^. 266. deed from being produced to the jury : but notwithftanding a pro- I,. £,99. pL fert is necelTary to the couri, for there is that conveniency In ^"^ keeping OHtjiDcnce, 645 keeping to known rules, that they cannot be broken, tJiocgh they it f-^h beta tend to the mifchief of particular perfons j and there cannot be a ^^'^yf^^- more convenient rule, than that the caufe of every complaint ought ^^l^tzcf to be fhewed to the court, but the jury muft go according to the K. B. tiiat evidence of the fad. f ^^ "^ be jJcitled as Jofi and dcftroyed by time and accident withoot 3 profert. Read v. Brootraan, 3 Term Rep. 551. Now to prove the import of the deed, that it was in fuch an houfe, and that the houfe was burned, is the beft evidence that can be had of fuch deed, and gives reafonable grounds for tlie jury to find it. 2dly, A copy of a deed is good evidence, where the deed is in Moi.z^ . the defendant's hands, and he will not produce it •, for when the original is in tlie defendant's hands, the copy is the bell evidence j for the prefumption that oppofes the copy is, becaufe the. original deed is, or ought to be, in the party's hands that would produce the copy •, now that prefumption is deftroyed where the plaintiff proves the deed itfelf to be in the hands of the defendant^ for then it cannot be prefumed, that there was any better evidence, or that there was any interlineation that obliged the plaintiff to cover it, for if the copy were not perfect and exact, it v/ould be overthrown by the defendant's producing the original. A copy of an agreement between the abbot of ^«ar»vr and the Bacb. jji. monks of Lyra was produced in evidence •, to which it was ob- jecled, that it could not be read, being neither a record, nor a publick inllrument. But a copy of the Oxford flatiite (a-) v/as ei- (s) T(.>l3 hibited, forbidding any lx)ok to be taken out of the Bodiiian Li- -'•»t^*«^> i^- brary : and then the court allowed the copy of this, agreement, Aj^T hsts though they confidered it as not within the general rules of evi- been prcv»i cence, but received it on tlie very particular circumftances of tliis ^f ' ^'^'^'"•^ cafe. "'^^* But the copy of a deed muft be proved by a witnefs that com- SeeMed.4. pared it with the orignal, for there is no proof of the truth of ^"h *'** th.e copy, or that it hath any relation to the deed, unlefs there he ^Kek -t. iomebody to prove its comparifon with the original. 54-6. jK^Ss. 5 Mod. 211. 3S6. 6 Mod.225. 24S. ] Q Co. <>2. b. ^3. 2 Vara. 4.71. 591. 603. £(j. AbJ. liS- Srra. 401. 526. Sec L. E. 104. pi. 51. Where the eliecl or contents of a deed are proved, and where Viugh. -. the deed is afterwards given in evidence, and they difagree, there, the deed itfelf fliall control the other evidence. So it is, where the jury on a fpecial verdict colledt the contents of a deed, and yet aftei'wards find the deed i/i hifc verba, the court, there, is not to regard the collection thi^y have made of the fubftance of the i\ee^\y but the deed itfejf, for that collection derives its authority from the deed, and therefore muft of itfelf fail and come to nothing, when It is oppofite to the deed of which it is a collection. 3dly, Where the ponelhon has gone along with any deed for many years, there, a very old copy of the deed may be given in evidence, with proof alio that the original is loft \ and that is according to the rule of the civil law, Si vetuftate tetnporis et judiciarid cogmiioue T t 3 M 646 (2Bt3iDcnce. fint rolorata, for pofleflTion could not be fuppofed to go along in the fame manner, unlefs there had been originally fuch a deed, and fo executed as the copy mentions, and the copy cannot be fuppofed to be only offered in evidence, to avoid fight of the ori- ginal, fince it is fo ancient, that the antiquity alone prevents all fufpicion of its being counterfeit, and the antiquity is known from the ancientnefs of the poffeirion. But, ^t. Whether fuch a copy (hall be required without the proof of its being a true copy, by comparifon with the deed itfelf ? 5 Co. 54. 4thly, The infpes, a fuf- roiled have ilClCnt attcltation. frequently in trials at Jsl'iji Priui been given in evidence witliout b-^ing proved : yet the law may well be doubted. In fupport of the practice, the cafe of Sniartle and Williams in Salk. 280. is much relied on j but that cafe is vviong reported ; for it appears by 3 Lev. 387. that the acknov.ledgmef.t was by the bar- gainor, and fo it is ftated in Saik. MSS. Befides, it appears from both the books that it was only '^ "'^5 read againft him without being proved. Bull. N.P.256. Style, 445. But the iiifpex'wius on an ancient deed may be given in evi- dence, though the deeds need no enrolment ; for an ancient deed may be eafily fuppofed to be worn out or loft, and the offering the iufpeximus in evidence induces no fufpicion that the deed is doubtful, for it hath a fan6lion from antiquity, and if it had been ill executed, it muft be fuppofed to be detedled when it was new- ly made. 5thly, The recital of one deed in another is no evidence of the deed recited, though the deed containing the recital be well proved, becaufe there ftill wants an atteftation of the firft deed i but if the perfon objedling to the evidence of the recited deed, claims under the perfon who executed the deed that recites the former deed, the reciting deed is evidence againft him of the reality of the recited deed, becaufe he that claims under me {lands in my place, and therefore what is evidence againft me, muft be evidence againft him. Thus (ZBtJiDcnce, 647 Thus in the cafe of F'Uz-Gcrald and Eujiace ; Euface the plain- Mich 1718. tifF claimed in equity a debt on the defendant's eltate, by virtue *'»'^«:E*- of a power referved in the grandfather's fettlem?nt on the de- ciib^rt'^'' fendant's father, to charge the eftate for payment of debts and Chiet Ba- younger children's portions ; there, defendant objcfled that there ^'^^' were not proper parties, becaufe the grandfather had made a mortgage, purfuant to that power, to one Cox who was not party to the bill, and did not produce the original mortgage, but only an affignment thereof to Wybrants^ to which the grandfather was party •, yet the court allowed it to be evidence of the original mortgage, becaufe the plaintiffs claimed under the grandfather who was party to the aflignmcnt. And in the following cafe, the recital of a bond in a deed exe- Marchloncfs cuted by the fame party who was the obligor in the bond, was al- of Annan- lowed to be fufficient evidence of the bond. A. gave a bond to jfs'a p/" B. for payment of 2coo/. within a year after his death, he having Wins.432. feduced her and had a child by her, and afterwards A. by deed- poll reciting that he had given fuch bond, agreed the 2000/. ilaould be laid out in an annuity for the ufe of B. and the child for their lives. A. died. B. fued the adminirtratrix on the bond, but there being only one witnefs to it, aiid (though his hand- writing was proved, yet) he fwearing that he did not fee the bond fealed and delivered, B. was nonfuited, upon which fhe brought her bill to be paid out of the aflets. Lord Chan. King held, that the recital in the deed that A. had given fuch a bond was fufh- cient evidence of there having been fuch, that it was a confeflion by the obligor himfelf, and ftronger than a verbal confefhon, being under his hand and feal \ and his lordfhip d;;creed accordingly. 2dly, As to the fecond part of the rule, the deed muft be proved to the jury by one witnefs at leaft, for though the deed be produced under hand and feal, and the hand of the party that executes the deed be proved, yet this is no full proof of the deed, for the delivery is neceffary to the efTence of the deed, and the deed takes effect from the delivery, fo that unlefs the delivery be proved, there is no perfedl proof of the deed, and there is no proof of the delivery but by a witnefs who faw the delivery. But to this Rule there are feveral Exceptions. Firft, if the deed be [a) forty years old, that deed may be given Trin. Aflr. in evidence, without any proof of the execution of it, for the '" '^^"^ . witneffes cannot be fuppofed to live above forty years, and forty pe°pais "* years is proof fufficient of a prefcription ; for the age of a man 339. 346. is no more than fixty years, and a man is fuppofed to be twenty ^•^* ^°^* years before he is of age fufficient to undcrltand the nature of sid^^^S. right and wrong, and the general forms of contracling ; fo that Co. Lit. after forty years, the witnefs muft be fuppofed to be dead, and ^" ^' therefore hnce no perfon living can be fuppofed to be coeval with 2K.eb.8;6. fuch deeds, therefore they may be offered in evidence without Skin. 23a. proof. * '^'''*V;°- 323. 3Salk. 154.. See Lev. 25. {a) Now reduced to thirty years. An ancient writing likewife (not being a deed) proved to have been found amongft deeds and muniments of an eltate, may be given in tvidenc:) although the due making of it cannot be afcercai.icJ 3 for it 'u ditficuU to develop ancient T t 4 faftsr 648 aBtoiUence* fd(\s, and finding thefe inrtruments and memorials in fuch a place, affords a prcfumption, that they were f'airiy obtained, and pieferved for ufc. Tr. per Pais, 370. But an admittance into a tenement, l)cJden of a manor, purporting to be under the fteward's hand, (hough above forty years old, was rejected in evidence, becaufetbey could not prove the Reward's hand. Fort. 43, Aff. 1702. fer Haflct. Trin. Afl*. 1700, in Kpnt. Chntle and Pound, Hill. Afl". 1701, in Kent. Roll. Rep. 3-92, 227. Tri. per Fais, 20g. Cro. Jac. PL' Com. ^>7- Roll. Rep. 132. Tri. per Pais, 339- But it has been ruled, that if a deed be forty years old, and poflelfion have not gone along with the deed, they ought to give fome account of the dcedy becaufe the prefumption fails that was eftablilhed in behalf of fuch deeds, where there is no pofTeflion, for it is no more than old parchment, if they give no account of its execution. But if there be any blemifli in the deed, by rafure or interlinea- tion, then the deed ought to be proved, though it be forty years old : if the witnefles be living, they ought to prove it by the witnefTes, but if the witnefles be dead, they ought to prove the hands of the witnefles, for though there mull be (as is faid) a prefumption in favour of the deed when it was worn out of the memory of the witnefles, yet that prefumption is encouiuered by another prefumption from the blemlflies of the deed itfelf, and therefore the credit of the deed ought to be reftored by the proof of the execution of it. So that if the deed imports a fraud, as where a man conveys a reverfion to one, and afterwards conveys it to another, and the fecond purchafer proves his title, there, the lirll deed niufl; be proved, though forty years old ; for the prefumption from the an- tiquity of the deed is dellroyed by an oppofitc prcfumption, for no man fliall be fuppofed to be guilty of fo manifeft a fraud, and therefore here alfo the credit of the firft deed muft be reftored, by proving a fair execution of it. If a deed of feoftment be proved, and the poflleflion have gone along with the deed, there, the livery fhall be pixfumed, though it be not proved j for when there has been pofl'eflion in the manner that the deed fets forth, it founds a very ftrong prefumption, that the pofl'eflion was delivered in the manner that the deed fcts forth; for that there fhould be a contradV, to transfer poflelTion, and that pofleflfion fliould go according to that contra6t, arc fuch concur- ring circumftances as cannot be accounted for, unlcfs the poflcllion was transferred according to the contrail, and, confequeutly, tlie livery and feifln mull be fuppofed by the jury. But if poireflTion have not gone along with the deed, then the livery muft be proved upon the feoffment; for fince the livery is to give the pofleflion on the deed, where no pofl'eflion is, the pre- fumption is, that there was no livery, and, confequeutly, the livery muft be proved to encounter that prefumption. But if the jury find the deed of feofi^ment, and that the poflel- fion hath gone along with the deed, yet the judges upon fuch finding, cannot adjudge it a good conveyance, for the jury are judges of the fadl, and what is probable, and what is improbable ; the court is only judge of what is law, and have nothing to do with any probabilities of fa6l ; therefore it is the jury only that are to make the conclufions and dedu£tlons as to the truth of the fact j the court cannot make any conclufions or dedu6lions of the trutl^ <2BftiDence» 649 truth of fa£ls, if they are not drawn by neceflary confequence out of the words of the verdi6t •, for to the court the rule is De non apparenUhus et non exijlcutibus eadem ejl ratioy therefore they cannot conclude that there was a lawful conveyance, unlefs the jury find the delivery of the deed. A deed of feoffment may be given in evidence as a releafe, for TrI. per where the party is in poffeffion already, the deed only will be a *''*'^> ^°9' fufficient contrail to transfer a right. Secondly, A deed may be given in evidence, on a rule of court 2 Sid. 269. without proving fuch deed, for if the party confent, that Ihall be T']- P^^ looked upon as a good deed, and that rule is evidence of the validity ' * * of fuch deed, for the confent of parties concerned muft be fuffi- cient and concluding evidence of the truth of fuch fadt, for the jury are only to try the truth of fuch facls wherein the parties differ. A deed which comes out of the hands of the oppofite party Rox v. after notice to produce it, muft prima facie be taken to be duly '"■'^J*!''^"!!'^^ executed, and will be received in evidence without proof of the ^^y^ aTertn execution ; for the other party not knowing who are the fubfcrib- Rep. 41. ing witneffes, cannot come prepared at the trial to prove the cxe- ^"^^^'^^ cution. cited. As to Razure, Interlineation, and Addition. Formerly, if there were any razure or Interlineation, the judges 10 Co. 92. determined upon the profert of the deed and view of it, whether the deed was good or not ; for the very contrivance of the folemii contracls, fuch as deeds are, and their preference to verbal con- tracts, was founded on this, that the intent of the parties is there manifeftly fettled in exprefs words, and notorioufly authenticated, and, there, fuch contra6ls are totally referred to the court, if the tfuth of the folemnities, viz. of the feal, and of the delivery, be admitted, and therefore muft be diffolved by a contratSt of equal folemnity, bccaufe how they are deftroyed and avoided, muft ap- pear to the fame judges that are by the law to determine of them : From hence alfo it came to pafs, that if a deed was razed or in- terlined, they adjudged it a void deed, becaufe it did not certainly appear to the court, who were the judges of thofe folemn con- tracts, whether the mind of the party was contained in fuch a mangled contrail or not. But as tlic manner of conveyancing fwelled from the fliort little Ibid, deeds to large and voluminous ones, fo vaft room was left to the mifprifions of the clerks, that muft be altered and amended, or with greater labour and expence of time written over again ; from thence the court thought it neceffary not to difcharge the deeds razed or interlined as void, upon the demurrer ; but they referred to the jury upon the iffue of non ej} faBum^ whether this deed, thus razed and interlined, was the individual contratl delivered by the parties. If a deed be altered by a ftranger without the confent of the ' ' Co. 27. obligee, in a point not material, this doth not avoid the deed ; but Other wife it is, if it be altered by a ftranger in a point material, for 650 II Co.Z7- iiCo.zS.b. a Roll. Abr. 29. [a) Siuere, whether that be not afterwards vacated by an interli- neatioil ? Roll. Rep. 39, 40. 2 Roll. Abr. 29. Roll Rep. 39, 40. Vent. 185. JbiJ. 2 Lev. 35. 2 Keb. 272. S87. Moor, 547. 619. Cio. Eliz. 6 for the wltnefiejj cannot prove it to be the aft of the party that fealed and delivered it when there is any material difference from the fenfe of the contract ; but if the contract contain the fenfe of the parties, the witnefles may well fwear it to be their a6l, for an immaterial alteration doth not change the deed, and, confe- quently, the witnefles may atteft that very deed without danger of perjury. But if the deed be altered by the party himfelf, though in a point not material, yet it will avoid the deed ; for when the party himfelf makes any alteration in his own deed, it dlfcharges the contract, for the contra6t hath the whole form from the words of the obligor ; now when the obligee undertakes to fupply it with new words, and to alter thofe the party hath fixed upon, this is, according to the rules of law, which takes every man's own acl mod ftrongly -againft himfelf, a new making and a new framing of the contradt, and for a man to contrail with himfelf is utterly void and inefFe£lual. Another reafon of this interpretation of law might be, to add a fanflion to deeds, that perfons, who had them in their cuf- tody, might not alter them for fear of deftroying their own fecurities. If there be feveral covenants in the deed, and one of them be altered, this deftroys the whole deed, for the deed is but a com- plication of all the covenants, fo that the deed, which is the whole, cannot be the fame, unlefs every covenant of which it confifts be the fame alfo. All interefts that pafs without deed, would pafs, though the deed was afterwards interlined or altered [a) : yet the intereft once vefted did not thereby return back again, fince the deed is not ab- folutely neceffary to the paffing of the intereft, but is only evi- dence that it was pafTed. But by the ftatute, it is neceflary to {hew a writing under the hands of the parties. If there be blanks left in an obligation in places material, and filled up afterwards by the affent of the parties, yet the obliga- tion is void j for where there is a material part of the contraft added jtfter the fealing and delivery, it is not the fame contract that was fealed and delivered : But if there be a blank left in an cblitTUtion, and filled up afterwards with fomething immaterial, this doth not avoid the contract. As, if a bond was made to C. with a blank left for Chriftian names and addition, which is afterwards filled up by the aflent of the parties, yet this is a void bond. But if any immaterial part of the contract be added after feal- ing and delivery, yet it is in effect the fame contract, and there- fore it fhall not be avoided by thefe additions. As if A. with a blank left after his name, be bound to B. and after C. be added as a joint obligor, yet this does not avoid the bond, becaufe this does not alter the contra£t of A. for he was bound to pay the whole money without fuch addition. -7' Where Where a thing lies in livery, a deed formerly fealed, may be Ps'm. 433. given in evidence relating to it, though the feal be afterwards ^^^'^- "• torn off, for the interefl pafled by the a£l: of livery that inverts ^ Kcb^tle. the party with the poflefiion, and the poflefTion that was once 2 Lev. 22c. transferred by the livery doth not return back again, though the ^Show. zS. deed was cancelled, and the deed is only an evidence of transfer- the ftatu-e* ring pofleflion, for by the acl of livery the poffeflion pafles, and cf fraud:. the deed without the feal (the livery being indorfed) is an evidence of fuch poflelTion : fo, if the conveyance was made by leafe and releafc, the ufes were once executed by the (tatute, and do not return back again by cancelling the deed. But, if a m.m fliews a title to a thing lying in grant, there he -Buift 79. fails, if the feal be torn off from his deed ; for a man cannot fhew Ro"-Rep» a title to a thing lying in folemn agreement, but by folemn agree- ' ' ment, and there can be no folemn agreement without a feal ; fo that pofieffion alone is no good title, fmce the thing itfelf doth not lie in pofTcfTion but in agreement ; therefore a man cannot claim a title to a water-courfe, but by deed and under feal. Where a contradi; creates an obligation, it cannot be pleaded, if /*;/. •39,43. the feal be taken off, for the feal is the effential part of the deed, ^ Buhl. 24.6* and without a feal it is no longer a deed, nor to be pleaded, nor *j 2,'^^' given in evidence as a deed, unlefs in the cafe above mentioned, where the interefl vefls, though the deed hath no continuance: bwt where the deed is neceffary to be fhewn, in order to acquire the intereft, there, it mufl have the effentials of a deed, v/hen it is (hewn as fuch. If an obligation were fealed when pleaded, and after iffue Owen, S. joined, the feal be torn off, yet fhall the plaintiff recover his ^'°- £''*• debt, becaufe the deed when profered to the court was in the '0° t ' r c v^o. Z IQ. o. cuftody of the law, and therefore the law ought to defend it : be- 2 EuUt.T^-j. fides, the truth of the plea, which is to be proved, mult have re- ^^y'^'^- 59- lation to the time when the iffue was taken, and at the time of co.^Lit*.^* the iffue it had the effentials of a good deed, and therefore that 2? 3. a. is fufficient to maintain the iffue. , „ P*"^ ''^*'^''*- 102. Roll. Rep. 39, 4.0. 2 Roll. Abr. 29. Alfo, if the feal of a deed be broken off in court, it fhall there 2 laft. 676. be enrolled for the benelit of the parties, becaufe where anv thing is impaired under the cuftody of the law, it fhall be rcftored by the benignity of the law as far as poffible. If there be a joint contract or obligation, and one of the obli- Ncy, 112. gor's feals be torn off, it deftroys the obligation, becaufe they 2 Roil. Rep. are both bound as one perfon, and if one be difcharged, the 3o- so- other cannot (land obliged, becaufe they both make up but one cro° Eli?.' obligor. 546' Do£l. Placic 260. 262, 263. Foph. i6i. But if two perfons be bound feverally, there, if the feal of one 5 Co. 23. a. of the obligors be broken off, yet the obligation continues in the '-"•El'*- other, becaufe there are feveral contractors, and feveral contracts, Rtii. Re». and therefore by dellroying the obligation of one of them, the 40. 2 Roll. obligation of the other is not taken away. ^<^P 3°- ° ' 149. Cro. Eriz.4c8. 546.576. iiCo.sS.b. Do^. Phcit, 160. 262, 263. But 6j2 OEDitience* March, 125. But If two men arc bound jointly and feverally, and the 3 Show. ap. fgjjj Qf Qj^g of jj^gj^ -g fQjj^ Q^^ jj^-g jg ^ difcharge of the other, for the manner of the obUgation is difcharged by the acl of the obligee, and therefore that is (according to the rule of law, that conltrues every man's own ail moft llrongly againft himfelf ) a difcharge of the obligation itfelf : befides, fince both are jointly bound as one perfon, the difcharge of one of them is a dif- charge of both; a fatisfa£lion is fuppofed by the very cancelling of it to be given for the whole debt, and no obligation can reft vpon the other.] (G) Whether Parol Evidence is to be admitted to explain what appears on the Face of a Deed or Will. 5 Co, 6S. tT feems to have been agreed as a general rule, even before (a) ^•J*' _ ^ the ftatute of frauds and perjuries, that no parol evidence could Keiiw.49. be admitted to control what appeared on the face of (^) a deed ov (i) For this will, not Only from the danger of perjury, but from a (r) prefump- Agreements. *"^°"» *^^^ whatever tlie parties at that time had in contemplation, (b) As to ' was all reduced into writing. lecords it feems a geneval rule, that nothing cau be adin'ttej, tliougii Uvorn by wjtnefTes of the hek n-edit, that contraditis them ; lor being things oi tlie greateft credit, they can only be qucftioncd by matters of equal notoriety with thsmfelves. Roll. Abr. 757. (c) T/d'dVern. 369. s Vern. gg. But this rule has received a relaxation, efpecially in tlie courts of T37» 625. equity, whei-e a diflin£lion has been taken between evidence, that may be offered to a jury, and evidence to inform the confcience of the court, viz. that in the firfl: cafe no fuch evidence fiiould be ad- mitted, becaufe the jury might be inveigled thereby ; but that in the fecond it could do no hurt, becaufe the court were judges of the whole matter, and could diflinguifti what weight and ilrefs ought to be laid on fuch evidence. 5 Co. 68. Alfo, to afcertain a fa£t, parol evidence hath been admitted to LordChey- explain the intent of the teltator : as where the tellator had two f [J) Here, fc>ns both named Ji>/-/7, and he devifed lands to his fon Joh/i [d), here "There is a parol evidence was admitted, to (liew M'hich of his fons he meant ; h\"!!\iT-' ^"'^ ^^ being proved, that one of his fons of that name had been the word's abfcut feverai years beyond fea, and that the teftator apprehended tbemfeives that he was dead, the devife was held good, and that the other do'not fm- ^ici^^fl take ; for without fuch evidence the will muft be void. port an ambiguity ; but the ambiguity arifeth from fomsthing ddors, feme collateral matter out of the inftruraent itlelt. And as fuch ambiguity is made to appear b> parol evidence, parol evidence muft be admitted to explain It, as well as to raife it. See Bac. Max. Reg. 23. But where there is an abfoliuc omilTion of the devifee, it cannot be fupplied by p.irol evidence. CaiHedon v. Turner, 3 Atk. 257.] Abr. Eq. So, where J. S. devifed all his houfchold goods, as woollen, ^j°j^^j^_'' linen, pewter, and brafs whatfoever, except a trunk under the Pendictoi chamber-window ; and the quellion was, whether the parol proof and Grant, of tlic pcrfon wlio dicw tlie will Ihould be admitted to explain *Vern.5.7. ^ ^j^^^-^ t!iefe words ? my Lord Keeper thought it miglit, notwlthftandlng the ftatute of frauds and perjuries •, for here, it neither adds to, nor alters, the will, but only explahis which of the meanings (hall be taken j as in cafe of a devife to fon Johfiy when the teftator had two of the fame name ; and here the word as may be a rellidlion ; or if the following words be as particular inftances, it may not reftrain the word nvhatfoever ; and he thought the words imported to carry all the houfehold goods ; and of that opinion was the mafter of the rolls ; and the proof was read accordingly. [So, where J. S. being feifed in fee of a real eftate as heir on Harris », the part of his mother's mother, and being alfo feifed in fee of a ^'.'^'^P <>' fmnll eftate as heir to his own father, devifcd all thefe lands to 2,i\'Wra5. truftees and their heirs in trail to pay feveral annuities and cha- 135. rities 5 after payment of which he devifed the refidue of the rents and profits of the premifes to his own right heirs of his mother's fide for ever ; and the queftion was, whether the heir of the mother's father, or the heir of the mother's mother was entitled to the refidue of the rents and profits ? parol evidence was admitted to fhew, which heir of the mother's fide was intended. Again, R. H. devifed to the defendant feveral clofes of the value Hodgfon v. of 60 1, per a?inumy paying 100/. he owed to J. 5., and 100 /. he H"dgfon, ^ owed by bond to one Sbaiv \ and devifed fome fmall legacies, and p^, ch. * gave all the reft of his perfonal eftate to the plaintiffs, his nieces. 229. s. c. It happened that the 100/. due on bond was not due to S/jaiu, but was the money of j^Iice Beck^ then the wife of one F. By reafon of this miftake, the devifee of the land fefufed to pay the ico/. The plaintiff examined Harvey who drew the will, and depofed that the teftator declareil, he meant the 100/. due to the perfon who married Mrs. Bech of Lincoln \ and another witnefs depoied, that he meant the bond for which C. was bound as his furety : Decreed for the plaintiff, firft at the rolls, and afterwards on a bill of review before the Lord Chancellor, and heard on the merits, and again decreed on the merits ; his lordftiip declaring he faw no hurt in admitting collateral evidence to make certain the perfon or the thing defcribed. And Lord Tburloiv in a late cafe [a) [a) Fonnc- faid it was a clear propofitlon, that every evidence as to the de- p'" "' fcription of the fubje6t the teftator had defcribed, muft be admit- j gj.. ch, ted. As in the cafe of a fpecifick legacy, you muft hear evidence Rep. 477, concerning the fubjedl to which the will applies, in order to fee whether the dcfcription applies aptly or not. So, parol proof hath been admitted as to the intention of a tefta- Cuthbert v. tor, where the queftion hath been, whether a legacy fliould go in ^'^^"'^^^ fatisfad:ion of a debt due from the teftator to the legatee, or Ocbeze v. '*' whether a fum advanced on the marriage of a child fhould go in Man, 2 Br. ^ fatisfadion of a legacy ? Je'.^ln Fowler v. Fowler, 3 P. Wms. 354. Lord Talbot fald, his opinion was agai:ift the admilnou of fuch evidence. It alfo hath been admitted in equity, to prove a variation between Henkie v. the agreement executed and the agreement intended, uj.on a fug- ^^'-^l ^J[^ geftionthatfuch variance hath happened througli miftakc^rr.>ud,^f. f^r^^^, Cpmrany, I V;/ 31 -, Bsk:r V. !'.«:.'-, /j, 456. South ir* Coinp.iy v. Dollnc, x\ei. 376. I' 'cairne ^54 (3l3lD£n£C* Pitcairne v. Ogbourne, Ibid. Lady Shiiburne v. Lord Inchiquin, i Br. Ch. Ca. 3^8. Harvey V. Hur-» Trey, 2 Ch. Ca. 180. Per Reynolds C. B. in Fitzgerald v. Lord Fauconberg, Fitzg. 213. But in Hard- vrood V. Wallis, cited in z Vez. 195. parol eviJcncefor this purpofe was rejedled. In that cafe, an eftate ■was agreed to be fettled prior to marriage on the intended hufband for life ; remainder to wife for life} remainder to the fiirt, Sec. fon in tail-male j lenwindcr to all and every the daughters of that mar- riage. Jnlttuclions were given to j.n attomcy to draw the fettlement, who ove^v it as far as the limit- ation to the fons in tail-male; whcie he flopped, aiid wrote, then go en as in Pippin v. Ekin: ; whick was a precedent he delivered to his cleric to go on from that limitation, and was a right fettlement on the iflue male and dau^jhteis by that wife ; but the cicrk drew the fettlement to all the daughters of the hufband without reftraining it to thjt mairi.if;e. It was cx;cu'.ed with this miftake. The plaintiff was the only daughter of tliat marriage : the hultand by a fccoi;d wife left a fon and four daughters, tre defendants. It was infilled, that leLting in the daughters of the fecond marriage would make the firft wife 3 purrhaler for them, or the children of other iucccflive wivtS, to the dcdrudion of the intercft of her only child : the draft of the attorney was proved, and the feiticment in Pippin v. Ekins. But the Mafter of the Roils, Sir Wm. Fortefcue, would not admit the parol evidence of the attorr»ry to be read ; and held, that the other evidence would not d'j : that nothing appL-aring in writing under the hands of the pirties, the' fettlement could not be altered. — Evidence of this kind, it mult be obfcrvsd, feems to be more readily admitted to rebut an equity, than to obtain a decree upon. Legal v. Miller, z Vez. i'j(j. Jones V. Siatham, 3 Atk. 388. Eden V. Lord Bute, 7 Br. F. C. 204. 445. Doe V.Burt, So, parol evidence is admliTible to fiiew whether a thing be I Term parcel or not of the eftate demifed by a deed. So, to fliew that Rex'v! In- pcrfons defcribing themfelves in a certificate as officers of the habitants of parilli at largCj were the officers of the hamlet where the pauper Samboutn, ^^^ fettled. In explanation of mercantile contracts it is every Rep!'^6o9. day's pradice to refort to it,] PerLo\& Hardwicke in Baker v. Paine, i Vez. 455. and Blunt v. Cumyns, a Vez. 331, Vern. 366. It has been held, that if A, purchafes land in the name of B., [Parol eyi- jj^^jj. ^^ j^^y j^g admitted to prove that he paid the purchafe, ed"t"raifr" money, and fo make it a refulting truft, or truft by implication of an equity, law for himfelf. that a pen- fion granttd by the crown to the defendant abfolutely and without any terms, was in truft for the plain- tiff, the defendant by his anfwer denying ii, was rejefted by Lord Thurlow, after much argument anil long deliberation. Lady Margaret Fordyce v. Willis, 3 Br. Ch. Rop. 577.] Rex V. In- [So, It is competent to a party to aver other confiderations than habitants of thofe exprcfTed in a deed. Thus, where the confideratinn ex- den'^^Term prefled in the deed was 28/., p.irol evidence was admitted to Rep'. 474. prove, that the real confideration was 30 /. So, where the con- Filmer V. fiderations mentioned in the deed v.'ere 10,000/. and natural love P°c! 70.'^' and affection^ the lords commiffioners of the great feal direfted an But in iflue to try whether natural love and affi;£lion formed any part of Ciarkfon j|^g confideratlon, the eftates which were conveyed by the deed a p. WmY.' being worth 30,000/. On an appeal this was confirmed \ and the 203. it was jury on the trial of this ifiue, finding that natural love and aJfeElion ho!den,that conftitutcd no part of the confideration, the deed was afterwards couu not^^ fet afide by the Lord Chancellor.] give parol evidence to prove blood and kii;dred to have been the confideration of a conveyance, the con- ^deration exprefTed in the deed being an annuity to be paid to the grantor. And in Peacock v. Monk, J Vez, 128. Lord Hardwicke faid, " where any conlideration is mentioned, as of love and affeftion only, if It is not faid alfo, and for other confdcrations, you cannot enter into proof of any other : the reafon is, becaufe it would be contrary to the deed; for when the deed fays, it is in confideration of fuch a particular thing, that imports the whole confideration, and is negative to any other. It is other- wife, whete there is no confiderati.;n at ail in the deed. An (2Bt5it)enct» 6ss An entry in the Reward's book, and parol proof by the foreman 2Vern. 547. of a jury was admitted as good evidence, to iliew that a feme Hill and covert furrendered her whole eltate, although the furrender upon '^""* the roll, and tlie admifiion thereon, was but of a moiety. Alfo, to ouft an implication, and rebut an equity, parol evidence Tothispur- has been admitted to explain the intention of the teftatorj as P^^earetbc where a man devifes particular legacies to his executors, and vcrn.'!!?-:. makes no difpofition of the furplus of his eftate •, in this cafe, Fofterand according to the notions of the courts of equity, the executors fhall !^""^'f, be only truftees for the next of kin ; but to rebut this equity jg. t! which arifcs by implication only, the executors have been allowed Crompton to prove by parol evidence, that the teflator defi^ned them the ^'"^ North, -. '^ , ' * ° 2 Vern. oq, lUrpluS. p.ing and Pring, 2 Vern. 64S. Lady Granville and Duchefs of Beaufort, 2 Vern. 736. [Batchelor and Seail, Eq. Ca. Abr. 246. S. C, Gilb. Eq. Rep. S. C. I>:fra vol. -,. 69. S.C. Duke of Rutland v. Duchefs of Rutland, 2 P. Wms. 210. Petit v. Smith, i P. VVms. 7. Brafsbridge v. WoodrofFe, 2 Atk. 68. Lake v. Lake, i Wilf. 313. AiTibl. 126. S. C. But in Biinkhorne v. Feall, 2 Vez. 2S. Oti. 1750. Lord Hardwicke expreiJes himfcif to be very tender in admitting parol evidence in cafes of this kind ; and it ihould be reftridled to what paffed at the time of making the will. Nourfe v. Finch, I Vez. jun. 35S. And Lake v. Lake, Nov. 1751. is the lad cafe (in print) which has been decided fince that time on parcl evidence. J So, v.'here the Earl of Gainjhorough made his will, and thereby 2Vern. 252. devifed feveral legacies, and charged his real eftate with the pay- ^°."^"|^ r ment of them and his debts, and devifed his eftate, fo charged, to cainfbo- the defendant, his nephew, and made the plaintiff, his wife, exe- rough, Abr. cutrix ; and the bill was brought to have the perfonal eftate dif- f "'r^^^'.i charged from the debts and legacies, fuggefting that the creditors affirmed in threatened to come upon and exhauft the perfonal eftate j and that the Houfe it was the intent of the teftator, that (he fhould have the perfonal °* ^'""^■' eftate clear to herfelf, and that the direclions for making the will •vrere fo ; but that, either by the miftake or contrivance of the per- fon who drew the will, it was rot fo exprelTcd •, and on demurrer, becaufe no fuch averment cci.ld be admitted againft a will in writing, the demurrer was over-ruled •, it was held by Raiw linfon and Htit shins, that though fuch an averment could not be admitted where it was to make the party a title ; yet where it was only to rebut an equity, as in this cafe, it might. So, where one not of kin, but a ftranger, was made executor, Abr. Eq. and had confiderable legacies given him, although it was decreed f*5- Lit- by fir Peter King, in the mayor's court, in favour of the teftator's Btickky,^ brothers, that the furplus (hould'be diftributed ; yet, upon appeal affirmed in to the Houfe of Peers, that decree was reverfed, not barely as it t^« Hojjfe ftdod upon the will, but that parol proof ought to be received in favour of the executor's title, confiftent with the will ; and the proof being full as to the teftator's frequent declarations, that his executor, though a ftranger, {hould have the furplus, it was decreed accordingly. [And as parol evidence is admiffible in favour of the executor to Bifhop of {hew no refulting truft for the next of kin, fo it hath alfo been Cj-yne t. admitted in favour of the next of kin, to take off the effect of the ^ Vez^'gf, parol evidence adduced by the executor. And it feems from fome Coote v. cafes [a) that it may be read by the next of kin originally and in ^°"^» ^ ^'' the firft inftance. ja6. (<,) Fare v. Fane, I Vern. 30. Rackfield v. Careirfs, 2 P. Wnis?i 58. 8 Where 6^6 (2BbiDenc^» Coote V. Where a tellator gave legacies of the fame amount in twd dlf- Boyd, a Br. fereiit inftruments, parol evidence was admitted to fhew that he ,, ■ ^^* intended them to be accumulative. Roe V. Pop. Where a fine is levied, if no ufes are declared, the refulting ham,Dougl. ^{gg q^^\\ \jq ^q the conufor, but parol evidence is admifiible to *'*' rebut the prefumption of fuch refulting ufes.] mde T-Vtrh. But notwithflanding thefe cafes, the courts have been very un- 98. 337. willing to admit of parol evidence in relation to any thing that s^ik 2^4 appears on the face of a will ; and it is certain that too much pi. 1*3. caution cannot well be ufed in this particular, efpccially when it aLd.Raym. jg confidercd that the (latute of frauds and perjuries, which was die^afe^' "i^^e to prevent perjury, contrariety of evidence and uncertainty, ofCoieand binds the courts of equity as well as the common law courts ; as Rawiinfon, ^\(q ([^^^ little regard ought in many cafes to be had to the expref- down^by my '^o^s of the teftator, either before or after the making of his will, Lord Chief bccaufe, poflibly, thefe exprefhons might be ufed by him, on pur- J"'^'" pofe to control or difguife what he was doing, or to keep the family the tefta-^ quict, or for other fecret motives and inducements which cannot tor's intent after his death be found out, muft be coUefted from the words of the will, and not from his circumftances, or any matters deters, and that to ravel into the affairs of the teftator, would render property precarious, and introduce uncertainty and «onfufion in the law jtfelf. Seiwin and Hcncc, In a late cafe In the Houfe of Lords, where the teilator Brown, dcvlfcd feveral legacies, and amongft the reft gave confiderable 1734 ?« legacies to his two executors, to whom alfohe devifed the furplus domoproce. of hls cftatc J and there being a debt of 3000 /. due by bond to the rum. Note; tgftator from one of the executors, he infifted, that, there being was'firft fufficient aflets to fatisfy all the legacies, this 3000 /. fliould not be heard before brought Into the furplus of the teftator's eftate, but that the fame his honour ^^^g extlngulfhed for his benefit, by his beine made co-execu* the msitcr ' j g of the rolls, tor ; and that though the furplus of the eftate was devifed to who admit- them both, yet that this debt could not be taken to be part of that ted the parol fm-pJus, being before extingulflied j and, by the evidence of the and on the perfon who drew the will, fully proved, that this was the teftator's ftrength intention -, v.'hich evidence, it was urged, ought to be admitted, thereof de- being Only to rebut an equity, and ouft an implication of law the 3000/. arlfing from the notions of the courts of equity, w^hich revives the fhouid not debt in thefe cafes, and gives equal benefit to both the executors •, ^^ iTxh^ ^^^ ^^ lords refufed going into this parol evidence, and decreed furplus of that the 3000/. fhould be taken as part of the furplus of th® the teftator's teftator's perfonal eftate, which both the executors were equally tate'^°-"buf" entitled unto ; for though in fome books the teftator's making a that 'it was debtor executor Is faid to be an extingulfhment of the debt, extinguiOied bccaufc an cxccutor cannot fue himfelf -, yet It was never doubted, nsfi't of the ^^^ ^^^^^ ^"^^^ '^ ^^^^ remained aflets to fatisfy other creditors : alfo, obIigee,,nnd it has been [a] refolvcd to be aflets to fatisfy legacies ; and this accordingly devlfc of the furplus and refidue of the teftator's eftate being as bon"^to be much a legacy, and as well recoverable in the fpirltual court as cancelled ; any particular legacy, it was but fitting, that fince the courts of but (bis de- ^quiiv claim now a concurrent jurifdictlon with the: ecclefiaftical c:sr was re- ■* ' •* courts (iEbiDcnce, 657 toUrts in matters of this nature, that there (hould be the fame verfed by meafure of iuftice in both thefe courts. "^7 Lord -' Chancellor, though he admitted the parol proof to be read, as not thinking the teftimony of a Hngle witnefs, ac- cording to the circumdances of this cafe, fufficient to control what appeared on ihe face of the will. Ca. temp. Talb. 240. S. C. 4 Br. P. C. 179. S. C. {.2) For ih\s -vide Yc\v. 160. Plow.186. a. Co. Lit. 264. 8C0. 136. a. Cro. £liz. 373. Hob. 10. Leon. 320. [A teftatrlx bequeathed her real and perfonal eftate to F. T. uirich v. and 7. U. equally between them for life ; and upon the death of Litchfie.d^, -£. T. (he gave the whole eftate to jf. U. in tail general, and for ■want of fuch iflue to R. U. in fee, with a few pecuniary legacies ; and charged the real ellate with the payment of thefe legacies, if her perfonal eftate fliould not be fufficient ; and by her will de- clared, fhe gave all the reft and refidue of her perfonal eftate to her uncle L. C.'s three daughters ; and particularly gave to Mrs. 5. L. 10/. and made her executrix. For the r^fiduary legatees it was infifted, that re/I and refidue of her perfonal eftate muft mean the refidue after the particular legacies are paid ott ; and could not refer to the beginning of the will, becaufc there is a fee devifed, and, confequentiy,the teftatrix has difpofed of the whole: that parol evidence of the attorney who drew the will, that he had exprefs directions to give the perfonal eftate to the three daughters of Z. C, might be admitted in this cafe ; that (to be fure) things which are quite contrary to the will fliall not be proved by parol evidence, but that it may be allowed to explain words in a will, efpecially in this cafe, where it appears to be a mere blunder of the drawer : that this doth not intrench upon any of the rules with regard to parol evidence, but only clears up who was intended to have the perfonal eftate, where the whole is devife. . to two different per- fous ; and that it feems cleraly to be a blunder in the drawer of the will, becaufe the devife in the iirft part of it is proper only in the difpofing of real eftate. Lord Hardwiche ~ As to the queftion, whether I ought to admit parol evidence to explain the intention of the teftator, I am of opinion, that this is not a cafe in which parol evidence can be read, and that it would be of dangerous con- fequence. It is true, there are fome things here which would make a judge wifta to admit it ; but 1 muft not follow my inclinations only J fori do not know that upon the conftruflion of a will, courts of law or equity admit parol evidence, except in tMO cafes : firft, to afcertain the perfon, where there are two of the fame Cowfetr, name, or there has been a miftake in a chriftian cr furname, and ^^^'^^^' this upon abfolute neceluty ; where if fuch evidence were not let BtTiwin v- in, it would make the will void. The other cafe is, with regard to Harpur, refulting trufts relating to perfonal eftate ; where a man makes a ^'^' 374» will, and appoints an executor with a fmall legacy, and the next of kin claim the refidue •, in order to rebut the refulting truft for the next of kin, parol proof has been admitted to afcertain the perfon who Was to have the refidue. It is very true, cafes may be cited, where Lord Coioper has admitted fuch evidence ; for he went upon this ground, that it was by way of afhfting his judg- ment in cafes extremely dark and doubtful. I have the greateft deference for his judgment, but muft own, I was never fatisfied Vol. II. U u with 658 aVern. Cai. Lowfield V. Stoneham, z Str. ii6i. Meres v. An fell, 3VVilf27S, Frefton v. Moiceau, aBl.Rep. 124.9. with this rule of Lord Coivper's of admitting parol evidence irt doubtful wills : befides, he went further in the great cafe of Strode and Rujfel^ in which there was an appeal to the Houfe of Lords : Mr. Jultice Tracy^ who affifted Lord Coivper in that cafe, was at firft of the fame opinion with him ; but on confidering it more, he difavowed his former opinion, and was clear that it could not be admitted, and this alteration in his judgment was mentioned in the Houfe of Lords. In the cafe of Sel-unn and Broiviiy I was of opinion that it ought to have been admitted ; and even Lord Talbot^ when he had heard the caufe, had a remorfe of judgment at the fame time that he rejedled the parol evidence : but the Houfe of Lords refufcd it as of moll mifchievous confc- quence, and affirmed his decree. Upon pletre adniwijlravit pleaded, the queflion was, whether 1000/. received by the defendant was due to her in her own right, or as executrix to her hufband, and, confequently, affets ? It arofe upon the following devife; — " I give to my loving brother John ** Stoneham looo/., and in cafe of his death, to his wife S:j fauna f* who was the defendant. It appeared that John Stoneham i\xx\\\QA. the teftator : the plaintiff therefore infilled, that this legacy, which the defendant admitted that Ihe had received, veiled abfohitcly in him, and was alTets in her hands. On the part of the defendant, it was offered to give in evidence, that the teftator in extremis declared, he meant to give his brother only the interell of the 1000/., and that the defendant fhould have the principal in cafe fhe furvived him. The parol evidence was oppofed by the plaintiff's counfel, as being contraditlory to the plain words of the will. And Lee^ Chief Jultice, faid, it could not be allowed, and that in the cafe of Selivln and Broivny the Houfe of Lords had refufed :', even where it was to fupport the legal interpretation of the will ; and Lord Hardwicke about two years ago held it in the fame manner in the cafe of the Earl of Inchiquln and O'Brien. Although parol evidence may be received to explain, yet it can never be admitted to annul or fubflantially to vary a written inllru- ment. An adlion on the cafe was brought for the ufe and occupation of a houfe, of which, it was agreed in writing, that a leafe fhould be let by Chrijliann Prejlon to Abraham Gamage for twenty-one years, at 26/. per ami. to commence from Alichaelmas then next. Ga- mage died and made Merceau his executor, who paid 26 /. into court for one year's rent. On the trial, the plaintiff offered t» fliew by parol evidence, that befides the 26 /. per ann. the defend- ant had agreed to pay 2/. I2x. dd. a year, being the ground-rent of the premifes to the ground landlord ; but no evidence was offered of the adlual payment of fuch ground-rent during the teflator's life ; without which De Grey, Chief Juftice, thought fuch parol evidence inadmiffible, and nonfuited the plaintiff. On a motion to fet afide this nonfuit, it was alleged, that this was evidence not to alter or vary, but to explain the agreement. That this was not a folemn deed or will, but a mere executory a£l ; and had a bill in Chancery been brought to carry tliis into execu- tion, parol evidence would have been admitted to prove the agree- 4 meat CBt3itiente» 659 hient to pay the ground-rent. For in Joynes v. Statham, 3 Ath. 388. parol evidence was admitted to fhew, that the agreement for a leafe at 9 /. a year was to be clear of taxes. But by Blackjlone^ J. I am clearly of opinion that the lord chief juftice did right in re- jecting this evidence. Courts fhould be very cautious in admit- ting any evidence 10 fupply or explain written agreements ; elfe the ftatute of frauds would be eluded, and the fame uncer- tainty introduced by fuppletory or explanatory evidence, which that ftatute has fupprefled in refpe£t to the principal objedl. It never ought to be fuffered fo as to contradicfl or explain away an explicit agreement, for that is in effect to vary it. Here is a pofitive agreement that the tenant fhall pay 26/. Shall we admit proof that this means 28/. I2x. 6^/.? What is it to the tenant to whom the rent is to be paid, fo as he is obliged to pay more than his contratl exprefTcs ? we can neither alter the rent nor the term, the two things exprefled in tliis agreement. With refpecl to collateral matters. It might be otherwife. He might fliew who is to put the houfe in repair, or the like, concerning which nothing is faid ; but he cannot by parol evidence fhorten the term to four- teen years, or extend it to twenty-five years, or make the rent other than 16 1, per ami. The cafe in Atkins is of a mere execu- tory a(5l, in which the mailer was to fettle the proper covenants, and therefore had a right to inquire who was to pay the taxes. Befides, there were ftrong fuggeftions of fraud in making the written agreement, as one party could neither read nor write. In a debt upon a bond payable at a certain day, the defendant Meafe v. pleaded, that by agreement between the defendant and the plain- ^''"'^» tifFs teflator, the bond only flood as an indemnity. To this plea the plaintiff demurred, and the queftion was, wliether the agree- ment pleaded could be given in evidence, contrary to the exprefs tenor of the bond, purporting to be abfolute, for payment on the day ? The plaintiff contended, that the office of parol evidence ex- tended no farther than to explain a. deed confidently with its general purport, and by no means to change the nature of the fpecial obligation ; and that even on a will, the uncertainty to be removed by evidence mufl; arife from fomething extrinfick to the inftrument. The court agreed the plea to be bad, and the objec- tion decifive againft admitting collateral evidence to change the nature of the deed. In no cafe can parol evidence of a parol communication between Havnes v. the parties be received, to add a term not inferted in the fpecifick ""^'^ ' ^' agreement which they have executed ; for what has palfed between lcj porc- them may have been altered and fhifted in a variety of ways,^ but more v. what they have figned and fealed was fully fettled. And my Lord ^3^'^'^^ Tbiirloive laid it down as a rule of law, which it was impofiible to Rep. 249. break in upon, that nothing could be added to the written agree- Rich v. ment, unlet in cafes where there is a clear, fubfequent, independ- l^gr/ch. cnt agreement varying the former, not where it is of matter Rep.519, paffing at the fame time with the written agreement. The verbal declarations of an au(Slioneer cannot be admitted to Gunnis v. contradict the printed conditions.] i^H^BiaSQ Uu 3; 66o emtm. Cilb.L.E. 303. Co. Lit. 6. Co. Lit. 6. (d) Where from their antiquity things re- ceive a cre- dit. Mod. 117. Lev. 25. & lidt Palm. 427. P:r C- r. In Harpur v. Brock, Scac, It 14G.3, 3 Wojddel". 333- Denn v. Barnard, Cowp. 595. Ofwald T, Legh, 1 Term Rep. 270. (H) Of Preftimptive Proof. [ A Prefumption, as defined by the civilians y is conjeclura e>: certo ■^ *• figtio provenietis qu,t alio adduclo pro veritate hahetur. For when the fact itfelf cannot be proved, that v^liich comes nearefl to the proof of the fact is, the proof of the circumftances that necef- farily and ufually attend fuch facls, and thefe are called prefump- tions, and not proofs, for they Hand inftead of the proofs of the fact till the contrary be proved.] My Lord Coke diftinguiflies prefumptive proof, by which he fays juries are often induced, into, i. Violent prefumption, which amounts to plena probatio \ as if one be ftabbed in a houfc, and a man be feen running out of it with a knife bloody, and none elfe in the houfe. 2. Prafumptio probabilisy which moves a little. 3. Pi-cffumptio leviS) which moves not at all. Alfo, in cafe of a feoffment, if all the witneffes to the deed are deadj then a continual and quiet poflelhon for any [a) length of time will make a ftrong or violent prefumption, wliich Hands for proof ; and here the rule is, that ex diuturnitate teinporis omnia pr,sfumuntur folewtiiter ejje aEla ■: alfo, the deed may receive credit by comparing the feals, the hand-writing, and other circumftances, all which muft be left to the jury. [If a man gives a receipt for the lafl rent, the former Is prefumed to be paid, becaufe a man is fuppofed firft to receive and take in the debts of the longelt ftanding ; efpecially if the receipt be in full of all demands, then it is plain there were no debts Handing out ; and if this be under hand and feal, the prefumption is fo violent, that the law admits of no proof to the contrary ; becaufe that were to let a man invalidate his own deed, which our law doth not permit ; for here, though the payment of the money ii not proved, yet the acquittance is proved, which could not be without fuch payment. Where a leafe is proved, and it Is alfo fliewn, that the claimant hath received rent within twenty yearS) this infers a feiiin in fee, and throws it upon the adverfe party to fliew that the leafe is fub- fifting. And Eyre^ Baron^ held, that where rent is received with- out any proof of a leafe, this alfo prima facie is evidence for th« plaintiff, and obliges the defendant to fliew, that it is either a quit- rent, or that the term is unexpired. Poffeffion, and rent received, for twenty years, were holden to be admiffiblc svidence of a fee, to be left to a jury ; though the title, fo far as It was developed, appeared to be a long term of years ; for it mij^ht be a term attendant on the inheritance, and the leafe one of the muniments of the eftate. The circumflance of twenty years having elapfed without any demand made, is of itfelf a prefumption that a bond has been paid. And fatisfatStion of a bond may be prefumed within a lefs period, if any evidence be given in aid of the prefumption, as an account fettled between the parties in the intermediate time without any notice being taken of fuch a demand. u CbiDcncc, 661 If a perfon claiming a toll for pafTing over a highway, can {hew Lord Pei- that the liberty of pafling over the foil, and the taking of a toll for ^."" *• . fuch pafTage, are both immemorial, and that the foil and the tolls f'T/rm '"* were before the time of legal memory in the fame hands, though Rep. 660. ferved fmce, it will be prefiimed, that the foil was originally granted to the publick in confideration of the tolls. If a fhip has been mifling, and no intelligence received of her Green v. within a reafonable time after flie failed, it Ihall be prefumed that ^'.°"'"' ihe is loft 1 ^^"■' "'*• ♦uc *=> ^"ll-J Newby v.Read, Sittings after Mich. 3 Geo. 3. Perfons once In being (hall be intended flill living, if the con- z Roll. trary is not proved *. Rep. 461. ..... * Therefore in ejectments, &c. great caution isrequired in making out a pedigree, ice. not to prove the birth of any perfon, through whom the title is notdeduc d, and who might be heir, dc. if living 5 and to be prepared with proof of the death of fuch perfon, if fet up by the adverfe party. But now by 19 Car. 2. c. 6. It is enafted, " That if any perfon [in ejeft. ** or perfons, for whofe life or lives, eflates have been or (hall be m^ntthecafs •* granted, fhall remain beyond the feas, or elfewhere abfent them- Tows? joh'n <* felves in this realm, by the fpace of feven years together, and Giffordwas ** no rufficient and evident proof made of the life or lives of fuch '^''^^^ '" '^^ *' perfon or perfons refpeclively, in any action commenced for the ;„ queftion, ^* recovery of fuch tenements by the leflbrs or reverfioners ; in and made a ♦* every fuch cafe the perfon or perfons, upon whofe life or lives '^'^ '" ^^' ** fuch eftate depended, (hall be accounted as naturally dead ; and Lewis Da- ** in every action brought for the recovery of the faid tenements velisfor99 ** by the lelTors or reverdoncrs, their heirs or adigns, the judges, ''^^"' '" " before whom fuch aclion fhall be brought, (hall dire£l the jury after the ** to give their verdi£t, as if the perfon fo remaining beyond the deaths, or " feas, or otherwife abfenting himfelf, were dead." tttll^Z" tion of the eftates of John Davelis the father, and John Davells the fon, who had then a leafe in oofTef- lion for 95 years, if they or eiJi?r of them fo long lived. The plaintiff' pofuivcly proved the death of John Davc(!s the fin ; but as to the father, the proof was, that he had been repu'ed dead, and nobody had heard of him for 1 5 years la I pad. Upon an objection, that this laft proof was infufficient^ it w^s holden clearly by Hoh, C J. upon the perufal of the above ftatuie, that this cafe was within it, be?a.vfe J^ewis Davelis, the lelTir of the plaintiff, had a term in revertion in the lands, and fo was a reverfiomf withiri the very Ie:t;r of the (latu'.e ; and he held, that a remainder man was within the equity of that Uw. Holman y. Exton, Carth. 246.3 [By the 6 Ann c. 1 8. reciting that divers perfons, as guardians apd truftees for infants, hulbands in right of their wives, and other f)erfons having ellates or interefts determinable upon a life or Ives, have continued to receive the rents and profits of fuch lands ^fter the determination of their faid particular eflates or interefts, h is ena£ted, •< That any perfon claiming any eftate in remainder, *' reverfion, or expectancy after the death af any perfon withiri ** age, married woman, or any other perfon whomfoever, may, ** upon afl&davit that he hath caufe to believe that fuch perfon *' within age, ^c. is dead, and that his or her death is concealed *• by fuch guardian, truftee, huiband, or any other perfon, once <* a year have an order from the great feal for the production of ** fuch perfon within age, iiff., and upon the guardian, truftee, •* l^c. refufing or neglecting to produce fuch infant, ^c. agree- ♦* ably to fuch order, the faid infant, ^c. (liall be taken to be <* dead, ^nd the remainder-man or reverfioner (hall enter upon y u 3 " the 663 ClBtiitience. «« the eftate in like manner as if fuch infant, tifc. were atSlually «' dead."] Gilb.Evid, By the 21 Jijc. I. c. 27. it is ena£led, "That if any woman be r^Vft'^"^' ** delivered of an iflue, which being born alive ihould, by the laws aH. H. P. ** of this realm, be a baftard, and endeavour privately, either by C. zS8. ^ «« drowning or fecret burying, or any other way, either by herfelf LawofEvid. «t Qj. ^i^g procuring of others, fo to (a) conceal the death thereof, (a) *If the * " ^s that it may not come to light, whether it were born alive, or woman ap- « not, but be concealed ; in every {b) fuch cafe the mother fo pear to have „ offending fliall fufFer death, as in cafe of murder, unlefs (he eiideavcured ° . • r ^ n ^ I- 1 1 -I 1 1 to conceal ** Can prove, by one witneis at lealt, that iuch child was born the death of <( dead." fuch child, there is no need of any proof, that it was horn alive, or that there were any figns of hurt, for it /hall be taken undeniably, that the child was born alive, and murdered. Kelynge, 32. But where a woman lay in a chamber by herfelf, and weiit to bed without pain, and waked in the night, and knocked for help, but could t;et none, and was delivered of a child, antl put it in a trunk, and did not difcover it till the night following, flie was adjudged not to be within the Hatute, becaufe fhe knocked for help. Kelynge, 32. Neither is a woman within the ftatute, who, having confefled herfelf with child beforehand, is afterwards furprifed and delivered, nobody being with her ; and therefore in thefe cafes it muft appear by fjgna of hurt, or fome other way, that the child was born alive. Kelynge, ^3. 2 Hawk. P. C. c. 46. ^ 43. (i) But there is no need, in order to conviiSl a woman by force of this Aatute, to draw the in- didiment fpecia'ly, or to conclude it contra formamjiatuti ; but it is the better way to fct forth, that the defendant infantcm majcuium vi-vum parturiit, qui quidcm infans majculus acitunr (£f ibidem -vi-vus cX'JJens tiatus per It'ges hujus r,gni ^ingUa Jpunus fuit, Angiice a baltard, and then to go on in the ordinary form, to flievv that (he murdert;d him, (3fc. contra patem, &c, for the ftatute doth not make a new oftence, but only makes fuch a concealment an undeni-ible evidence of murder. Kelynge, 32. 2 Hawk- P. C. c. ^6. § 43. See Obferv. o;i the Statutes, 424, 425. zi ed. ( I ) Where the Law requires the higheft Proof the Nature of the Thing is capable of. Rep. "iT feems in regard to evidence to be an inconteflible rule, that ^^^^' the p^rty, who is to prove any fa£t, muft do it by the higheft Show. 397. Ca 284! pi. 4/ evidence the nature of the thing is capable of. Saik. 2S1. As where the queftion was, whether the abbey de Sentibus was ?'■ 9' an inferior abbey, or not, Dugdale's Monajlicou Auglicanum being produced for evidence was refufed, becaufe the original records might be had in the Augmentation-office. 2 Show. So, if a witnefs be to teftify what another fwore on a former Rep. 163. tjia]^ the record (r) of fuch trial muft be produced, or his evidence [(<:) Liat in is not t'j be admitted, l^c. fuch cafe it is not necefTary to produce the origin.tl record, for copies of record?, the journals of the Houfe of Co.rmons, the journals r,f pa'lliment, parilh leg fters, and the transfer-bcoks of the Eaft India Com- pany, &c. are lufficienr. Wherever an original is of a publick nature, and would be evidence if produced, an immeiiate fworn c( ^y thereof will be evidence. Dougl. 171. 503. -^Salk. 154. By 5 G. 2. c. 30. § 41. which direfls proceedings on co;nmiflions of bankrupt to be entered on record, true copifs figned and attc/led as therein requited, may be given in evidence.] (K) Of Hearfay Evidence. Mqd. 183. |T feems agreed, that what another has been heard to fay Is no S in. 402, 1 evidence, becaufe the party was not on oath; alfo, becaufe the party, who is affc6led thereby, liad not an opportunity of crofs- examining j examining; but fuch fpeeches or difcourfes may be made ufe of by way of inducement or illuftration of what is properly evidence. Alfo, what a witnefs hath been heard to fay at another time, 2 Hawk, may be given in evidence, in order to invalidate or confirm the ^' ^' ^ ^S- teftimony he gives in court. ^ '*"* So, what a perfon accufed of a crime hath been heard to fay at 2 Hawk, another time, may be given in evidence at his trial, either for (o) ^•*-' ' 4-6- him or againft him. h^ The declarations ot a prifoner cannot b? given in evidence for him ; therefore a witnefs for this purpol'e cannot be called in his defence ; but he may ciofs-ex.imine any ot the witnelll-s on the part of the prjfccution as to any thing they may have heard him fay relating to the faft he is charged with. Jd. ibid. 6 Ed.] [Where pofitive proof cannot be had, the declarations of per- Buli.NI. fons uninterefted, and who are then dead, are admilTible, as in ^"•294« queftions concerning legitimacy, or in queftions of pedigree. Hearfay is good evidence to prove the death of any perfon be- Id. Hid. yond fea. Hearfay is evidence in cafes of fcttlement of paupers. Rex v. Nutley, 3TermRep. 715. Rex v. Greenwich, Ji. 716. Rex v. Holy Trinity in Warcham, Cald. 141. It is evidence alfo, whether parcel or not parcel. Davis v. Pearce, 2 Term Rep. 53. See Garnons t. Barnard, Anftr. 299. In queftions of prefcription, hearfay is good evidence in order to Bull. Ni. prove a general reputation. Pri.295. In a qtiare impedit, the plaintiff derived his title from Lord R. in Bi/hop of whom he laid a prefentation of one Kttigbt : the bifliop fet up a L^^^^^'gY title in himfelf, and traverfed the feifm of Lord R.: the plaintiff ^^.j^^ g Jj, gave in evidence an entry in the regifter of the diocefe of the in- M. Pii. ftitution oi Knight^ in wliigh there was a blank in the place where ^^^.j^ ^ the patron's name is ufually inferted, and then offered parol s.c'. evidence of the general reputation of the country, that Knight was in by the prefentation of Lord R. : upon a bill of exceptions, this came on in K- B. when the better opinion was, that the evidence was admilTible, the regifter, which was the proper evidence, being filent i for a prefentation may be by parol, and what fo com- mences may be tranfmitted to pofterity by parol, and that creates a general reputation, It feems to be no obje£lion to the admiflion of hearfay evidence, Efpln. Ni, that the party whofe declarations are brought as hearfay evidence ^^^•I'^l' would not himfelf be an admiffible witnefs, provided fuch decla- rations at the time were indiflerent.] (L) Of the Party's Confeffion. THE confeflTion of the defendant himfelf, whether taken on an But for tbU examination before juftices of the peace, in purfuance of pf^ "f^e' I (^ 2 P. iff M. f. 1 3. or of 2 y 3 P. ^ il/. '^. 1 o. upon a bailment § e. ' ' or commitment for felony, or taken by the common law on an U u 4 examination 664 dEtiiticnce. examination before a magiftrate for treafon or other crime, or fpoken in private difcourfe, has always been allowed to be given in evidence agaiiift the party, but not againft others. But wherever a man's confeflion is made ufe of againft him, it mud be taken all together, and not by parcels. 2 H. H. P. [The confeffion muft be voluntary, not drawn from the accufed c. i?4. by hope, or extorted by fear. If the confeflion be not reduced Cafes 2S6 "^*° vvriting, it cannot be ufed againft the accufed ; and it is prQ- 7. Burns pcr that he fet his name or mark to it. Juft. tic. Examination. 1H.H.585. His examination ought not to be upon oath. Leach's Where the confeflion is regularly taken, it is of itfelf, uncor- Ciifes, 287. roborated by any other evidence, fuflficient to convid the pyi- foner.J (M) Of Similitude of Hands. (a) 1 Hawk. I T is obfervable (a) that this, with other circumftances in (^) j^l- p. C. C.46. X gerfion Sidneys cafe, was ruled to be good evidence of his (b) \ Stat, having written a paper charged againft him as an overt-a£l of Tri. 213. high treafon : yet in the trial of the [c) feven bifliops, the court was 21^6,217. divided in opinion, whether fimilitude of hands was evidence of (• the excommunication into Chancery, on which the writ of excow-^ jg, ' mtinicato capiendo iflued, ought to comprife the particular caufe of {b) And the excommunication ; fo that the court might [b) judge whether iheiefote jj were a matter within their jurifdidliion, or not. the court or •' ' Chancery, for any defeft in the certificate, ufed to grant »JuptrJtdeas ; but before the 5 Ellz. c. 23. there were no difcharges in B. R. on excommunicato cafiendo, but where a man was excommunicated pending a prohibition. Salk. 293. pi. I. Roll. Abr. If the excommunication appears to have been by an archdeacon lin ' af"" ^ peculiar or limited jurifdiftion, it ought to appear by the Roll. Rep. certificate, either exprefsly, or by implication, that the matter 174. s. c. thereof arofe Ic) within his id) iurifdiftion ; otherwife it is ;/7^-'- void. lendant was taken upon a eapms excommunicatum, and becaufe It was not mentioned in \\\i Jlgmfica-vit , that he IWed in that diocefe at the time of the excommunication ; it was therefore adjudged to be uncertain, and the party was difcharged. Moor, 467. Beaumont's cafe. Show. Rep. 17. S.C. cited. Godb. 19' . S. P. {d) The defendant was taken upon a capioi txccmmutiicatum, and ihejigmfca-vit was, that he was excom- municated for not anlwering articles; but it not being {hewn what thefe articles were; it was ad- judged ill. Roll. Rep. 136. Fox's caie. If a man is excommunicated for an offence, which is pardoned by a general pardon, and this being fhewn 10 the biAop, he notwithftanUing r^fufo to abfolve him, an aflion on the cafe lieth againft him. iz Co. 76. Salk. 293. If the excommunication in a writ of excammunicaio capiendo is KinaTd^ recited to be pro quihnfdam caiifts fuhJlraBionis decimanimftve {e) Fowler, ad- aliorum jtirium eccleftaJUcorum ; this is too uncertain, for the a/ia judged upon jura might be fuch matters as were out of their jurifdi£^ion, turn toT' ^"*^ *^^^y o"g^t ^o (hew the matter was within their jurifdiclion ; habeas cor- for of that the king's courts are to be judges, and not they them- p"!- felves. [(<) Secus, if it had been th? conjunctive {/. a Atk, 499. Rex v. Tur/oot, Ca. temp. Hardw. 3X4«] So, (lErcommunfcation. 667 So, where in a writ of excommunicato capiendo, the recital of the Saik. 294. ftgnijicavit was, that he was excommunicated for not paying the P| *• The cofts in qiiodam negotio ptierorum educationis Jive injlruclionis fine ah- pj^ji J{^^ qtid licentid in ed parte priits ohtentd ; the writ was quaftied for in- Raym. 818. certainty, becaufe it might be a teaching to fence or dance, and *4-'S- not letters. There was a prefentment In the fplrltual court of the Blfliop of Pafch. Ely againft the defendant for teaching fchool* in Cambridge with- ^-^"n- The out a licence, by the churchwardens of the parifh ; whereupon, BentieyT as the way was there, a citation was fixed up at the church door, *Nonefliall for the defendant to come in and anfwer the charge of the pie- J5"P ^ fentment ; but he, being a diflenter, and not coming to church, mafter* or had no notice of the citation j and for his contempt in not com- teachfchooi, ing, he was excommunicated ; whereupon he applied to the bifliop ^j'^^"' j!'* to get himfelf aflbiled, for that it was a writing-fchool he taught, cence,23El. and fo not within the bifliop's jurifdiclion; but the court refufed c. i. §6& to aflbil him, unlefs he would put in caution to anfwer fuch articles, ^' / -l**^' ^* and abide by fuch fentence, as they (hould make thereupon; which 13 & ,4' he was advlfed not to do, becaufe that would be owning their ju- Car. 2. rifdiOiIon, and concluding himfelf to abide by their fentence, and *^"^* *^*' thereupon he moved for a prohibition, and had it, with a fpecial claufe to aflbil him. Mr. Page moved for the prohibition, and infifted, that they could not excommunicate any one for contempt, without (hewing that the matter itfelf was within their jurlfdic- tion; and as they could not excommunicate for the original mat- ter, if it were not within their jurifdi£lion, fo neither could they for a contempt to a citation upon that matter j and cited 8 Co. 68. trollop's cnfey DoElor and Student. 1 2 Co. 77. 14 i/. 4. 14. 5 C(?. 23. And he faid, by thefe books it appears, that, if the bilhop refufed to aflbil him, an aftion on the cafe would lie againft him ; but now-a-days, a prohibition was thought the better way ; and he ■faid, this prefentment being only for teaching fchool, they could not come after with articles, ami charge him with any other mat- ter, as a writing fchool, Latin fchool, or other particular fchool ; which the court agreed, and faid it was like a prefentment by a grand jury here, which cannot be altered or changed by articles after-, and as the grand jury are upon their oath, fo are the f For the churchwardens there; and faid, that when articles are given in caufei in againft any one, the citation ought to be founded upon them; but "^^communi- when it was by prefentment, that was a charge and a citation itfelf, cato capi- and cannot be after altered by articles ; though Serjeant Parker '"^^ may be faid, he thought this prefentment to be only In the nature of a ^^^ ftacute, fummons, and that it was neceflary articles fliould be drawn up -riJeftat. againft him after, to charge upon the particulars ; but the prohi- "^ ^''^- bitlon with the faid claufe was granted. [If the writ is in a fuit pro correclione mommy it is too general. Rex v. So, for not appearing to anfu^er certis articulis animx Jua falutem^ i^s"*^' piorumque correclionem concernentibus. Rex v. Munnery, Id. 76. If it is ioxjlander or defamatiouy it is certain enougli. a Su^ '^"^ Two 66S €rcommunicatiom Rexv.Eyrf, Txvojigtiijicavits were quafhed, being only faid to be in a caufc sStr. 1067. which came by appeal in a matter merely fpiritual. For by Lord Talbotj we are not to lend our afliftance, but where it appears clearly they have jurifdi6lion, and are not to trufl: them to deter-!- mine what is a matter merely fpiritual. In Fowler's cafe, it was in caufes of ecckfiaftical rights, and held not fufficient.J (B) In what Cafes a Perfon fhall be faid to be ipfo facia excommunicated. (fl) For the "D Y fevcral {a) afts of parliament, offenders of feveral kinds c3ufesof J-> are made to incur the punifhment of excomnjunicatiow eicommu- • r r r^ *■ excommu- nication mcarion ipfi faBo. iffofiP.o, accordiKg to the ccyiftitutions and canons ecdefiaftical of the church of England^ vide Gor doip. Repert. 629, 63Q. [By 170.3. And to this purpofe it is enabled by 6 E. 6. c. 4. ** That if any f ■'^ lii H b *' perfon whatfoever fhall, by words only, quarrel, chide, or brawl commenced *' i" ^ny church or church-yard, that then it fhall be lawful unto in any ec- «< the Ordinary of the place where the fame offence fhall be done, cieiiafticai (c ^j^j proved by two lawful witneffes, to fufpend every perfo» court for ,, . /f ,• ■'1 • r -r 1 1 1 f • ' tr i ' ftriking or io oitendmg, that is to lay, it he be a layman ab tngrejju ecact brawling in *^ Jta; and if he be a clerk, from the miniftration of his ofHce for w^chu"cb!^ " ^° ^°"8 -'"^ ^^ ^^ ^^"^^ ordinary fhall by his difcretion think yard after *' meet and convenient, according to the fault,'* the expiration of eight calendar months from tlie commiflion of the offencc.J And it is further ena6^ed by the faid flatute, *< That if any ** perfon fhall fmite or lay any violent hands upon any other, ** either in any church or church-yard, that then ipfofaElo every ** perfon fo offending fhall be deemed excommunicate, and be •* excluded from the fellowfhip and company of Qbrifl's congTCi? " gation." And it Is further ena£led by the faid ftatute, ** That if any <* perfon fhall malicioufly flrike any perfon with any weapon, ia ** any church or church-yard, or fhall draw any weapon in any ** church or church-yard, to the intent to flrike another with the *' fame weapon, that then every perfon fo offending, and thereof *' being convi6ted by verdi£t of twelve men, or by his own con- ** felfion, or by two lawful witneffea before juftices of afhze, ** juftices of oj) or ax in his hand offer to ftrike another therewith, that this is not faid rohave an offence within this part of the ftatute ; for thefe are not fuch been fo weapons as may properly be faid to be drawn, as a fword, ''"'''f" ''>■ «iagger> ^V. Comp. Incumb. 347. cite/. Alfo, two perfons committed to prifon by certain juftices of the 3 K.eb.803. weace for difturbing a minifter in his office, were difcharged upon ^" '• , ^11 L L 1- T7-- 5 i> u r ..t, .. ^u • Nicolsand a habeas corpus^ by the court ot Kmg s Bench, for that their com- Roij-.^s. mitment was too general, not (hewing wherein they difturbed, Comp, in- but only that they per apertiwi faEliim difturbed, l^c. not (hewing ^"^''* ?'^7« the particular fa£l whereby they did difturb, vi-z. by brawling, fighting, or otherwife, there being feveral punilhments to each •, but the court bound tliem to their good behaviour for a year. 6^o €rcommunfcatiort» By the 3 Jac. r. r. 5. $ 1 1 and 12. It is enaAed, « That every " popifli recufant convid fiiall (land to all intents and purpofes " did^bled, as a perfon lawfully excommunicated, and as if fuch " perfon had been fo denounced and excommunicated according " to the laws of this reahn, until he or fhe fhall conform, &c. «< and that every perfon fued by fuch perfon fo difabled, may plead ** the fame in difabling of fuch plaintiff, as if he or flie were ex- «* communicated by fentence in the ecclefiaflical court, except the ** aftion of fuch recufant do concern fome hereditament or leafe, ** which is not to be feifed into the king's hands, by force of " fome law concerning recufancy." In the expofition hereof it hath been holden, Noy, 85. I. That a plea in difability, pursuant to this flatute, ought to Latch. 176. fj^g^ before what juflices the convidion was, that the court may ^ '^^^' know where to fend for a certificate thereof, if it be denied ; and that the record itfelf, or at leaft a certificate thereof, ought im- mediately to be produced. Hetl,i76. 2. That if after fuch a plea it be certified, that the plaintiff * Why not bavc Conformed, and thereupon the defendant be ordered to plead in the na- . i • r 11 t ^ • • rr t r • n • t tureof a 1" chief, and then the plamtift relaple and be convict again, the plea, after defendant cannot plead the fame in difability a fecond time*. the laft con- '' tinuance, if the plainlifF hath by his own aft rendered himfelf incapable ? 3 Lev. 333, 3. That it mufl appear, either from the convldlon itfelf or by **^* proper averments, that the plaintiff is convided of popifh recu- fancy, becaufe no recufants, except popifh ones, are within the faid claufe -, but this is fufBciently fet forth, by alleging, that the plaintiff being papalis rcciifans was indided and con\'\€ttA fecutidian formam Jlatuti^ &.c. (tf)zBuIft. Alfo it is holden by {a) fome, that all popifli recufants convlft *5S* may be taken up by the writ de excommunicato capiendo^ and that they are not to be adm.ltted as competent witneffes in any caufe ; (i)Hawk. but by {h) HaivkinSf this feems to be a conflrudion over-fevere j P. C. c. 12. fQj. inafmuch as this, like all other penal ftatutes, ought to be ' * conftrued ftrl6tly, and the words thereof are no more than that fuch perfons (hall fland difabled, ^c. as perfons lawfully excom- municate, ^c. and the purport thereof may be fully fatisfied by the difability to bring any action ; it feems to be too rigorous to carry them farther. But for this By the 25 £. I. f. 4. It Is enaded, " That all archbifhops and W« Gibf. f ( bifliops fliall pronounce the fentence of excommunication agalnft ° • °5 • « 3J1 xhok that by word, deed, or counfel, do contrary to the char- '* ters of Magna Charta^ or that In any point break or undo " them ; and that the faid curfes be twice a year denounced and " publiflied by the prelates aforcfaid.'* OBrcommunicatiom 671 (C) By whom Excommunication is to be pronounced and certified. 'IP HE fentence of excommunication can only be pronounced Glbf. CoJ. by the biftiop, or other perfon in holy orders, being a mafter ^°9S« of arts at leaft : alfo, the prieft's name pronouncing fuch fen- tence is to be exprefled in the inftrument ifl'uing under feal out of the court. Excommunication mud be certified by the bifliop of the dio- C0.LIt.133. cefe, whofe proper fubjeft the party is, and cannot be certified by ^*'''- ^^^' his commiflary {a) or official ; the reafon whereof, according to the rr/^By the (^) civilians, is, becaufe no perfon inferior to a bifhop can call in ancient the fecular arm, by the laws of the church •, but my Lord (c) Coke ""^mon affigns the reafon of it to be, becaufe no certificate of excommu- faid by nication by any fhall difable one, but the certificate of him to Hankford, whom the court may write to abfolve the party excommuni- "^•4« *^^t^d. a commif- fary might certifv excommunication ; and that he was reftralned by parliament.] {l>) Lindw. Je Scntm Ex Gibf. Cod. 1097. (f) 8 Co. 68. But the vicar general, epifcopo in remotis agentcy or the guardian C0.Lit.133. of the fpiritualities, vacantefedey may do it, {d) either by direct f'^^* certificate, that the perfon is excommunicate, or by letters tefti- (^) vem. monial, reciting the entry thereof in the regifter, and attelling ■i■^^. sKeb, that fuch entry is there found. ^°' ^9- [And although the bifhop be in his diocefe, yet the certificate F. N. B. of the vicar general, by his letters unto the Chancery, reciting ^^* ^* that the bifliop is in remotis agend.j is good, and ftiall not be tra- verfed.J So, a parfon excommunicated by a commiflary, oflicial or arch- 8 Co. 63. , deacon, who derive their jurifdiflion from the biftiop, may be cer- ^°"* ^'"* tified excommunicated by the bifliop himfelf (1?). Keg. 65. [(«) But in this cafe the rule in the regifter is, that the excommunication muft be faid in the writ to be ky the authority of the bifliop himfelf.] . Alfo, the bifliop, after election, though before confecration, F. N.B. may certify excommunication. ^^' ^' [The chancellor of the univerfity of Oxford may certify excom- F. N. B. munication of perfons within his jurifdi£lion. ^^ ^' "Whether the court of delegates have power to excom.municate, 2 Bulftr. 4. (though adopted in more modern practice,) hath formerly occa- ^ ° '^^^' fioned a difference of opinion.] Lutw. 17. In times of popery, excommengement certified by the pope, or 16 e. 3, jr. delegates commiflioned by him, did not difable the plaintiff" to R^ij^'^br.**^ fue, ^c. becaufe the courts had no perfon to whom they could 883. write to have him aflbiled. The court will not receive the certificate of excommunication of 8C». 63, one biftiop from another, becaufe they muft have the certificate ^' '^' from the bifliop whofe proper fubje£l the party was ; and he might have been aflbiled by his own ordinary, after the firft certificate to the bifliop. Nor 672 €rcommum'catfom Bra.Excoiti- Nor wlll they receive a certificate of a bifhop deceafed, becaufc Co^LIt.iu- ^^ ""^^ ^^nd aflbiled by the prefent ordinary that now is, after (a) Roll. the deceafe of the bifhop who has certified ; and the court will Alt. X83. not {a) receive any certificate but from fuch perfon to whom they can write to aflbil. C0.Llt.134. [But when the bi(hop hath certified the excommuhication under feal, his death will not vacate the certificate.] f C0.63. The certificate ought to be diredled, either to the court, or at Ab 88 ^^'^^ univerfts S. Matris ecdeft£ fili'is ^ and {b) ought to contain tile Lindw. 150. day of the excommunication, [that is, the day on which the ex- 9winb. 309. communication was publifhed in the church, for the writ de eX" within forty ('°f^^f*i^'f"^oto capiendo cannot be Awarded till the party hath lain un- days it was der the fenteiice forty days (c), which are to be reckoned from competent that day. to him to . appeal to the court of Rome , and the if peal would operate as a^ Juperjcdeat to the procefs, and lifcetate the party. 20 H, 6.25. a. b.J F. N. B. The certificate muft fignify, that the perfon was excommunl- '4^ ^* cated by fpecial name, and in a fpecial fuit againft him ex officio^ or by the party ; for otherwife he doth not incur the fentence of the greater excommunication. Ret V. The defendant was excommunicated for not paying his pro- f p"^''' portion of a rate made for repairing the church of D, in Suffolk. ^jj", ' It was moved to fuperfede the writ, j ft, For that it was not (hewn that the defendant was commorant within the diocefe at the time of the excommunication pronounced. Moor 467. Sir 7*. Jones 89. 2dly, Becaufe there was no addition of the defendant in the writ. On the other fide it was anfwered, (as to the firft objeftion) that the defendant in the libel was faid to be of D. in Suffolk^ which was the fame parifh where the church was, and it fliouid not be intended that, after the libel, he rertioved from thence : but if he did remove, his flying from the procefs of the court Ihould not mend his cafe, for then the party, by his own a£l, and by turning his back upon juitice, might avoid fuch proceed* ings. As to the want of addition, this was faid to be only necef* fary in the caufes of excommunication mentioned in the ftatute of 5 Eliz. c. 23. for which reafon it was true, that for want of addition, there could be no proceeding againll him byway of pro- clamation with pains and penalties for not appearing; but ftill as the matter was plainly of ecclefiaftical cognizance, ('y/z.) the re- pairing of the church, the excommunication was good, and fo was Cro. Car. 1^6. Hughes's cafe, T. Jones 89. The inhabitants of Berniondfeyy 1 Show. 16. John/on* s cafe, i Salk. 293. The king v. Foivler. — The chancellor difallowed both the exceptions. hr. Trebec Mr. Keith^ miniftcr of May-fair chapel, which was a chapel of" * A^k^^'s ^^^^ ^° ^^* ^^°*'S^*^ parifli, Hafiover-fquare, of which the plaintiff ^^ ■ was re£lor, being cited into the bifhop of London^ court for offi- ciating as a clergyman of the church of England without being licenfed by the bifhop, and having been denounced excommunicate forty days, for contumacy and contempt of the ecclefiaftical laws, upoo the bifhop's certificate into Ciiancery, the writ ol fignijlcavit iffued. €rccmmirnicatioin 6y^ iHued, which it was moved to quafh.— Lord Hardiv'whe Chancel- lor.— This is a cafe of as great confequence to the good govern- ment and difcipline of the church as can pofTibly happen. I can take notice of nothing but what appears on ih^ fignijicavit{a): and (a) The the queftion before me is, whether there is fulficient to warrant "^^^^fgi'" the court to ifiue the v/rit of excommunicato capiendo? Now, if hereufcd this gentleman is out of the jurifdidtion, he is not without reme- todcnotethe dy, for he may go to a court of common law after fentence, as '"ftiop'scer- weli as before. The iirft and material exception is, that the par- hfometimej ticular caufe of the excommunication ought to be fet forth. It is ufed to de- not neceflary for the ecclefiallical court to (hew they have rightly ""te the writ proceeded ; for if they have not, you have a remedy by appealing ^uatlTati' to higher ecclefiaftical jurifdi6lion. Here is certairdy a defcription erM itfeif. of the principal caufe, and if fome of the matters mentioned are '" ^'^'.^ '^"er • . . ft^nlc it within the jurifdi£lion, it is fufficient. It is not like the cafe of f-emeth to 57>^' King and FoivUr^ which was held uncertain, as it was in the be more pro- disjunctive, tithes OR other ecclefiajiical diies^ fo that it might be ec- P"_'y ^ppii- Clefiallical dues only : if it had been tithes A.m> other ecclefiajiical having re- dues, it would have been well enough. As to preaching, there is ctived its no pretence for his doing it without licence from the bifhop : the "^1"^^''°'" fame as to the adminiftration of the facrament, and celebration of word in the marriage; for the canons of 1603, confirmed by a6l of parlia- beginning of ment, are exprefs as to that matter. Here, the ground of the con- ^^'. ^'S"]fi<^''- tumacy is defcribed fpecially, which is more than is neceflary ; for nerabUhpa. ■where the caufe is futhcient it may be fet forth generally. The ''^ •^- *f«' fecond exception is, that it is not mentioned in what manner Keith officiated, or performed divine fervicc, and therefore it might be in his own houfe, or a private chapel. But the word ojficiativg ought not to be fo conftrued \ for reading prayers or a fermon in a private family, is not performing divine fervice. Divine fervice is the exprefhon made ufe of in feveral a£l:s of parliament, parti- cularly in the aft of uniformity, 13 $3* 14 Car. 2. f. 4. §27. relat- ing to the fervice in IVelJlj : in feveral other a£ls of parliament that diredt the reading of proclamations, the order is, that it be read after divine fervice. The word officiate relates to his office as a prefbyter, which rnuft mean his doing it in a publick manner. It is not indeed neceflary for a minifter to have a licence from the bifliop of the diocefe for every particular cafe, but yet the bifhop may fufpend him wliolly where he is irregular, till he fubmits to perform his iluty properly : and it is not here a defcription of the cafe, but of the contempt only, for which he has excommunicated him. The fourth exception is, That it is not faid at the time of the ex- The third communication he officiated within tlie diocefe of London^ and ""P'jo" , therefore has been cited out of the diocefe contrary to the ftatute jj not faid of 23 H. 8. c. 9. It is not averred, indeed, that he was refident in he has per. the diocefe at the time of the excommunication pronounced, but ^°!^^^ ^]' being faid in the libel to be in the diocefe, I will not prefume he fmce the was not commorant when the monition ilTued ; and to this pur- monitioiu pofe the cafe of The King y. Burrard, iP. Wms. 435. was proper- ^uLo^rdihi* ly cited. There is another anfwer to this obje£lion ; that a man is not re- may be refident in one diocefe, and come into another and commit ported to Vol. II. X n the ^»^«fp°''«"- 674 (2Brcommuntcation, the offence charged upon him in \\\tjigmficav'it^ and this, for thtf purpofe of being cited, is a refidence fufllcient, and he may be prefonted in thediocefe where he committed tlie offence ; and un- lefs he was fo confidered, there would be no remedy. See Dr. Blackmore's cafe in Hardr. 421. The fifth exception is, That he, who pronounced the fentence of excommunication, is not faid to be a pcrfon in holy orders. The averment in th^ ftgnifcavit is fuificient, for the words are, a per/on laiufully nttthorizedy which take in the capacity of the perfon doing it. The fixth exception is. That it doth not appear when the excommunication was pro- nounced. Now, the Jig fii^ccivit only avers, that he continued con- tumacious, but the terminus a quo^ and the tennimis ad quem^ arc never fet forth. The lafl exception was, That Mr. Keith is with- in the toleration aft, the ill W. cff M. c. 18. The ad of tolera- tion was made to prote6l perfons of tender confciences, and to exempt them from penalties j but to extend it to clergymen of the church of England, who a6l contrary to the rules and difcipline of the church, would introduce the utmoft coiifufion. All the exceptions therefore mufl be over-ruled.] (D) What Inconveniencies and Difabilities it lays the Party excommunicated under : And herein of his Difability to bring any Adtion. Gibf.Cod. A Perfon excommunicated is thereby difabled to [a) be a witnefs *35-ic96-7- -Lx jj^ ^jjy caufe, cannot be attorney or procurator for another, a perfon is ^^ t° ^^ turned out of church by the churchwardens, and not to be entitled to allowed chriftian burial. the benefit of clergy. Bro. Clergy, 20. — And may contract marriage. . Godolph. Repert. 616. 9E. 4. 36. An excommunicate perfon is difabled to fue or commence Co.Lit. 133. any aftionj but fuch difability cannot be pleaded {b) after a RoUAb general imparlance,, for thereby the defendant admits him a good 883." * plaintiff. [b) PlacttaGen. 10. Latch. 179. Lutw. 19. See tit. Abatement, vol. i. p. 4. 5. Lit. § 207. When excommunication is pleaded, the bifliop's letter under 8 Co. 69. [jjg {Q2.\y witneffmg the excommunication, mufl be (hewn ; and 3 Lev. '208.* though the plaintiff cannot deny the plea, yet the writ (hall not Z40. abate, but the defendant eat indefme die, becaufe the plaintiff, upon producing his letters of abfolution, fliall have a re-fummons or re- attachment. gAfTifcpl. If in an appeal of irmrder, 55*r. the defendant pleads excom- '^ munication in the plaintiff in difability, the appellee fhall be P. C. 11*4. bailed until the plaintiff purchafes letters of abfolution, and thea he muft plead in chief; for if the defendant (hould be kept in prifon tiU the plaintiff be abfolved, he might be a prifoner for life. excommunication. ^^s Excommunication is a good plea to an executor or adminiftrator, 43E-.3- 13« though they fue in aider droity for an excommunicate perfon is ex- S,"'^!^ '^■'^* eluded from the body of the church, and incapable to lay out the Ua) But aa goods of the deceafed to pious ufes : befides, it is one of the excommu- cfFedls of excommunication, that he cannot be a procurator or at- "'"^^'^ ff ■■- torney tor any other perion, and thererore cannot reprelent the appointed deceafed [a). executor, and is capa. ble of a legacy : for the fentence will not annul the executor/hip, or quite deftroy the aftion ; but only fufpend it till abfolution God. O. L. 37, 38. Swinb. 367. j Excommunication is no plea on a qui tain, becaufe it is for ex- 12 Co. 61. ample ; and the ftatute having given the informer an ability to fue, and not excepted excommunicated perfons from the liberty of informing, he is enabled to fue by the ftatute, notwithftanding the cenfures of the church. When a prohibition is brought againft the blfhop, and he pleads 2SE. 3. 97. excommunication againft the plaintiff, and in the excommunica- tion there is no caufe of fuch excommunication (hewn ; this is no good plea ; for, in fuch cafe, it will be intended, that tlie excom- munication was for endeavouring to hinder the bifliop's proceed- ing, by application to the temporal court ; and if fuch excommu- nication v.'ere allowed, it would deftroy all prohibitions, and the plea of excommunication in this cafe is exceptio ejufdem rei cujus petitur dijfolutio. If an adlion be brought by the bailiiFs and commonalty of a 30E. 3. i;. corporation, the defendant (liall not plead excommunication in Co.Lit.i3+. the bailiffs, becaufe they fue as a corporation, and a corpora- tion cannot be excluded from the communion of the vifible church. When excommunication is pleaded in the plaintiff, he fhall not Bro.Excom- reply, that Jie has appealed from the fentence, for the fentence is """"'"tion in force until it is repealed; and whilft it is in force, he cannot jSuift. 72. appear in any of the courts of juftice ; but he may reply, he is ab- 20 H. 6. 25 folved ; for then his difability is taken away. ^u^n^ Gen. [A party in cuftody on an excommunicato capiendo is entitled to Pex v. the benefit of the rules.] Buckiand, "• 1 Str. 413. (E) Of the Proceedings on the Writ of Excommu^ nicato capie?ido^ both at Common Law and by virtue of the Statute 5 Eliz, ^'23. IT is faid, that the writ de excommunicato capiendo is a liberty or GJbf. Cod. privilege peculiar to the church of England, above all the realms "02. cit«l in Chriftendom ; for though the afTiftance of the fecular arm hath c°(^^'s' ever been aft^brded to the church in moft other chriilian countries Apoi. foi. 8. as well as this, yet in no inftance is it perhaps fo furely and fo ("- ^"' '" efTedlually reached out, as by the execution of this writ, which is 5^, \^ (a) debitumjujiitiaf and not made to depend upon the pleafure of expre.ay the prince. . '^"'' '^^^ * * breve re^t de tXCMmunicatg (apietido de gratia regis frtcediu Xx 2 The ^7^ dEfcommiinicatiori. Fitz. N. B. The writ ol excommumcati capiendo iflues out of Chnnc^rv , ari.<5 '4o- is founded on the bifliop's certificate, fignifying the excommuni- ph i.'^^* cation, and at common hi\\' was only returnable into that court; fo that for any uncevtaifity or dcfctit iu the writ, the party could only be difcharged hi Chancery. But now by the 5 liltz. c. 23. Intitled, Av aEl for the due execu- tion of the ivr'tt de excommunicato capiendo, reciting, " Forafmuch *• as divers perfons ofiendiMg in mriny great crimes and offences, *' appertaining merely to the jurifditbion and determination of the ** ecclefiailical courts and jutlges of this realm, are many timt^s •* unpuniflied for lack and want of the good and due execution of *' the writ de excommunicato capiendo^ diredlcd to the flierifFof anj ** county, for the taking and apprehending of any fuch offenders, ** the great abufe whereof, as it fliould feem, hath grown, for that *' the faid viait is not returnable in any court that might have the ** judgment of the well executing and ferving the faiil writ, ac- ♦' cording to the contents thereof; but hitherto hath been left " only to the difcrction of the (lieriffs and their deputieSyby whof« *' negligence and defaults for the moft part the faid writ is iiot '«' executed upon the offenders as it ought to be, by reafou *' whereof fuch offenders be greatly encourr.ged to continue their « fiufut and criminous life, much to the dil'pleafure of Almighty '^'- God, ana to the great contempt of the ecclefiaftical laws of •* this realm 5 i,j";Th.-tt.the *' 2. Wherefore, it is enncled, That every writ of <'.vfa/«?««//;- precife R.nn tt ^.^^^ cap'wndo, that fliall be gr.inted and awarded out of the high m'jit'herein' " court of Chauccry agaiiiil any perfon or perfons within the bcobfer'/cd, '* realm of England^ (liall be made in the time of term, and return- and that the (i ^j^j^. before thc quKch's htghncfs, her heirs and fucceffors, in the bsbroiwii;: " court commonlv called the King's Bench, in the term next after and openly « the tcfte of the fame writ, and th»: fame writ ffiall be made to delivered in u (.Qjita;,,, at the leall, twenty days between the teJJe and the re- Tac/s^/. ' " ^"''^ thereof; and after tlie fame writ fliall be fo made and {b) That "■ fealed, that tlien tlie f lid writ fiiall be forthwith brought into the wtu a j.j,^ ^,,- J court of Kinj;'s Lknch, and tliere, in the prefence of rolled and *' the jufticcs, fliall be opened and [a] delivered of {b) record to delivered to " thc flierift" or Other officer (r), to wJiom tlie ferving and exe-cu- the fheriff" ^ ^.j^,^ thereof ihal! appertain, or to his or their deputy or depu- nient time; ** tics ; and if afterwards it ihuU or may appear to the jtifficcs of Cro. Car. n thc fame court for the time being, that ihe fame writ fo de- k "' afe*^" " livered of record be not duly returned before them at the day . v<-nt. 338. ** of the return thereof, or that any other default or negligence S. P. anJ n hath been ufed ot had in thc not well ferving and executing of maa'sdjr " ^^^^ ^'^'^^ ^^''^^'^' ^^^'^^ *^^*^^^ ^^'" j^^tices of the faid court fhall and ch/rged on " may, by authority of this acl, affefs fuch amercement upon the motion, as n {^\^\ fherilfor Other officer, iu whom fuch default fliall appear, pkadi'gfhis " 3S to the difcretion of the faid juftices fliall be tliought meet matter, at " and convenient ; which amercement fo affeffeil fhall be eftreated rlieietutn t/s; and if he be brf)Ut;ht in before the wiit is lecuiiubh.'j he (lull tiot be ailo^ved uj p'cad, or movcto q lalh tlie writ. 2. Thcwritof excom- muni.iilo aij'ur.iio rciiu'^ i\\c Jinr.jJiiP'Utt vy'iich ii in Chiincury, bu: the writ is brought into R. R. and. is enrolled there before it gi-ei t > the ftjL-ritF, wl.ich enTohnejit Is i>> iiitoim ihe court, thjt at the return of the excoi7ii!ut:ic.2(o capiendo they m.iy aw.iid t'lrt'icr p-ocefi', as the caf' roj'iires. 3. If by the recital ot t\\tftgtifii,jrj,t it apprais, th.it inert was no cufc for tl c writ, the couit of King's Rench may quafh ir, and the court of Ciuncery cannot, though the ji^^i:ific.i'vii be theic Salk. 294. pi. 3. [It was forinerly doubted, wheth.r ?fter th<; writ had been iliued out of Chancery, and brought into the court of H. R., md th.re deliveieJ to the iherift', hut not aftually returned into B. R., the court of Chancery, on a plain error appearing, could fupcrledc i'. Rex v Eurrard, iF. Wms. 435. But it was di-terniined by Lord Hardwicke, (hat aher the return of the writ is out, the court of Chancery cannot, on a f-eti'.ion to q lafh the writ, i!o any tiling in it, as they have no authority j for the courc ot" B. R. have the cugnizance of it, and they can compel the (lioriff to return it, and the application to •luafh it nauft be to them. If inJeed the writ ilfue in the vac.vion, and be not yet returnable, (for ic muft be returned on one of the return days in the term,) the court of Chancery will give relief and dif- chaige the party out of culfody. Ex /.drfe Little, 3 .Aik. 479. But if the writ ilfued from the court 0/ Chancery be opened and enrolled in ii. R., and on exccytl ms taken, a rule be made for the profecutor to fliew caufe why the delivery of the writ to the fhcriftfliould no; be ftaid, and before that can be done, the return be out, another v/nt may be I'ucd out from Ch.incery, but not from U. R. Rex v. Eyre, 2 Str. 1 189, After a writ had been opened and enttired of record, ir was delivered out in order to take up the defendant • and aefore the return, thi; dt-tendant moved and had it fup-rfeded ; for the court faiii, they could judge &f it by the entry, and fuice ir appcutd the defendant cuiid not be legally detained upon it, if he was taken, it svas proper to fuperledi- i , C) prevent him from being retrained of his liberty contrary to law : that the intent ot this Itatute in dir^flinj^ the v.rit to oe dei'vcied in open couit, was to apprife the court of the nature of the caufe; thar this was now to be conlidered a,s a writ that -.mprcvhic emur.avit, and they were roc to wait-till the return, till al! ciie inconveniencie-, which they Ihould have prevented by not iiTuing the writ, had happened. R' x v. 'I'hecd, i Scr. 4-,. 10 Mod. 350. S. C. (i) The words «« ether officers" in the i^atute mean bailiti's of lioerties or the coroner, who is the proper otlicer to execute procefs, where the fhcrifl- is incapacitated : therefore, if one wh ) is a prifoncr in the Fleet be excommunicated, the court of Chance. y canni)t oiJer the curfitor to direft tlie writ (^i txrommuiiuctu capiendo to the warden of the Fleet, the fame being a "..■.f^-.iiiUicJ \v\\t; but the writ mail: be direded to the fhcrifF, who may return a nori eji in-imitus into the Kind's Bene!), upon which L-'-urn the court v\'ill grant a habeut corpus to bring up the prifoncr, and there cha.ge him with an cxcjinmuiiiCM'^cuylatdj. Strudv,icke's cafe, 3 P. Wms. 53.] *' 3. It is further enaclcd, That tlie flieruT, or other ofhcer, to *' whom fuch writ of excoinmiiiucato capiendo., or otlier procefs by ** virtue of tliis a6l Ihall be directed, (hall not in anywiie be com- ^* pelled to bring the body of fueh pcrfon or perfons as (hall be " n.amed in the faid writ or procefs into the faid court of King's ^* Bench, iit the day of the return tliereof, but fliall only return " the fame writ and procefs thither, with dechiration brieily, how " and in what manner he hath frrved and executed the fame, " to the intent tliat thereupon the faid juHices nvay then further " proceed, according to tlie tenor and elicct of this prefent a6l. " 4. And if the (herilf'or other officer, to whom the execution *' of the faid writ fliall fo appertain, do or fliall return, tliat the party " or parties named in the faid writ cannot be found within his " bailiwick, that then the faid juftices of the King's Bench for ** the time being, upon every fucii return, (hall award one writ *' oi capias againit the faid perfon or perfons named in the faid " writ of exconnnunlcaio ccpiiiido, returnable in the fame court in *' the term-time, two months at leait next after the tejle thereof, ** with a proclamation to be contained within the faid writ of ** capiasy that the (heriff, or other o(Hcers, to whom the faid writ ** (liall be directed in the full county-court, or elfe at the general *< aflizes or gaol delivery to be holden within the faid county, or " at a quarter fefhons to be holden before the juftices of the peace ** within the faid county, (hall make open proclamation, ten days ** at kail before the return, that the party or parties named in tl>e X X 3 " faid 678 (JBrcommunication. " faid writ (hall, within fix days next after fucli proclamation, « yield his or their body or bodies to the prifon of the faid ftierifF, ** or other fuch officer, there to remain as a prifoner, according to ** the tenor or effe£l of the firfl; writ of excommunicato capietido^ *' upon pain of forfeiture of ten pounds ; and thereupon after *' fuch proclamation had, and the faid fix days pail and expired, ** then the faid fiierifF or other officer, to whom the faid capias *' fhall be directed, ffiall make return of the fame writ of capias ** into the faid court of the King's Bench of all that he hath done *' in the execution thereof, and whether the party named in the " faid writ have yielded his body to prifon, or not. (a)Thisfta- *' 5. And if upon the return of the faid fheriff it fliall appear, tute doth not u ^^^ jj-^g party or parties named in the faid writ oi capias, or any i^^&t^V^ " of them, have not yielded their bodies to the gaol and prifon of txcommu. <« the faid flieriff, or other officer, acccording to the effect of the nicatocapu (c fame proclamation, that then every fuch perfon, that fo (hall common " I'nakc dffault, fliall, for every fuch default, {a) forfeit to the law, but in « qucen's highnefs, her heirs and fucceflbrs, ten pounds, which thepaiticu- ,( ^^^jj iij^^gwife be eftreated by the faid juftices into the faid court therein men- *' of Exchequer; in fuch manner and form as fines and amerce- tioned gives « ments there taxed and affi^ffed are ufed to be. a greater pe- nalty to enforce it ; and therefore the writ doth not only ifiue 'pon excommunication in any other cafes, but (as h Jth hetii often adjudged) though a caflai with pioclamatioriS and pen.ilties go forth in a matter not within tMs ftatute, and the perfon be thereupon impi ifor.ed, and pray to be diCcharged, becaufe the matter for whitn he'- as excommunicated (ihougli of a fpMcual natuve) iinot wItUn :liis ftatute, yetno;hinj^ (hall be dii .. iijed but the penalties, and (without any ne\\ writ obtained) the Excommunication and imprifoni njent may ren: >in rs at common law, and not be difc'.iargcd but by abfoiution in due form. Gibf. Cod. J ic6. but for this niide Cro. Car. 197. 199. Roll. Abr. 175. Jon. 226. Latch. 174. 204. 2 Jon. 89. Show. 17. 3 Mod. 41-3. Skin. 167. pi. 6. Vem. z\. Salk. 294. pi. 4. 7 Mod. 56. 1 17. ** 6. And thereupon the faid juftices of the King's Bench fliall *' alfo award fcrth one other writ of capias againft the faid perfon *' or perfons that fo fliall be returned to have made default, with *' fuch like proclamation as was contained in the firft capias, and ** a pain of 20 /. to be* mentioned in the fecond writ and procla- *' mation ; and the flieriff or other officer, to whom "he faid fecond •' writ oi capias fhall be fo diredfed, fliall ferve and execute the " faid writ in fuch like manner and form, as before is expreffed!, " for the ferving and executing of the faid firfl writ of capias ; *' and if the flieriff or other officer fliall return upon the faid *< fecond capias, that he hath made the proclamation according to *« the tenor and effe6l of the fame writ, and that the party hath ** not yielded his body to prifon, according to the tenor of the " faid proclamation, that then the faid party, that fo fliall make *' default, fliall, for fuch his contempt and default^ forfeit to the ** queen's highnefs, her heirs and fucceflbrs, the fum of twenty ** pounds, which faid fum of twenty pounds the faid juft:ices of *« the King's Bench for the time being fliall likewife caufe to be ** eftreated into the faid court of Exchequer, in manner and form ** aforefaid. " 7. And then the faid juftices fliall likewife award one other ** writ of capias againft the faid party, with fuch like proclamation ♦* and pain of forfeiture as was contained in the faid fecond writ of 14 " capias. (IBrccmmunication. 679 •* capias, and the fheriff or other officer, to whom the fald third " writ oi capias fliall be fo diredlied, fnall ferve and execute the faid " third writ of capias, in fuch like manner and form as before in ** this z€t is exprefled and declared, for the ferving and executing " of th*^ faid firft and ftcond writs oi capias \ and if the fheriff " or other oiTicer, to wliom the execution of the faid tliird writ <* ,{hall appertain, do make return of the faid third writ of capias, ** that the party upon fucli proclamation hath not yielded his body ** to prifon, according to the tenor thereof, that then every fuch *' party, for every fuch contempt and default, fhall likewife for- *' feit to the queen's majefty, her heirs and fucceflbrs, other 20/. " which fum of 20 /. fliall likewife be eftreated into the faid court *' of Exchequer, in manner and form aforefaid ; and thereupon " the faid juftices of the King's Bench fliall likewife award forth *' one other writ of capias againft the faid party, with like procla- ** mation and like pain of forfeiture of 20/., and that alfo the '* faid juftices fliail have authority by this a6t infinitely to award '* fuch procefs, with fuch like proclamation and pain of forfeiture " of 20/. as is before limited againft the faid party that fo fliall " make default in yielding his body to the prifon of the flieriff, *' until fuch time as by the return of fome of the faid writs before " the faid juftices it fliall and may appear, that the faid party hath '* yielded himfelf to the cuftody of the faid flicvift'or other officei-, ** according to the tenor of the faid proclamation, and that the *' party, upon every default and contempt by him made againft ** the proclamation of any of the faid writs fo infinitely to be ** awarded againft him, (hall incur like pain and forfeiture of *' 20/., which fliall likewife be eltreated in manner and form *' aforefaid. " 8. And be it further enafted by the authority aforefaid. That (a)Bythe *' Vv'hen any perfon or perlons fliall yield his or their body or i^J.^' '^'^' " bodies to the hands of the flieriff or other officer, upon any of communi-' '* the faid M'rits of capias, that thai the fame party or parties, that cate, taken " fliall fo yield themfelves, fliall remain in the prifon and cuftody ^' ^^^c'u ** of the faid flieriff or other officer, without {a) bail, bafton, or bifliop, are " mainprize, in fuch like manner and form, to all intents and pur- expreiiiy *' pofes, as he or they fliculd or ought to have done, if he or they j^rlf |'° ff,, " had been apprehended and taken upon the faid writ oi excotn- bie; but it ** mimicato capiendo. ^^^^ b«^" held, that the court of King's Bench may, as well before asfince this ftatute, bail a perfon taken upon excommunicato catierdo. Bulft. 122. Bat where the court lefufed in fuch a cafe to bail the birtiop of St. David's, -vide 7 Mod. 61. [It is a ccmmitment in execution, and therefore it feems the court can have no power to bail. I Show. 16.] . *« 9. And that if any flieriff or other officer, by whom the faid ** writ oi capias, or any of them, fhall be returned, as is aforefaid, *' do make an untrue return upon any of the faid writs, that the «* party named in the faid writ hath not yielded his body upon the « faid proclamations, or any of them, where indeed the party did « yield himfelf, according to the effect of the fame, and that then •* every fuch flieriff or other officer, for every fuch falfe and *' untrue return, fhall forfeit to the party grieved and damnified X X 4 *« by 6So CBrcommunication, ** by fuch falfe return, the fum of 40/.', for the which fum of ** 40/. the faid party grieved fliull have his recovery and due rc- *' niedy by acflion of debt, bill, plaiiu, or information, in any of " the queen's courts of record j in which '.i£tion, bill, plaint, or ** information, no eflbij^n, proteftion, or wager of law, fliall be •' admitted or allowed for the party defendant. ** 10. Saving and referving to all archbifliops and bifhops, and *' all others, having authority to certify any perfon excoinmuni- ** cated, and like authority to accept and receive the fubmilhon ** and fatisfa£lion of the faid perfon fo excommunicated in man- ** ner and form heretofore ufed, and him to abfolve and releafcr, ** and the fame to fignify, as heretofore it hath been accuflomed, ** to the queen's majefly, her heirs and fuccefTors, into the high ** court of Chancery, and thereupon to have fuch writs for tlie ** deliverance of the faid perfon fo abfolved and releafed from the ** fherifF's cuflody or prifon, as heoetofore they or any of t^iem ** had, or of right ought or might have had ; any thing in this *' prefent ftatute fpecified or contained to the contrary hereof in ** anywife notyi'ithftanding. *^ 1 1. Provided always. That in Wales, the counties palatine of *' Lancajlery Cbejicr^ Durham-, and £/y, and in the Cinque PortSy " being jurifdidtions and places exempt, where die queen's *' majefty's writ doth not run, and procefs of capias from thence " not returnable into the faid court of the King's Bench, after " zuy fignijicavity being of record in the faid court of Chancery, ** the tenor of ixxch. ftgmjicavit by mittimus fliall be fent to fuch of ** the faid head officers of the faid country of IValeSy counties j)Thatif ?^ commutiicato capietido (hall be awarded, (hall not in the fame writ t''c party o^. " of exiommufiicaio capiefulo hzve a fulhcient and lawful (a) addi- *^?!''i'\""*" ic r t n r cated nasno •' tion, accorJmg to the form of the elcatute of (b) prima of Henry addition in ** the Fifth, in cafes of certain fuits, whereupon procefs o{ exigtiit thcvnit, he *' are to be awarded, or if in the Jig/ii/icavit [c) it be not contained, ^^Yr-'cd on' ^* that the excommunication doth proceed upon fome caufe or motion. " contempt of fome original matter of herefy, or refufing to ^f^' ^'>^- ** have his child baptized, or to receive the holy communion, R^p,' ,5°'^* " as it is now commonly ufed to be received in the church of But where ?♦ England, or to come to divine fervice now commonly ufed in ^'^'=P^'^'» *' the faid church of England j or errors in matters of religion, or yi ^.mei, f dpftrine now received and allowed in the faid church of Eng- chant, c. *»' landy incontinency, ufury, fimony, perjury in the ecclefiaftical ^'l^'"^' <* court, or idolatry, that then all and every pains and forfeitures mandep^. *i limited againfl fuch perfon excommunicate by this flatute, by roch.de D. •*' reafon of fuch writ of excommunicato capienJoy wanting fulhcient ^^g[,"'f '^'^ *' addition, or of fuch Jignificavlt, wanting all the caufes afore- it was ob- *' mentioned, fliall be utterly void in law, and by way of plea to jefted.that « be allowed to the party grieved. '^^S'^Z. ftould refer to him only who svas la(t mentioned. The King ar.d Barnes, 3 Mod. 42, 43, Skin. 176. pi. 6. S, C. adjudged. (/') This llatute (1 H. 5. c. 5.) cnnf^s. That in every original writ of actions petlbnal, ajipta's, and inJidments in which the exigent (h^ll be avvarded in the namesof the defendants in (uch original writs, appeals, and indictments, additions (hall be made of their eltate or degree or myftcry, and the towns, hamlet-, o: places, and the counties where they were or be converl'ant, ^*i. »L o"*^ °f t^c clerks of the llatute merchant, and mayor of the city of 2 Roll. Abr. -J- . . r ■% r • \ ' r ^ r- rr- ^65^ Londoti, or two merchants of the faid c:ty, for that purpofe aflign- ed, or before the mayor or warden of the towns, or other difcreet men for that purpofe affigned. This recognizance is to be entered on a roll, which mull be double, one part to remain with the mayor, and the other with the clerk, who ftiall write with his own hand a bill obligatory, to which a feal of the king, for that purpofe appointed, fliall be affixed^ together with the feal of the debtor. The defign of this fecurity was to promote and encourage trade, by providing a fure and fpeedy remedy for merchant-ftrangers a* well as natives, to recover their debts at the day afligned for pay- (*)iiEd. 1. ment, the want of which, fays the {{zlnrt oi [a) A^on Burnell (which firft created the llatute merchant), in a great meafure prevented the importation of foreign commodities, and difcou- raged llrangers from trading with us, to the detriment not only of our own merchants, and other fubje^ls, but of the prince himielf, whofe cuftoms rife and fall in proportion to the increafe and decay of trade. W^inch. 33. But though the ftatute merchant feetrts firft to have been intro- duced, and was wholly calculated for the eafe and benefit of mer- chants, as the name itfelf imports ; yet it was not long ingrofled by them ; for other men finding from their own obfervation, that it was much of the fame nature with judgments given in Wejlminjler- Hal! ^ but obtained with infinite lefs trouble and ex- pence, out of regard to their own intered and quiet, eafily fell into this way of contrafling, and by degrees it came to be proved into a common aflurance, as we find it at this day. The addition of the king's feal, which was never required to any contra£l at common law, was to authenticate and make the fecu- tiiy of a higher nature than any other then known ; for by this the king, in the perfon of the mayor, l5c. attelts the contrail, and takes conufance of the debt, and, confequently, execution is to be awarded upon failure of payment at the day alfigned, without any mefne procefs to fummon the debtor, or the trouble or charge of bringing in proofs to convict him : for the judges, who are thq king's reprefentatives, for the more fpeedy adminiftration of juf» tice, require thefe on common contradls and fpecialties, to fatisfy ihemfelves of the juftice and legality of the plaintiff's demands, before they award any execution againft the defendant; but to this contract the king himfelf, by t];e mayor, warden, ^c. is a witnefs, ^ivitnefs, and has the frank acknowler'gment and confefllcn of the debtor, that he really owes fo much, which is the beft and fureft proof the law requires ; therefore the legiflators of that time, out of a juft re^;ird to the prerogative and juflice of the king, on thcfe contrudc, as on judgments, allowed of an immediate execiition ; thefe being the fur» {l means of convidion, v;z. the conieiTion of the conufcr on record, which the judges at Wcjl- r.unjhr fcldom have to frame their judgments on ; and thus it mud be prefumcci from the force of them, which is equal to judgments sSheph. of the fupeiior courts, they obtained the name of pocket judg- -^br. 313. inents. The feal of the king confids of two pieces, one to lie in the Cro. Eilr. cuftody of the mr.yor, and the other of the clerk that enrols the ^33- 3 '9* recognizance, the better to prevent any fraud or corruption this fccurity might be liable to, if the feal lay in one hand. The flatute ftaplc is a bond of record, acknowledged before 2 Roll, the mayor of tlie ilaple, in the prefence of all or one of the con- ■^'"■•4''6* flables. To this end, fays the [a) ftatute, there fliall be a feal or- [a)^■^Y.i.%. dained, which fliall be affixed to all obligations made on fuch re- '*• *• c. 9.* cogniz.:nces acknowledged in the flaple. This feal of the fiaple *'8"tnhe is the only feal the ftatute requires to attcft this contraQ ; but it fameftatute; IS no more under the power or difpcfal of the mayor, than that and 36 E. 3. appointed by the ftatute merchant; for though the ftatute ap- ^''' points him the cuftody of it, yet it is in fuch a manner, that he cannot a4hx it to anv obligation without their confent, it being to remain in the mayor's hands, under the fecurity of their own feals. To underftand a little of the original and conftitution of the dlnft. 23X. ftnple, and the advantage the nation had by this eltablifhment, we rauft obferve. that the place of refidence, whither the mer- chants reforted with their ftaple commodities, v^^as anciently called fjlnpely which fignifies no more than mart or marhd ; and this v/as toimerly appointed out of the reahn, as at Calais, Antiuerp, ts^c. and other ports on the continent which were neareft to us, and whither the merchants might with fafety coaft it. But befides thefc ftaple ports appointed abroad, there were Mallnc's others appointed at home, v. hither ail the ftaple commodities Lex. Merc, were carried in order to their exportation, fuch as Lotidon, IVeft- y.jf the 7::lnjt€r, Hull, ^V. tliis was found to be of great ufe and confe- 27 £• 3« quence to the prince in particular, and to tlie intereft and credit *^* '* of the nation in general ; for at thefe ftaple ports were the king's cuftoms'eafily collected, and were by the officers of the ftaple, at two feveral payments, returned into the exchequer. Befides, at tliefe ftaples, all merchants goods were carefully viewed and marked by the proper officer of the ftaple -, and this ncceflarily avoided the exportation of decayed goods, or ill-wrought manu- fadures, and, confequently, fixed a ftamp of credit on the mer- chandizes exported, which, upon the view, always anfwered the expectation of the buyer. The ilapie merchandizes, according to Lord {b) Coke, are only {h) 4inft. wool, woolfeUs, leather, lead, and tin ; (c) others add butter, *38- ^ Vot. II, \ Y cheefe, ' 690 <2Brccution. Lex. Merc, chccfe, and clothes ; but whatever th.ey were, the mnyof and *37- conftables had not only conufatice of all contracts and debts relat- ^■^ '^''^' ' iniT to them, but they had likewife jurifdidion over the people and all manner of things touching the ftnple. This power was given them, leil the merchants fliould be diverted and drawn from their bufmefs and trade, by applying to the common law, and running through the tedious forms of it, for a determination of their differences, and for the greater encouragement of mer* chants, that they might have all imaginable fecurity in their contradls and dealings, and the moll expeditious method of recovering their debts, without going out of the bounds of the ftaple. C0.Lit.29o, By this it appears, that this fecurity was only dcfigrled for the merchants of the ftaple, and for debts only on the lale of mer- chandizes brought thither-, yet in time others began to apply it to their own ends, and the mayor and conftable would take re- cognizances from ftrangers, furmifmg it was made for the pay- ment of money for merchandizes brouglit to the ftaple. To pre- vent this mifchief, the parliament in 23 //. 8. c 6. §11. reduced the ftatute ftaple to its former channel, and iiiid a penalty of 40/. on the mayor and conftables, who ftiould extend the benefit of the itatute to any but thofe of the ftaple. But though the ftatute of 23 H. 8. C.6. deprived them of this benefit; yet it framed a new fort of fecurity, to be ufed ad libitum by all men, known by the name of a Recognizance on 23 H. 8. c. 6. or a recognizance in the nature of a ftatute ftaple, fo called, becaufe this a£l; limits and appoints the fame procefs, execution, and advantage in every particular, as is fet down in the ftatute ftaple. Co. Lit. A recognizance therefore in nature of a ftatute ftaple, as the »9o- a. words of the aft declare, is the fame with the former, only ac- 4 Roil.*^ knowledged under other perfon'-- •, for as the ftatute runs, the chief Abr. 466. juftices of the King's Bench and Common Pleas, or in th^ir ab- Co.Ent. 12. fence, out of term, the mayor of the ftaple at Wejlmiiijlery and the recorder of London, jointly together, flrall have power to take recognizances for payment of debt in the form fet down in the ftatute. In this, as in the former cafes, the king appoints a feal to atteft the contract, which fuch of the faid juftices ftiall have the keeping of, and the faid mayor and recorder another of the fame print and fafliion ; and every obligation made and acknow- ledged before either of the juftices, or the mayor or recorder, muft be fealed with the feal of the conufor, M-ith the king's feal, and with the feal of the chief juftice, or the mayor and recorder before whom It is taken, who are likewife obliged to fubfcribe their names : befides this, the clerk of the recognizance (who is to be appointed for this purpofe by the king) or his deputy, fliall make and write all obligations thus acknowledged, and enrol them in two feveral rolls indented, one whereof (liall remain with fuch of the faid juftices, or with the mayor and recorder that take the recognizance, and the other with the clerk, who is farther obliged, at the requeft of the conufee, his executors, or admini- ftrators, to certify fuch obligations into Chancery under hia feal. But <3Brecution» 691 But now by flat. 8 Geo. i. c. 25. § i. the clerk of the recogni- zances, or his deputy, Ihall prepare three parchment rolls, and (hall, at the times of acknowledging every fuch recognizance, fairly write or engrofs, inftead of the heads or contents thereof, on the faid rolls, the full tenor, in h^c I'erba^ of every fuch recognizance j and one of the rolls (hall contain all the recognizances taken be- fore the chief judice of the King's Bench ; another the recogni- zances taken before the chief juflice of the Common Pleas; and the other the recognizances before the mayor of the ftaple at Wejl77mijler^ and recorder of Lo7idon\ and the perfons before whom fuch recognizances fliall be taken, as well as the parties acknow- ledging the fame, are to fign their names to the roll of every re- cognizance, under the enrolment thereof, as well as fign and feal the recognizance ; and all rolls fo figned fhall at the end of every year be fixed together, and made one roll of, and are to remain in the cuflody of the clerk, who is to keep a docket for fearches. 2. Of the feveral ProcefTes on thefe Securities when forfeited, in order to a full Execution. But before we enter into a particular inquiry concerning thefe 3 Lev. 512. procefles, it is proper to take notice, that the interell gained upon Stephensand an execution of a ftatute or recognizance is to be followed by an saik. 563. actual entry of the conufee to perfect his fecurity, and till fuch pl.i- S.c. entry the conufee hath only a poffefFion in law, which he cannot 4 Mod. 48. afhgn or transfer over 10 any other perfon ; therefore where the iShow.igo. adminiilrator of a conufee in a (tatute after his death fued forth s.c. Sbn. an extent, and upon that a liberate, which was returned, and be- ^°°* " * fore any a£lual entry or recovery of the poflefRon in eje£lment, or without executing the deed upon the land, did by indenture aflign over ail his intereft to the leflbr of the plaintiff, who there- upon brought his ejedlment ; it was adjudged, that the aflignment was void -, for by the return of the liberate he had accepted the pofleffion, and was eftopped to fay the contrary; then when the owner ftill continues in poflelfion, this turns the poffeflion which the adminiftrator had accepted by the liberate to a right, and fuch right is by no means affignable ; nor is this like an interejfe ter^ Sesfcfi, D. mini, which, it is true, the lefiee may afiign over before a£lual entry, becaufe in that cafe the leflbr is the principal agent, and hath done all on his part to transfer over an iwterell to the leflee, which he may execute at pleafure ; and as the perfon who fues the liberate in this cafe is ellopped to fay, that he hath not the pof- feffion ; fo is the leflbr in the other cafe eftopped to fay, that he hath the pofTefRon, againfl his own leafe. I . Of the Manner of Execution on the Recognizance at Cctjimcn LaiVy and "wherein it differs from the Statutes y &c. and they from each other. If the conuforbe within the jurifdidion of the mayor, or other 13 ^-^ if officer, before whom the ftatute merchant was acknowledged, and ^^'' 3.* y y 2 be C92 (JBrecuttonr, be found there, then upon the conufee's bringing the ftatute, 1"V. to the mayor, ts'c. and clerk, and their finding the record of it, and the day of payment hipfed, the mayor may apprehend and imprifon the conufor (if he be lay), there to remain till he fatif- fies his creditor. Winch. S2. And although there be no day of judgment exprefled in the Jon. 52,. ftatute, yet this omiffion of the clerk dots not vitiate the ftatute ; for in this, as in obligations, where no actual day is appointed for payment, the legal day is prefently, or when the conufee pleafes to demand it. Winch. 83. But there may be a day of payment fixed in the ftatute, and yet ^5- the ftatute void •, as if it be payable at AIichac///ias after J. S- goes to Paul's, or returns from Roue; thefe are void ftatutes, becaufe it does not appear judicially to the mayor, when to award execu- tion i but if the ftatute be payable the firft return of Michaelmas term, or before Michaelmas, there is fufhcient certainty in thefe, and the mayor ought to take notice of them. 2 Roll. But if the conufor be out of the jurifdiftion of the mayor, then Abr. 473. {\\z\\ he fend the recognizance under the king's feal into Chan- cery, after which certificate the firft procefs is a capias to take his body only ; and if upon this the fherlfF returns a cepi corpus, tlie debtor (hall remain in prifon a quarter of a year, in which time he may difpofe of his goods and lands to the beft advantage to pay his debts; but if the conufor either omits to fatisfy his creditor in that time, ov if the flierifF had returned on the capias non eji inventus, or the conufor dead, then fliall the execution be granted againft lands, goods, and chattels, and they be delivered to the conufee by a reafonable extent till the debt be levied ; this writ of execution the fiierifF is to return into oire of the benches, and how he hath performed the fervice. And here we muft take notice, that the procefs on a ftatute merchant differs from that on the ftatute ftaple, and the recog- nizance in nature of a ftatute ftaple, in four particulars : Bro. Statute j. If the conufor cannot be found within tlie ftiiple, nor hi? Merchant, goods, to the value of the debt j the firft procefs, after the cer- ' ' tificate under the feal in Chancery, is to take body, lands, and goods, all in one writ, in which refpe£l it is preferable to the fta- tute merchant, as being a much fpeedier remedy. 4ln(i:. 79. 2. They differ in refpe6l of the place of the return •, for, as is C0.Lit.290. before obferved, the writ of execution on the ftatute merchant is returnable in either bench -, but upon the ftatute ftaple the writ is returnable into Chancery; and 23 H. 8. c.6. which firft brought in the recognizance in nature of a ftatute ftaple, referring in this to the fame procefs and execution eftablifhed by 27 E. '^.Jl- 2. f. 9. on the ftaple, the law muft be the fame in both cafes. 7. Roll. -3. They differ in the fubftance of the writ of execution, for Abr. 475. upon the ftatute merchant the flierifF may deliver the lands, isfc. to the conufee, upon a reafonable extent, without the delay or charge of a liberate ; but upon the ftatute ftaple, or recognizance in nature of it, the fherifF, after the extent, cannot deliver the lands, i;f(. to the conufee, but muft feize into the king's hands, 15 and <2Brecution* 693 and the conufee mufl h:ive a liberate to get the lands, ^c. into his hands i and in this refpecl the (Utute merchant is preferable to the flatutc ftaple, or recognizance in nature. of it. 4. A fourth (liffcrence io, that the ftatute merchant having Bro. Statute the feal of the conufor befides the kind's feal, the conufee may ^^^c^'ant, ^1 . . 1 1 n • r • . I 1- 16. Moor, waive the execution given by the Itatute, an^ ule it as an obhga- pi j^^,. tion, and bring an a(3:ion of debt on it: fo, for the fame reafon Cro. t.ii. may the conufee, on the 23 if. 8. c. 6. the recognizance having '^94- the fr^al of the conufor to it : /ecus of a (latute ftaple, becaufe the king's feal only, without that of the party, is affixed to it, which is abfolutely neceflary in all obligations at common law. 2. ^t what 'Time Execution may be gratited en each of them. For the time of execution we mull diftlnguifli between recog- C0.Lit.291. nizances at common law and llatutes merchant, ^c. for upon the * Inft. 469. former, if the conufee did not take out execution within a year ^'g/ g'^^^ after the day of payment afligned in the recognizance, he was Recog. 17. oDliged to commence the fuit again by original ; the law prefum- ing the debt might have been paid, if he did not fue execution within the year after the money became payable. But this law was (rt) altered in Edward the Firft's time, and the conufee had (<») By 2. fcire facias given him to revive the judgment, and put it in exe- ^^^™' cution if the conufor cannot ftop it by pleading fuch matters as it*, i. 0,45. the law judges fufficient for that end, fuch as a releafe, l^c. but Which i;i« the conufee of a ftatute merchant, ^c. may at any time fue execu- ^''^' tion on them without the delay or charge of 7i fcire facias. If A. enters into a recognizance or ftatute, l5fc. to B, and but 2 Roll. one day of payment is appointed for the whole debt, B. may have ^'■_^^^' execution upon failure of payment in the method before fet down ; j , j'. but if ihe fum be payable at three feveral days, as 20/. at each C0.Lit.292. day, the whole debt being 60/. when the firft day of payment is ^Jnft. 395. hipfed, the conufee n"!ny have execution for 20 /. immediately, and Reg'. ,47. fo for the reft as it becomes due, witliout waiting for the laft day 5 Co. Si, of payment, a? he muft have done if the debt had been due by bond. And this holds as well on recognizances ct common law as upon ftatuter. ; and the reafon is, becaufe thefe are in nature of three feveral judgments. 3. W-ho fjall have Execution en ihem^ as the Perfon alters. Here we muft again diftlngulQi between recognizances at 2 Inil. 395. common law, and ftatutes and recoj:nIzances introduced by ftatute l''''^. , r •! r r> ,---i - i-ir • °^^- Stat. law : for, in the nrft cafe, it the conulee dies before execution Merch. ifii, faed, his executor fliall not fue it even within the year, without 43- 5*^' bringing 2. fcire facias againft the conufor : the reafou is, becaufe the law prefumes the debt might have been paid to the teftator, and therefore would not fuffer the debtor to be molefted, unlefs it appeared he had omitted to perform the judgment; and this was to be done hy fcire facias brought by the executor, for the altera- tion of the perfou altered the procefs at comKioii law. But the Y y 3 ftatute 694 (ZBrecution* flatute merchant, vS*iucing the teftament and the ftatute, fhall have execution without fcire facias^ as the tellator himfelf might. But the difficulty in fettling this point will be, either when there are two conufees, and one of them dies after procefs of execution is begun ; or where there is but one conufee, and he dies after procefs begun. In order to clear thefe points, it is to be obferved, that that which is certiiied into Chancery is a tranfcript of the record lodged with the mayor and clerk, and upon fuch certificate the Chancery views the pocket fecurity, and then proceeds to iflue the procefs according to the ftatute 13 Ed. \. ft. 3. de mcrcntovy and if there be any difagreement between the pocket judgments and the certificate, there is a new certiorari awarded to the mayor (a) Reg. to infpe£t the rolls, and make a re-certificate, as appears in the 348. b. ^^j regtjler. Dyer, 180. When the Chancery hath ifTued procefs in either bench, if the death of the conufor, or non ejl inventus is returned, fo that it ap- pears, that the perfon is not to be found to give fatisfaftlon, the benches direct all other procefs, in order to give the party fatif- faftion. And the reafon of this is, from the direction of the ftatute to return the procefs into thefe courts, which v/as upon this original policy, that all parties in intereft might come in and have an opportunity to litigate where every man's property is determined. But if the conufee dies after procefs returned into C. B. his executors cannot carry on the procefs there, becaufe the flatute directs a certificate of fuch fort of recognizance into the Chancery, and the benches have no power to proceed, but according to the authority derived from that court ; and whenever that authority ceafes, as by the death of the party, the procefs is at an end •, and therefore the court of Common Pleas cannot carry it into execu- tion, as they could on a judgment obtained in their own court; but the fuitor muft go back into Chancery, as in all cafes where procefs thence ifTuing is determined by the death of any of the parties. When the executor comes back into Chancery, there is a new certiorari awarded to the mayor to certify the record, both becaufe the ftatute diredls, that the Chancery fliall ifTue procefs upon the recognizance returned, as alfo that it may appear to the court, that the fecurity is ftill in being upon which the procefs is diredled. Roll. Abr. If the conufee of a ftatute merchant fues a capias returnable in 4^^7- B.y and upon a twn eji inventus, an extendi facias is awarded by the court, and before execution executed the conufee dies, his ex- ecutors cannot carry on the execution in banco, becaufe that pro- cefs out of Chancery which gave the court an authority to proceed, being (2Brccution» 6gs being in the teflator'i name, is now determined. But when the executor comes back into Chancery, he is not put to a new capias^ but may have a Ipecial writ upon his cafe, to continue the procefs where it determined, becaule the capias would b^ nugatory and contrary to the recortl /// /?afico, by which it appears, that the per- fonal fatisfa6lion failed, and tlae execution was awarded on his effects. But if the conufee of a ilatute merchant fues a capias^ and upon a non ejl inventus an alicis is awarded, before the return of which he dies, his executor, when lie comes baclc into Chan- cery, muft be put to a new capias, becaufe the tcftator died in purfuit of the perfonal fatisfa6tion, and there is no record in this cafe, whereby it appears deficient ; and therefore the executor is put to a new capias, that the deficiency of the perfonal fatisfadlion may appear on the return of it, according to the direction of the Ilatute. But it feems in both cafes, by Dyer and the trgijler, th^t Dyer,i8o.b. there ought to be a new certiorari and re-certificate thereon, that ^^S- 14-8. the exiftence of the fecurity may appear at tlie time when the pro- cefs IlFues. If two conufees of a ftatute merchant fue execution, and the z Roll, flieriff returns the conufor dead, upon which an extendi is awarded, 4-67' and one of the conufees declares in court, that the other died ^^ * 3* 3 • {ince the fuit commenced, and therefore prays execution for him- felf ; in this cafe he muft have a re-certificate of the record from the mayor, and then a writ upon his cafe directed to the bank to continue the procefs where it ende pi. thefe lands are not determinable in courts of common law (and ^^j^'^ therefore eje£lment does not lie of them) left the tenants fliould 2 Roii. be brought from the fervice of the plough ; yet they are ex- ^^' 47^. tendible in this cafe, for the extent is performed by the ftierifFm but Dyer pais, and the title of the land is not directly put in plea or difpute 372. «nf. in the king's courts, by v.hicli the tenant might be brought from his buftnefs. If a feoffment be made to A. upon condition to re-infeoff the C0.Lit.222. feoffor, and A. binds himfelf in a ftatute ; if A. continue feifed of ^ '^?' 59-. the land, or re-infeofF the feoffor, the land in either cafe may be nlng'ton's'"" extended by the conufee : for whoever comes to tlie land under the cafe. feoffment of A., takes it chargeable with the ftatute, and confe- quently, is liable to the execution. But if the feoffor had entered, as he well might, becaufe the feoffee had difiibled himfelf to per- form the condition, inafmuch as he caimot return it in the fame plight it was given him, then he fliouid not be charged ; for this being a lawful entry, like an eviction in a court of record, fets afide all incumbrances. But if in this cafe A. had been dilTeifed, and then bound himfelf in a ftatute, this had not charged the land during the difleifin, and confequently, there is no difability to per- form the condition ; for a difTeifee can no more charge his right, as fuch, than he can transfer it ; nor is the land extendible in the hands of the dilTeifor ; becaufe, though his entry is tortious, yet he held it free during the difleifin, as the difleifee enjoyed it : but if the I'^^^ oBrecution* the difTelfee enters or recovers by adlion, then the land becomca chargeable with the {>;^tute. Co. Lit. If A. and B. be jointenants in fee, and A. enter into a ftatute, afci." ^"'^ '^^^ before execution fued, the land is not extendible in the ^br. s's. hands of B. becaufe he claims the land as furvivor from the firft 6 Co. 7-7. feoffment which conveyed it to him free from any charge. But gZlny'7' ^ ^^^ conufee had fued e-ecation before the death of A.y the fur- cafe, vivor B. fliould hold it charged ; for execution is equivalent to a Co. kit. fale, and, like a leafe for years, f])all bind the furvivor. So, if A. 6 Co.^-^S "^ ^^'^ ^'^^^ ^^^'^' ^^^^■^' ^^^"^ acknowledgment of the ftatute, relcafcd 79. ' '"' *° -^-J *^^^^" ^^'^^ 1=^'""^ would be chargeable with the ftatute, though A. fliould die before execution, becaufe the acceptance of the re- leafe prevents him from claiming by furvivorfliip ; for by the re- leafe B. had the land before his companion died. Co. Lit. But the law is otherwife in the cafe of parceners \ for if one of '^S-a* them charged the land, the other fhall hold it under the incum- brance of the ftatute, for he comes in as heir by defcent under the charge -, whereas the jointenant furviying claims from the firft feoffment, which is prior to the charge. 2 Roll. If a conufor, at the time of acknowledging a ftatute, has goods ^br. 472. and chattels to a great value, they are all liable to fatisfy the conu-^ fee, if they be found ii? his hands when execution is fued : but if the conufor difpofes of them, they ftiall_^not be extended in the hands of a purchafer, as lands may be; fqr fince there is no folemnity efta- bliftied or required, it is impoflible to find in whofe pofleffion they lie, in order to extend them : befides, it muft neceflarily put a ftop to trade and commerce, if execution was to purfue the goods wher- ever they were found. Boll. Abr. If 3 ]\\x{h■:^x\d, pojftjffl'd of a term in right of his wife, acknowledge cl'L\t.\(,. ^ ^.^^'^'^^» ^"^ ^i^5 the ^^^^^'^ '^^ift "ot i^e extended in the hands of the yidi tit. '^^'ifc ; for though the law gives him an abfolute power over the Baron and term, fo as to difpofe of it, yet if he docs not make ufe of that ^^'^^' power during the coverture, the wife ihall enjoy it free as fnc brought it to him. But if the execution be fued in his life, and the term extended, this will bind the wife ; for the ex- tent is a difpofition in law to anfuer the conufee's debt, and there- fore, fh:dl affcvEl: the wife as much as if he had fold the term, or granted it for years. Bro.Stat. If the hufoand be felfed of lands of inheritance in the right of Co^'lu '^* ^^^ ^'^^^' ^"'^' acknowledge a ftatute, upon which execution is fued, 3-. a. ' the heir upon the death of the feme, may enter and avoid the ex- tent : but this muft be underftood of lands of which he cannot be tenant by the curtefy ; for fuch he may as well charge as convey during his life, to bind the heir. » RoH. By what has been faid, it appears what things are extendible a Inft'^vc ^^^ liable to execution for the fatisfadion of ftatutes merchant, of Hob. 60.' * the ftaple, and recognisances in the nature of the ftatute ftaple ; and the fame are alfo liable to fatisfy all debts due on recogni- zances at common law, only with this dilFerence, that in the former cafes both body, goods, and lands, being all due, the co- nufee may take all at once, or different times i io that if he extends ^rccution. 701 eictends the lands firft, he may afterwards take the body ; whereas upon the recognizance at common law, if the conufee fues an elegit ^ he can have no capias afterwards .to take the body, becaufe he hath determined his choice by that writ to the goods and chat- tels, and a moiety of the land. 4. What Provifion the Law has made for Tenant by Statute Merchant, ^c. in cafe of Eviclion. By the common law, after a full and perfect execution had by 32 H. S, extent, returned and entered on record, the conufee could have '^- 5* no new re-extent on the efFeds of the conufor, becaufe there was once fatisfaftion given to the creditor on record, though the lands had been recovered from him before he had levied the debt out of them. The fe verity of this law was laid afide in Henry VlII/s time ; for in the 3 2d year of his reign it was enafted, That if lands delivered in execution on jult caufe be recovered from the tenant by execution before he hath received his v.'hole debt, the conufee (and by a favourable conftrudion of the flatute, his (a) executors) [a] 8 Co, may have a fcire facias out of that court where execution is firit ^'^- *90' awarded, or out of any court where the record fliall be moved by writ of error and affirmed ; but this flatute is to be conftrued under thefe reftricticns, that where the conufee hsth remedy for part of his debt in prajhitiy or in futuro, for the wliole or for part, there he can have no aid nor benefit of this Ilatute. As, if all the lands extended but one acre be recovered from Co.Lit 239. the conufee, he fnall have no advantage of this ftatute, becaufe the adl relieves thofe conufees only who are clearly without re- medy, which the conufee cannot be faid to be in this cafe, where he has one acre left him, though ic be but a poor remedy. If A. be bound to B. in one itatute, and to C in another, and Co. Lit. C.^rfl fue execution, and extend the lands, and afterwards .5. '^^^^^• extend and take the lands from C. as by law he may, becaufe his ^ °* Aatute is prior, C. fhall have no benefit of this flatute, though he has not one acre left him, becaufe he hath a remedy in future; for after "the extent of B. is ended, he (liall re-enjoy the lands hy torce of the former execution : fo, for the fame reafoii, if the wife of the conufor recover dower againit the tenant by execution, he hath no relief from this flatute. If a IcfTor oufl his lefTce for years, or difieife his tenant for C0.Lit.2S9. life, and then acknowledge a flatute, and the conufee fuc execu- tion ; if the lefTec in either cafe re-enter, the conufee is not re- lieved by this a£l, becaufe he has a remedy in futuroy viz. after the death of the lefTee, or the leafe ended by holding over. If tenant in execution, by recognizance at common law, or by 2inft. ^96. ftatute merchant, ts'c, be difleifed, he may, by the exprefs words ^°- ^'^* of the flatute, have an afhfe of novel difeifin alfo j and if there ^^ be no affignment by the conufee in his lifetime, tliey fliall go to the executor, being really but chattels, who in cafe of a diiTcifm fliall have the fame remedy the t-eflator might have had by an equitable conflrudlion of the ftatute. Before 702 €rccutfo!l Before we confuler in what cafes thefe tenants by ftatute mer- chant, l3c. can hold over the time of their extent, it is firft to be obferved, that the (herilf is to make a reafonable extent of the lands ; fo that computing the debt and value of the hind, it will be eafily known how long the extent is to continue, and when the conufor is to have his land again. 4 Co. %z. Here we muft diilinguifli between the a61: of a ftranger and the * ^°"' a£l of the conufor ; for in cafe of a difleifin or any interruption ^ ' by a ftranger, the conufee (hall not hold over the time of the ex- tent, but is to have fatisfadtion for the injury done by action againfl the ftranger: but if the conufor himfelf had given the tenant by execution any interruption, or hindered him from taking the profits, there, the tenant might either hold over, or have an a£lion again ft the conufor; for, as in the firft cafe, it would be unreafonabie to punilh the conufor for the a£t of a ftranger, by keeping him out of his lands ; fo, in the laft cafe, it would be equally unreafonabie to permit the conufor, by any a£l of his, to turn the conufee out of the land before he has levied the debt, a Roll. If land of a leflee for life, or years, be extended upon a ftatute, Abr.479. 3jj^ afterwards part be recovered in an adlion of wafte, for wafte done by the conufor before the extent, the conufee fhall hold the refidue over the time of the extent, becaufe no act of the conu- for's fhali prejudice the conufee, or hinder him from levying his juft debt out of the lands : but if the land had been recovered for what was committed by the conufee, there, he fliould not take advantage of his own wrong, and hold over to the prejudice of the conufor. 3 Co. 67. So, if tenant in execution either fufFers the land to lie wafte, 1 Roll. Abr. Q^ neglefts to levy the debt out of it, or if he makes a conditional ^"^ ^' furrender of the land to him in the reverfion, and enters for the condition broken ; thefe are all his own wilful a6l3 ; and it is but reafonable he ftiould fuffer for them, and not hold over the land to tlie prejudice of the conufor. 4 Co. Sj. b. But on the other hand, where there is no default or negligence 2 Roll. jj^ ^j^g conufee, but he is prevented from making the ufual profits ^' ^"^ ' of the land by the afl of God, as, where the land is furrounded by water, or rendered unprofitable by wild-fire, there, the conu- fee fhall hold over the time of the extent ; for it would be un- reafonabie to punifh the conufee for what he could by no induftry or poflibility prevent. 7. The feveral Ways of vacating and difcharging thefe Statutes, and this either before or after Executbn. As we find that both body, goods, and lands are liable to exe- cution, and the conufee may, at pleafure, take one or all by one writ of execution, or all at different times by feveral writs of exe- cution, we fliall confider, ijly What aas of the conufee will difcharge the land, or fui^ pend the execution of it for a time ; and this either before or after execution fued. idly. ilBjtecution. 7o_j 2^/)', What acts of the conufee will vacate the ftatute, ^c. by difcharging both body, goods, and lands -, and this either by can- celling the Itatute, or by defeafance, or releafe, which are equi- valent to ic j and herein of the Audita ^iere/a, which is the pro- per remedy for the conufor, if execution be fued after fuch acts are preferred by the conufee. 3^//)', In what cafes the conufor may avoid and deftroy the Hatute by entry or plea, and in what cafes he is put to his fcire facias. As to the firft point ; if A. acknov/ledges a flatute to -S., and a Roll, afterwards another to C, in this cafe^B. is firft to be fatisfied, his ^^-^l^- ftatute being prior in time to C.'s ; yet if 5. accepts a leafe for ^j^'.V^Z. years from A. then may C. fue execution firft, becaufe B. by his acceptance of the leafe, has fufpended the execution of his fta- tute during the term. But if a conufee accepts a feoffment of parcel of the land from Plow. 72. the conufor, the refidue in his hands is ftill liable ; for his body ^ ^°"' being ftill liable, whatever remains in his hands muft be fo too : statute °' -But if the conufor had enfeoffed a ftranger of the refidue, then Merch. 4.2. the conufee by his purchafe of part, had difcharged the whole ^' ^' ?,• land •, for the conufor, by his purchafe, has difcharged that part eiiz! 756,* of the land from being liable to the debt, fmce his own lands cannot in any manner be liable to his own fecurities ; and having difcharged a part of the land by his own aft, it is a difcharge of the whole, fince fuch aft of his has prevented the legal execution on the whole lands, in the manner the ftatutes have direfted, and therefore to execute it on the other alienees is partial, and to execute it on himfelf, together with the other purchafers, is im- prafticable. Thus, if a conufee extends a rent-charge, and after purchafes Savi!, 69. parcel of the land out of which it iffued ; this frees the whole rent from the ftatute; for, befides that the rent-charge is extin- guiftied, and, confequently^ can be no longer in extent, the co- nufee, by his purchafe, though it had continued, has difcharged it, for the whole rent v/as extended to anfwer the ftatute ; and part of it being difcharged by the conufee's own aft, the remain- der muft be liable to the whole debt, which would be contrary to the extent, or elfe muft be difcharged. If the conufor enfeoffs the father of the conufee of part of his 2 Roll. land, and a ftranger of the remainder of it, and, upon the death ■'^'"^' '^T' of the father, that part defcends to the conufee ; this defcent, though before execution, difcKarges the whole land, and the ftranger fhall enjoy his purchafe free from that ftatute ; for fince the lands are made liable, which were not fo, to any executions at common law, the conufee muft take the execution according to the ftatute, which in this cafe cannot be had, fince he cannot lay any part of the debt upon the land, which he is owner of: therefore, not being able to take execution on the whole land, according to the ftatute, his remedy fails •, and there can be, in » this cafe, no provifion of the common law in his favour. 14 If Bro. Statute Merch. 25. 2 Roll, ▲br. 470. Plow. 72. 2 Roll. Abr. 477. Plow. 72. Bro. Statute Merch. 42. 2 Roll. Abr. 477. OBrecution, If the conufor enfeoffs the coriufee of all his lands, by this purchafe the conufee has difcharged the land from the extent, he- caufe It would be mod abfurd to extend his own land to pay his own debt : but if the conufor repurchafes the lands, he has revived the extent againfl them ; for the firfl feoffment only difcharged, or rather fufpended, the execution againft the land, and left the body and goods Hill liable ; and whilft the conufor is fubjedl to execution, fo long will all lands he purchafes after the acknow- ledgment of this ftntute be fubjeft. So, if the conufor, after the repurchafe, had aliened to a flranger, the conufee might fue execution againft him ; for he purchafed them fubjeiSl: to the incumbrance of the flatute, fince they were chargeable in the hands of the conufor. But all thefe ads of the conufee, which difcharge the land only, muft be underflood to be done before the execution fued. Let us fee in the next place, how far fuch acts will affedl him after execution is fued, and we fliall find them not only to difcharge the land, but the body and goods alfo, as will appear by the following inflances : For where the body and lands of the conufor are in execution, and the conufee purchafes the whole or parcel of the land j this difcharges not only the land, as In the precedent cafes, but the body alfo ; for the lands are taken In execution as a real fatisfac- tion for the debt, and therefore, as In all other cafes of execution, are a difcharge of the body, which is but a pledge for fatisfac- tion : but thefe debts being prefumed to be mercantile, are there- fore to be fatisfied as foon as pofTible, that the merchant may at- tend his bufinefs; for which reafon the ftatute allows, that, where the real fatlsfadion is had by the extent of the lands, yet the body (hall be a pledge. In order for a more fudden fatisfaelion, if the money can be raifed : but yet if the real fatisfacllon by the pur- chafe or defcent of the land be difcharged, as it nvafl be when the conufee cannot have it In the manner it was extended, (os the co- nufee cannot have in this cafe, fince he cannot have the term and fee-fimple in the land together,) It follows of courfe, that the body, which is only a pledge, cannot continue in execution, when that which was the real execution is difcharged in the hands of the conufee : fo, if the conufee furrenders part, or the whole land^ this difcharges both land and body; for the body being only in execution, in order to oblige him the fooner to fatisfy the co- nufee, when he by any act acknowledges hlmfclf fatisfied, as he does by the furrender, the body muft confeqaently be fet at liberty. Thus, if the bodies of ^., JB., and C. be in execution, and the conufee come into court, and fay, that he will not have one of them in execution ; if this be entered of record, it fhall dif- charge every one of them: the reafon is, the debt being entire and chargeable on each of them, his acknowledgment of fatlf- fa£lion by this a^ of one of them, fhall, like a rcleafe, extend to all. If Crccution, 7^5 If A. and B. acknowledge a ftatute to C, who takes their bo- Bio. Statute dies, and the lands of B. in execution ; if afterwards B. die, and ^^^l^{^^' his land in execution defcend to C the conufeej this difcharges Abr 477. the body of -^. ' If a conufor be leflee for life, and his body and lands be taken Rro. Statute in execution, and the conufee, being in by the extent, commit '^^'^^j.''^' wafte, for which the revevfioner recovers the land (as he well Abr.477. may, becaufe the eftate of the leflee, which was extended, was fubjedl to the punifhment of wafte) ; tliis fliall difcharge the body of the conufor : /ecus, if the land had been recovered for wafte done by the conufor j for then the body fliould not be difcharged, left the conufor by his aft and wrong (hould free himfelf from the execution. The next thing confiderable is, what a£ls of the conufee will vacate the ftatutes, by difcharging body, goods, and lands, and this may be done, ijly By cancelling the (latute, as tearing oiF the feals, which are fo eltentially neceflary, that without tljeni tlie ftatute, Uke common fpecialties, is wholly void and ufelefs. 2^/y, By defeafance, which may vacate the ftatute abfplutely, or upon condition. "^dlyt By releafe, which is a folemn renunciation of a man's right by deed. But it may be demanded how thefe ftatutes, which have the force and folemnity of a judgment, can be avoided by a£ts of lefs notoriety than themfelves, as thefe acls in pais muft be confefl'ed to be, which overthrows the eftablidied rule, unum- quodque folvi eo ligamirie quo lignttir ? The anfwer to this is, that notwithftanding the releafe, i^c. from the conufee, t!ie ftatute ftill continues in force ; but the law, with reafon, conftruing all men's deeds moft ftrongly againft themfelves, by thefe acls, pre- cludes the conufees from execution. But if the court, at the inftance of the conufee, grants him F. N. B. execution, as they really ought, fnice nothing appears to them '°4- deftru61:ive of the ftatute ; what remedy has the conufor ? For ,0 ' " co| after fuch releafe or defeafance he caiuiot ftop the execution, be- l t. 290. caufe he has no day in court to plead this in bar ; but his proper ^'^^r, pi. remedy in fuch cafe is by audita querela^ which is a writ to -'oa. Ifit fet afide an unjuft judgment, for fome injuftice which could not mijintnoc be pleaded in bar ; for if it mieht, then it was the party's own '^'^'^°"^ - ^ upon mo— fault not to plead it in bar of fuch unjuft demand, which is not tion, a relieved by this writ, that proceedings might not be endlefs *. mi^c more expeditious, and much lefs expenfive method ? The fame (piery is applicable to many of the following cafes. And if, upon a fcire facias on a recognizance at common law, 2R0II. Abr, the conufor is returned fummoned, he Ihall never avoid it by 3°6- Cro. audita querelay becaufe the recognizance was upon condition, sid!*??! ^* which he hath performed : for by the fummons he had a day in court given him to plead the performance of the condition, which would have been fufficient to ftop the execution ; but if the (he- rifF had returned, that he found nothing whereby to fummons the conufor, on which execution had been granted, then the conufor Vol. II. Z z might 7o6 OBrccution* might have an audita querela^ and then the releafe of the conufee, or the performance of the condition, might well be fuggefted, therein, becaufe he had no day in court to plead them in bar of the execution. Sid. 54. If A. be tenant for life, remainder to B. his fon in tall j A. en- Raj/m. 19. tej. jj^fQ 3 recognizance, and die, C. bring Tifcire facias y and B. be returned heir and tertenant, and warned, but make default, he can have no audita querela to avoid this execution, becaufe he had a day given in court to fet afide the recognizance j and it was his folly not to appear when warned. F.N, B. If A. enters into a llatute to i?., and pays the money at the day ^^+' afiigned, upon which the ftatute is cancelled, and after B. forges a new ftatute in the name of A., in this cafe A. may relieve him- felf by audita querela; for the forged ftatute having all the eflen- tials of a true one, the court was obliged to look on it as fuch, till the contrary appeared, which the ccnufor could not fet forth be- fore execution, having no day to appear judicially in court, and therefore is put to this writ to avoid the execution founded on the injuf^ice of the pretended conufee. Roll. Abr. If the conufee of a ftatute, upon agreement vv^ith the conufor, 3 '3- delivers up the ftatute in lieu of an acquittance, and after fues execution, and the conufor prays a re-extent, becaufe that the land was extended too low, and has it granted to him, he fhall never avoid the extent by audita querela, becaufe by his praying the re-extent he admits the ftatute good and executory. F. N. B. If a conufee of a ftatute gives a deed of defeafance to the co-= a°Roii nufor, and afterwards fues execution contrary to the form of the Ahr. 307. defeafance, the conufor may have an audita querehy becaufe the defeafance precludes the execution, if the terms or condition of it be performed by the conufor ; and the conufor may have the audita querela, though the condition be not performed according to the defeafance, if execution was fued before the condition broken, becaufe the conufee extended before his time ; and there- fore the execution being unjuftly fued muft, confequently, be an injury to the conufor. Moor, 811. In an audita querela, the cafe was this; the conufee gave a de- Trot°a'/* feafance, that if he fued execution of the lands the conufor had SpuiUng. in Kent, the ftatute fhould be void ; the conufee, contrary to this defeafance, extended the land in that county; and it was ad- judged this writ well lay, to avoid the execution and vacate the ftatute ; for the defeafance was no way repugnant to the ftatute, becaufe the conufee might ftill extend the lands of the conufor in any other county, and take his body and goods. Cro. Eiij. If the conufee releafcs to the tertenant all right, intereft, and 40- SS'- demands, top-ether with all fuits and executions, and afterward fues And. I Tl. . " . Roll. Abr. execution, the tertenant fliall have an audita querela to fet afide this 3'3- . execution ; and this differs from the cafe of Burrows and Gray \v\ 2' '** Cro. Eliz., for there the conufee releafed only all his ricrht, in-? 2DC* 2CI« . ' ^ joCo.47.b. tereft, and demand to the tertenant, which v/as held not to be a Roll. fufficient, becaufe he had only a polhbility, and no intereft in the "' '*^°* land before execution, and, tonfequently, could not releafe what he <2Brccution» 707 lie had not : but in the former cafe, though the conufee liad no right to the land before execution, yet there are words fulhcient to difcharge the execution, fince it is releafed by exprefs words : and in the firft cafe, the words of the releafe refer to the execu- tions, fuits, and demands upon the ftatute, which fiatute, fince it was in being, the executions and demands upon it may be re-i leafed at any time ; but in the other cafe tlie words rights title y and interejl relate to the land, which the conufee had no intereit in till execution fued, and therefore cannot releafe or transfer over what he had not : befides, in the lirll cafe, the conufee has releafed all fuits, by which, fays my Lord Coke^ the execution is gone, becaufe no common perfon can have execution without prayer and fuit to the court. Another method of avoiding executions is hy. Jiire facias ad re- 2 Roll. hahendam terrain : and this writ differs from the audita querela^ for ^'"^' ">■"*• that avoids an execution unjuftly obtained at firft ; but the fcire facias allows the execution juft at firft ; but ftiews, that the end for which it was granted being obtained, it ought of confcquence to ceafe. If the conufor, after his land is extended, tender the n;oney to 2 Roll. Abr. the conufee, who refufes it ; or if the debt, with all cofts and 4-79> +55o. damages which the ftatute de mercaloribus allows, be fatlsfied from ^ jnii. Jng, any cafual profit arifing from the land ; in thefe cafes, the qonufor is put to his fcire facias J and c^innot enter : but in cafe of an elegit on a recognizance at common law, when tlie conufee is anfwered his debt, by the perception of the certain and ufual profits of the land, the debtor may enter, and is not put to hh fcire facias : yet in this cafe, if the creditor be fatisfied by an accidental percjullice, there, the debtor cannot enter, but muft have ?l fcire facias ad re" habendam terrain. And the reafon of thefe diftinftions is, becaufe, in the firft cafe, the execution iffues according to the dired^ion of the ftatute, not only till the principal debt be levied, but all cofts and damages arifing by reafon thereof ; and therefore, fince tlie damages are not afcertained, the record will always oppofc an entry, which is but an acl in pais ^ and cannot be turned to the de- feafance of a matter of record, till fuch damages are fettled on re- cord in the fcire facias : but in the fecond cSfe, when the debt is certain, and the value of the land afcertained in the extent, there, when fuch debt is paid by perception of fuch fettled profits, there is no a£l on record to oppofe an entry, and therefore an entry is lawful. But where the fatisfadtion arifes from accidental profits, which do not appear in the extent, this then is ftill matter of record, in oppofition to the entry, fince fuch accidental profits do not appear in the valuation of the land fettled by the extent on record. If lands be extended on a ftatute, and the time of the extent 4 Co. 67. expired, the conufor is to be put to his fcire facias y becaufe the ^^°"' conufee may have caufe to hold the land longer than the time of '^* ^^^' extent, for he may retain it till he has received his cofts of fuit ^nd reafonable expences, which the chancellor Ihall aflefs. Zz a Nq 7o8 a Roll. 1(a) But if the conufee be fatisfied by percep- tion of the profits, thoucih not by the ex- tended va- lue, the conufor may be aided in equity, and may com- pel the co- nufee to ac- count ac- cording to the teil Talue by him receiv- ed. zVentr. 338. Hardr. a Roll. Z Roll. Abr. 482. Roll. Abr. 304. Cro. Jac. 4»4' 477* €rccution» J^o fare facias lies upon a general averment, that ihe conufee has levied the debt before the time of the extent expired, becaufc this may happen by the conufec's induftry in improving the land, which the debtor can take no advantage of. So, if the land taken in execution be really worth 20 A per atiimm, but it is extended only at 10/. though by this computation it is evident the conufee might levy the debt before the time of the extent is ended ; yet the conufor, upon an averment that the debt is levied, flvall have no fcire facias (c), becaufe that would be contrary to the record, and the court is to judge of the value according to the extent, by which it appears the debt is not yet levied. But if the conufee has levied part by cutting wood, and has received the refidue, as appears by an acquittance produced by him, in this cafe, he {hall have 2i fcire facias : the reafon is, becaufe the end of the extent being only to fatisfy the conufee his reafonable demands, whenever it appears to the court that they are anfwered, whether it be by perception of the profits, or otherwife, they grant z fcire facias to avoid the extent, and reinftate the conufor in his former poffefa fion, fmce the end for which it was given is anfwered. If the conufee has levied part of the debt, according to the ex^ tent, the conufor, upon tender of the refidue /// court, {hall have a, fcire facias to recover the lands within the time of the extent j for here, it appears on record how much was due at firft, how much was paid, and what remains due and in arrear ; and the end of the extent being to fatisfy the conufee of his juft debt, whenever that appears to the court the extent (hall ceafe. But if the conufor had tendered tlie remainder of the debt out of court, or if in court he had only ofiered to come to an agreement with the conufee; in neither of thefc cafes fhall the fcirt facias be granted, becaufe it does not appear on record tliat the debt is paid. If the conufee of a ftatute for 100 /. apportions the ftatute, and fues execution for the body and land, for feveral parts of it, in fe- veral counties', as for 20 /. in Kent, 20 /. in Surry, his body is taken in London for 20/., upon tender of this 20 /. in court, the conufor {hall have a writ to the {heriff of Loudon to fet him at liberty ; for this writ of extent was to take his body, is'c. till 20 /. not the 100/- was paid, and confequently, upon tender of the 20/. the fherifF has no power to keep him in prifon. Sccus, if the body had been taken before apportionment, for then it could not be difcharged upon payment of 20/., it being taken at firll for the whole debt. If A. leafps Blach-acre for years to B., and then acknowledges a {latute to C;, and afterwards another to D., then C. takes a leafe of the reverfion, and the rent from A., by which he has fufpended the execution of the ftatute during the term, and, confcquently,laid the land open to the extent of D., the fecond conufee, who fues execution ; if therefore C, {hould extend the reverfion and rent during his own leafe, B. the leflee is not obliged to pay him the rent, but may avoid the extent by plea without audita querela, be- caufc 2 P. Wins, 91. €rccution» 709 Caufe C. hath fufpended the execution of his ftatute, the Erft in date, by the acceptance of the leafe from the conufor. If tenant in tail acknowledges a ftatute, and dies, the conufor Roll. Abr. fues execution againft the heir, he may avoid it by affife, without S'^*- being put to his audita querela : fo, if a difleifor acknowledges a ftatute, and the difl'eifec enters, the conufee extends the land, the difleifee is not put to his audita querela to avoid the extent, becaufe there is not the appearance of juftice in this extent; the conufor having only a tortious and unlawful feifm of the land, and, confe- quently, no power to charge it. f After an extent of a ftatute in one county, and a liberate return- Oa'.cs y. ed and filed, the conufee may have an extent into another county, ^o'^'"'^^"* if the prayer for the fecond extent was ejitered at the time the firft Fort. 373* extent v/as taken out ; otherwife not. Yet in this laft cafe, a court ^-^'^^ of equity will relieve him ; for the intention and agreement of the conufor is, that all his lands (be they in never fo many counties) Ihall be bound by the ftatute ; and, confequently, it would be mod unreafonable to confine the conufee to the lands of the conufor in any one county ; for this would be to defeat that fecurity which the party himfelf had agreed to give, and had adlually given.J (C) Of the feveral Kinds of judicial Writs which lie after Judgment : And herein, I. Of the Form, Tefte, and Return of fuch Writs. •T"* H E form of judicial writs muft be according to the approved Vide head precedents in thofe cafes; and therefore, wheieon a writ of °^^^^'"* tlegitj which was ideo tibi pracipimus qucd bona ^ caialla of the jgj* defendant, qua habuit die judicii pradicl. redditij deliberarifacias^ Walker and omitting y medietatein ten-arum Lev' ""'"'' ^^it till the enfuinor term, by which he might be difappointed of I Sid. 171. the efTe£l of his judgment. Lutw. 3-^2. 2 Keb 33. 2 Burr. 966 Where it appeared that an execution was levied before the judgment wa' figned, tliough after the firft div of the term to which the judgment related, and after the tefte ot the foijaiias, set held naught. 2 Sliow. 4'^4. p!. 460. 5 Co. 90. All wtits of execution which are to be executed by the fole au- ^C *6-*^" thority of the Iheriff, fucii as a capias ad [a) fatisfacietidiivi^ habere (ias\n duly exccutcd, though (b) never returned by the fherifF; for the mefne pro- plaintiff has the effcD: of his fuit, and there is nothing farther to cefs mu(t be { .' . ^ . , , ° . returned, be done on his part ; and hence it is laid, that an execution exe- for the end cutcd is the eiid of the law. thereot is to compel the defendant to appear^ and therefore, if the writ be not returned, the arreft is tortious. 5 Co 90. a. Cro. Car. 44.7. (/>) But if the party apprehends hinifelf injured by an erroneous writ ef execution, he may apply to the IherifFto return it, and if he refufes, an aftion on the cafe lies againit him. Keb. 551. 500.90.3. But in cafe of an elegit ^ although it be a judicial writ, yet the * °;^'^' fheriff muft return it, for this is not to be executed by his fole a Inlt. 3'j6. 1 • t 1 • r 1 1 1 • • in Cro. Jac. authority, but by an inqueit taken by him, according to the ftatutc 569. Cro. of IVefim. 1. * therefore he mud return the writ, that it may ap- * Wh^ch'fee P^'^^ ^^^'^^ ^^ h^th purfued the directions of the ftatute. infra. i Salk. 700. On this diftinflion it hath been held, that a capias ad fatisfaci- shiti d ^"^"'" '^^y be taken out, returnable the term next but one after Wright. the telle ; for in this cife the intervening term makes no difcon- aLd.Kaym. tinuance, it not being necelTary, as in cafe of a capias in mefne 7''Mod Q pfocefs, that the defendant fhould have a day in court ; for his II Mod. 50. caufe is at an end, and he mull be in prifon, whether the writ be £i. ao. returned or not ; whereas on a capias in mefne procefs, the party may be at great prejudice, by reafon of the imprlfonment in the mean time, i Jon. zoo. So, if "A fieri facias iiTues to the (herlfFof 5. returnable on a com- mon return day, and he at the day returns nulla bona^ 2. fieri facias tejlatwn may ifihe the day following, to the {herifF of Kent^ and execution by him fhall be good •, for though on mefne procefs there can be no tefiatum till the quarto die pofi^ yet it is other- wife in writs of execution, for on thefe the party has no day in court. 2. Of tbe Elegit. (0 Vi%. By An elegit is a judicial writ given by (r) ftatute, either upon a z.\%^'Qr' ""^covery of any debt or damages, or upon a recognizance in any 13 E.I. court which had authority to take the fame: the words of this c. 18. law are, Cum debitmn fuerit recuperatum vel in curia regis recogni- • 394- fi(,fi^ ^,(1 damna adjudicata, fit de catero in eleEtione illiiis qui fequitut pro hujufmodi debito ant damnis fcqui breve ^ quod vicecom. fieri facial . de terris ^ catallis debltorisy quod vicecom. Uberet ei omnia catalla de-- bitoris (exceptis bobns l^ afris caruca) is" medietaiem terrte fua quouf- ^ue debitiim fuerit levatum per rationabile pretium ds" epitentum, ^ fi ejiciatur (£mutiom 71* i^ciatiir de illo temimnto^ haheat reciiperare per hrevc ncv^e d!jjelfn£y • Tenant 6f pojlca per breve de rediffeijinay ft neceffe fuerit *. butSu" a Inft. 396. Yet be fliall hold ut lihcrum tentmcntum ; and he, his executor or adminiftrator, fliall have an affife. Id. When aperfon has judgment in an a£lion of debt, or any other zinft. 395. a£lion in which he has damages, and he choofes to take out exe- q°'^^^'^' cution by elegit^ the entry is, ^lod elegit ftbi executionem fieri de jv^, t,. omnibus catallis ^ viedietate term, and from this election either to have a fieri facias or capias ad fatisfaciendum, or this writ, it is called an elegity the form of which being firfl given by this ftatute (for, as has been before obferved, there was no execution againft the lands of a debtor ;it common law) is, Ac cum idem J. S.Juxta Jiatutum inde edituin eUgeriifibi liberari pro predict. 20 libris omnia cat alia luf me diet at em terr^e ipfius J. D. But thougli by this ilatute the lands of a debtor are made liable, 2 Inft. 395. as well as his perfonal ellate ; yet if the creditor takes out an j/^^,f "^^/'^ elegity and it appears to the (herifp, thnt there are goods and chat- cuted upon tcls {a) fufficient of the debtor's, to fatisfy the debt, he ought not goods only, to extend the lands. 'l "°' '/''* Jaaui : tor ^ fieri facias is executed by fale by the flieriff, but the elegit by the appraifement of the goods by a jury, and delivery to the party. Sid. 184. Lev. gi. Reb. 105. 261. 465. 556. 692, i Ld. Raym. 346. Upon this writ tlic (licriff is to impannel a {b) jury who are to {h) That it make inquiry of all the goods and chattels of the debtor, and to ^^^^°^ °^y^ appraife the fame, and alfo to inquire as to his lands and tene- fteriftwith- ments -, and upon fuch inquifition the (hcrifF is to deliver all the out an in- goods and chattels (except the bcnfts of the plough) and a moiety ^hg^'of^^pf of the lands to the party, and mud return his writ, in order to the ftatute record fuch inquifition in that court out of which the elegit ^^perra. 'rr J tiortaiiJe »fl^«^- fretiu^n^ extentum, which muft be found fuch by the oarhs of twelve men, is laid down and admitted in ail the books which treat of this matter, as 2 Jnft. 396. Co. Lit. 389. b. Dyer, 100. 5 Co. 74. a. b. &c. [But if there are no lands, the fherift'neeJ not take or return an inquifition. Stonehoufe v. Ewen, zStr. 274.] "When the jury have found the feifin and value of the land, the Cro. Car. fherifF, and not the jury, is to fet out and deliver a moiety [c) ^^wand^"' thereof to the plaintiff by (^) metes and bounds. Matterfock, fo refolved, and that all the precedents weie io. [(c) If he deliver more than a moiety, the execution is void. Fatten v. Purbeck, 2 Salk. 56'?. ] C*^) ^f "Jp"" an elegit the iheriff deliver a moiety of an houfe without metes and bounds, fuch return is ill, and fhall be quaflieJ for incertainty. Carth. 453. per Holt, Ch. Jult. [If the defendant be joint-tenant, or tenant in common, it ought to be fpecially alleged \a the return. Hutt. i6.j [But the flieriff does not now, as formerly, deliver aFlual, but Tidd's Pr. only legal poffeUion of a moiety of the lands ; and in order to ob- 75^4- ^^ tain adual pofleffion, the plaintiff muft proceed by eje£lment (^)-, in ^br. 381. which he muft not only prove the judgment, and, by the judgment 3 Term roll, that an elegit iffued and was returned, but he muft alfo prove ^^^'(^2^' the writ of elegit by a true copy thereof, and the inquifition there ^vid i v on ; for It is the elegit, and inquifition upon it, which carve out the Loft. 10, ir. term, and give the right of entry, the judgment roll being no more jje^"',^/^. than -d, memorandum i that the elegit iflued and was returned.] Zz4 If yi2 ^rccution. Lev. 16'^. If the flieriff', on an inqiilfitlon upon an elegit, returns tlic di* fer Curiam, fendant to have twenty acres in Da/e, and twenty acres in Saleg Stamfoid ^^^ delivers the twenty acres in Sa/e ior the moiety of the whole, and Need- all is void, for hc ought to deliver a moiety of the twenty acres in ham j but gjj^,}^ y\\]^ gpj j.}^jg niight be avoided in evidence in ejedlment ijo. S. C. brought for the lands. [And it hath been adjudged that the fherift'is not bound to deliver a moiety of each particular tenement and farm, but or.ly certain tenements, iScc, making in value j moiety of the whole. Denn v. Earl ol Abingdon, Dougl. 4.73. i Burt. Pr. Lxch. 289. J Cro. Eliz. 4S2. Huyt and Cogan. Hard. 13. &c. And. 27. The Attorney General and Andrews. Gllb.Ex- ecut. 56. Cro. Eliz. 584- Palmer and Humphry. 4 Co. 74. S. C. Cro. Eliz. 5^-4- See Gilb. Exec. 35- alnH t-39S JiCo. 171. Dalt. Sh. 137. Cilb.Exec. 35- ■ 13- Moor, 32. pi. 104. (a) But a rent-feck cannot be If j^, and B. recover feverally againft C, and ^. fues out execution, and has a moiety of C.'s land delivered to him on aii elegit, and then B. fues out an elegit, he can only have a moiety of the lands which remained with C. after the firft extent, anti not the whole delivered to him. But if ^. acknowledges two judgments to B. and in the fame term he takes out two e/egits, on the one he may have a moiety of j4.'s lands delivered to him, and on the other the other moiety, and it is not reftrained to a moiety of a moiety, for in judgment of law the whole term is but one day. [On lending money therefore, if the lender take two feveral bonds and v/arrants of attorney, one for a part, and the other for the refidue of the money, and enter up two feveral judgments thereon, of the fame term, he may take the whole of the defend- ant's lamls under them.} If, upon an inquefl taken upon an elegit, the jury find that the party was poflefied of a term, which commenced the 2^3 Ph.i^ Alar., when in truth it commenced the 3^4 Ph. & Mar., and the flieriff fells the term according to the value found by the jury, the execution is void, for the fheriff has only authority to fell or extend fuch things as are found to be the party's \ but in this cafe the inqueil finding one thing, and the fticriff felling another, the inquefl does not warrant the faie. 13ut if the inqueft had found, that he was poffelTed of fuch land for terms of divers years ac!/:uc vent, which they had appraifed at fo much, without fiiewing the certain beginning or determination thereof, it had been well enough •, for they fhall not be compelled to find a certainty, not having means to be informed thereof. Upon an elegit the fheriff may either extend a term for years, that is, may deliver a moiety thereof to the plaintiff as part of the lands and tenements of the defendants, or may fell it abfolutcly as part of his perfonal eflate. [If the term be extended, the plaintiff is accountable for all the profits he receives out of the term, upon fuch extent -, and if he receive the debt out of fuch term, before it expires, the defendant {hall be reftored to the term itfelf ; but otherwife he (hall keep the term, and not account for the profits of it. j Alio it feems that a (a) rent-charge may be extended on an elegit, for the word lafu-l, which is made fubjeft to the execution, includes {b) all hereditaments extendible -, and in this cafe the party may diilrain and avow for the rent, though the tenant never attorned ; attorned ; for the law creating his eftate gives him all means ne- delivered on ceflary for the enjoyment of it. /Im^V*-- tnen:um. Cio. Eliz. 656. (Z>)__But the office of filazer cannot be extended, for a man fhall not have execution of that wiiich he cannot aOign, though he may have of this an ailife, ut de Itkero tenemento, D^er, 7. pi. 10. Lands in ancient deniefne upon an elegit may, by the fherifF, be Hob. 47. delivered in execution, becaufe the title of the land is not directly * j"|*- *7^. put in plea in the king's court. Moor, 211. pi. 351. Brownl. X^^^, By the flatute 29 Car. 2. r. 3. the {heriffs may extend lands, tenements, ^c. of which any fliall be feifed or poflefTed in truj} for him, againft whom execution is fued, of fuch eftate as the truftee was feifed at the time of execution fued. But the ftatute of lVeJ}m. 2. c. 1 8. or 1 3 £. i . r. 1 8. which gives 3 Co. 9. the elegit^ extends not to copyhold lands, for then the lord would ^°- C«P' have a tenant brought in upon him without his admittance or *'" confent. [An advowfon in grofs cannot be extended on an elegit^ becaufe Glib. Excr. % moiety cannot be fet out by the iheriff, nor can it be valued at 39- But any certain rent towards payment of the debt. ^ P. Wms. 401, Neither doth an elegit lie of the glebe belonging to a parfon- Id. 4c. age, or vicarage, or to the church-yard, for tliefe are each felum Jenk-ac;. dee ccnfecratimi. A quellion having arifcu in the court of Chancery, whether, sAtk. 517- upon an elegit^ the plaintiff could be allowed intereft beyond ^^'°^' 5^*=^' the penalty of a judgment, Lord Hardwiche was of opinion, that at law, upon a judgment entered up, the penalty is the debitum recuperaturiiy and the ftated damages between the parties ; but if the creditor does not take out execution againft the perfou of the debtor, or his perfonal eftate, but extends the lands by elegity which the fheriff does only at the annual value, and much below the real, the creditor holds quoufqus debitum fatisfaE}um fuerit^ and at law, the dtbtor cannot upon a writ ad csmputandum infift upon the creditor's doing more than account for the extended value ; but if the debtor comes into a court of equity for relief, this court will give it him by obliging the creditor to account for the whole he has received, and as a perfon who comes for equity muft do equity, v/ill direct the debtor to pay intereft to the cre- ditor, even though it fhould exceed the principal. And he fald, he remembered very well, upon Serjeant Wbitakers infifting be- fore Lord Chancellor Coiuper, that this would be repealing the ftatute of Wejlmiujltr^ his Lordfhip faid, he would not repeal the ftatute, but he would do complete juftice, by letting the creditor carry on the intereft upon his debt, as he was to account for the whole he had received.] 3. Of the Capias ad Satisfaciendum. This writ lay only at common law, in cafe of the king, («) who [(«) Itlay ty his prerogative might have execution of the bodv, goods, and °']hf ^°^ lands of bis debtor j but by the ftatute of (*} Marlbridge, c. 23. it is trefpafs -vi enacted, 7H dHrccutfoni a arnus. ciia^lcd, That 1/ bailiffs, who ought to make account to their lonlsV Sun'fted ^° withdraw themfelves, and have no lands nor tenements where- 52 H."'3. * ^y tj^^y "^^y ^e diflrained ; then they Ihall be attached by their which -vide bodies, fo that the llierifF in whofe bailiwick they be found, (hall ""ztnirt't, "^^"^ ^^^'" ^" ^"'^^ ^° ^^^^^ ^^'^^'^ account ; and by the 25 £. 1. Thattheie* ^- H' ^* ^^ accotdcd, that fuch procefs fliall be made in a writ of ftatutesin- debt and detinue of chattels, and taking of beads by writ of f«/»7W, «/t""'* ''"' and by procefs of exigent by the flieriff's return, as is ufed in a which did writ of account. not before lie in thefccaR's, wJf 3C0. II. 12. Co. Lit. 285. 2 Inft. 394. Godb. 290. 2 Leon. 85. a Bulft. 63. Regiilcr 136. Roll. Abr. On this writ the {licriffcnnnot take bail, nor can he return, that S'-fn!' ^^^^ F^'"^y ^^''">s refcued, fcr he may take the pop comitattis ; and T//Wttlc. ' therefore if he returns, that the party was refcued, an adion lies Efcape. againfl him for the efcape, or a new capias againll the party, for t?rnabi"eott ^" ineffcaual execution is as none. oi tern), not void, though liable to be fc: afidt on mction. 2 Burr. Rep. 11S7. 4. Of the Fieri facias and Levari facias. T. Raym. On elegit goods may be delivered to the party, but not upon a 346- fieri facias *. * But the •' -^ iheriff may fell for the real value to a friend of the plaintiff's in truO, and fee irfra, (a) Co. Lit. The feri facias and levari facias are judicial writs which lay at 1C0 I '■^^ common law. ^he fieri facias y on which the goods and chat" (b) But the tels of the debtor only could be taken in execution, took its name, iheriffcan- as my Lord Coke («)obferves, from the words of the writ, quod force heeof fi^''''^ f"'-''^^^^'^ botiis ijf catallis, isfc; but ou the levari facias the iweddie with flicrifF was commanded ^uod de (J?) terris fcf catallis ipftus A. levari the debtor's facias^ ^c. Jands, fo as to fell or deliver them to the creditor in fatitUif^ion of the debt, but may collefl the debt out of the pro- fits of the land, as the corn or grafs gro\ur.g thereon, or out of the rents payable to the debtor. Godb. 490. Plow. 441. a. Finch, ici. Comb. 470. cif f;(/e 2 Inlt. 453. what ihall be counted the iflues of the land. a H. 7. 13. The flierifF, on thefe writs, cannot deliver a furnace annexed to OfficeofEx- ^ freehold in execution ; for though the writs give the fheriff au- thority to levy the debt upon the goods and chattels of the debtor ; and this is indeed a chattel ; yet they do not give the (heriff any au- thority to break or difunite any thing from the freehold, which he cannot do unlefs particularly empowered by writ. Dak. sh. Nor has the fneritF, by force hereof, any authority to fell an 145- ellate for (r) life, which being a freehold can no more be affefled (f) But in ^y thefe writs, than any other eftate of inheritance j but he may Comb. 391. difpofe of [d) leafes for years, which are but chattels, be they of It IS faid to gygj. £q \oxi^ a continuance. have been o admitted, that fince the ftatute 29 Car. 2. c. 3. an eftate fir avt^-r •vie may be fold by the rtieriff on a Jien facial, {d) But if the flieriffon ajierifacias fells a leafeor term of a houfe, he cannot turn the leffee out of polTcfTion, but the vendee, in fuch cafe, mu.'t brir.g his ejectment. 2S+10VV. Rep. %(,. fer Cur, C'rhis mult be underftood of ayi-.rfii/t' expulfion ; for it hath been determined, that under ayffWyifws, the fheriff may justify expelling the defend.mt peaceably, in other words, if the defendant will confent to go ou^j the flictiff mav put the v:ndec in [■cUi;lJj.^ji. I'avlor v. Cdc, z Term Rep. 292. j Alfo, (CrecutiotL 71^- Alfo, on thefe writs the whole perfonal eftatc Is liable to execu- 3 Co. 12. tion, except wearing apparel ; but it hath been [a) held, that, if the i'')^ofnb. party hath two gowns, the fiierifF may fell one of them. Holt.^ChrTuft. [So, where there have not been fuflicient efi'e£ts of the defend- Armiifead ant to fatisfy the judgment, the court has ordered the flierifF to ^i^hiipot, retain, for the ufe of the plaintiff, money which he has levied in (^ • ^3 • another a£liOn at the fuit of the defendant.] But the abfolute property of thofe goods muft be in the debtor ; Keiiw. no, and therefore, if the flicriff takes the goods of a (Iranger, though ^.^°- ^^°- the plaintiff affures him they are the defendant's, lie is a trefpaffer ; ' ' ^Iz^^^ for he is obliged, at his peril, to take notice whofe the goods are, Rep. 633. and for that purpofe may impanel a jury to inquire in whom the t^^'^'^"J^ property of the goods is vefted ; and this it is (^) faid fhall excufe (/)''D2ir, him in an adtion of trefpafs. Sheriff, 14(5. Nor can the fheriff take in execution goods pawned or gaged Bio. tit. for debt, nor goods demifed or letten for years, nor goods dif- |^iedges, 2S. , • , ^ ^ ^ Dyer, Cy.b. trained. _ ^ ^ ,«L.^4. In trefpafs the (lieriff juflified, that by virtue of (c) ajienfocias Cro. £iiz. out of the Exchequer for the queen's debt, he took the plaintiff's '^'5'- .^''' beads, being Icvani and coiichant upon the land of the debtor, and j R^'j^^Lr. fold them for the queen's debt ; and adjudged, that it was not law- 359. s. c. ful, for they were not to be fold as the goods of the debtor {d)^ but ('^' ^"f '•!= they might have been dillrained for the queen's debt. ftran^e°r be- ing levant and couchant upon the land of a perfun outlawed, may be taken by virtue of a levari facias for the king ; for this writ commands the fteritfto levy tliis ducy out of the iflues and profits of the land, and thefe cafle being levant and couchant are iflues ; and were it otherwife, it would be in the power of the party, by agifting his land^, to defeat the king of the benefit of the outlawry ; but for this -viJe Sa!k. 395. Skin.6iS. Comb. 469. Ld. Raym. 305. Sslk. 408. pi. 4. 5 Mod. 1C9. Caith. 441. Comjrs, 51. pi. 34. izMon. i-?,. Raym. 17. Hard. 101. {d) That as to this point it muft be a miftake of the printer; for that the be:ifts may be taken, and not fold, is a contradidtion. Skin. 619. But, as to the principal point, the cale is good law, beJ.ig on z fier: facias, which gives the flieriff power to diJpofe of the goods and chattels of the debtor only. Comb. 470. [And as the fheriff" cannot take the goods of a third perfcn, fo, TiJd's Pr. if the defendant becomes bankrupt, before the delivery of the writ "35- ^ Lej" to the flieriff, or, as it feems, before it is a£lually executed, the R'lym/252! flieriff cannot legally take or difpofe of them, after notice of the andfee2L(j. adl of bankruptcy, and of a commiffion fued out or docket flruck: ^|' -^^^* for by Hoi:, C. J. if a writ of execution be delivered to the flieriff againfl: ^4.^ who becomes bankrupt before it is executed, the exe- cution is fuperfeded : confequently, the property of the goods is not abfolutely bound by the delivery of the vvrit to the flieriff. But if the flieriff feize and fell the goods, before he has notice («) i BJ. . of an a£l: of bankruptcy, he is excufcd (f ), and If lie fell them after ^^- ^°5' fuch notice, though he may be fued in trover (_/), yet he is not liable gjg. ^^' to an action of trefpafs {g), (/) l Burr. 20. 1 Bl. Rep. 65. [g) 1 Term Rep. 475, An execution taken out agalnft the goods of a bankrupt after his i Term certificate is figned, but before it is allowed, is good. , , „f ^p- 3^'* o ' » a and lee I Bl. Rep. 400. In an jQion againft the hufband, the flieriff cannot take under Cadogm v. ^ fieri facias goods veflied in truftees before marriage, for the be- Bennett, JSefit of tlie wife. JaTman V.' Wellotor, 3 Term Rep. 61 2, See Underwood v. Mordant, a Vern. 239. In ^i6 &xtaitiQ\h Farr r. In tn z^loT) agalnfl an executor for his own debt, the gdodl Newman, ^f j^g teftator, in the hands of the defendant, cannot be taken in A Term ' ' Rep. 621. execution. Heydon v. In an aclion againft partners, the flicrifF muft feize all their Tsafk"' ^"°'"^ property, becaufc the moieties are undivided; for if he feize See jacky * but a moiety, and fell that, tlie other will have a right to that V.Butler, moiety; but he muft feize the whole, and fell a moiety thereof a Ld.Raym. undivided, and the vendee will be tenant in common with the 871. Pope , V. Harman, Other partner.] Comb. J 1 7. Marriott v, Shaw, Com. Rep. 277. Fox v. Hanbury, Cowp. 449. Eddie v. David- fon, Dougl. 650. (a)Cro.El. XJ^on ^ feri facias the flierifF cannot deliver the defendant's fcrfand"""" goods to the [a) plaintiff in fatisfadlion of his debt ; nor ought he Clark, ad- to deliver them to the (i^) defendant againft whom execution is } judged, but the goods are to be U) fold, and in id) ftridnefs the money is J.UCW. 589. ^ u u -u.- . . 5 p^ ^ ■' to be brought mto court. {!>) z Vent. 95, [c) Therefore if the nieriffon 3 fieri facias levies the goods, and pays the plaintiff with his own proper money ; yet he cannor keep the goods to his own ufe, for the authority by which he afted was to fell the goods. Noy, 107. Waller and Weedale, adjudged. Lutw. 589. S. C. citeo. («V) But if the iheriff pjiys the money to the party, it is good, and the court will allow of fuch return, becaufe the plaintiff is thereby facisfied, although the writ run, ita quod habeat coram ncbh. 2 Show. 87. pi. 78. But this is only by the permifTion of the court, and not by force of the law. 3 Lev. 203-4. Comb. 452. But it hath been holden, that upon 2. feri facias goods may be c^rTh^^Aio ^^^^ ^° '^^ plaintiff, who fues out the writ, though not adually Ld.Raym.* delivered to him *. 251. Salk. 320. pi. 4. 5 Mod. 376. 6 Mod. 292. 12 Mod. 126. where it is admitted to be the praftice, to make a bill of fale of the debtor's goods to the pUintifi, ts" vide 2 Vent, 95. * For fincc the llatute of frauds, goods are bound by the delivery of the writ. Cro. EHz. If the defendant die after the execution awarded, and before j88. S^p'*' ^' ^^ fefved, yet it may be ferved upon his goods in the hands of adjudged. bis cxecutor or adminiftrator (^) ; for by the execution awarded (e) That the goods are bound, and the fherifF need not take notice of his *f '^ ,^^! death. clearly fo before the 29 Car. 2. c. 3. before which flatute the goods were bound from the tefie of the writ; but by this flatute they are bound only from the time of delivery of the writ to the fheriff: but even lince the flatute, the execution feems good in this cafe, for the flatute was made for the benefit of firangers, who might have a title to the goods between the tejle of the writ of execution and time of the delivery thereof to the fheriff, and not for the benefit of the party, or his executors or adminiflrators. Vide (Zotn\). 33. 2 Vent. 21S. Salk. 322. pi. 10. Salk. 322. So, if the plaintiff die, the execution does not abate, and the \tr^Cur fherifF may, notwithftanding, proceed in it, becaufe the IherifF has nothing more to do with the plaintiff"; for the writ commands him to levy and bring the money into court, which the plaintiff's death does no way hinder ; befides, an execution is an entire thing, and cannot be fuperfeded after it is begun. 5. Of the Habere facias Seifinam and Pojjfefftotiem. Bro. Seifin, The habere facias feifitmm and poffejfwtiem are judicial writs^ Dait^shel ^'''^^ch (/} lie for the fieifin and poffelfion of lands and tenements: the (2Brccut(cn, 717 the firfl is in real a£llons, where the freehold Is recovered ; the r^ff, 254.-5. laft is founded on the (g) ejeclione firmtz^ in which the party is to f^/^"^^' be reftored to the poflefhon of his term of which he was oufted : wherever The feifin or pofleffion on tliefe writs is ufually performed by the the writ dc- IherifF, by dehvering the party who recovers, a twig, bough, clod, |^*""^^'^"^» i3c. of the land ; or if it be of an houle, by deUvery of the ring of othe'r things the door, l^c. '" c^tain, the demand- ant, after judgment, may enter or diftraJn before any feifin delivered to him by the fheriff, upon a virit o{ habere faciai fdfmam. Co. Lit. 34. b. {g) For the recovery of the pofleffion in ejeftment, vide tit. Ejedment. To a writ of habere facias feifinam^ the flierifFcannot return, that 6 Co. 52. a. another is tenant of the land by right, for of this there can be no iflue taken between them, and the fherift" has nothing to do but to execute the king's writ. A man recovers feveral houfes in an aflife, and after the tenant Roll. Abr. reverfes the judgment in a writ of error, and a writ ilTues there- ^^3- upon to the flierifF, to put him in pofleirion of thofe houfes ; in this cafe, though the tertenants are ftrangers to the recovery, and therefore ought not to be oufted without tx fcire facias ; yet. if the (herift executes the writ, and fo puts them out of pofleflion by virtue of it, he is no difl'eifor ; for he a' fheriff returns tiihi/, the plaintiff may fue out a fecond. Lev. 91, So, where in debt on a judgment of 2000 /. the defendant ?nd M^o'rgan, P^^^^e^j that the plaintiff had fued three feveral e/egits on the faid :.djudged. ' judgment into feveral counties, on one of which the flieriff re- Keb.465. turned, that he had levied of the defendant's goods 500/.; on tit', ^s^d. f'emurrer it was adjudged, ift. That this ehgit hein^ executed on 184. S. C. the goods of the party only, the plaintiff' was not precluded by his and fame eleftion thereof from any benefit he had at the common law, by Judged^; but ^"y '"^® conftrucflion of the word ^/t'^/V of the ftatute of IVc/im. 2. there faid, which intended to give a farther remedy than there vi'as at com- that the nion law, and that the adion well lay, otherwife the flatute would divided ^^ ^ ^^^V *^° catch, and not a remedy to help, perfons to their whether the debts. 2dly, That if, as obje6led, any lands were extended on P'^'j\"'^, the other two elegits which were not returned, the defendant out any new ought to have fticwn it in pleading, sdly, That after this levy execution, on the goods, he might extend the lands, and hold them till debt --But it is pai(J^ held by iny ^ Lord Hobarr, that if upon an elegit the execution be on the goods only, without any land;, and they ap- pear not to be fufficient, the party may have a capias, for it is in etfed but 3 fieri facias, though the word be becaufe he determined the choice by this kind of executions Cro. Jac. which, affc£ling a man's liberty, is efteemed the higheft and moft 503- But now by the 21 Jac. i. c. 24. reciting, ** That forafmuch as *' daily experience doth manifeft, that divers perfons of fuffi- *' ciency in real and perfonal eftate, minding to deceive others of " their juft debt, for which they ftood charged in execution, have ** obftinately and wilfully chofen rather to live and die in prifon, *' than to make any fatisfa^tion according to their abilities \ to " prevent which deceit, and for the avoiding fuch doubts and *' queflions hereafter, be it declared, explained, and ena£led, That ** the party or parties at whofe fuit, or to whom any perfon fhall *' ftand charged in execution for any debt or damage recovered, " his or their executors or adminiftrators, may, after the death of " the perfon fo charged, and dying in execution, lawfully fue *' forth. <2Brccution. 719 " forth and have new execution againft the lands and tenements, " goods and chattels, or any of them, of the perfon fo deceafed, *< in fuch manner and form, to all intents and purpofes, as he or *' they, or any of them, might have had by the laws and ftatutes " of this realm, if fuch perfon fo deceafed had never been taken ** or charged in execution." " Provided, That this a£l fhall not extend to give liberty *' to any perfon or perfons, their executors or adminiftrators, at ** whofe fuit or fuits any fuch party (hall be in execution, and " die in execution, to have or take any new execution againfl; any <' the lands, tenements, or hereditaments of fuch party dying in exe- ** cution, which fhall at any time after the faid judgment or judg- " ments be by him fold bo7id Jidt\ for the payment of any of his ** creditors, and the money, which fliall be paid for the lands fo *' fold, either paid, or fecured to be p'\id, to any of his creditors, *' with their privity and confent, in difcharge of his or their due *' debts, or fome part thereof." [If a plaintiff confent to the defendant's being difcharged out vigen v. of execution upon an agreement, he cannot afterwards retake the Aidrith, defendant, although the fecurity given by the defendant on his ^l"^^'' difcharge ftiould be afterwards fet afide. jaques v. Withey, i Term R^p. 557. Thompfon v. Brif^ow, Barnes, 205. So, if the plaintiff confent to difcharge one of feveral defend- Clark v. ants taken on a joint capias ad Satisfaciendum^ he cannot afterwards Clement, retake fuch defendant, or take any of the others.] rp^ If A. has judgment againll B. and he takes out a capias ad fa- Yeiv. 52. tisfaciendumi direded to the (heriff of Middlfex^ who dire6ls his ^^f^^ *"^ precept to the bailiff of the liberty of the duchy ad cap. B. ad a-jjudgcd*. refpond. A. inftead of ad fatisfaciend. and thereupon the fheriff re- tjirns cepi corpus Jecwidum exigentiam brevis ; though by this return the flieriff makes himfelf liable to the debt to the plaintiff, by not purfuing his authority, yet A. may take out a new writ of execution againfl B. for he never was in cuftody by virtue of the capias ad fatisficiendum. So, if a party taken on a capias ad fatisfaciendum efcapes, or is Cro. Car. refcued, though the Iheriff is hereby liable, becaufe he ought to 4"- 45S« have taken t\\t pojfe comitatus^ yet the plaintiff may take out any new Eu"for*th* execution, and fhall not be compelled to take his remedy againll ii^<'tit. the fheriff, who may be dead or infolvent. Ekape. If on -ai fieri facias all the money is not levied, the plaintiff may Si'k. 31S. take out a new execution j but as fuch new execution mull be ^^}' grounded on the firft writ, fuch writ mull be returned, and mufl Vyner. recite, that all the money was not levied on the firft. But if on the firft writ all the money had been levied, it need not be re- turned, for no further procefs was neceffary. If on a (fl) fieri facias the defendant pays the money to the Cro. Eilz. (heriff, he is difcharged of the execution, and the plaintiff" muft ^^\'^' ^ bring his adlion againft the fheriff. i/^n '^"'f^-^^, ad fatisfacmd. he pays the money to the flieriff, for that writ only empowers him to t.ike the bo.iy. 2Lev.ao3. 2 Jon. 97. a Mod. 214. Taylor and Baker. 2Shovv.i39. pi. 1 16. S. P. adjudged bad. I. Sccuiy if he had paid it to the plaintiff's attorney on record. 2 Show, i 39. pi. ; 16. admitted, far 7-0 ' (2Br0Cution. tor that wcu'd have been a payment to the piaintifrhimfelf. So payment on ea.fa. to wardcg o/Fiees bad. I Mod. 194. -i Mod. 214. So, if the fherifTtake (a) goods in execution by virtue oizjleri i^riffc!.k«^ /zaW, whether he fells them or not, yet, being taken from the n bond'hom P^rty againft whom the execution was fued, he may plead that the party, taking in difcharge of himfelf, and fnall not be liable to a fecond cxecST*^ execution, though the (heriff hath not returned the writ. And the and the /he- reafon is, becaufe the defendant cannot avoid the execution, and liff flidi) he would therefore be in a very bad condition if he was to be the money, charged the fecond time ; and if the (lieriff dies after the goods Keb. 55 f. are taken in execution, his executors are liable to the plaintiff, ——Cut if for they have quid pro 0110^ and il: is in nature of a contraiSl raifed there be an . j againft J. S., and he bring 90/. part of the condemnation-money, to the flieriff, who refufes to take it, faying, the plaintiff" in the aition will not accept it, and thereupon J. S. defiie the Ihcriff to keep the money till the plaintiff comes to town ; ir in this cafe the ihcriff is robbed, jf. S. muft pay the money over again. 2 Show. ijz. pi. 166. -vide tit. Bailment. Hob. 206, As therefore the defendant in tlicfc cafes is difcharged as to the a'shot'^^'^ plaintiff, hence it feems to be clearly agreed, that the plaintifl* pl. 63. "281! may maintain an a£lion of debt againft the {heviff; for though pi. 271. there is no adual contradl between the flieriff and the creditor, yet the levying of the money creates a contract in law, which lays a lien on the fheriff; for otherwife the party would be without remedy. ?Show. 79. Alfo it has been held, that an a6lion lies even by an executor pii 271? ' 3g^i"ft an under- (heriff for money levied on a Jieri facws^ as mo- S. P. ney received to the plaintiff's ufe, though before the return of the writ J for if the fheriff were permitted to ftave off the action by his delay, in not returning his writ, it would be allowing him to I take advantage of his own wrong. ' 2 Show. 79. So, it hath been held, that fuch aclion is not within the ftatute P'V' of limitations; for though it be not a matter of record till the and Weibye. Writ be returned, yet it is founded upon a record, and hath a 2 Mod. 2 1 2. flrong relation to it. s. c. ad- ° judged by three judges againft Scroggs, Juft. becaufe the aftion was brought againft tlic defendant as an officer, who afted by virtue of an execution, in wljch cafe the law creates no contrail ; and here was a wrong done, for which the plaintiff had taken a proper remedy, and therefore fhouid not be barred by this ftatute. Mod. 245. Cro. Car. 297. -s^und. 47. And as the law fubje^ls the fheriff to an a£lion in thefe cafes, ^d'snow" ^° ^^ ^^^ ^^^^ ^"^^ ^ poffefPory property in him in the goods taken adjudged. by him in execution, that if they arc taken out of his poflelfion, (i>) But if he may maintain trefpafs or trover againft the v/rong-doer, at his the ftienff glcdion, as well as a carrier or bailee of goods, and here he could returns tiui/a ' nrri iona, and ^ot rctum a rcfcuc, but mult anfwer tor tliem. there is a recovery againft him for his falfe return, that vefts no property of the goods in him, but they remain in the party, dnd are liable to any fubfequent execution for his debt. 2 Vern. 238-9. Wheic the fheriff pleaded, that he levied goods to the value of 16 /. and they were refcued out of his hands, and held an ill plea on demurrer. 2 Saund. 343-4< Carth. 419, If y^. and B. have two feveral judgments againft C. and they 420. Smr' - -. . . eomb v» 420. Smai. j^jjg ^^^ ^^^ ^.j.|jg of jfteri faciasy which are both delivered to the flieriff (Smution. 721 ftierlfFon the fame day, and the fherifF executes that which was Buckjner- laft delivered, it beannij tefte before the other-, and afterwards ap- ^am(sffl/.tf. prehending that he ought to have executed that which was firft London. delivered, he takes the fame goods and delivers them in execu- Saik.3to* tion on the firfl writ ; this fecond execution is void ; for though Ld^^^^t * the fherifF ought to have executed the writ that was firft delivered, 2^,. yet having executed the laft firft, the vendee (hall keep the goods, 5 ^"^- ^7^ and the party muft feek his remedy ag^inft the (heriff; and the jj*^„^/,j5* reafon hereof is, for the quiet of purchafers under flieriffs upon executions ; for otherwife it would be dangerous to make fuch purchafes of OierifFs ; which might make writs of execution of no effca. So, where a writ oi fieri facias is delivered to the (heriff to-day, Canh. 410. and another to-morrow, and the fherifF executes the laft firft, by ^Z^^' making fale of the goods, fuch file will ftand good, and the jgCar. i. vendee (hall hold the goods againft him who firft delivered the c. 3. writ to the ftierifF j and his remedy is only by adion againft the flierifF. [But where two writs oi fieri facias againft the fame defend- Hutchlnfori ant are delivered to the flierifF on difFerent days, and no fale is \^^^^ **"* actually made of the defend.int's goods, the firft exe^^ution muft Rep. 719. have the priority, even though the feizure were firft made under ^/^^^^^^ the fubfequent execution. And if the perfon claiming under the ji^,^^ gj^.^^ , fecond execution pay the fherifF the amount of the debt under bill of fale the firft execution, the court will not, on motion, compel the wthep^''^'* flierifF to refund that money. under the fecond execution, that was holden to bind ths flieriff. Rybot v. Peckham, B. R. M. 19 G. 3. citei Ihid. If a jfrny^aW be executed fraudulently, a {tconA fieri facias -xt Bradley v. the fuit of another perfon executed afterwards fliall have the pre- j^^"5i!!Jl'. ference.] (E) Of the Authority and Jurlfdidlon of the Court out of which the Execution iflues : And herein of the Manner of executing a Judgment where the Record has been removed from an inferior to a fuperior Court. Judgments muft be executed in thofe courts in which they are Cro.Car.34, given, and by fuch procefs and means as the law allows, and are agreeable to the eftabliflied practice of thofe courts ; and there- fore, in cafe an inferior jurifdiilion refufes to execute a judgment, S {a) writ of adjudicatione judicii lies, which if they difobey, the fu- ^^^^p^^.B* perior courts grant an attachment. 42. If a man recovers in a court-baron, they have not pov/er to 4 H 6. make execution to the plaintiff of the goods of the defendant; [^^jj. but they muft diftrain him, and retain the diftrefs till fatif- RoU. Abr* fadlion. S-?-^- S C. Bro. Court Baron, S. C. but a ^ume made, for it i« ufual for the faltors afligned by the fteward to tax the fums. Vol., 11. 3 A aa4 722 viBrccutiom »nd then to sward a Itfari fjdas.——^y lirovrn\ Si upon a levari out of a court-baron, good' cannot be fold witho'Jt a cuftum to feil, &c., and Noy, ■ ■]. 20. 2l.ev. Sr. But it hath been held, that execution maybe in a liutulred- Dos and court by levari facias, and that where the hot ks fpcik of a dif- aKeb. 117. ifi"g^^-> ^^^y mud be intended of a levari, for a diitrcfs infiniee 12 1. s. C. would be endlefs in an execution. •-It is held, thjt, rfiough th-' procsfs of an hundred-court is > liiftiingas, a levir.i may be g'od bv ciftom. Comb. 12'-. Si"iow. 47. 3 Danv. 3C4. (L) pi. 1 2 l.utw 1 i/m . i\. L 4^ . C'aith <;3 And i» 3 Lev. 203. it is held, that the precept may ifTue fiom rhe flicriff, the ugh the lut rs aic judges. Tidd's [-"r. [In a£lions on a policy of afTurance, where there is a verdi£l 7'9' for the plaiutifF airainfl one of ftveral under-writers, and the refl • Salic Sa r «. -• Barnes' X. have entered into the confolidation rule, and agreed to be bound by it ; or where on a reference ta arbitration, it is agreed that a verdicl fliall be taken for the plaintiff's fecurity, and an award is afterwards made in his favour — in each of thele cafes, execution cannot be tsken out without leave of the court. Jnnes V. So, where in eje£iment, the landlord is admitted to defend on Edwirds, ji^g tenant's non-appearance, and judgment is thereupon figned againft the cafual ejector, with a ftay of execution till further order, the leffor of the plaintiff, having fucceeded, muff apply to the court for leave to take out execution ; and in fuch cafe, if a writ of error be brought bv the landlord, it may be fliewn for (j> George caufe, and will be a fufhcient reafon a'j;ain{l taking out execution. V. Wiifcn, jij,. j£ [j^g landlord omit the opportunity of llicv;ing it for caufe, the execution is regular, and cannot be fet ande {a). Howell V. It feems to be proper, where there has been already an execu- Hartonh, ^^^^ -^^ ^^^ atlion of debt upon bond for the payment of an annuity, S43.*Ogiivie to apply to the court for leave to take out another execution for V, i-oiey, fubfequent arrears.! Id. nil. ^ _ Vent. 274. If judgment is given in debt in C.B. and the record removed I ^>^''V?^^' in B. R. by writ of error, and judgment affirmed (be it -^her/cire \v;iiiam facias, and appearance upon it, and errors affigned, or otherwife,) Eucknal and execution awarded by capias, the capias ought to be fpecial, arid Sell- reciting, that judgment was in C.B. and removed in B. R. by error, i3c. for otherwife the u/ule conviHns ejl in the capias fliall be intended of a convi£lion in B. R. and this was faid by the clerks to be their courfe ; wherefore a fuperfedeas was awarded of the execution q^iiia crronice emanavil, the writ not being re- turned. Salfe. 32T. If a writ of error be brought of judgment in B. R. in Ireland pi. 6. Coot l^ere, and the judgment affirmed, the method is to have a writ, c Mod. 421*. reciting all the proceedings here in E/jr^Iand dire6lcd to the judges S.C. Ld. of tliC King's Bench in Ireland^ requiring them to iffue procefs of ^^W''A'T- execution; and by this mandatory writ the caufe is reftored to 2,^. ' that court; but no writ of execution of fuch a judgment can Carth. 460. iffue here. Cowp. 843. [Where a writ of error determines in the Exchequer-chamber by abatement or difcontinuance, the judgment is not again in B. R. till there be a remitiitur entered ; for without a remittitur it cannot Crecutiom 723 cannot appear to that court, but that the writ of error is ftlll («) ' Saik. pending in the Exchequer-chamber (t?) :, and therefore in fuch ,:}.^^' cale, It 13 ulual for the plamtifr to move tne court, on an atn- 2,34. davit of the fa6l, for leave to enter a re'mit/ilury and take out (^; ^ Saik. execution ((5). ' „ d'^'c «„ \ ■' 1 Cr. Pr. 369, 70. So, if the pLiintifF recover a judgment againft two defendants ^ Term in B. R. and one of them bring a writ of error in the Excliequer- '^' ''■S?* chamber, the plaintitF cannot charge the other defendant in exe- cution till the record be remitted, notwithilanding the writ of error mi,y,ht have been cjuafhcd immediately, becaufe not brought by both the defendants.] (F) Who are entitled unto, and may fae out Execution. ^yO perfon is entitled to, or can fue out execution, who is not Roll. Ahu **• privy to the judgment, or entitled to the thing recovered, ^^9- a§ heir, executor, or adminiftrator tohim who has judgment. But if an adminiftrator, duratiie m'uiori atnte of an executor, Rolf. Ahr, recovers in debt, and, before execution, the executor comes of Vl^'^' n 11 I r ■ r • i • r i • Margaret age, executor ihall nave d.Jare Jaaas on this recovery, tor he is Wright's privy to the judgment. cafe, adjudged. So, if J. S. makes ^. executor, upon condition, that if A. does Roll. Abr. fucli an acl, that the executorlhip ihall ceafe, and that then B. ''^9- WaU fhall be executor ; if A. recovers in debt, and then does the a£l, Herbert, by B. fliall take out execution. three juoges agaiuit one. If a feme, executrix to J. S. marries, and her hufband and (he Roll. Abr. bring an action of debt on an ohhgation, as executrix to y. 'S. and ^^9- Beaa. have judgment, and the vi^ife dies ; in this cafe the hufband, though {^^"^ ^||_' privy to the judgment, (hall not fue out execution, for he is not judged. entitled to the thin? recovered, but the fame belongs to the fue- Cro. Cir. O ' ■ O 208. 22". teeding reprefentative of j. S. 46^' g/c. So, where ^. fued as adminiftrator to J. S. on an obligation en- Yeiv. S3. tered into by the defendant to the inteftate, and had judgment, Barnehu.-ii and afterwards the lettersofadminiftration were repealed •, though charies ^. was privy to this judgment, and took out execution thereupon, Yeiveitone, yet the court granted -dfuperfakas thereof, and held, that, the ad- ^ ^^''""'^^ ^ miniftration being revoked, the fuing out execution afterwards adjudged was void ; for the adminiilrator had no intereft or authority, but between as a minifterial ofticer to the ordinary. 1 urner and J Uavis, r f^,r pradlifing phyfick in London without licence, pur- Gardener', fuant to the llatute 14 6f 15//. 8. and therefore the party may take out his exe- '^}'-^^' j cution which way he pkafcs, for the words of the ftatute are, 37. & v'J» Sit in eleElione : but if he fhould, after the allowance of this writ *9 AfT. pi, and revival of the judgment, take out an elegit to charge the land, 37-^ the party may have remedy by {e) fuggeftion, or elfe by audita (^) For th» guere/a. difference ' between real and perfonal execution, and that a perfonal execution will furvive, though a real one will n)t, -viJe 3 Co. 14. Ye. V. 209 RayiTi,ic3. 2 Keb. 3 331. 4Mod.3i5. 3Keb.295. Salk. 319. pi. 2. Show. 402. Hoit, I. pi. 2 arth 236. Salk. 261. pi. 1. (^) Fcf this tiVs F. N. B. 166. 44 E. J. 10. See Comb. 441. 5 Mod. 338. Carth. 404. Show. 405. Ld. Raym. 244. 2. Of fuing out Execution againft the Heir and Executor. If there be judgment againft one who has lands in fee-fimple. But fortbJs or if fuch a one acknowledge a ftatute, and die, and his lands de- ^"{' "'• icend to his heir, * execution may be taken out againlt the heir, Anccitur, 3 A 3 but yi6 Crccutton* i^ 'Vide but his body is protecled ; for it vould be moft unreafonabic to PL62.V07. ^^H^<^ ^^^^ h^'r to the payment of his ancellor's debts, any farther pii 15. 3+4. than to the value of the afTets defcended. pi. I. Moor, pi. 203. Co. Lit. 103. 290. * See the ilat. 3 W. & M. c. 14. § 5, 6. where exe- cution ihall go againll the heir, after an alienation of lands defcended. For this wV? So, if there be judgment againft J. S. and he die inteftate, or ° ; havinsr made his executor, z fieri facias may be executed of his editors and ". , ri i ■ -n ^AdminiUiJi. goods in the hands of the executor or adminiitrator. ton, & -vuie Mod. i%Z. 2Vent.2i8. Skin. 257. pi. 4. 2 Shaw. 485. pi. 449, Salk. 322. pi. 10. I Cr. Pr. [Neither on elegit, nor a capias adfatisfaciendumi will lie againll Com. ±i^ executors, unlefs a devaJJavit be returned.] 3. Of fuing out Execution againft Infants. Co. Lit. By the [a] common law, if judgment be given againft a man for V^\'\ ^Au ^cbt or damages, and the defendant die before execution fued, his 340. iieir witnin age is not liable to execution during his minority \ but (a) But the parol mufl: demur in fuch cafe till he conies of age. though upon a judgment in debt, or upnn a ftatute cr recognizance, there can be no proceeding aga'nft an infant at connmon law during his mino.ity, yet there rrny in Chat-eery, and a fecjnertra inn may iflue againft his lands. iChan. Ca 163-4. That th; iandi of one wao enters into a lU"ute merchant, itaple, or recognizance, are i.ot exiend'b'e in the hands of his heir, until he comes oi age, -yide Bro.Stat. Merch. 33. Co. Lie. 21,0. Mojr, p!. i2i. 23. Dyer, 239. Co. Ent. 12. VJe ante. Co. Lit, And this privilege of infancy does not only protedl the infant, »9o- a. ^jy^ 2II others who are affedted by the judgment ; as if there be father and two daughters, and judgment be given for debt againft the father, who dies, one of the daughters being within age, par- tition being made, the elded fhall not be charged alone, but fliall have the benefit of her filler's minority, which puts a ftop to the cxecuti-on. Co. Lit. So, if the conuforof aftatute merchant die, and his heir within i9o- 3- age endow his mother, the land in dower fhall not be extended B.C. Stat. b . . . f , , • Merch. 33. during the minority or the heir. aStr. izi-]. [But an infant feems to be liable to a capias ad fatisfacicndum.'\ 4. Of fuing out Execution againft a Feme Covert. Ron Abr. If a perfon recovers in trefpafs againft baron and feme, 890. but for execution may be fued out aeainft the feme after the death of this 'Vide tit. 1 1 n. 1 ^ Baron and 1^6^ hulband. feme, and Cro. Car. 518. 526. 3 Keb. 205. So, if a recovery be in an aflife againft them upon a difleifin, execution fnall be againft the feme after the death of her huftjand, as well for the damages as for the principal. So, if in a quare iinpedit, damages be recovered againft baron and feme to the amount of two years, and the huft>and die, the damages may be recovered againft the wife. [In an a£^ion againlt hulb.md and wife, they may both be taken in execution; and the wife {lull not be difcharged, unlefs it ap- pear, 39 H Roll. ■ 6- 45- Abr. 34a- fuis miy at any time be prol'ecired in c, urts ot recori, equity, cr Jdmiialtv, and ourzs havin^; cognizance of cjules matiiinoni^jl anj te.tamcntary a^Jinft pecis, and members of the Houie of Commons, and their lervdnis. But the feduns cf oieriiLeis of d.e Houie of Commons aie not Co be arretted or i.upiifo:-ied. Alfo no capias can iflue againrt. a peer; for even in the cafe of 6 Co. 52. a private perfon, at common law, the body was not liable to a ^"^'J^'* man's creditors i and the ftatute of E. 3. wliich fubjccls the ^^05*. body, does not extend to peers., becaufe of the facrednefs of their perfons ; as alfo the law fuppofes, that perfons thus diftinguilhed by the king have wherewithal otherwife to fatisfy their cre- ditors. 6. Of fuing out Execution againd a Clerk, or one in Holy Orders. If a writ of execution be taken out againft a clerk in holy orders 2 Roll. Abr. on a judgment obt.iined againlt him, or upon a Itatute Itaple, or tT^'o^"'^* recognizance in nature of it, which he has entered into; and the ainft. 472. fheriff return, that he is a clerk, he ought to extend his lay fee Jenk. 207. and chattels, or return that he hath neither ; but if he return, t'') ^^lat tne wt It in tnis quod clerictis ejl henefuiatus nullum haheris laicum feodum^ fed quod be- c-de is like a nefic'iatus ejl in fuch a diocefe, then [a) a writ of fequeftration fl:iall ferifaciasy iffue to the bi(hop to fequefler the living. bi'ihoplsin nature of a rem; oral officer or ecclefufticj! ihcriff, and may, as the {heritfin other cafes, feize eccle- lialtical things a-id fell them, and mult retorn^^cfii feci, and not fequejirari feci upon this writ. Mod. 257. 2 Mod. 258. [He may alfo be cal.ed upon by rule to return the writ ; and if he make a falfc returnj will be liable to an aftion. GJb. Exec. 26. 1 Saik. 320. 1 Ld. Raym. 265.] [Upon this wvir, the biOiop or his oflicer makes out a fequeftra- 5 Bum's tion directed to the churchwardens, or, upon a proper fecurity, to ^- ^ ^'^* peifons of the plaintiff's own appointment, requiring them to ^j^^, fequefter the tithes, and other pi-ofits of rhe benefice ; which fe- queftration (hould be forthwith duly publirtied, by reading it in church during divine fervice, and afterwards at the church tloor, and fixing a copy thei-eon : for where a fequeftr.ition was made Legafiicke out, and not publilhed whilft the writ was in force, but was v. Buiiopof flayed in the regiftrar's hands, by defire of the plaintiff's attorney, 2,2Geo. 3! the court held, that it had no priority, as againft other fequeitra- K. 15. tions, afterwards made out and duly publiflied ; but that if it had Ticid s ?r. been publiflied, the execution would have taken effect, and mnfl '^^^ have been firft fatisfied, notwithlianding it was ihen returnable.] If the conufor of a ftatute merchant be a clerk wichin orders, 2 Roll. by the ftatute 13 £. i. the flicrifF cannot tike the body in execu- j^^' "^^j*, tion; and if he return, that he is a clerk, no execution (hall be Bio.St"t^ granted to the {heriif to levy the debt de hnis ecclcftajlicis^ for his Mercb ^8. 3A4 perfon ^■"'^'^'-^ 5. 728 CBrccution* pcrfon is proteiled by the letter of the ftatute, and the ftatute doth not fubje^t the bona ecclefiajllca to the execution ; but in this cafe the conufee may have execution granted out of his lay fee. Salk. 320. On a fieri facias againfl a fellow of Witichejler college, the pi. 5. Mofe- fl^eriff returned clericus betieficiaius nullum habeas laicum feodum. lev 3no ^v ar- •/ ' burton. Ld. whereupon z fieri facias de bonis ecclefiafiicis ilTued to the bilhop, Raym. 265. who fent his mandate to the warden and fellows of the college to fequefter his falary, and they refufed ; and it being moved in B. R. to know, whether the bifliop might not compel them by ec- clefiaftlcal cenfures, the court thought that this was not an eccle- (laflical conftitution, the univerfities being only focieties adfiu" dendi/m is orandum, but faid that a prebend is an ecclefiaftical benefice; and in fuch cafe, if the prebendary have a fole diflintt corps, it may be fequeftered ; but v/here he is only a member of the body aggregate, and the inheritance is in the dean and chap- ter, there cannot be a fequeftration, and therefore they left the bifhop to do as he ought by law. {a) I Cr.Pr. [It is faid, that the writ of fequeftration muft be renewed every 345- term [a) : but it feems, that if the writ be laid and executed, before if V^ ^i""^" ^ *^^ '^^y °^ ^^^^ return, the mefne profits may be taken under it, af-* Sequeftra tcr thc Wilt is returnable, otherwife not [b).'^ tion. Tidd'sPr. 746. (H) At what Time Execution may be fued out : And herein of the Neceffity of a Scire Facias. »Tnft.47i. A T common law, in real adlions, where land was recovered, the 5 Co. 88. r\ demandant, after the year, might take out a fcire facias to ^,6* revive his judgment, becaufe the judgment being particular in the 6M04.288. real aflion, quoad the lands with a certain defcription, the law re- quired, that the execution of that judgment fhould be entered upon the roll, that it might be feen, whether execution was delivered of the fame thing of which judgment was given ; and therefore if there was no execution appearing on the roll, 2k fcire facias iflued to ftiew caufe why execution (hould not be. a Tnft. 469. But if the plaintiff, after he had obtained judgment in any per- Carch. 30, fonal a£tion, had lain quiet, and had taken no procefs of execu- ii'd. 3-1. f'O" within the year, he was put to a new original upon his judg- ment, and no fcire facias was ifluable by law on the judgment, becaufe there was not a judgment for any particular thing in the perfonal adlion, with which the execution could be compared : therefore, after a reafonable time, which was a year and a day, it was prefumed to be executed, and therefore the law allowed him no fcire facias to fliew caufe why there fhould not be execution; but if the party had flipped his time, he was put to his adtion on the judgment, and the defendant was obliged to fhew how that debt, of which the judgment was an evidence, was difchnrgcd. To remedy this, and mr.ke the forms of proceeding more uni- form in both actions, the Ibtute of IVefm, 2. it, E. i. fi. i. c. 45. gave (2Brccution» 729 gave ^t fare facias to the plaintiff to revive the judgment, where he had omitted to fue execution within the year after judgment was obtained. The words of the acl are, ^tod ea qua invefiiuniur irrotulata coram eis qui record, habetit, five fervitia aut confuetudines recogtiita^ aut alia quacunque irrotulata, ft recem fit cognitio , viz. infra anniimyflatum habeat conquerens illius recognitiotiis, ^fi forte a majore tempore tranfaBio faEla fuerit aut ilia recognition pracipiatur vie. quod fcire faciaty (^c. It hath been doubted, whether z fcire facias lay to revive a Sid. 351. judgment in ejectment after a year and a day, either by the com- ^,^i"*"f^* mon law, or by force of this Itatute ; for at common law this was Rlym. 669. looked upon as a perfonal action, and it was thought that the fta- tute extended only to fuch perfonal adlions in which debt or damages are recovered, and not to provide a remedy in this cafe, when at the time of making the a£l the poflefTion v»'as not recovered in this a£lion : but it feems now fettled and confirmed by daily pra6lice, that a fcire facias lies on a judgment in eje£lment, for the words of the a6l are, Sive fervitia fve confuetudines five alia qua- cunque irrotulata, which comprehend all judgments, and give the like remedy on them h'j fcire facias, as the demandant had on a Judgment in a real a£lion at common law. Here alfo it may be proper to diilinguifh between taking out Co. Lit. execution on judgments and recognizances at common law, and *9'' '• on ftatutes merchant and ftaple ; that on the ^x^, fcire facias after p. n.'b. the year and day, is abfolutely neceflary; but as to ftatutes mer- 296. Bro. chant, ^c. the conufee may at any time fue execution on them, ^^ecogm- without the delay or charge of a fcire facias. The reafon, why the plaintiff is put to tns fcire facias after the 210(1.470. year, is becaufe where he lies quiet fo long after his judgment, it and admitted Ihall be prefumed he hath relcafed the execution, and therefore reafon in all the defendant fhall not be difturbed without being called upon, the cifes oa and having an opportunity in court of pleading the releafe, or ''^'shead. Ihewing caufe, if he can, why the execution fhould not go. Alfo, it is faid in Salkeld, that, if a judgment be above ten years 2 Sa'k. 598. ftanding, the plaintiff cannot fue z fcire facias without motion in p'- 3- f^ court ; and if it be under ten, but above feven, he cannot have a fcire facias without a motion at the fide-bar; and a note is added, that if after fuch motion, and judgment revived hy fcire facias, the defendant die before execution, the plaintiff niuit fue a nf^ fcire facias, but may have it without motion, for the judgment was re- vived before. But though the general rule be, that the plaintiff cannot take cut execution after the year and day without a fcire facias, yet the rule muft be underftood with thefe reflriftions. Thr.t if the defendant brings a writ of error, and thereby hinders Cro. Jac. the plaintiff from taking his execution within the year, and the it'^' plaintiff in error is nonfuit, or the judgment affirmed, the defend- j^ h, ^, ant in error may proceed to execution after the year without z fcire 16. b. facias, becaufe the writ of error was 2. fuperfedeas to the execution, ^°^'- ^^^' and the plaintiff muft acquiefce till he hears the judgment above; 4Leon.i97. befides, w^hile the caufe is depending on the writ of error, the s <^o. 88. caufe 73© (iBrecution, Carth. 236- caufe IS diW /uIj J udics, whether the plaintifF fliall recover, or not, 1\, , ^c ^i""-! the year for the execution ousht to be accounted from the final judgment given. 6Mod.2!-S. So, if the plaintifF hath a judgment, with ftay of execution for Roll. Rep. jj year, he may, after the year, take out his execution without the fcirefaciaSy becaufe the dehiy is by confent of parties, and in fa- vour of the defendant ; and the indulgence of the plaintifF fliall not turn to his prejudice, nor ought the defendant to be allowed any advantage of it, when it appears to be done for his advantage, and at his inllance. Carth. i?3- Alfo, if the plaintifF enters on the roll of the judgment, an 4. Seymour g^^^d of an elegit of the fame term v/ith the judgment, and con- •v\\\. &f -vide tiiiues it down with vicecomes non miftt breve^ he may take out that Roll. Rep. urit at any time afterwards, without fuing out any fcire facias^ '°f' though, upon debate of this matter, the iud;Tes at iirll inclined pi. 23". ' that the elegit fl^.ouid be a61ually taken out ; otherwife, fiich an Comb. 346. award as this might be entered at any time, paying only for the continuances, and the party thereby tricked out of the benefit which the law gives him of pleading any vuTittcr po/l faclum upon the fcire facias : but upon examination of feveral of the ancient praftifing clerks then in court, this appeared to have been the conftant prac- tice amongfl them for many years 5 and therefore the court, con- iidering the inconveniency of opening a gap to deftroy fo many executions, for this irregularity, and becaufe the prae preceding term, when he was living j 2nd it will be a good judgment, at common law, as of that teim. though execution cannot be fued cut upo.i it againtt the rep.-elentaiive of the defendant until it is re- vived h'j fare faclai. I Salk. 87. 3 Salk. iib. 2 Ld. Raym. 766. 7 Mod. 2. 93. S.C. 2 Saik, 401. 7Mod.3q. S.C. 3 Salk. 1159. 3 P. Wms. 309. a Str. 8S2. Ca. temp. Hardw. n;S. S. C. 6 Term Rep. •56S. But then the roll ought to be brought in and filed, before the effolgn day of the fiibfc-quent teim. I Salk. 87. 2 Ld. Rajm- 850. 6 Mod. 191. And it is fa;d, that if judgment be ligneu ill term lime, and in the fubftquenr vacation, the defendant fell lands, and before the eifoign day of the next term the plaintiff enter his judgment, it ihall afFcft the lands in the hands of the purciiafer, 6 Mod. 191. Tamcn £«. if the judgment be not dockeited at the time of the fdle. Tidd's Fr. 706.J And § 15. it is enabled, " That fuch judgments, as againft ** purchafers ^owi^ii^, for valuable confideration, of lands, tene- *' ments, or hereditaments to be charged thereby, fhall, in confi- ** deration of law, be judgments only from fuch time as they *' fliall be fo figned, and (hall not relate to the firft day of the *< term whereof they are entered, or the day of the return of tl:e ' <* original, or filing the bail." And § 18. it is ena£ted, ** That tlie day of the month and ** year of the enrolment of recognizances (hall be fet down in " the margent of the roil where the faid recognizances are en- 5 « rolled, 73^ Crccution. ** rolled, and that no recognizance fhall bind any lands, tene- ** ments, or hereditaments, in the hands of any purchafer bond *' Jidcy and for valuable confideration, but from the time of fuch *' enrolment." [Before this Alfo, for the greater fecurity of purchafers, by the 4^5 IV, \fd-menf ' ^ ^^^ '^' ^°- ^^ ^^ cnaded, « That the clerk of the efToins of the bound the " court of C. J?., the clerk of the doggets of the court of King's lands, and " Bench, and the maftcr of the ollice of Pleas in the court of w'snwh'n " Exchequer, fliall make and put into an alphabetical dogget, by more than" '' the defendants' names, a particular of all judgments by confef- aq index to «< fion, Hcn fum injormatiis^ or nihil dicit^ entered in their feveral 4i'iy."^Gl!b. " coui'ts, ^c, and that no judgment not doggetted, and entered c. P. 165/ " in the books as aforefaid, fhall afFedl any lands or tenements as Bjitnowit « to purchafers or mortgagees, or have any preference againft "ecefl^iy* " heirs, executors, or adminiflrators, in their adminiftration of that the ' " their anceftors, teftators, or inteflates eilates." judgment fliould be docketted in order to bind the lands ; and if it be not doclcettcd, 4 Str. 630. Barne«, a6i, 2. or if there be a falfe docket, which is as none, Gilb. C. P. 165. iWilf. 61. z Str. 17.09. S. C. though a right judgment, the purchafer or mortgagee will be fafc ; a.id in the latter cife, the party mu.l rake his remedy againft the attorney or officer for not dockct;ing it tiuiy. But qu. whether equity would not relieve a^a nil a purchafer with notice, notwithftandlng the juogment be not docketted } See 7 Vin. Abr. 53. 2 Eq Ca. Abr. 684. & 7 Vin. Abr. 54. If the judgment againft a teftator or Mteftate be not dockett^d, the debt i? put on a level with fimple contraft debts, and the executor or ad- miniftrjtor mav, under the plea of pure admir.iftraiit to an adion of debt upon fuch ajudgment, give in evidence the paym.'nt of bond and other fpeciaky debts. Hickey v. Hayter, 6 Term kep. 384. j [To give effeft to a judgment, as againft purchafers and mort- gagees of lands in Middle/ex and Torkjlnrey it is required, that it Ihould be regiflered : for by 5 Ann. c. 18. § 4. and feveral fubfe- 6 Ann. c. quent ftatutes, " No judgment, ftatute, or recognizance, (other I Ann ^c *' ^^''" ^^^ 2s (hall be entered into in the name and upon the ao. § 18. *' proper account of his Majefty,) (hall affe£l or bind any manors, *^^°'*- " lands, tenements, or hereditaments, in thofe counties, but only & 18. ^ " from the time that a memorandum of fuch judgment, ftatute, ** or recognizance, fliall be entered at the regirter-office, in fuch '* manner as therein is directed." 1 To. Lit. Here alfo we muft obferve a difFerence as to judgments which affe6l the lands of an anceftor, and thofe which affedl the heir ; for as to the firft, the plaintiff ftiall not have execution, but only of that land which the defendant had at the time of the judgment, be- caufc the a£lion was brought in refpctSl of the perfon, and not in refpedl of the land. Co. Lit. But if an aftion of debt be brought againft the heir, and he (rf'That 3^'e«i, pending the writ ; yet fhall the land he had at the time of the filing a bill {a) original nurchafed, be charged, for the action was brought in B. R. is againft the heir in ih) refpedt of the land *. as efieaual \ ' i for this purpofe as an original writ. Carth. 245, (5) And therffore, if the anceftor devifed away the lands, creditors, whofe lecu:i:iss w»re inferior to judgments, had no remedy at common law, cither againft the heir (/r devifce. Abr. t"q. 149. But now by the 3 &4W. & M. c 14 it is enafted, that all will concerning lands, or any rents, pofits, term, or charge out of the fame, whereof the devifor ihall be feifcd in tee-fimpie, in poll'eirion, rtverfion, or rctraiader, ftall be deemed to te fraudulvnt and voi4 ayainft cred^fsrs upin b;nds or othei fpecialties, thtir executors, adminiftiators, &c. and fuch creditors ihall have their a£ti>ns of debt ajjainlt the bcii at Uw and the deviiecs jointly. -'-• Where execution Ihall go aga.aft tlie heir afctr an aiiena.ioji uf Un,i* uefcenJed, -v'tdi 3 W. k .M. c. x\. \ 5, 6. Hence Crccutlom 73 j Hence it hath been adjudged, that if there are two creditors, v/z. Canh. 245. J. and B. of J. S., whofe heir is bound, and who has lands by qJ^J""^ defcent, and A. files an original in C. if., and hath judgment thereon, Trinity term 2 Jnc. 2. by defauk, and thereupon a gene- ral elegit iffues againft all the lands of the heir, and a moiety thereof is delivered to A.^ and B. on a bill filed in B. R. i cs* 2 Jac. 2. his a fpecial judgment againfl the aflets confcfled by the heir, Trinity term 3 Jac. 2., though ^.'s judgment be fubfequent to ^.'s, yet it appearing that his bill or original was filed before y^.'s, the judgment (hall have relation thereto, and therefore he mufl be firft fatisfied. Alfo in the above cafe it feems, that though A.h judgment had Carth, i%t. been on an original actually filed before i/ '3, that B. mult have been -4-^- preferred, becaufe his judgment was general againft the heir, and the execution a general and common execution by elegity and not againft the afiets only by way of extent •, and therefore fuch a general judgment will not operate by way of relation to the original, but binds only in common cafes from the time of the judgment given. As to goods and chattels, the execution at common law had re- 8 Co. 171. lation to the time of the av/arding thereof, and therefore, if after ^^'^- ^''** the tejJe of the writ cf execution, the defendant had fold the goods, aVentziS. though bond fide y and for valuable confideration, yet were they flill liable to be taken in execution, into whofe hands foever they came. But as this- created fome inconveniency with refpecl to trade, in Mod. 18S- makingthofe goods ftill fubjeft to execution, tiiough in the hands ^"^' ^~i^' of a perfon who came by them for valuable confideration, and with- out notice of any fuch execution -, and as there was a farther in- conveniency in making a writ of execution taken out in vacation, to have relation to the laft day of the precedent term ; for remedy hereof, By the 29 Car. 1. c. 3. § 16. it is ena£led, " That no writ of [Butnelrher ** fieri facias^ or other writ of execution, fnall bind the property '|*^'|'= ''''* " of goods againft whom fuch writ of execution is fued forth, fince, i'sthe ** but from the time that fuch writ (hall be delivered to the (heriff, property of ** under-fherifF, or coroners, to be executed ; and, for the better e°°*|* f "^''' , ' . —^ cdj but con* ** manifeftation of the faid time, the fherifF, under-flierifr, and tinuesinthe ' ** coroners, their deputies and agents, fliall, upon the receipt of defendant, «* any fuch writ (without fee for doing the fame) indorfe upon ^'^^j^g^^^ ^^[g' ** the back thereof the day of the month or year whereon he or cuej. The ** they received the fame." meaning of the words, that no "Writ cf execution Jhall bind tit prof erty but from the dc'ijery cf tbeiorit to the jhcnff, u, that a}:tr the writ is fo deliverea, if the defendant make an alignment of hi goods, unlefs in market overt, tbc flierifF may take them in execution. 2 ?.<}. Ca. Abr. 3J^i-] [This ftatute protefts only goods in the hands of purchafers Comb. 145. where the goods are fold bona fide ; for if the party die after the teficy but before the delivery of the writ to the flierifF, the goods are bound in the hands of his executors ; for this is not a change of property by fale, or for a valuable confideration. So, 734 (ZHrccutiCtt* xLd.Raym. So, if a Writ of execution be delivered to tlie fherlfT', and the iVfiichc"r', ^^^^"^3"^ become bankrupt before it is executed, the execution is thertieriff ' thereby fuperfeded, and the goods are not bound by the dehvery, fliaii net b; for thc property cenfes to be in the bankrupt from the time of the TaiSbr'" ^^^ of bankruptcy committed. relation for any fubfequent dilpjf.i of" them ; though he would be liable in trover. Smith ▼. Milles 2 Term Rep. 475. * Cro. Car. The flieriff deriving his authority from the writ, it hath been J"" zu'!' ^^olden, that if the plaintiff die after Sl fieri facias fued out, it may Raym.1073. he executed noLwithilanding ; and his executor or adminiftrator / ^^N ^^^' ^'*^' ''^^^^ ^^^ money. And if the plaintiff (rt) has made no exe- 73. 2°L'd. cutor, or adminiftration is not yet committed, the money mud b« Raym.1073. hrought into court, and there depofited until, ^r.] (K) Of the King's Precedency in Executions. Hob. 60. |T hath been already obferved, that the king, by his prerogative, 2 Roll ^^* "^^y \\^^\t execution of the body, lands, or goods of his debtor, Abr. 472. 2t his eledion. 8 Co. 171. And here we muft obferve, that the king's execution relates as z Roll. Abr. jQ jgj^ J J.Q jj^g jj^g q£ becoming in debt to the king ; for as to debts that were of record, they always bound the lands and tene- ments ; for all lands being held mediately or immediately from the king, when any debt was returned of any perfon, it laid the eftate as liable to fuch debt, as if it had been a refervation on the firft grant. And as to debts not of record, they bind the lands from the time they are entered into ; but this is by force of the ftatute 33 //. 8. c. 39. by which it is enacted, " That if any fuit be '• commenced or taken, or any procefs hereafter be awarded for ** the king, for the recovery of any of the king's debts, that then the *' fame fuit and procefs fhall be preferred before any perfon or ** perfons ; and that our faid fovereign lord, his heirs and fuci ** ceffors fhall have firft execution againft any defendant or de- *' fendants, of and for the faid debts, before any other perfon or •* perfons, fo always, that the king's faid fuit be taken and com- ** menced, or procefs awarded for the faid debt, at the fuit of ** our faid fovereign lord the king, his heirs or fucceffors, before ** judgment given for the f^iid other perfon or perfons." [Rexv. As to the king's execution of goods, thf fame relates to the Cotton, ^Yccit of the awarding thereof, which is the tejle of the writ, as it 2 Vez. 288.* was in the cafe of a common perfon at common law j for though But the by the 29 Car. 2. f. 3. " no execution fhall bind the property of above fta- ^( j.|^g goods, but from the time of the delivery of the writ to the 33 H. 8. ** fheriff ;" yet as this a6l does not extend to the king, an extent extends to of a later ie/Ie fuperfedes an execution of the goods by a former aea^rft^er ^'^'^ » becaufe by the king's prerogative at common law, if there fonaipro- had been an execution at the fuI^jecVs fuit, and afterwards an pertyasweii extent, the exccution was fuperltdcd tiii the extent was executed. Orrccution* 735 becaufe the publick ought to be preferred to the private property, land, and and the rather, becaufe the king is fuppofed by publick bufinefs Z-elo^auye^ not to be able to t.ike care of every private affair relating to his wlihm the revenue, and therefore no time occurs to (or runs againft) the lin'-itation king j and if he was to be prevented of his execution, by another fcTbcd!*" perlbn's coming in before him, laches mufi: be imputed to him, Parker, which the law does not. -^^» *•] If the king's debt b'e prior on record, it binds the lands of the But for this debtor, into whofe hands foever they come, becaufe, as has been *::■'"' 2 Roll, obferved, it is the nature of ?.n original charge upon the land it- Moo/^ize'* felf, and tlierefore mud fubje£l every body that claims under it; si-ton.zjg, but if the lands were alienated in w^hole or in part, as by grant- -4°- ing a jointure before the debt contracted, fuch alienee claims prior ' ' to the charge, and in fuch cafe the land is not fubje6l. [This llatute of 33 H. 8. it hath been refolved, is not confined to 7 Co. r8. br bond debts only, but extends to all debts and executions at the fuit of the king. But it is refcricflive upon the old prerogative, and in- trodutlive of a new law, for ita quod,fo always that the kings fiut^ &c. makes a condition precedent and a limitation. Hence, therefore, Attomer a judgment and execution, executed by elegit^ fliall be preferred to a*^^*^'^' ^* the extent of the king, ifiuing on a bond debt, bearing date be- Hardr. %\, fore the fubjeft's judgment, and aiTigned to the king before the fubjetl's execution. And, in the cafe of an execution againft Lechmerev. perfonal property, if the king's extent be fued out pofterior to a "ofough- judgment recovered by the fubjeft, and writ of execution thereon 3 Mod. 236. delivered to the (heriff, though not executed, the king ihall be pod- Comb. 123. poned. Eefides, in this cafe, the property of the goods is changed suTn" '* by the fubje ft I coryton and ^^^ go^ds in his hands. Thomas. Cro. Car. 53. 2 Saund. 343. (N) Of the Sheriff's Authority in doing Execution : And hereia of breaking Doors, ^c. 5 Co. 91. tT is laid down as j general rule in our books, that the (heriff, *c. Se- 1 jj^ executing any ludicial writ, cannot break open the door of 3inft. 162. a dwelling houfe. This privilege, which the law allows to a Moor, 668. man's habitation, ari es from the great regard the law has to every CruEUz. lean's fafety and qu- t, and therefore proteds them from thofc in- jcS. Dait. convenicncies which muft: neceffarily attend an unlimited power in (ZBrocutfon, 737 la the flierlfFancl his officers in this refpedl j and hence it is, that %r. 350. every man's houfe is called his callle *. * '"^X'"' T i" G 3» in the caufe of Yates and others againft Dclamayne Efq. the court fet afiJe an execution levied on it- fendant's goods, in hib d veiling-hjufe, becaufe th^ oliicer foicibiy broke into the hijufe co execute the writ. But yet, in favour of executions, which are the life of the law, and efpecially in cafes of great necetTity, or where the fafety of the king and commonwealth are concerned, this general cafe hath the following exceptions : 1. That whenever the procefs is at the fuit of the (n) king, the sCo 91. b. fheriiF, or his officer, mav, after rcqueft to have tiie door opened, (") ^^^^ and refufal, break and enter the houfe to do execution, either on ^^j u;Lga- the party's goods, or take his body, as the cafe fhall be. tum, though on niefne procefs, and at the fu t of the fubjedl, the /hcrjff may break open any outward doors after demand and reful'dl. 2 Show. S7. pi 7S. 2. So, in a writ of feifin, or habere facias pojfeffionem in cje£l- 5 Co. 91. ment, the Oieriffmay juliify breaking open the door, if he be de- nied entrance by the tenant ; for the end of the writ being to give the party full and adlual poflcffion, confequently, the Iheriff mufl have all power necefl'ary for this end : belides, in this cafe, the law does not, after the judgment, look upon the houfe as be- longing to the tenant, but to him who has recovered. 3. Alfo, this privilege of a man's houfe relates only to fuch exe- 5 Co. 93. a. cutions as aiTeCl himfelf ; and therefore if zjieri facias be dlreded ^"*- '^''' to the fherifFto levy the goods of A. and it happen that ^.'s goods are in the houfe of B., if, after requeft made by the fheritF to B. to deliver thefe goods, he rtfufe, the (herilf may well juilify the breaking and entering his houfe. 4. Alfo, this privilege extends to a man's dwelling-houfe or Sid. ; 89. out-houfe adioinlng thereto, and therefore it hath been adjudged, {"e"-'^" ^^^ 1 1 .1 • T *' r ■ f ■ L 1 u J r Browne. that the llienlt, on a jiert jacias^ may break open the door ot a (^p^. 6q3. barn, (landing at a diftance from the dwelling-houfe, without re- S. c. quelling the owner to open the door, in the fame manner as he may enter a clofe, i^c. 5. So, on 2, fieri facias y when the flieriff or his oHicers are once I'^how. 87. in the houfe, they may break open any \b) chamber-door or trunks ^'J^j' ^^ for the completing the execution. Cur. Cowp.i. (^) i^. "Whether ;h;s muft not be after recjneft and refulal ? Falm. ;j4. 6. So, if the iherlfr 's bailiiTs enter the houfe, the door being Palm. 52. open, and the owner locks them in, the flierilT may juftify break- ^,J"^w. hig open the door, fur the enlarging and fctting at liberty the cro. Jac. bailiffs ; for if in this cafe he were obliged to Itay till he could 555- S- C- procure a komine repUgiando, it might be highly inconvenient: * j/s. cf* alfo, it feems, that, in this cafe, the locking in the bailiffs is fuch a diflurbance to the execution, that the court will grant an attach- ment for it. 7. That if the flierifF, in executing a writ, breaks open a door 5C0. 93. *. where he has no authority for fo doing by hw, yet the execution Vol. U. 3 li is 738 (Srecution. is good, and the party has no other remedy but an a£lIon of tref- pafs again ft the IherifF. iLd.Raym. [A feizure of part of the goods in a houfe by virtue of zjieri 7^5- facias i in the name of the whole, is a good feizure of all.] (O) Of the Offence of hindering or obflruding an Execution. 'T'HERE were anciently caftles, fortrefTes, and liberties, where "*■ they refifled the Iheriff in executing the king's writs, which creating great inconvenience, the ftatute of TVe/Im. 2. <^. 39- hin- dered the flieriff from returning refcuers to the king's writ of exe- alpit.450. cution, the words of which ftatute are, Mtiltoties etiam falfiim datit refponfum iimndafido^ quod fion pottteruut exequi pracepttivi regis prop- ter refi/tetitiain potejlatis alicuius magnatis, de quo caveat vie. de catero^ quia hujufmodi refponfa multum redundant ifi dedecus domini regis tsf corona fuix. Et quam cito fuh-huUivi jui tejiificentur quod invenerwit hujufmodi reffientiam^ ftativi [omnibus omifjls) affump.fecum poffe cpmi- tat.fui eat in propria perfona adfuciend. execution. Etft i/iveniat, &c. The judges conftrued thefe words to extend only to executions, and not to writs on mefne procefs, and that the (herifF was not obliged to carry the pojp comitntus where the man was bailable, for they did not prefume, that in fuch cafes the king's writ would be difobeyed. i Inll, 454. The original of commitment for contempts feems to be derived fromi this ftatute ; for fince the fherifF was to commit thofe who refifted the procefs, the judges who awarded fuch procefs muft have the fame authority to vindicate it. Hence, if any one offers any contempt to his procefs, either by word or deed, he is fubjedt to imprifonment during pleafure, viz. a qua ncn deliberetur fine fpeciali pracepto domini regis ; fo that, notwithftanding the ftatute of magna charta^ that none are to be imprifoned fine jiidicio parium vel per legem temzy this is one part of the law of the land to com- piit for contempts, and confirmed by this ftatute. Salic. 321. But though the court will on aftidavit grant an attachment ?!*.7- againft the party, whether he be the defendant or a ftranger who and Mann, difturbs the execution j yet where the ftieriff delivered poflefTion 6 Mod. 27. by virtue of an habere facias pojpffiotiem in the morning, and fome -' hours after the flieriff was gone, and the party in pofleffion, the defendant came and turned him out again j the court held, that if the plaintiff had been turned out immediately after he was put into poffeffion, or while the flieriff and his officers were there, an attachment might have been granted, for this had been a dif- turbance to the execution, and a contempt, but being feveral hours after, they doubted : but it was agreed in this cafe, that the court might grant a new habere facias pofftfftojiem^ if the firl^ yas not returned, pro. Car. Alfo, though the court will grant an attachment, yet if A. be Wynnand t^!^^" ^'"^ ^ capias ad fatisfaciendum at the fuit of .^., and refcued Qu^hton,; by (JBrecutioti* 739 by y. S.y B. may bring an adlion on the cafe againft J. S. for -jUexU. the refcue, or the fheriflr may have fuch aaion againft the ^^f^^l"'^ refcuer, becaufe he is liable to 5., but his being liable does not prevent B. from bringing his adlion againft which of them he plcafes. (P) Of the Party's Remedy when there hath been an irregular Execution, and how the fame is to be fet afide. £tF the writ oi Jieri facias ^ Sec. be Irregular, the defendant may TIdd'sPr. -*• move the court to fet it afide, and that the goods or money 748' levied may be reftored to him. A third perfon, whofe goods are taken under it, may alfo move the court to have them reftored : But if the right be not clear, the court will leave him to his a£lion againft the fheriff; or they will fometimes direct: an iflue for trying it, and retain the money in court, to abide the event of the trial.] {a) If upon an elegit the fheriff delivers all the party's lands, (^) Sid. 91. ojr a third part, or more than a moiety, the extent is void : but in (^) Canh. this (b) cafe, it can only be made void by (t ) writ of error or ^cfrh^t aa audita querela [d). irregular ex- ecution may be avoided in evidence in cjeflment brought for tlie lands. Lev. 163. {d) But the court, it fccms, would now fet it afide on motion. But if upon an elegit the (herlfF dellvereth a moiety of an houfe Canh. 45;. without metes and bounds, fuch return is ill, and fliall be qualhed ^f\ '^^^ ^'^'' for incertainty on {e) motion, without a writ of error or audita quailed, querela, though it be filed and entered upon record, beciufe it appears by the record to be void for incertainty, per Hale, Ch. Juft. j but ■ Wyld, Juft. held, that it being entered up-)n the record, there was no avoiding it, but by writ of error* j.Vent, 259. ©■ tilde Vent. 274. 3 Keb. 5Z2. So, if 2. fieri facias be not warranted by the judgment upon Vent. 259. which it is awarded, thou£;h the IherifF fliall be (/) excufed, yet ^/".) J^'P^" * . . -ii \-'' ■ ' * Jtcri facias It IS merely void as to the party. to the under- Iheriff of the county of Bucks who fold the goods of a peer man for 22/. 131, 4^. the goods being well worth So /. it appeared to ihe court, that the (heriffhad prevai led with the juty to prize the goods at an under-Value, perfuading them it would be better fir the poor man ; whereupon they appraifed them ut fufra, and he delivered them to the plaintiff for the fid fum. The court held, that it \\ai oppreffion, and inquirable at the sffizes by indii£lnnent, or puni/hnbie in the ftar-chamb-r ; and comm.mded that the under-lherift", being an attoiney, fhould be brought before them. Cro. Jae. 426. Sayer, Sheriff' uf Buckingham's cafe. [If z fieri facias be tefted, or returnable, cut of term, or, in an iSaik. 700. a£lion by bill, if it be returnable on a general return-day, it is ^**f.y *■• •tin injrrj HoUingf- void, or at leaft erroneous, and may be qualhed or let alide on ,^oxxh^ xr. motion, together with the proceedings that have been had under 24 Geo. 3.^ it. But 2. fieri facias may be amended (^), by adding or altering p,!^^^^*^^'' the tefte.j (^)i Wllf. 155. Say. Rep. 12. 3 B a It 740 (Crccution, pi-s 632 12 Mod. 320. 396 a Bl. Rep 1 104. Doug, 4'- It has been held, that in trefpafs againft the flierifF, it is enough ^ , for his iuftification, to {hew a writ. So it is in the cafe of his pl.g, ' " bailiff or officer, with this difference, that the fheriff muft fliew Ld. Rjym. the writ was returned, if returnable ; but the bailiff need not, be- caufe it is not in his power. But in trefpafs againft the plaintiff himfelf, or a mere ftranger, they cannot juflify themfelves, unlefs 5Burr263i. they fliew there was a judgment as well as an execution, for the judgment may be reverfed, and it ought to be at their peril, if thty take out execution afterwards. But it feems, that if one comes in aid of the ofhcer, at his requeft, he may juftify as the ofhcer may do : but fuch requeft or command of the officer is traverfable. So, where a man had judgment and execution executed, and afterwards the judgment was vacated for being unduly obtained, and reftitution awarded, and afterwards the defendant brought (a) trefpafs againft the plaintiff in the firft a£lion for the taking of the goods ; it was adjudged, that it well lay againft the party, for by the vacating of the judgment it is as if it never had been, and is not like a judgment reverfed by error. But in this cafe it was held, that no acSlion would lie againft the fiieriff (^), who had the king's writ to warrant what he did. Lev. 55. Turner and Felgate. Raym. 73. S.C. (a) Where an afti )n ■will lie for taking out execution on a judgment which the plaintiff knows to be fatisfied, I'iiie Hob. aoc. 266. [(/<) But if the flieriff or officer incautioufly join in the fjme plea with the patty, he forfeits his defence, i Str. 50;.] But for this If after a writ of error fued out, and bail put in, the plaintiff * i" takes out execution, the court will grant -^ fuperfedeas quia executif (H).and errotiice evianavit. J Lev. 312. \ (Q^) '^^ what the Party fhall be reftored v^^hen fuch erroneous Execution is fet afide. Roll. Abr. 778. 8 Co. i(j. Cro. Eliz. 27«. Moor, 573, Leon. 96. 3 Leon. S9. Cro. Jac. 246. Godb. 27. Roll. Abr. 778. Cro. fac. 24.6. V'.-lv. 179. Brownl. 107, 108. (0 That it ^vould be otherwife if fold to a ftranger, vidt Velv. 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