EVERY MAN HIS OWN LAWYER;
Complete
OR
CONTAINING THE LAWS AFFF.CTIXC
sirenrers AXD THEIR OFFICERS * INNKF.FJ>ERS AND CARRIERS
COKON'KRS V JURORS AND WITNESSES
I>ARISH OFFICERS' I HUSUAVD AND WIKIi
CORPORATION'S ^ ra.nF.NT AM) CHULU
EXIiCUTORS AND ADMINISTRATORS \ ARBITRATORS
CUARDIANS AND WARDS i THUS IKES
TiAMji.oim:-; AND TKNANTS \ J-AHTNERS
J.IASTKKS, SERVANTS, AITRENTICES, AXD ^ AUCTIONEERS
WORKMEN ^ SPORTSMEN
FARMERS AND GRAZIERS ^ COUKTRV GENTLEMF.S, &c. &C, &C.
IV EVERY POSSIBLE CIRCUMSTANCE AXD SITUATION, IN WHICH
THEY CAN BE PLACED IN THE ORDINARY
OCCURRENCES OJ7 LIVE,.
To which is -added,
The Law for the Ssle and Purchase of Estates, for tire Sale and Pnrdiasc f
Goods, of liills of Exchange and Promissory Notes, of legacies, of WiiN- :iu. !
'1'e^fHDient.s, ot"Jianknij)tt:v, of Tithes, of Murt.gages, of Annuities, of Contracts
mid. Agreements, t % f Promises, of Counuons and lucloturcs, of Libel, Cct. txc,
Including also,
A Abstract of the Laws of Election of Members of Pa-rliainpiit. of riie Game
Laws; *fke Acls le'iUivc to Pawubroters and Een';lit Clubs; Usury,
1/aiijiiig, Smuggling, Clic-ating, Monopoly, 6>;c. cc.
WITH AN EKi'LANATlON OF THE TERM'S OF LAW OF MOST FttEQUEXr
OCCURRENCE.
AND AN APPENDIX
Of the most approved Forms of Agrtements, Leases, in//*, Codicil*, Ctwtracts,
Articles of Parlnewhip and Apprenticeship, <$-c. and Tabits of' thf Stamp Duiits
on Bilk of Exchange and Promissoi-y Notes, Kectiptt, cjc.
The wbole formhig a faithful and comprehensive Summary of tlic Wtrks 01
BLAC-KSTONE J VINF.H p CO^IYNS'g J1IGF.ST, AVD
PUN y BACOX y JACOB'S LAW DK:TIOX A HY.
Cti;i:miuiictt!l in the easiest and most familiar Manner, and adapted to dia
plainest Understanding.
BY T. jriLLI4MS, ESQ. CONVEYANCES.
"flic Le.a of Lis Country are 1 the first Scieaca of an Englishman.'
ILonBon :
7OH SIIKRWOOD, XKKLY, AND JONES ; J. WALKER ; F. C.
AND J. IUVINGTON; LONGMAN, HURST, AND CO.; LACKINM'ON,
A'LLEN, ANJL CO.; J. M. JIJOIIARDSOX ; J. RICHARDSON; U>.
AXD CO.: AND WILSON AND .SON, VoKK;
L-j.ii: and Ohii^ii, V. J.'/.H'S .V;/it.-)c.
1818.
I
T
INTRODUCTION
.*,
SIR WILLIAM BLACKSTONE in the Introduction
to his Commentaries, observes, " it is incumbent
upon every man to be acquainted with those laws,
at least, with which he is immmediately concerned."
Another great lawyer * has said, " I wish every man
knew as much law, as would enable him to
keep himself out of it!" But from what sources
we are to obtain an acquaintance with those laws
which immediately concern us, or such a knowledge
of law as will enable us to keep ourselves out
of it, these excellent writers have omitted to inform
us. That the desiderated information is not to
be found in their writings is sufficiently known to
him who has had occasion to consult either the ad-
mirable Commentaries of the one, or the varied and
useful productions of the other. The scanty and
almost imperfect information which is to be obtained
from a perusal of Sir William Blackstone, on the
duties and obligations of parochial Officers, of Exe-
cutors and Administrators, of Landlord and Tenant,
aud Master and Apprentice ; on the I-aw relating
* Lord Bacon,
A 2 tO
XT INTHOIHICTIOSV
to Wills, Legacies, Bankruptcy, Contracts far th
Sale and Purchase of Goods, and a variety of other
topics, can scarcely be credited by any. oi!C r who*
has not beer>-mlr tbe neees?ity of refer An i to that
inimitable sketch of legal science. This obsen
lion receives confirmation from the authority of
Sir William Jones; a name dear to every admirer
of real worth, unaffected piety, and profound and
varied "crudities. In his Essay on the Law of
liailtnents (a work ne way inferior* in elegant dic-
tion, apposite learning, and- happy illustration, to
that he so justly panegyrizes), " his Commentarii> r
he observes, are the most correct anil beautiful out-
line that ever was exhibited of any human scieixre ;
but they will no more form a lawyer, than a general
map of the world, how accurately and elegantly
soever it may be delineated, will make a geographer :
if, indeed, all the titles, which lie professed only
to sketch in elementary discourses, were filled up
with accuracy and perspicuity, Euglifhmtm might
lio pi 1 , at length, to possess a digest of theto hi
which would leave but little room for controversy,
txcept in cases depending on their particular cir-
cumstances; a woi\k which every lover of humanity
1 peai .. i .-ly wi.-h lo .see accom-
pifehed"
i enlightened conntry like
. !tiiin; . n.try w \>licly a blind and iui-
it obedience to power, the " Quod printi/ii pta-
1 wit
INTRODUCTION.
cuit Icgis habct vigorem^" of the civil law,., is, the-
just object .of execration. ; in which .every indi-
vidual values himself, . that his submission to consti-,
tuted authority is the result of his own free will
lawfully and constitutionally obtained through his
representatives ; it is really matter of surprize, that
no publication of easy purchase, and adapted to the
benevolent wish of the excellent Sir William Jones,
has hitherto appeared. Our surprize must be still
further increased, when we find that this has been
done in countries and at times far removed from
'
the state of civilization and social intercourse, which.
at present prevail among all ranks of men in the Bri-
tish empire. . We are informed, by ancient authors,
that in the primitive ages of the Grecian and
Roman republics, it was customary at stated pe-
riods, for the professors of the law to expound
in public the leading maxims of their various po-
lities, that the members, of, their respective com-
munities might not be wholly ignorant of those rules.
and precepts which were designed tbrjhe regulations.
of their lives arid conduct. And it is recorded, that
in the empire of China, that obligations may not be
imposed on those amenable to its kws, without the
possibility of their knowing the nature and effect
of those obligations, small tracts are published at
the expence of the state for tl^e general instruction
of its members, in a knowledge of its ordinances,
Inst, i. 2. 6,
In
vi*
In some cases, the laws are posted up in large let-
ters in some conspicuous place in every town and
village, that offenders, having them constantly be-
fore their eyes, may have no excuse of ignorance of
their prohibitions and injunctions, in the commis-
sion of crime or neglect of duty *.
Actuated with a similar intention, the Proprietors
of this Work have undertaken its publication.
Their object was to afford from the voluminous
and intricate mazes of la\v, a selection of that
information on legal topics which most concerns
every man in his ordinary calling and occupation
in life. For this purpose, they have paid parti-
cular regard to the arrangement and distribution of
their subjects, which they have divided into distinct
heads and chapters, collecting under each the law
relating to every particular office or duty. As to
the execution of their work, they hope the public
will find, that it has been confided to a person pro-
perly qualified. They were particularly led to
this undertaking from a confideration of that esta-
blished, but little known, principle of English law,
that every man is punished for the commission of
wrong or violation of ri^ht, on the supposition of
his being acquainted \ith the laws which he has
transgressed. They were of opinion, that if, among
f Ta Tsing, Leu Lee, sect. 61.
the
INTRODUCTION. Vll
the ancient Romans, a knowledge of their laws and
constitution was so primarily essential, that their
very children were obliged to learn the twelve
tahles by heart, as a carmen nccessarium, or in-
dispensable lesson * ; that an acquaintance with the
legislative enactments and judicial decisions of the
their own country are highly obligatory on every
individual of their fellow-citizens. When they
called to mind the injunctions of the Chinese le-
gislator, viz. that all persons holding official si-
tuations are required to be perfect in the know-
ledge of the laws, and that their deficiency at the
annual examinations by their superiors, subjects
them to the loss of a month's salary, and inferior
officers to forty blows, they were persuaded, al-
though the municipal law of their own country does
not, in general, punish persons in official situations
for their ignorance in the laws of the land, but
only -for malversation or neglect in the execution
of them, that they could not do a more accept-
able service to the public, than by presenting those,
who are invested with office and authority, with a
manual, for the proper and legal discharge of the
powers and duties belonging to such responsible
stations,
* Gic, dc Le$' I, 23.
In tJie Press, and uv// be Speedily published,
THE
LAWS OF TRADE AND COMMERCE;
TUNG A
GUIDE TO Mr.IlCIIAM> ANP TliMJlJlS IX ALL
:>.C \\I11 Y. HI \V-\Ti IONS.
BY JOHN WILLIAMS, LM^.
i.i '1 HI IN N EH TKMPI.K.
(AI'TUflK OF TUB IJIW 01 i( ! f I X, fv'< .)
V as i iii>t;ilnitf(i -n lollows :
P*KT L A-a Historic*! !?Letcli of tin- KI-* ami rn-rrn of CcrmrnrTTC.
FAT II. C)i' t'^o .Medium of ('oiiinn^-v. a ni tin; Advauta^cs ^jj>Mt; irom
P.|)tr "Rlowt-r, a> a drc^latiag Mcdinm.
JPART. III. Ol Collir.K Tfi:il 1'uli'
i. H)t rlic Kiuploynient of Citpital Irt* Ooniffltrre. 9. Oi"
M<>'.:c\ u[ui CyniuuTce. 3. Of ihc J!-
tde Cointnrrc'uil SvSU'in; in whicli will bi- il'iM.-uj.^-vi llic Cau-.
Adi-anct-tncpt ami IJi-ciiin- ni (lumiui-.'vi-.
Fvn IV. (Jt ihc Iuteni.au.: .<crce.
1. A> to tliC Ri glit and Freedom of
J. A* io Uu; lliaht of IV .uli.c.
-
1. .. J . - t ami J
tt. .\b liftuicn Hclligoti'ills niul Nri;i:
r it !> J)j\i>uill
f l. Craiitiiij: I . !. blockade.
.S. Kn. 7. Iln-auriiri'~. 1'.
.
fe*. I.
v - ' -iTS.
- II, OJ
i. i\v . :. J'-y Bj-Luw oi Cuitom. .. i'.j, Co:;truct. 4. l".y
M,.ri'i^.>lv. ''. V\ v:- .'. < .illr.
. lit.
i-ip IV. Oi f . t T-adc.
i. (;!!.. ... ... . ' . -- -(.iii'iMp. Rc-
. i In^ri'ss.i.
>ta! "
-
J. < i
.
'
b> . Of 1
llailc. (i. Of ;
7 i)[ ; . (if Wftr-
C3>aj'. VI. Of Mt.r.iitiU- Contracts for the Cwn'
' rndor to tl'-
i O' - \:Fi. ighti . :
<.i 1 .''-.
in Trjiiiitu. 7. Ui tlic i)isiolutou oi Cuiilru v u hit ihc C^ffj.i,
Oiip.
(J.ap. VIII
l'rinci[Jikl a:
N'otOi.
MI>. M 1 1. <
1. I : - - .
. ... J. ilr
l>:.usli Sinps 4aU Utcn K .
EVERY MAN HIS OWN LAWYER,
OF LAW IN GENERAL.
ALL law is either natural or instituted. The power or au-
thority which gives it sanction, and which may be called its
efficient cause, is either. the voice of God through natural
reason ; or the voluntary or arbitrary pleasurse of some being
or beings properly authorised for this purpose.
The laws of God are the efficient causes of the law of
nature; the-principles of which God has sufficiently notified
to man, no as to enable him, by the light of natural reason, to
deduce from thence his several duties. This law, therefore,
which includes in it the precepts both of natural and revealed
religion, being known to all mankind, and stamped as it
were upon our very hearts, has the same force, and is equally
binding in every part of the globe ; for as all human institutions
are founded upon the laws of God, so no human laws ought
to be suffered to contradict them (a).
The doctrines of this law are discoverable by that moral
instinct, which inhabits the breasts of all mankind, and
prompts them, by a natural bent and inclination, to approve
of certain things as good and commendable, and to condemn
others as bad and blameable, independent of reflection : to
this sense, the faculty of reason is added, to enable us to illus-
trate, to' prove, to extend, and to apply what our moral in-
stinct has before given us to understand (b).
There are, however, "a great number ,of points upon which
both the divine law and the natural leave a man at his own
liberty ; but which are found necessary, for the benefit of so-
ciety, to be restrained within certain limits ; and herein it is,
that human laws have their greatest force and efficacy ; for,
with regard to such points as are not indifferent, human laws
(a) Burlanwqui's Law of Namre and Nations, vol. i. (b) IbieL
B ar
2 Of the Laics of England.
are only declarator)- of, anil act in subordination to, the
former. To instance br the cue of murder: tlii^ i-
foFbiddcn by the divine, and demonstrably by the natural law ;
and from thi.-e prohibitions aiises the true unlawful^,
the crime. Those human la\\s tliat ami-. \ a punishment to it,
do not at all inn ease its moral guilt, or superadd any fresh obli-
gation, in joro lonscientia;, to abstain from its perpetration.
iSa;. , it yny humun law should allow or ( njoin us to commit
it, we are bound to transgress that human law, or else wr must
offend both the natural and the divine. But, with regard to
matters that are in themselves indifferent, and are not com-
manded or forbidden by these superior laws; such, for in-
stance, as the exporting of wool to foreign countries ; h< re
the inferior legislature has >< % <>pe and opportunity to inter-
pose, and to wake that action unlawful, \\hich before \\as
not so (c).
PART I.
CHAP. I.
Of the Laxs of England.
JTllE laws of England, like those of every other civilized
community, are established upon the primitive relation* \\hicli
subsisted among mankind in a state of nature, independent of
kuman institute
The laws of Knghmu' may be divided into two kinds : the
/..I iion fcrifta, the unwritten or common law; and the /i.i
f-!a t i in written or .statute \a\v(a).
The common law is not only constituted of the laws of
nati "d of religion, but of certain
i... al rustoms of this kingdom, and lik-\\i-r d those par-
ticular laws, that are by custom ib?i rved only in certain courts,
aud jurisdictions (bj.
(t) i Bt. Com. 43. (*) i Bl. Cm. 6j. lUle't Hitt. C. L. ch. t.
(b) i Bl Cwn. ij.
Of the Laws of tin gland. 3
This is usually called the /ex non scripta. Not that the parts
of which it is composed were merely oral, and communicated
from age to age by word of mouth ; for all of them have
some monuments or memorials of their existence in writing, 1
either in established maxims, declaratory statutes, records of
pleas, books of reports, or tractates of learned men. But
they are unwritten laws, because their authoritative or orU
ginal institutions are not set down, or verbally expressed, in
the same manner as the acts of the legislature are, but have
grown into use, and acquired their binding force and power
by long immemorial usage, and the strength of general re-
ception. The matter and substance of them indeed are in
wilting, but the formal and obligatory power of them grew
by long use and custom ; for customs generally received and
admitted, gain, in this kingdom, the force of laws (c). It
is custom only which gives power sometimes to the common
law, and sometimes to the civil law, in the respective courts
wherein they are used ; both of which are controlled by the
rules of the common law, when they cross the other customs
of the kingdom that are more generally received (d).
This unwritten or common law, as we have already seen, is
distinguishable into three kinds: 1. General customs ; which
are the universal rule of the whole kingdom, and form the
common law, in its stricter and more usual signification.
2. Particular customs, which for the most part affect only
the inhabitants of particular districts. 3. Certain peculiar
laws, observed only in certain jurisdictions (e).
1. By general customs it is, that proceedings are guided
in the common courts of justice, both with respect to pro-
perty and offences. It is by custom in common law, that
the eldest son inherits from his father ; that property may be
purchased and transferred by writings ; that a deed is void, if
not sealed and delivered ; that money lent upon bond, is
Recoverable by action of debt; and, that a breach of th
peace is punishable by line and imprisonment. These are doc-
trines not established by any written statute or ordinance, but
depend upon immemorial usage (f).
The validity of these doctrines is determinable by the
judges, whose knowledge in the matter arises from study and
experience; and it is an invariable/ rule, where a decision
has once been made upon any point, to determine it in th*
(c) Hale's H. C. L. ch, z, 3. (d) Burn's Escl, Law ( ) i Bl. Com. 67.
(f) I^d.
^ 2 same
4 Of the Laics of England.
same way again, unle>s the precedent can be proved erro-
neous; judges being sworn to determine, inn according to
their m\u private opinion, but according to the known laws-
and customs of the land.
The establishment of law in Flngjand is of very high an-
tiquity ; but the government of ^he kingdom having cv
rit nerd many vicissitudes from e.t! IT the conquests or ac-
cession of foreign nations anterior to the coming in of \\ il-
liain the First, during \\hich the original Britons v
mingled and incorporated with Komans, I'icts, Saxon-.
a.nd Normans, it becomes impossible to trace the first iulm-
ductions of those general customs \\liich now constitute, in
a it. > , the common la\v of the realm. It is huh ol
ed, wilh great admiration of the excellency of tl <
custom-, that during the time tho-c si \tral natic i. iledj
the ancient customs of the reah> J^maiued unaltered; but the
probability is, as l.oid Bacon hath expressed i', that our
j.ius art a> mixed as our language, compounded of !
Roman, Saxon, and Norman cu>loms; and, as our lan-
gu.tge is so luuch the richer, so the laws are the more com-.
>g)-
Upon the accession of W illiam the First, the laws
nionly known by the name of Eduard the Confessor's hi
\M.re the general and standing laws of this kingdom,
composed of the Danish, the Mercian, and the NVeat S.ix
customs which then pit vailed.
( J. The second branch of the unwritten or common law of
England are particular diatoms or laws which affect only par-
ticular districts ; such as,
i'ir-t, 'I he custom of Gavtlk'uid in Kent, and some other
parts >f the kingdom (though perhaps it was al>o g nenil till
the Norman Conquest) which ordain aiuon^ other th:!-
nut the elde>l son only of the father .-hall .MI; (ml to jj;^ in-
heritai.ct , but all tin; sons alike: ami that though lh< I
be attainted and hanged, \et the heirshal! -te,
\\iti; .1 to the lord(A).
:idl\, The ciotoui of Borough- English, \\hirh pirxails
in certain ancient boroughs ; by virtue ot ' \\ lr ii the youngest
-hall inherit his father as to the lauds of \\hich he is seized
in tc. .jinplr, or fee-!ail,in pi I all his elder brotlt.
called BpffMIgh- EogUtbj '" hold, it It
(l) Hale', H. C. L. h. l. lUcve' II. I- L. >oj. i. p. 3. (b) i Bl.
Com. 74.
Of the Laws of England. 5
prevailed in England ; and the reason of it is said to be, that
during the feudal times the lord claimed the privilege of
deeping the tirst night with his vassal's bride ; so that the
1; : mis descended to the youngest, from the supposed illegiti-
macy of the eldest child (/').
Thirdly, The custom of free-bench ; by which a widow, in'
many boroughs, is entitled for her dower, to all her husband's
lands ; whereas.. at the common law, she shall be endowed of
one-third part only (A").
Fourthly* The customs of copyhold manors, of which every
one has more or less, and which bind all the copyhold tenants
that hold of the said manors. Originally, the tenants who held
under this tenure might have been ousted out of their estates
at the will of the lord ; but this being a great inconvenience,
was, it seems, altered by some positive law (though such
law does not now appear) which preserved their estates to
them and their heirs during their services, but yet in other
respects left them only estates at will(/).
Fifthly, the customs of J^ondon with regard to trade, ap-
prentices, widows, orphans, and a variety of other matters.
Sixthly, The custom of holding divers inferior courts, with
power of trying causes in cities and trading towns; the right
of holding which, when no royal grant can be shewn, depends
entirely on immemorial and established usage.
Seventhly, The custom of merchants, or lex mercatoria,
is a branch of the law of nations ; for, as no municipal laws
can be sufficient to order and determine the very extensive
and complicated affairs of traffic and merchandize, neither can
they have a proper authority for this purpose ; these trans-
actions being, with respect to foreign trade, carried on be-
tueen subjects of foreign states, and the municipal laws of
one state being no guide or rule of action for the subjects of
another. The affairs of commerce, therefore, are peculiarly
regulated by this law of their own, which is composed of a
system of customs acknowledged and taken notice of by all
commercial nations (m). These customs, although they differ
from the general rules of the common law, are yet engrafted
upon it, and made a part of the general law of the land () :
and being a part of the law, their existence cannot be proved
by witnesses (o), for the judges are bound to take notice of
them ex officio (p) : but they may send to the merchants to
(i) Co. Lit. 1 10. 3 Mod. Rep. Pref. (k) i Bl. Com. 74. (I) Co.
Copyh. 6. (m) Molloy de Jure Marit. Pref. *J. (n) i Bl. Com. 75.
(e) 3 Burr. 1669. (pj 3 Bac. Abr. 583,
know
6 Of the Lares of England.
know their custom.*, as they send to the civilians to know
their law ; or they may tinect an issue tor llit- trial of it by
merchant* (a); and when they are established, th. u-
sidcrcd ot the utmost validity in all commercial tiansaciions ;
for it is a maxim of law, that, cnilibct in *tni a,/ -nin
est. L\en in matter* relating to domestic trade, tins law fre-
quently prevails; as, for instance, with repaid to ihr draw-
ing, the acceptance, and the tiansfcr of inland hills ot
change < by this law, the merchanii/es, drbis, and
duties of joint merchants do not survive, hut > t<> the \ecn-
tor of him that dies; for, v end) 'inter /// ;-/o
bencficip cotnmenii iucuin non habct(r). By the interpo-
sition of this maxim in the ca-e of merchants, the j"int le-
y which prevails in other c.. < omplett tl,
that i^pou^ tl.e death of a joint trader, the ailules of pailiur-
ship are t/soj'ui tiished, and the personal npu-tn-
ta''.\e is i.ot tntjtled to the benefits of the (! -hare in
the trade for the unexpired part of the term, unless it is
specially provided for in the ui tides themselves (>). N> al>o
m ca-e- ,.( H.hant.s, the want of coiiMtleiation in tin n-
contracts does uot render them invalid, as at common law;
for, by the law of merchants the nudum padutii does not
The existence of every particular custom must be pr
before tht com ts will take notice of it, and when |,n>ud, the
luxt ui^uiiy u into the legality of it, for it i.> an e>udlish*d
ina\im, th;:t ntdlu* usus <iliolnidiis o/(). I5ut m the <
of CJavelkind and Borough-English, the law takes paiticular
Holier of them; and theicioie there b DO OOpMlOO to pio\e
that .vuch customs actually exist, but only that tin lands m
aie iuhjcct thereto ()
TJ make a paiticnlar ctist'-'in ^ood. it must he, 1. An< it-lit ;
.'errnpltd; :]. !* ai'eabls ac(jnie>ctd in; 4. ! '
able; o. Ceitam; 6. CompulaOfy; am!, 7. ^
, It 1:111^1 l,e ancient, th :t is, that it must have
that the num-'iv of man lunnelh nut to tl:e con-
liyj fir it :ui\ one ran ,
i torn; and continuance of an .
the
lin 'rit of right, is said to be a good tit!
(y)
fy) Hj.d 4 6. (r) Co. Lit. 181. a. (t ) i Vc$. 33. (')
i 131. Con. 76. (x) Co. L
(y) Co. Lit. it 3.
11 n
Of the Laws of England. 7
Hence it is, that though a lord of a manor may have waifs
and strays by prescription, yet he cannot have the goods of
felons and fugitives without grant from the king; for every
custom must be immemorial, and the goods of felons cannot
be forfeited \vithout record, \vhich presupposes the memory of
that continuance.
Secondly, It must have been continued. Any interruption
would- cause a temporary ceasing; the revival gives it a
new beginning, which will be within time of memory, and
thereupon the custom will be void. But this must be un-
derstood with regard to an interruption of the right, for an
interruption of the possession only, for ten or twenty years,
will not destroy the custom. As, if the inhabitants of a
parish have a customary right of watering their cattle at a
certain pool, the custom is not destroyed, though they do not
use it for ten years; it only becomes more difficult to prove:
but if the right be any how discontinued for a day, the custom
is quite at end (?).
Thirdly, It must have been peaceably acquiesced in, not
subject to contention and dispute. For as customs owe their
original to common consent, their being immemorially dis-
puted, either at law or otherwise, is a proof that such consent
was wanting (a).
Fourthly, Customs must be reasonable, or, rather taken
negatively, they must not be unreasonable ; and therefore a
custom may be good though the particular reason of it cannot
be assigned ; for it suffices if no good legal reason can be as-
signed against it : but if it appear to be unreasonable in itself,
as being against the good of the commonwealth, or injurious
to a multitude, it is bad (6).
Fifthly, A custom must be certain, or, at least such as may
be reduced to a certainty; for an uncertain thing cannot be
supposed to have had a reasonable commencement; also the
uncertainty of a custom destroys the supposition of its con-
tinuance time out of mind. Thus, a custom that the tenant
of a manor who first comes to such a place shall have all the
windfalls there, or that lands shall descend to the most worthy
of the owner's blood, is void; for, in the first case, it is un-
certain who will first come ; and who shall be deemed most
worthy in the second. But a custom to pay a year's improved
value for a fine of a copyhold estate is good, though the value
(x) i Bl. Com. 76. (a} i Bac. Abr. 670. (J) Litt. ziz. Ld. Raym. 57,
"35-
of
6 Of the Lau's of England.
of the thing is uncertain; for it may be ascertained; and, id
ctrtum est quod itrtuni re. (r).
Sixthly, Customs, though established by consent, must be
compulsory, and not left to the option of every man, whether
he will use them or no. And therefore a custom ihat all th
inhabitants shall be rated towards tlie maintenance of a bridge
\\ill be good; but a custom that every man shall contribute
thereto at his pleasure is idle and absurd, and indeed no
>, \enthly, Customs must be consistent with -ach other:
one custom cannot be set up in opposition to another. 1 or it
both arc really customs, then both ar6 of equal antiquity, and
l>oth established by mutual consent; which to say of contra-
dictory customs is absurd. Therefore if one man pit-scribes
that bj custom ho has a right to have windows looking into
another's garden, the other cannot claim a right by custom to
stop up or obstruct those windows; for these, two contradic-
tory customs cannot both be good, nor both stand together.
lie <*u bt rather to deny the existence of the foimer cus.
torn (t).
These particular customs being in derogation of the com-
mon law, are always constiued strictly ; for it is a general rule,
that they shall not be enlarged br\ond the usage on which ihey
are founded. Therefore, where a custom exists in foreigner
to dig clay on a common,* if u stranger dig the clay, the com-
moners cannot take it from him (J).
3. The third branch of the leges non scripter are those pecu-
Jiar laws which by custom are adopted and used only in certain
peculiar courts and jurisdictions, as the civil and canon
The papal or imperial laws bind not the subjects of Kne-
lund ; all the strength they have obtained in this realm (or in-
deed in any other kingdom in Europe) is only because tin 7
have been admitted and received by immemorial tisane and
custom in some particular cases, and some particular con
and then they foim a branch of the ti-^cs non tcr.filti-, or <
ternary laws; or else because they are in some other case*; in-
troduced by consent of parliament, and then they owe their
validity to the /eges Script*, or statute law
There are four sj . courts in which the civil and
canon laws are permitted (under different restnctions) to be
' (t} Rol. Abr. <;6j. Dan v. 33. (</) iBI. Com. 78. (r) tyid.
f/JuMefsfe, Cio. Eiu. 434. d) i 151. Cwn. 80.
Of the Laws of England. 9
used. 1. The courts of the archbishops and bishops, and
their derivative otticers, usually called in our law courts Chris-
tian, curia christianitatis, or the ecclefiastical courts. 2. The
military courts. 3. The courts of admiralty. 4. The courts
of the two universities. In all, their reception in general, and
the different degrees of that reception, are grounded entirely
upon custom, corroborated in the latter instance by act of par-
liament, ratifying those charters which confirm the customary
jaw of the univei ikies (h).
Haviug examined the lex non saipta, or the common law,
we come next to consider the lex script a, or the written law
of the realm, which consists f statutes, acts, or edicts, made
by the king's majesty, by and with the consent of the lords
spiritual and temporal, and commons in parliament assembled.
The oldest of these now extant, and printed in our statute
books, is the famous Magna Charta, as confirmed in parlia-
ment 9 Hen. 3, though doubtless there are many acts before
hat time, the records of which are now lost, and the deter-
minations of them, perhaps, at present currently received for
the maxims of the old common law.
Statutes are either general or special ; that is, they are either
public or private.
A general or public act is an universal rule ; and of this the
courts of law are bound to take notice judicially and ex ojficiOj
without the statute being particularly pleaded, or formally set
forth by the party who claims an advantage under it (*'). Al-
though the words of an act be particular, yet if the intent be
general, it is a public statute (/c); and on the contrary, if the
intent be particular, it shall, notwithstanding the words are
general, be deemed a private statute (/').
Special or private acts are rather exceptions than rules, being
those which only operate upon particular persons or private
concerns. Thus, to show the distinction, the statute 13 Ejiz.
c. 10. to prevent spiritual persons from making leases for longer
terms than <2 1 years, or three lives, is a public act ; it being
a rule prescribed to the whole body of spiritual persons in the
nation ; but an act to enable the bishop of Chester to make 3
lease to A B. for sixty years, is a private act, it concerning
only the parties and the bishop's successors (;).
Statutes also are either declaratory of the common law, of
remedial of some defects therein.
0) i Bl. Com. 83. (i) 8 Co. 138. (*} 10 Co. 101. (/) Plowd.
a4- (at) \ Bi. Com. 85.
Declaratory
10 Of the Laics of England.
Declaratory statutes arc, where the old custom of the realm
is almost fallen into disuse, or become disputable ; in which
case the parliament has thought proper, /// jwrpetintm rci /<///-
moiiium, and to avoid all doubts and difficulties, to declare
\\hat the common law is. Thus the statute of treasons, 25
J-j(hc. c. c. 2. doth not make any new species of treasons ; but
only, for the benefit of the subject, declares and enumerates
tho>e several kinds of offence, which before were treason at the
common law.
Remedial statutes are those which are made to supply such
delects, and abridge such superfluities, in the common law, as
either from the genual imperfection of all human !
from change of time and circumstances from the mist i
and unadvised determinations of unlearned judges, or from any
other cause whatso\ r.
And this being done, either by enlarging the common law
where it was tot) narrow, or by restraining it where it was too
lax and luxuriant, has occasioned another subordinate diusion
of remedial acts of parliament; as
Enlarging statutes. Thus, to instance in the case of trea-
son, clipping the current -coin of the kingdom was an of-
fence not sufficiently guarded against by the common law,
therefore it was thought expedient, by slat. ."> /J//r. c. 11. to
make it high treason, which it was not at the common law ; so
that this lias an enlarging Vatnte.
Uestrainmg statutes. Thus at common law, all spiritual
corporations might lea*e out their estates for any term of years,
till prevented by the statute of I.) /'//:. before mentioned :
this was therefore a restraining statute.
( hlier denominations have also been given to statutes, from
the different manners in which they are penned; some of
them being called affirmative statutes, and others negative
statutes (//;.
also, wherever an act of parliament imposes a penalty
or inflict* a punishment, that is called a penal statute: and as
a statute may be public as to one part, and private as to ano-
ther; So, also, it may be remedial :n <>;, ml penal in
not)
The construction of acts of parl'mic ut i- founded upon tlu>
11! iid* : I'll il n :n- -<h;d statutes are to be expounded
'liberally, an 1 pi nal statute-, strictly (o).
(n) t Co. 64. () i BU Com. 87, 8f.
In
Of the Laws of England. 1 ]
In the construction of all remedial statutes, therefore three
points to be considered : the old law, the mischief, and the
remedy; that is, how the common law stood at the making of
the act ; what the mischief was for which the common law did
not provide; and what remedy the parliament have provided
to cure this mischief. And it is the business of the judges so
to construe these acts, as to suppress the mischief and advance
the remedy (p).
The following seem to be the most general rules upon this
subject :
1. An affirmative statute does not take away the common
law, and the party may make his election, to proceed upon
the statute, or at the common law (q).
2. A negative statute completely takes away the common
law, so that it cannot afterwards be made use of upon the same
subject (?).
y 3.' Words and phrases, the meaning of which in a statute
has been ascertained, are, when used in a subsequent statute,
to be understood in the same sense. Thus, where the 23
Hen. 6. says, the sheriff mat/ take bail, the judges construed
it to mean shall take bail; and therefore where a person was
indicted for disobeying the 14 Car. 2. c. 12. which enacts,
that overseers may make a rate, and an exception was taken
that the act did not require them to do it, the court over-ruled
the excepiion (s). %
4. In the construction of one part of a statute, every other
part ought to be taken into consideration ; but the title of a
Statute is not to be regarded in construing it, because this is no
part of the statute ; the preamble, however, must be consi-
dered, for it is a key to open the words of the makers as to
the mischiefs which are intended to be remedied ; but this
rule must not be carried so far as to restrain the general words
of the enacting claase to the particular words of the preamble;
although strong words in the enacting part of the statute may
extend it beyond the preamble (t).
5. A saving in a statute which is repugnant to the purview
of it, is void ; but the purview may be qualified and restrained
by the saving (u).
6. If divers statutes relate to the same thing, they ought all
to be taken into consideration in construing any one of them ;
(/>) i Bl. Com. 87. (q) i Tnst. 200. i Co. 64. (r) Bro. Parl. Cas.
7z. ( 3 T R.a7i. (s) 4Bac.Ahr. 644. i Salk. 609. (?) Plowd, 365.
zT.'R. 365. Cowp. 543. (a) iCo.47. JO Mod. 115.
for
12 Of the Objects of the Laics of England.
for all statutes in pari materia arc to be construed as one
law (x).
7. If a statute that repeals another is itself afterwards re-
pealed, the rirst statute is hereby revived, without any formal
words for that purpose ( y).
8. Acts of parliament derogating from the power of subse-
quent parliaments are not binding (;).
9- Acts of. parliament that are impossible to be performed
are of no validity ; and if there arise out of them collaterally
any absurd consequences, manifestly contradictory to common
reason, they are, with regard to these collateral con>jiu nco,
void ; but when the words of a statute are doubtful, general
usage may be called in to explain them (</).
PART II,
Of the Objects of the Laws of England.
THE objects -of the laws of England are, the preservation
of men's properties from civil injuries and criminal vioknce.
The primary and principal object, therefore, of these I
being the enforcement of right and the prohibition of wrong,
we shall consider them under this fourfold division: 1. The
rights of persons, with the means whereby such rights jnay be
either acquired or lost. 2. The rights of things, with the
means also of acquiring or 'losing them. .S. Private wrongs
or civil injuries, with the means of redressing them !>y
law. 4. Public wrongs, or crimes and misdemeanors, with
the means of prevention.
(x) Ld. Raym. ioaS. Dougl. 30. jj) it Co. 63. 4 last 3*5* 43.
() i Bl. Com. 91. (a) i T. R. 718.
Of Parliament, 13
OF THE RIGHTS OF PERSONS.
V
CHAP. I.
Of the Parliament.
THE rights and duties of persons as they are members of
society, and stand in various relations to each other, are either
public or private. The most public universal relation, bj
which men are connected together, is that of government,
namely, as governors and governed, or, in other words, as
magistrates and people.
In all tyrannical governments, the supreme magistracy, or
the power both of making and of enforcing the laws, is vested
in one man or one body of men, and where these two are united,
there can be no public liberty. But where the legislative and
executive authority are in distinct hands, the former will take
care not to entrust the latter with s large a power as may
Tend to the subversion of its own independence, and therewith
the liberty of the subject. With us, therefore, in England,
this supreme power is divided into two branches; the one le-
gislative, to wit, the parliament, consisting of king, lords^ and
commons; the other executive, consisting of king alone.
Jt will be the business of this chapter to consider the British
parliament, in which the legislative, and (of course) the su-
preme and absolute authority of the state is vested by our con-
stitution (a)
1. Its antiquity and origin. The original or first institution,
of parliament is one of those matters which lie so far hidden in
the dark ages of antiquity, that the tracing out of it is a thing
equally difficult and uncertain. It, however, indisputably ap-
pears (//), that parliaments, or general councils, are coeval with
the kingdom itself. It is generally agreed, that in the main,
the constitution of parliament, as it now stands, was marked
out so long ago as the 17th year of king John, A.D. 1215, in
the great charter granted by that prince. And this constitu-
tion has subsisted from the year 1266, 49 Hen. 3, there
(a) i Bl. Com. 147. (b) Glanr. I. 13. c. 32. 1.9, c. 10. Year Bk. 21
Eti. 3. c. 4o. Mirror, c. i. s. 3.
8 being
li Of Parliament.
being still extant \vrits of that date, to summon knights, citi-
zens, and burgesses to parliament ; the former of which may
be seen in KUynge (<)
2. The manner and time of its assembling. The parliament
isrc_ ' be summoned by the king's writ or icd
out of ( hanrery by advice of die privy council, at leant forty
days la-Jon- it begins to sit. it is a branch of the royal pre-
rogative, that no parliament can be convened bv its own au-
thority, or by the authority of any, except the king alone. Nor
is a an exception lo this rule, that b\ some modern statutes,
on the demise of a king or tjueeu, if there be then no parlia-
ment in being, the lust parliament revives, and it is to sit again
for six mn'h>, unless dissolved by the successor : for tins re-
vived parliament must have been originally summoned by the
crown.
And this by the ancient statutes of the realm (4 Ed. 3, c. 14,
Sfj Ed. 3, c. 1C) ; , he is bound to do i\er\ year or oftencr, if
need be. Nut that he is, or e\er was, obliged by tl;
statutes to call a iiczc parliament every y ai ; but only to
permit a parliament tos:t annually for the redress of gr:<
and dispatch of business, if >. But thc<c last words
beinu so loose and vajjie, that such of our monaicii^ as v
inclined to u ,->vru without parliaments, m glectcd the t
viking of them sometimes for a very considerable
under pretence that there was no nerd of them. B:
met'y this, by the stat Hi Cur. c. 1, it is < that tin*
sitting and holding of parliament* fhall not be intermitted
above three years nt t'ie most. And by the stat. 1 IV. and
M. at 2. c. 2, it is declared to be one of the rights of the
people, that fur, redress of all -es, and for the
amending, Strengthening, and preserving the laws, parliaments
ought to be held frcqi; And this indefinite firequtoc
lin reduced to a certainlv by s'.U. o 11 , and >/. e. '2, whi h
enacts, as the statute of Chatles the Si row! hud doin
that a new parliament shall be called within thn niter
the determination of the former.
3. Itsconstit"' . The C"i^titnent paiN of a p
mcnt are, the ktn's niaje>' then- in his ro\;d pol '
cap -'in, the lords spiritual,
the lords temporal, and t!> As an art in
, before . into
a law, let us consider then ly.
(0 C. i. f. a.
The
Of Parliament. 15
The first is the king, of whom we shall speak hereafter.
The next in order are the spiritual lords. These consist of
two archbishops and twenty four bishops. The lords tem-
poral consist of all the peers of the realm (the bishops not
being in strictness held to be such, but merely lords of par-
liament), whose number may be encreased at the will of the
king. Sixteen of these peers are chosen by, and sit as the
representatives of the peers of Scotland ; the rest hold by
descent or creation (d.) And by the stat. 39 and 40 Creo. 3,
c. t)7, four lords spiritual, by rotation of sessions, and twenty-
eights lords temporal shall be chosen by, and sit as the repre-
sentatives, of the peers of Irelaud.
The commons consist of all such men of property in the
kingdom as have not seats in the house of lords; every one of
which has a voice in parliament, either personally or by his
representatives. The counties are represented by knights,
elected by the freeholders, or men of landed property ; the
cities and boroughs, by citizens and burgesses, chosen by the
mercantile part of the people. The house of commons con-
sists of six hundred and fifty-eight members, forty-live of
whom are chosen for Scotland, and represent the people of
that kingdom ; and one hundred represent the commons of
Ireland : the rest represent the people of England. And
every member, though chosen for one particular district, when
c-lected and returned, serves for the whole realm. And there-
fore he is not bound to consult with, and take the advice of
his constituents upon every particular point, unless he himself
thinks it proper or prudent so to do (c).
These are the constituent parts of a parliament ; the king, the
lords spiritual and temporal, and the commons: parts, of \vhich
each is so necessary, that the consent of all three is required to
make any new law that shall bind the subject. Whatever is en-
acted for law by one, or by two only of the three, is no statute,
and to it no regard is due, unless in matters relating to their
own privileges. And, by statute of 1 3 Car. 2, c. 1 , if any
person shall maliciously and advisedly anMrm, that both or
either of the houses of parliament have any legislative authority
without the king, such person shall incur all the penalties of a
prajmunire.
A parliament cannot begin on return of the writs, without
the king in person, or 'by representation ; and by representation,
(d) i Bl. Cora, 156, (e) Ibii. t 5 ^
16 Of Parliament.
two ways, either by a guardian of England, -by- letter* patent
under the great seal, \\hen the king is out of the realm; or,
bv commission to certain lords, in case' of indisposition, \\hen
LJS majesty is at home (f).
4. Its laws and customs as an : body. The po\vr r
and jurisdiction is so great as to have been called omnipotent.
It has sovereign and uncontroulable authority in making, ton-
firming, and enlarging, restraining, abrogating, repealing, re-
vivinir, and expounding of laws, conr( inn : all
possible denominations, ecclesiastical, or temporal, civil, mi-
litary, maritime, or criminal. It can ngulate au-1 new model
the succession to the crown, as \\as done in the reign of
Henry 8, and IVillium 3. It can alter tin- established reli-
gion of the laud ; as was done in a variety ot instance?, in the
reigns of king llentt/S, and his children. It can ( hanue r-.iui
create afresh even the constitution of the kingdom and of par-
liament themselves; as was done by the act of union, ami the
several statutes for triennial and septennial elections. In short,
it can do every thing that is not naturally impossible ; and what
it does, no authority can undo.
In ordt^r to prevent the mischiefs that might arise by placing
this exteil&ive aut! 'rands that are either incapahli .
else improper, to manage it, it is provided by ihe custom and
law of ] 1 1 1 1 i 1 1 1 it [[ ilffyi/ lip 1 j by statute (7 and s /.'
c. 25), that no one shall sir m either houe, unlrsH he
be twenty-one \-ar> of age. It is also enacted by statute
7 ./;* c. t), t; er be permitted to enter into
the hoOse of c^nlftfeyNUgl^||||(^n the oath of allei
before the lord steward, or his dejuity : and l>y:'0(V/
t. ', ;.: . that no member shall \o!> in t itin r
house, till he has in the- preseacf >$f the house taken the oath
of allegiance, sii[-.remacy,and abjuration (altered
c. 63), and subscVibefrand rept-aled the dec hi r
substantiation, and invocation of saints, and the sacnJi'V ot
the mass. Al'u-ns, unless neutralized, were likewise by the
law of parliament, incapabli- to erve therein : and now it i*
nacted b\ statute h> and 1:1 /K :. c. '2, that no alien, evm
though he be naturalized, shall be capable of being a member
of either house of parliament. And there :. !y these
standing incapacities; but if any person is made a peer by the
king, or elected to serve in the II-HM- ot commons by tto
people, yet may the respective houses, upon ;. m
(f) 4 It. 6, 7.
such
Of Parliament. i'f
Such person, and proof thereof, adjudge him disabled and
incapable to sit as a member : and this by the law and custom
of parliament' (g)
The whole of the law and custom of parliament has its
its original from this one maxim, " that whatever matter arises
concerning either house of parliament, ought to be examined,
discussed, and adjudged in that house to which it relates, and
not elsewhere." Hence, for instance, the lords will not suffer
the commons to interfere in settling the election of a peer of
Scotland ; the commons will not allow the lords to judge of the
election of a burgess ; nor will either house permit the subor-
dinate courts of law to examine the merits of either case (A).
But the courts of Westminster may judge of the privilege of
parliament, where it is incident to a suit of which the court is
possessed : and may proceed to execution between the sessions
of parliament, notwithstanding appeals lodged, &c. ().
The king cannot take notice of any thing, said to be done
in the house of commons, but by the report of the house ;
and every member of parliament has a judicial place, and
cannot be a witness (k).
3. .Its privileges. The privileges are also very large and in-
definite. Some of the more notorious privileges of eiihelf
house are, privilege of speech, and of person ; and before thei
10 Geo. 3, c. 50, of their domestics, and of their lands and
goods. And still to assault with violence a member of either
house, or his menial servant, is a high contempt of parlia-
ment, and (here punished with the utmost severity. It has
likewise peculiar penalties annexed to it in the courts of law,
by the statutes 5 Hen. 4, c. 6, and 1 1 Hen. 6, c, 1 1. Neither
can any member of either house be arrested and taken into c > -\s-
tody in civil cases^ during the sitting of parliament, and for forty
days after its prorogation, and forty days before the next ap-
pointed meeting, without breach of the privilege of parliament.
Acts or bills that any way affect the rights of ihe peerage
are to originate in the house of pe^rs, and to undergo no
change or alteration in the house of commons. And it being
an ancient and indisputable privilege and i.ght of th' people
not to have their property taken from them without their own
consent, all grants of taxes for the exigences of govern-
ment originate in the house of commons although their
grants are not effectual to all intents a-id purpose*, uiai, they
have the assent of the other two branches <>i t e u -i
{)4lnst. 163. (b) Ibid. (i) a St. Tr. 66, 409. (k) ^ L iS f. 15
C
1 8 Of Parliament.
But as the lords py a proportion of the (axes, if they think
the commons too la\i>h, they can icjtct their giant.- altogether,
but cannot make the least alteiation or amendment in a money
bill; und.r \\hich appellation are included all bills, ]>y \\hieh
money is directed to be raised upon the subject, for any pur-
pose or in auy shape \\i.;it-' \ei ; cither for the - of
the government, and collected from the kingdom in nem-ial.
as the land-tax ; or for private bent lit, and colltcted in any
particular district, as by turnpike, p;uish-i ales, and the like '/).
.And this rule is even extended ID all bills tor canals, paving,
provision for the poor, and to every bill for \\hicli toll;.. ratfs,
or duties are ordered to be collected ; and also to all bills in
Mhich pecuniary penalties and tines are imposed lor of-
fences (m).
In the election ofknigbts, citizens, an<l burgesses to repre-
sent the counties, cities, and boroughs of the kingdom, rr.iiMsts
the exercise of the democratic al pint of our constitution.
Knights of the shire, or the members for the county, are
chosen by the freeholders within the comity; \vlio, by thr
statutes H hen. (), c 7, and 10 Hi-n. (>, c. '2, (amend* d by
the 14 (ico. i>, c. 08), are to h:i\e furhold to the. value of
forty shillings by the year within the county ; which (by Mtb-
j-eijuent statutes is to be clear of all charges and d"-lucti*ti>,
except parliamentary and parochial taxes (n). Yd it has b<'- n
held, that if a tenant pay less than forty shillings, but pa\*
parochial taxes, which, when added to the rent, \\ill amount
to more than forty shillings, the landlord has no right to
vote (o)
The other less important qualifications of the electors for
counties in ICngland and Wales may be eollerhd t'i . m the fol-
lowing statuhs: 7 and 8 II'. :i. c, 25.; \oJinti-,
Gco. 1 2. c. 24.; 18 Geo. 1 2. c. Irt.; !')(;<(). C. .
(Ico. 2. c. 14.; 3 Geo. 3. c. C ! o. 3. c. 1<). ; SO (J
3. c. 35.; which direct, 1. That no person under twenl\-one
: of age shall be capa! >r any member. This
extends to ail sorts of number*, as well f<>r boroughs as coun-
ties; as does also the next, viz. C. That no person coiuicttd
of perjury or subornation of perjury, si.-ii.l be eajiaiile <,\
voting in any election. .;. That no pen-on Jiall vote in ii;;ht
of ;m\ tin bold, granted to him fraudulently to qualify him to
vote. I'l-Jiudu!' 1 !! '.iiin an agreeun nt te
(/) i B! C.,ia. i6j. () 3 Hitt. 110. () i Bl. Com. 171.
(.) i lui 465.
rccc
Of Parliament. \$
recovery, or to defeat the estate granted, which are made voidj
and the estate is absolutely vested in the person to \\hom it is
so granted. And every person who shall prepare or execute 1
such conveyance, or who shall give his vote under it, shall
forfeit 40/. And to guard the better agaiiist such frauds, it is
farther provided, 4. Th-at every voter shall have been in the
actual possession or receipt of the profits of his freehold, to
his own use, for twelve calendar months before; except it
came to him by descent, marriage settlement, will, or promo-
tion to a benefice or office. 5. That no person shall vote irt
respect of an annuity or rent-charge, unless registered with the
clerk of the peace twelve calendar mouths before. Such an-
nuity or rent- charge to be issuing out of a freehold estate;
and if it accrues or devolves by operation of law within a year
of the election, a certificate of it must be entered with the
clerk i of the peace before the first day of the election. 6.
That in mortgaged or trust estates, the person in possession,
under the abovementioncd restrictions, shall have the vote.
7. That oi.ly one person shall be admitted to vote for any
house or tenement, to prevent the splitting of freeholds. But
this does not extend to cases that arise from operation of law,
as devises, descents, &c. As if an estate should descend to
any number of females, the husband of each would have a
right to vote, if his interest amounted to 40s. a year. And
by statute 20 Geo. 3. c. ]? s. 12. a husband may vote for his
vife's right of dower. It may also happen that two or more
votes may be given successively for the same estate or interest
at the same election ; as where a freeholder votes and dies, his
heir or devisee may afterwards vote at the same election. And
It seems to be generally true, that where no length of posses-
sion is required by any act of parliament, the elector may be
permitted to vote, though his right accrued since the com-
mencement of the election (p). 8. That no estate shall qualify
a voter, unless the estate has been assessed to some land-tax
aid for six months before the election, either in the n;;me of
the voter, or his tenant, or of the tenant actually occupying the
game; but if he has acquired it by marriage, descent, or other
operation of law, in that case it must have been assessed to
the land-tax, within two years before the election, either in the
name of the predecessor, or person through whom the persoa
derives his title, or in the name of the tenants of such person,
or in the name of the tenant actually occupying the same
(p) I Boug. 173.
c 2
SO Of Parliament.
.\nd by statute 30 Gto. 3. c. S3. it is provided, that a person
nay vote for land-, ckc. a^-i'-sed lor six months in his own
(i. c. the voter's) name or lor lands cumins: by descent, &c.
assessed whhin two 7 years in the name of hi> predecessor, &.c.
though the name of the tenant is not mentioned. And a per-
son may vote for lands, assessed for six months in the nann
the actual tenant, tliough the name of the voter or his prede-
cessor, &LC. is not mentioned. <J. That no tenant by copy of
court-roll shall he permitted to vote as a free!. older.
As for the electors of citizens and bnrges^es, it i< provided
by the statute 3 Gro. 3, c. la. that no freeman of any city or
borough town (other than such as claim by birth, muni.
or servitude) shall be entitled to vote therein, unless In-
been admitted to his freedom twelve calendar months before.
And by the '26 dco. 3, c. 100. it is enacted, tl>at in boron
where the householders or inhabitants of any description claim
to elect, no person shall have a rijiht to v6te as such inhabi-
tant, unless he has actually been resilient in the borough six
mouths previous to the day on which he tenders his vote.
By the 'J'2 (/Yo. 3, c. 41. it i* alv> d< lared, that no person
employed in managing or collecting the duties of excise, cus-
toms, stamps, salt, windows, or hoii-t >, or the revenue of the
post-office, shall vote at any election ; am! if .such person j
sumes to vote, he shall forfeit 1(X)/. But this act does not
i \tend to freehold offices granted by let ins patent.
As to the qualifications of person* to le elected me:,
of the house of commons. It is nut en i \ Mar. that i- qualified
to be chosen into pailiament. 1. i lie;. nm>t not be mil.
or aliens born. 2. They must not l.o of the- tyu-Ke judges,
:use they sit in the house of lords; nor of the cleiuy, for
they sit in the convocation; nor perrons attainted i or
lelony. 3. Shei,. unties, and mayors and bail ills of
boroughs, are uot eligible in their respective juritdiotkma ; but
the sheriffs of one county are eligible to Li.- kiii^lil^ -f -.'.M-I*
4. In sti iitness, all meinbc-rs oiilit to ha\ bei-n inhabitants of
the places for which they are chosen: but this having beea
JOIIL: dtsregtfded| \\;i^ at length <nt:i K repealed Ir. the >t.itute
14 ( : 58. o. No persons concenn-d in the manage'
nii-iit of an) duties or t.i:\o ertaud siuer the
Commissioners of the treasury,) nor any -f tlie ollicers follow-
ing, viz. com >t |)ii/< s transports, sick and v.
vine licences, navy, and victiKillmg, secretaries or receivers of
prizes, comptrollers of the army :K t-ount*, a-.'i-'its for regi-
lueuts, governors of plantations and their deputies, officers of
Minorca
Of Parliament. 2l
Minorca and Gibraltar, officers of the excise and customs,
clerks or deputies in the several offices of the treasury, exche-
quer, navy, victualling, admiralty, pay of the army or navy,
secretaries of state, salt, stamps, appeals, wine licences, hack-
ney coaches, hawkers and pedlars; nor any persons that hold
any new office under the crown created since 1 705, are ca-
pable of being elected or sitting as members. 6. No person
baring a pension under the crown during pleasure, or for any
term of years, is capable of being elected or sitting. 7. If
any member accepts an office (viz. which was in existence prior
to 1705) under the crown, excepting an officer in the army or
navy accepting a new commission, his seat is void ; but such
member is capable of being re-elected. 8. That every knight
of a shire shall have a clear estate of freehold or copyhold,
or mortgage, if the mortgage has been seven years in posses-
sion, to the value of six hundred pounds per annum; and every
citizen and burgess to the value of 300/. : except the eldest
sons of peers, and of persons to be qualified to be knights of
shires, and except the members for the two universities : and
of the qualification the member must make oath, and give
in particulars in writing, at the time of his taking his seat.
By the 22 Geo. 3, c. 45, no contractor with the officers of
government, or with any other person for the service of the
public, shall be capable of being elected, or of sitting in the
house, as long as he holds any such contract, or derives any be-
nefit from it. But this does not extend to contracts with corpo-
rations, or with companies, which then consisted of ten part-
ners, or to any person to whom the interest of such a contract
shall accrue by marriage or operation of Jaw. for the first
twelve months'. And if any person, disqualified by such a
contract, shall sit in the house, he shall forfeit ,">00/. for every
day ; and if any person who engages in a contract with govern-
ment, admits any member of parliament to a share ia it, he
shall forfeit 500/. to the prosecutor.
The office or trust of a member of parliament cannot be
resigned, and every member is compeliable to discharge the
duties of it, unless he can shew such a cause, as the house ia
its discretion will think a sufficient excuse for his non-at-
tendance upon a call of the house. The only way, therefore,
of vacating a seat, is by accepting a situation, in consequence of
which the law declares his seat vacant. Where members
wish to do this, and retire from parliament, it is now usual for
the crown to grant them the pffice of the stewardship of the
Chiltern Hundreds. /
And
JS Of Parliament.
And as freedom of election is essential to the very being of
parliament, all undue influence upon t;ie electors is illegal and
etrongly prohibited. As soon, therefore, as the time and
place of election, either in counties or boroughs, are fixed,
all soldiers quartered in the place are to remove, at least one
day before the election, to the distance of two miles or more;
mid not to return till one day afur the pole is ended- Kiots,
likewise, have been frequently determined to make- an election
void. By vote also of the house of commons, tfl vxhom alone
belongs the power of determining contested rh-ctions, no lord
of parliament, or lord lieutenant of a county, has any right to
interfere in the election of commoners; and, by Matme, the
lord v\arden of the cinque ports shall not recommend any
mewibtis there. If any officer of the excise, customs, slumps,
or certain other blanches of the revenue, presume to iuuiiue
in elections, by persuading any voter, or dissuading him, he
forfeits 100/. and is disabled to hold any office(</).
And to avoid all danger of bribery and corruption, no can-
didate shall, after the date (usually called the teste) of the
writ, or after the ordering of the writs, that is, after the sign-
ing of the warrant to the chancellor for issuing the writs(r),
or after the vacancy; give any money or entertainment k>
electors, or promise to give any, either to particular persons,
or to. the place in general, in order to his being elected, on
pain of being incapable to serve for that place in parliament.
This incapacity arises from the 7 IV, 3, c, 4, commonly called
the treating act ; and it has been decided by a committee, ac-
cording to the plain and obvious meaning of the words of tl.
statute, that treating vacates the election only, and that the
< .ulidate is no v\ay disqualified from being re-elected, and
sitting upon a stcond return (s).
It has been Mippo<d, that the payment of travelling e\-
pences, and a compensation for loss of time, vu-re not treating
and bribery within this or any other statute ; and a hill passed
the house of commons to subject both those cases to the pe-
nalties imposed by G Gco 2, c. 24, ujon j ,M>US guilty of
bribery. l!ut this bill was rejected in the house of lords by
the opposition of Lord Mansfield, who stivnumislv maintained
tlint the bill was superfluous; that snrh roi;<i!i-i, by the b
in being, was clearly illegal, and subject iu a court of law, to
the penalties of biilx 1 :
* Bl. Com. !78. (0 Sim. 165. (i) 3 L^J. ,' iv (t) a Lud.
-
I
Of Parliament. 23
To guard against still more gross and flagrant acts of bribery,
it is enacted by stat. 2 G?o. 2, c. 24, explained and enlarged
by statutes 9 Geo. 2, c. .S8, and 1(> Geo. 3, c. 11, that if any
money, girt, office, employment, or reu ard be given or promised
to be given to any voter, at any time, in order to influence
him 10 give or withhold his vote, as well he that takes as he
lie that offers such a bribe, forfeits .500/. and is for ever dis-
abled from voting and holding any office in any corporation ;
Unless, before conviction, he will discover some ether offender
of the same kind, and then he is indemnified for his own of-
fence. But these statutes do not create any incapacity of sitting
in the house.
The method of doing business is much the same in both
houses. Each house has its speaker. The lord chancellor, or
the lord keeper, is generally speaker of the upper house, who
regulars the formalities of business : the speaker of the lower
liou.se is chosen by the members, but must be approved of by
the king. The speaker of the house of commons cannot give
his opinion on any subject before the house; but the speaker
of the house of lords, if a lord of parliament, may. In both
houses, a majority of voices binds the whole, and this majority
is given publicly and openly.
When an act of parliament of a private nature is wished for,
a petition is first presented by some member, which, it founded
on facts that may be, or are disputed, it is referred to a com-
mittee of members to examine the matter, and then (or on the
petition itself, if not opposed), leave is given to bring in &
bill. If the matter is of a public nature, the bill is admitted on a
motion made to the house by any member, and seconded, even
without a petition. This done, it is read a first time, and some
little time after a second : after each reading, the speaker,
acquainting the house with the substance of the bill, puts it to
the vote, whether or not it shall proceed any farther ; if it is
not objected to, after the second reading, it is referred to a com-
mittee, which iu matters of small importance is selected by the
house ; or else the house resolves itself into a committee of*
the whole body, which is composed of every member; in
which case the speaker quits the chair (another chairman being
appointed), and may give his opinion as a private member.
In such committee the bill is discussed, clause by clause, and
amendments, if any, are made. When it .bus gone through
this discussion, it is then reconsidered, and the opinion of the
house is taken upon every clause and amendment. This done,
it is ordered to be engrossed and written on parchment ; after
24 Of Parliament.
this, it is read a third time. The speaker then opens the con-
tent!) of the biil, ad holding it up in hi, hands, takes the M
of the noire, whether ihe bill shall pass? If agreed to, it is
t .lined to ilie le.nl.s for their concurience, where it p.;
through similar forms; and if agreed to by tin in, it \\aiia
the royal assent; if rejected, no notice is taken of it,
to prevent improper altercations. If the lords make any
amendments to it, it is sent do\vn aua.u to tin- common-
their concurrence. Should the commons object t > the amend-
ment, a conteie.nct; is held between mem!)' rs, dt-puied by each
house, to adjust the. difference. Where boih parties remain
inflexible, the bill is dropt. The same forms are obs-r\ d,
muf'itis mutand 6, \\lu n the bill begins in the house of lords.
But when an act of grace or pardon i> j issed, H is tii t M^ncd
by his mai - 1 \, and ihen read ojice only in each of tin
\\ithontauy new engrossing or amendment. '.And whin Loth
houses have done with any bill, it always is deposited in the
house of lords, to wait the royal assent ; except in the case of
a bill of supply, which, after receiving the concurrence of the
lords, js sent back to the house of common>(//).
There are two ways of giving the royal assent ; in person,
and by commission. When in person, the king goes to the
house of lords, puts on his crown and robes, the peers bt ing
also robed, and sending for the house of commons, the titles
of all the bills that have passed, and obtained the concm mice
of both houses, are read, and the king's assent or dissent i->
declared by the clerk of parliament. When done by com-
mission, it is notified to both houses by certain commissioners
appointed for that purpose. A bill, thus receiving the loyal
U-M ut, becomes au act of parliament.
It remains to speak of the manner in which parliaments may
be adjtninied, prorogued, and di>s. .Ut d.
Adjournment is a discontinuance of sitting from one day
to another during the session, and is an act of the house it-
self; for the adjournment of one house is no adjournment of
the other. J5al i tim - ad-onrn at the plea-sue <>t the
king, \\ho olherwi-e, on a refusal, svoultl prorogue ilu-m.
Prorogation, \\iiichas an act of roy.il a;iih-iii\, < \preMed
<i her by the lord rhannllor in his majeM\'s pnst-i-.n-, or by
the crown, or ftrqwnlly by pio< lamation,
: then all bills le;..'<m and not
-I, must, : . ' : miied anew in a snb-
(.; i 111. Com. iSi.
scquc n
Of the King. %5
sequent session: whereas, after adjournment, things are
taken up in the state in which they were left before ad-
journment.
All orders of parliament determine by prorogation ; and
one taken by order of the parliament, after their prorogation,
may be discharged on a habeas corpus, as well as after dissolu-
tion ; but it was long since determined, that the dissolution of
a parliament did not alter the state of impeachments brought
up by the preceding parliament (a:). And it has been resolved,
that cases of appeal and writs of error shall continue, and are
to be proceeded in statu quo, as they stood at the dissolution
of the last parliament ( ?/) .
A dissolution is the ending of the parliament ; or, as the
elegant commentator calls it, its civil death ; and this may
happen three ways. 1. By the will of the king; for, if par-
liaments could continue themselves, they might become per-
petual, and thus encroach too far on the executive power.
2. By the death of the king. But the calling a new parlia-
ment immediately on the inauguration of the successor being
found inconvenient, and dangers being apprehended from
having no parliament in being in case of a disputed succes-
sion, it was enacted by the statutes 7 and 8 W. 3, c. 15, and
6 Ann, c. 7, that the parliament in being shall continue for
six months after the death of any king or queen, unless sooner
prorogued or dissolved by the successor ; that, if the parlia-
ment be, at the time of the king's death, separated by ad-
journment or prorogation, it shall notw ithstanding assemble
immediately: and that, if no parliament is then in being, the
members of the last parliament shall assemble-, and be again
a parliament. 3- By length of time, that is at the expiration
of seven years, for long parliaments may become corrupt :
besides, as the house of commons is formed by the people, a
change of men may produce a change of measures (z).
CHAP. II.
Of the King.
BY the general consent of the people, the evidence of
which general consent is long and immemorial usage, the
supreme executive power of the English nation is vested in a
(K) Raym. i20. I Lev. 384. (y) Raym. 381. (*) i BI. Com. 188.
single
26 Of the King.
single person, the king or queen, for it matters not to which
sex the crown descends ; but the person entitled to it, whether
male or female, i?, by the statute of 1 Mary, st. 2. c. 1. in-
vested with all ensigns, rights, and prerogatives of sovereign
power.
1. His title. The crown or right of succession is, by cus-
tom, hereditary ; but the right of inheritance is subject to be
changed or limited by act of parliament ; under which limita-
tions the crowu still continues hereditary : that is, it is de-
scendible to the next heir, male or female. But this hereditary
right implies not a divine right; it is unquestionably in the
breast of the legislature to defeat this hereditary right, exclude
the immediate heir, and vest the inheritance in any one else:
but, however limited and transferred, it still becomes heredi-
table in the wearer. Hence it is that the king is said never to
die ; but on the death of Henry or William, the king survives
in the successor (a).
2. His family. The queen of England is cither queen
regent, queen consort, or queen dowager. The queen regent,
re-nant, or sovereign, is she who holds the crown in her own
right, and by stat. 1 Mary, J. s 1 :. 3. c. 1. such an one has the
>ume powers, prerogatives, rights, dignities, and duties, as if
she had been a king. But the queen consort, who is the wife
of the reigning king, has less powers; she has, however, many
privileges superior to other married women.
The queen consort is a public person, distinct from the king,
and like an unmarried woman, can purchase lands, make louses,
and do other acts of ownership, without the <:oi < urrence of
hi r lord. She can also take a grant from her husband, which
110 other wife can. She may likewise sue and be sued alone,
MUhout joining her husband. Siie may also have a separate y\ >-
prrty in goods as well as hinds, and has a right to dispose oi
them by will. In short, she is in all legal proceedings looked
upon as a single and not a* a married vunnan. And the com-
mon law has established this to prevent tiie king from being
troubled with his wile's coucerns.
The queen has also some e.\< iMptions. She pays no toll;
nor is she liable to any I 'its m nny courts. Hut in
general she is on the saint; UK-IUI^ with other subjects, bt ing
to all intents and purposes the king's Mtitjtrt.
The person, however, of ti - eijually protected with
that of the king. J5y tK> :.lly
yg" I C!. Com. c. :.
lugh
Of the King. 27
high treason to plot against the queen as against the king him-
self: and to violate or defile the queen consort amounts to the
same crime, as well in the violator, as in the queen herself, if
consenting But the case is different in the husband of a queen
regnant, \\ho, though her subject, and may be punished for
treason committed against her, is not guilty of treason for con-
jugal infidelity, because his infidelity cannot bastardize the
hens to the crown.
A king's widow is entitled to most of the privileges she en-
joyed as queen consort, except that it is not high treason to
conspire her death, or to violate her chastity ; the succession to
the crown not being thereby endangered. Yet still, for the
royal dignity, none can marry a queen dowager, without special
licence from the king, on pain of forfeiting his lands arid
effects. But she, though a foreigner, after the king's death
shall have dower, which no other alien has. If married to a
subject, she does not lose her privileges, as do dowager peer-
esses when married to commoners.
The prince of Wales, or heir apparent to the crown, and
also his royal consort, and the princess royal, or eldest daugh-
ter of the king, are also peculiarly regarded by the laws. For
by statute 25 Edre, 3. to compass or conspire ike death
of the former, and to violate the chastity of either of the
latter, is high treason.
By the royal family is understood the younger sons and
daughters of the king, and other branches of the royal family,
not immediately in the line of succession. These have pre-
cedence before all peers and officers of state, whether eccle-
siastical or temporal. The education of the presumptive heir
to the crown is now held to be under the care of the king;
and by statute 12 Geo. 3. c. II. no descendant of the body of
king George the Second (other than the issue of princesses
married into foreign families) can marry without the king's
consent, under the great seal, unless they are twenty-five years
old ; nor even then, without twelve months notice behag given
to the privy council; or if in the course of those twelve
months both houses of parliament express their disapprobation
of the match. A marriage otherwise entered into will be void,
and the minister and all persons present incur the penalties of
a prsemunire (6).
3. His councils. The king's councils consist of the high
court of parliament, the peers of the realm, thejudges of the
courts of law, and the privy council.
(6) I Bl. Com. c. 4,
The
28 Of the King.
Tl>e parliament, as to its constituent parts, we have already
described, and shall then-fore only mention, that it is among
the pri rogatives of his inajc-tv to consult with this ai
assembl) ; for it is called in writs and judicial pro-.
commune concilium regiii Anli<t (c).
The peers of the realm are bv their birth hereditary c u:i-
st-llors of the crown, and may be called together by the king
to impart their advice in all math-is of importance to
naliii, ither in time of parliament, or, \\hich has been their
prmrijr.il u f, when there is no parliament in being ((/).
The judges are the king's SotiiweDora in matu-i.s of law;
and by the statute l.S AVar. 3. c. 4. they arc expressly reqi;
to counsel the king in his business (<). There are various in-
( t of the exercise of this prerogative, as in Sir John
j i i-.\\:ek'> case; and in the rebn of (Jeor.e the tii>i, when it
was made a question, whether the edticu'ion and ma::
the | ru.ce of \\aleVs < hildren belonged to the king or their
failm : and sti'l more recently, in the case of admiral l>Mig, iu
of George the second (f).
But of the king's councils the principal one is the privy
,;cil. The nvmber of members is indefinite, and at the
pl( -;r-i;re of the king; but they must be naimal born subjetts.
'1 h<y sit dm ing the life of the king who nominates them, .sub-
jrct, however, to removal at his discretion. Hut b\ the statute
6 Ann. c. 7 the privy council, MI the demise of the rnwii,
sfcail continue for six months, unless sooner determined by the
A privy counsellor takes an oath to advi-e the king v ithout
partiality, aflecti'Hi, or die-:d: to keep his connst I ,sv eret ; to
.1 coniij lion; to ns^ist I he execution of \\hat is tlu:e re-
solvi d : to \\ilhstand all \\ho oppose it; and to <lo all that a
good councilor ought to do to I i^ so\( rtiu,ii kni. 1 i
powered to enquhe into all otVences :ig:iiu.st govi immnt, and
con tli hders to taj>e tl i ir trial in some court of law.
JJut tin- jurisil'eiiou hrn-iit ( t council i> only to en-
quire, and not to puni-h. Ann I. ute \ti('ar. I.e.
]Q.i .;(! illt j;il for tt,< in lo take cogni.Min e of anr
matter of pro]-ci' > the subjects oi tins kinul"in.
Jiut in plantation or ntinui: arise out of ihe
ii lion of this kingdom i a:id m uuthrs of Imun \ unit
Ahr. 9. (-/) I BV '
127. {t} Co. Lit. 110 a. 30^. K-JC'I Rcj>. 3*6. 3 I
App. ai. Co. Lit. in o..
ideocy,
Of the King. 29
ideocy, being a special flower of the prerogative ; with regard
to these, though they may eventually involve questions of ex-
tensive property, the privy cuum:il continues to have cogni-
zance, being the court of appeal in such cases.
The privileges of a privy counsellor are certain protections
of his person. By the statute 3 lien. 1 . c. 14. it is felony in
any of the servants of the king's household to conspire his
life; and by statute Ann. c. KJ. felony without beneiit of
clergy to unlawfully assault, stiike, or wound, or attempt to
kill him in the execution of his office.
4. His duties. The principal duties of the king is to govern
his people according to law; for by 1'2 and 13 IV. 3- c. 2. the
laws of England are the birth-right of the people; and all the
kings and queens that shall ascend the throne of this realm
ought to administer the government of the same according to
the said laws. By the coronation oath also, which by the I
W. and M, c. 6. is to be administered to every king and queen
by one of -the archbishops or bishops of the realm, in the
presence of all the people, the sovereign does solemnly pro-
mise to govern according to the statutes in parliament agreed
on, and the laws and customs of the realm ; to cause law and
justice in mercy to be executed in all his judgments; to main-
tain the laws of God, the profession of the Gospel, and the
proteslant reformed religion. And this oath is considered a
fundamental, original, and express contract between the king
and the people.
5. His prerogative. By the word prerogative we usually
understand that special pre-eminence which the king has over
and above all other persons, and out of the ordinary course of
the common law, in right of his regal dignity. Prerogatives are
^either direct or incidental. The direct are such positive sub-
stantial parts of the royal character and authority as are rooted
in and spring from the king's political person, considered merely
in itself, without reference to any other extrinsic circumstance ,
as the right of sending ambassadors, of creating peers, of making
\var and peace. The incidental are such as always bear a.relation
to something else distinct from the king's person, and are indeed
only exceptions in favour of the crown to those general rules
that ore established for the rest of the community; such as,
that no costs shall be recovered against the king; that he can
never be a joint- tenant; and that his debt shall be preferred
before any of his subjects. The substantive or direct preroga-
tives are such as respect the king's royal character, his royal
authority, and income. The law ascribes to the king the
attribute of sovereignty ; and he is said to have imperial dig-
nity,
30 Of the King.
nity, as the head of the realm, in matters both civil and eccfe*
siastical, owing no kind of subjection to any other potentate
upon earth. No suit or action, therefore, can be brought
against him, even in civil matters, because no court can have
jurisdiction over him. But the law has not left the subject
without remedy, for as to private injuries, if any one has a de-
mand on the king in point of property, he may petition the
court of chancery, where the chancellor will administer right
as a matter of grace, not of compulsion; and as to public
oppression, as the king cannot misuse his power without the
advice of evil counsellors, and the assistance of wicked mi'
uisters, the constitution has provided, by means of indictment
and parliamentary impeachments, that no man shall dare to
assist the crown in contradiction to the law of the land.
Therefore, though it is a maxim, that the king can do no wrong,
yet his ministers and counsellors may be punished. The king
also is not only incapable of doing wrong, but of thinking
\vrong ; for in his political character the law will not suppose
that any folly or weakness can exist, or that he can ever mean
to do an improper thing ; and therefore if the crown should
be induced to grant any franchise or privilege to a subject,
contrary to reason, or in amw'iM- prejudicial to the common-
wealth or to a private person, the law declares that the king
tvas deceived in his grant, and will render such grant void.
The law also determines, that the kiuu; cannot be guilty of
negligence or laches, and therefore no delay will bar his right.
Wullirm tcinpm occnrrit rrgi ; for the law intends that the king
is always busied for the public good, and therefore has not
leisure to assort his right within the times limited to his sub-
jects. In civil actions, however, relating to landed property,
the king, like a su'oject, is, by 9 Gco. 3, c. If), limited to
sixty years.
A third attiibute ascribed to the king is perpetuity. In his
political ("ip;; , never dir, tor m-taiitly on the
death of the in-iiing prince, the crown or royal dignity i- vested
in his heir. I . --ath of the prince is called thfe de
HUM; *r transfer of the crown.
The kiuir is thr sole : i-i-i rate of the nation,*!! others acting
1>\ commission from an-l in due subordination to him. The
king may reject what bilk he pleases, make any treaty, neate
any peers, and pardon any otVences, except such where the
constitution has intoi lered. Hut if the exertion of this pre-
rogati\<- !)< extruded to the injniv or dishonour of the nation,
tin- parliament have rigul to, and will, call hi*, advisers to an
I
With
Of the King. 31
With regard to foreign concerns, the king is the delegate or
representative of the people; and what is done bj his autho-
rity is the act of the nation. Considered, therefore, as the
representative of the people, he has the sole power of send-
ing ambassadors to foreign states, and of receiving ambassadors
at home. It is also the king's prerogative to make treaties,
leagues, and alliances with foreign states and princes ; o de-
claring war and peace ; of issuing letters of marque and re-
prisal ; of granting safe conducts, with which, by the law of
nations, no member of one society has a right to intrude into
another.
In domestic matters, he has a variety of other prerogatives,
He is one part of the legislative power, and has the power of
rejecting bills in parliament, nor is he bound by any statute,
unless he be particularly named therein. Yet, if an act be
made for the preservation of public rights and suppression of
public wrongs, and does -not interfere with the established
right of the crown, it is said to be binding upon him as
upon the subject. And though he be not especially named in
any particular act, he may, if he pleases, take the benefit
of it.
The king is considered as the head of the army, and has the
sole power of raising and regulating fleets and armies. This
power extends also to forts and other strong places within the
realm, lie is likewise invested with the power of appointing
ports and havens. He may also prohibit the importation of
arms and ammunition, and may confine his subjects within
the realm, or recal them when beyond the seas, on pain of
fine and imprisonment when they return.
He is also the fountain of justice, and general conservator
of the peace of the kingdom, and has alone the power of
erecting courts of judicature; but he cannot administer justice
personally, for he has delegated that power exclusively to hi*
judges. And in order to maintain both their dignity and inde-
pendence in the superior courts, it is enacted by the statute
13 }V. 3, c. 2, that their commissions shall be made, not as
formerly, durant e bene placito, but qnam diu bene se gesserint,
and their salaries ascertained and established ; but that it may
be lawful to remove them on the address of both houses of
parliament. And now by the noble improvements in the law,
by the statute of 1 Go>. 3, c. 23, enacted at the earnest re-
commendation of the king himself from the throne, the judges
are continued in their offices during their good behaviour, not-
withstanding an; demise of the crown (which was formerly
held
32 Of the Kiti*.
held immediately to vacate their seats), and their full salarie*
are absolutely continued to them during the continuance of their
commissions.
In ciimin;-.! p:oc edings, all offences are against the Ling;
for the public being an invisible body, and hi- their vi-ible repre-
sentative, all affronts to that body arc offences against him : he
is, therefore, the proper person to prosecute ; and, ol course,
to pardon.
'i ho kin.' is also the fountain of honor, office, and privileges.
Alt degrees of title arc by his immediate grant. JVom the same
source also arises the prerogative of erecting and disposing of
offices; for honors and oih'ics are in their nature convertible
and synonimous. Upon a like reason, the king has also the
|>rcrogati\e of conferring privileges on private persons ; MIO!I
as granting place or precedence to any of his subjects; or MK!
as converting aliens, or persons born out of his dominions,
into denizens; such also is the prerogative of erecting corpo-
rations*
Another light in vihich the laws of England consider the
king, is as the arbiter of foreign commerce ; and he is there-
fore invested with the prerogative of establishing public markets
and fairs, \\iththe toils thereunto belonging; for these <
onlv be sit up by viitue of the king's <;runt, or by long and
immemorial usage and prescription, which prescriptions serve
as giants; of regulating weights and measures; and of giving
authenticity to his coin, or making it current as an umvci>;d
medium of traffic.
Lastly, the king is considered as the head and supreme go-
vernor of the national church ; and in virtue of this authoi
he convenes, prorogues, restrains, and dissolves the houses of
convocation. 1'Vom this prerogative also arises the km^. 1 .- n lit
of nomination to vacant bishoprics, an.
siastical preferment*. As the head of tlie chuirh likewise, the
king is the dernier report in all < in appeal
lying ultimately to him in chunceiy from the suii. IK -. of every
ecclesiastical judge (g).
Hi/, i. \cnue. The king's revenue is either ordinary <>i
traordinary. The ordinary revenue is tl.at which has sub-
sisted in the crown lime immeinoiiul ; or else has been gr:u
by par liu men I in exchange lor MUIH- here.iitary revenues ao- W<
touml iin-jinem. nt to ti public. The extraordinary revenutf
arc the vunous luxes le\ied by parliament.
(g) iBl. Com. c. 7.
Of
Of the King. 83
Of the ordinary revenue,
1 . The first branch of this revenue is the custody of the
temporalities, or those lay lands and tenements which belong to
the sees of bishops. These,, on the vacancy of the see, are the
property of the king, till a successor is appointed ; but by
customary indulgence, this revenue is reduced to fcthing ; for
iiovv, as soon as the new bishop is confirmed, he receives from
the king, on paying homage, the temporalities of the see un-
touched.
2. Corrodies is a privilege arising out of every bishopric,
which authorises the king to send one of his chaplains to be
maintained by the bishop, or to have a pension allowed him
till the bishop promotes him to a benefice ; but this is now
fallen into total disuse : it is, however, still due of common
right, and no prescription will discharge it.
3. The king is also entitled to all tythes arising in extrah
parochial places.
4. The next branch of the king's ordinary revenue consists
in the first fruits and tenths of all ecclesiastical preferments.
But by the statute 2 Ann, c. 11, all the revenues of first
fruits and tenths are vested in trustees for ever, to form a per-
petual fund for the augmentation of all livings under 50/.
a year; which has been further -regulated by the subsequent
statutes, 5 Ann, c. 4 ; 6 Ann. c. 27 j 1 Geo. 1, st. 2> e. 10 ;
S Geo. 1, c. 10.
5. The fifth branch consists of the rent and profit of the
demesne lands of the crown, which were either the share re-
served to the crown at the original distribution of landed pro-
perty, or such as it acquired afterwards by forfeiture or other
means; these are divers manors, honors, and lordships, many
of which have been since granted away to private persons.
6. The king had also a revenue arising from military te-
nures, which arose from fines which were paid on every death
or marriage of the tenant, or alienation of the estate; but
these, together with the advantages of purveyance and pre-
emption, were resigned at the restoration by Charles the Se-
cond; and in lieu thereof the parliament settled on him, his
heirs, and successors for ever, the hereditary excise of fifteen
pence per barrel on all beer and ale sold in the kingdom, and
a proportionable sum for other spirituous liquors.
7- A seventh branch may be computed to have arisen from
wine-licences; but this revenue was abolished by the 30 Geo.fi,
c. I9,and7000/. per annum, issuing outwf the uew stamp duties
D imposed
34 Of the King.
imposed on wine-licences, was settled on the crown in its
stead.
8. An eighth branch of the ordinary revenue consists prin-
cipally iti amerciainents, or lines levied tor oil. n. -, -.i^tinat the
forest laws. But few, if any, courts of this kind have bct.ii
held since the reign of Charles the First.
). A ninth branch arises from certain fines imposed upon
offenders in. the courts of justice, by forfeitures of re
ni/ances, fines upon defaulters, and from certain fees due to
the crown in a variety of legal matters; such as putting the
great seal to charters, writs, &.C.; but these *have been almost
all granted out to private persons or appropriated to particular
uses, so that very little of them comes into the exchequer.
All future grants of them, however, by statute 1 Ann, st. 2,
c. 7 > are to endure for uo longer time than the prince's life
who grants then*.
10. A tenth part of the king's ordinary revenue is the right
of royal iish, which are whale and sturgeon, when cither thrown
aohore, or caught near the coast.
11. Another maritime revenue is that of shipwrecks; but
this revenue of wrecks is frequently gmnNd out to lords of
inanois, as a rojal franchise. By the charter of Henry the
Second, if any thing escape olive from the ship, or it proof
. be made of any of the pro|x:rty of any of tli- goods or
lading which come to shore, they shall not be fortrited t s
Wreck. Tlte statute further ordains, that the sheriff of the
county shall be bound to keep the goods a year and ;i day, tliat
if any man can prove a propeity in them in his o\\n right, or
in the right of representation, they sh;dl be restored to him
without delay; but if no such property be proved \\ithin that
time, they then shall be tUe king's. If the good, are ot a pe-
ii>h:ible nature, the sh trill may .sell them, and the money .shall
Le liable m ti.
By llu Jitatu: . c. 13, if any .'lip be lost on the
hore, and the good* come to laud (\\hieh cannot, >:u- the
taltUe. -t VUcckj, they sli.dl he pie>mlly deliveiid U-
the merchiiii ; >\ard to iho-- tli.it
*a\eil aud |v ;iem, \\liieij is cutuled sal\:ige Ai
the common lu%\ , it auy p.rsons (other UKUI the sheriff) take
any goods s -lioie, \\hich ai< , the
o\- i o/mmission to enquire and liud them
i them to make restitution. And by statute
I Ann, *t. ., -^. i^., continued by 4 (Jw. 1, c. 12, iu order
H
Of the K'mg. 35
to assist the distressed, and to prevent the scandalous illegal
practices on some of our sea-coasts, it is enacted, that all head
officers and others, of towns near the sea, shall, upon appli-
cation made to them, summon as many hands as are necessary,
and send them to the relief of any ship in distress, on pain of
forfeiting 100/. and in case of assistance given, salvage shall
be paid by the owners, to be assessed by three neighbouring
justices. All persons that secrete any goods shall forfeit then-
treble value : and if they wilfully do any act whereby the ship
is lost or destroyed, by making holes in her, stealing her
pirr.ps, or otherwise, they are guilty of felony without benefit
of clergy. Lastly, by the statute 26 Geo. 2, c. 19, plunder-
ing any vessel either in distress, or wrecked, and whether any
living creature be aboard or not, such plundering, or prevent-
ing the escape of any person endeavouring to save his life, or
wounding with intent to destroy him, or putting out false hghts
in order to bring any vessel into danger, are all declared to be
capital felonies ; in the like manner as the destroying of trees,
steeples, or other stated sea-marks, is punished by statute
8 Eliz* c. 13, with a forfeiture of 100/. or outlawry. More-
over, by the statute of George the Second, pilfering any goods
cast ashore is declared to be petty larceny.
1'2. Mines of gold and silver also are a branch of the
royal revenue, originating from the king's prerogative of
coinage, in order to supply him with materials. But by the
statutes 1 W. and M. c. 30, and 5 W. and M. c. (), no mines
of copper, tin, iron, or lead, shall be looked upon as royal
mines, notwithstanding gold or silver may be extracted from
them in any quantities ; but the king, or persons claiming
royal mines under his authority, may have the ore (other than
tin ore in the counties of Devon and Cornwall), paying for the
same a stated price.
13. Treasure-trove also, which is any money> coin, gold,
silver, plate, or bullion, found hidden in the earth, or other
private place, the owner thereof being unknown, belong to
the king; but if he that hid it be known, or after wards You; id
out, the owner and not the king is entitled to it. If it be
found in the sea, or upon the earth, it does not belong to the
king but to the finder, if no owner appeal s.
14. Waifs also, which are goodi stolen and waived, or
thrown away by the thief in his flight, are given to the king,
a", a punishment upon the owner for not himself pursuing the
felon, and taking uway his goods from him.
D 2 1.5; Estrays,
36 Of the King.
15. Estrays, or such valuable nnimals as arc found wander-
ing in any manor or lordship, and no man knows the ownei of
them, are given to the king; but now, by special grant of thr
crown, they most commonly belong to the lord of the manor.
Any beast may be an estray that i* In nature tame or reclaim-
able, and in which there is a valuable property, as slurp, oxen,
swine, and horses; bift dogs, cats, and animals, fine rtahtrie,
as bears or wolves, cannot be considered as tstrays. Swans
also may be cstrays, but not any other fowl ; whence they are
saul to be royal fowl.
16. 1 he next branch of ordinary revenue consists in for-
feiture of lands and goods for otlcnces ; and deodands, or
whatever personal chattel is the immediate cause of the death
of any reasonable creature. \\ here a thing not in motion, ><
the cause of a man's death, that part only which is the imme-
diate cause is forfeited; as if a man be climbing up the whtel
of a cart, and is killed by falling from it, the wheel alone is a
deodand ; but wherever the thing i<? iu motion, not only
that pait which immediately gives the wound (as the wheel
which runs over his body), but all things which move with it,
and help to make the wound more dangerous (as the cart and
loading which encrcase the pressure of the wheel), are for-
feited. It matters not whether the owner wtrc concerned in
the killing or not; for if a man kills another with my sword,
the sword is forfeited as an accursed thing. No deodands -.ire
due for accidents happening upon the lii^h sea, that being out
Of tfee jurisdiction of the common law: but if a man f.ills from
a boal or ship in fresh water, it ha? been said, that the
hel and cargo are, in strictness of a law, a deodand. 13nt
juries have of late very frequently taken upon themselves t-
mitigate those forfeitures, by finding some trifling thing, or
pnit of an entire tiling, to have Ix n the occasion ot the death.
And in >uch ease*. thou'Ji the finding of the jury be haulK
warranted by law, the com t of king's bench ha- generally re-
fused to interfere on behalf of the lord of the franchise, to in-
sert so unequitable a -him.
17- Lscheats of land, which happen upon the defect of hens
to succeed i the inheritance, form aNo p.nts of the king's or-
dinar\ MA< n>.
18. The, iiM l-i in-li cornet in the custody of idiot-
lunatics. The custody of Mich prisons and their hinds is given
to ilie king, both by common l.iu, a-> r .-.1 ion>ti \ator
of Jlis people, and by the statute of 17 lldic. 'J. C. () . in
order
Of the King. 37
order to prevent them from wasting their estates, and reducing
themselves and heirs to poverty and distress. The statute di-
rects, that the king shall have ward of natural fools, taking
the profits without waste or destruction, and shall find them
necessaries ; and after the death of such idiots, he shall render
the estate to the heirs. The king is also the guardian of lu-
natics, as well as of idiots, but to a very different purpose.
For the law always imagines, that the misfortune of lunacy
may be removed ; and therefore only constitutes the crown a
trustee to protect their property, and account to them for all
profits received, if they recover, or after their decease to theii
representatives: 17 Edw. 3, c. 10.
But these revenues, which constituted the proper patrimony
of the crown, being got into the hands of private subjects, it
became necessary that private contributions should supply the
public service; and these contributions or parliamentary grants,
which are usually called by the name of aids, subsidies, and
supplies, form the extraordinary revenues of the crown, and
consist in, 1. The laud and assessed taxes. '2. The malt tax.
3. The customs. 4. The excise duties. 5. The salt duties.
(). The postage of letters. 7. The stamp duties. 8. The
duties on houses and windows. 9- Coach licenses. 10. The
duties on offices and persons. 11. Duties on servants. 1 2.
Lottery licences. 13. Hawkers aud pedlars' licences. 14.
The income duty.
The neat produce of these several branches of the revenue
are appropriated first, and principally, to the payment of the
national debt. The national debt arises by borrowing such
sums of money as government may require for the current
service of the state;- laying taxes upon the subject sufficient to
pay the interest of the sums so borrowed, and converting
the principal debt into a new species of property, tranferrable
from one man to another, at any time, and ia any quantity.
To pay the interests of the national debt, the extraordinary
revenues just now enumerated, excepting the laud and malt
tax, are in the first place mortgaged and made perpetual, but
redeemable by parliament on paying off the capital. The
respective produces of the several taxes were originally sepa-
rate and distinct funds ; being securities for the sums advanced
on each several tax, and for them only. But it became ne-
cessary, in order to avoid confusion, as they multiplied yearly,
to reduce the number of these separate funds b/"mixing and
blending them together; so that there are now Only three ca-
pital funds of any account, viz. the Aggregate Fund, and the
6 Genera.
S8 Of tbe King.
ral Fur.d, so calk d from such union and addition ; and
the S(.i;ih Siu Fund; being the produce of the ta.u-s appro-
priated to pa\ the interest of such part of the national debt as
VHS advanced by that company aiid its annuitants; whereby
the separate fund*, \\liich wire thus united, are become mutual
securities for each other; and the \\hcle produce of tin in,
thu> aggregated, liable to pay such interest or annuities as
vtie formerly charged upon each distinct fund : the faith of
tin legislature being moreover engaged to supply any casual
deficiencies:
The customs, excises, and other taxes, however, which are
to support those funds, depending on contingencies, upon ex-
ports, imports, and consumptions, must necessarily be of a
ven uncertain amount; but tiny have always been considerably
more than vias sufficient to an.-wer the charge upon them.
The surplusses, ihoef. i. , < ( the three great national funds,
the Aggifjate, General, : nd South Sea Funds, over and above
the interest charged upon them, are directed by 3 Geo. I.e. 7-
to be canied together, and to attend the disposition of parlia-
ment, and are usually denominated the Sinking Fund, because
originally destined to lo\\er and sink the national debt. To
this have been since added many entire duties, granted in sub-
sequent years, and ihe annual interest on the sums borrowed
on their respective credits is charged on and pa} able out of the
produce of the Sinking Fund. By the 2fi Gco. 3. c. 3 1 . the sum
of I,6bO,OOOf. is annually vested unnlienably in commissioners,
for the reduction of the national debt. And by the 32 Gco. 3,
c. -V>. it is provided, that upon all future loans which are not to
be pniii oft within forty live yars, one per cent, shall be annually
appropriated fbr thtir n <!u< tion. By the 33 dco.3. c. 22. an
additional grant of COO/XKj/. was made for the same purpose,
\vl;i< li ! i i i n jiiiiiiKilly renewed.
But before any p:ut <.f the Aggregate. Fund (the surp'
\\h. oiu- of the chief ingreaienti that form the Sink-
ing Fur.d) can be applied to diminish the principal of the
national debt, it stands mortgaged by parliament to raise an
ai.nua! c cini for thr mai. .it name uf the king's houshold and the
ivil li.-,t. For this purpose the produce of certain branches of
::< :u d cu.-ti;!ii-, tin- J-(..M duly, the duty on winr li-
thi r M i mis ot th- n-maining crown lands, the profits
.nticN s iiK h.tlt nil the
IK K ii t:ir\ revenues of the crovtn,) and :*N<> :i rU-ar annuity of
(HH/. in monf\, \\ M .- tiled on the king for life, condi-
hat if th<-\ dul i t amount annually to bOO,OOO/. the
7 parliament
Of the Subject. 39
parliament would make up the deficiency. But his present
majesty having signified his consent, that his own hereditary
revenues might be so disposed of as might best conduce to the
utility and satisfaction of the public ; and having accepted the
stun of 800,000/. per annum for the support of his civil list,
the said hereditary and other revenues are now carried into
and made a part of the Aggregate Fund ; and the Aggregate
Fund is charged with the paynrent of the whole annuity to the
cro\\ n of 800,0007. But this being found insufficient, was,
in 1777, increased to QOO/XX)/. to which, by the 44 Gco. 3.
c. 80. an additional G0,000/. a year was added.
The expences defrayed by the civil list are, those which in
any shape relate to civil government, as the expences of the
household, all salaries to officers of state, to the judges, and
every of the servants; the appointments to foreign ambas-
sadors, the maintenance of the queen and the royal family,
the king's private expences, or the privy purse ; and other very
numerous outgoings, as secret service money, pensions, and
other bounties, which sometimes have so far exceeded the re-
venues appointed for that purpose, that application has been
made to parliament to discharge the debts contracted on the
civil list'(/0-
CHAP. III.
Of the Subject.
THE most obvious division of the people is into aliens
and natural- born subjects. Natural-bora subjects are such as
are born within the dominions of the crown of England, that
is, within the allegiance of the king : and aliens are such as are
born out of it. Allegiance is the tie or ligamen which binds
the subject to the king, in return for that protection which the
king affords the subject. The ancient oath of allegiance con-
tained a promise ff to be true and faithful to the king and his
heirs, and truth and faith to bear of life and limb, and ter-
rene honour, and not to know or hear of any ill or damage in-
tended him, without defending him therefrom. ' But at the
revolution the terms of this oath were altered; the subject
promising, " that he will be faithful and bear true alle-
(*) i Bl, Cwn. c. 8;
glance
40 Of the Liberty of the Subject.
glance to the king/' without mentioning " his heirs," or ?[v-
cifyiQg in the least \\herem that allegiance consols. The oatli
of supremacy is principally calculated as a renunciation of
the pope's pretended authoi iiy ; and the oath of abjuration
amply supplies the loose and general texture of the oath of
allegiance. This oath must be taken by all persons in any
office, trust, or employment; and may be tendered by two jus-
tices of the peace to any person whom they shall su>pect ot
disaffection. And the oath of allegiance; may be tendered to^
all persons above the age of twelve years, \\hether natives, d< ni-
zens, or aliens, either in the court leet, or m the sheriffs'
tottrn. But besides these express engagements, the lau also
hol<l, that there is an implied, original, and virtual allegiance
owing from every subject to his sovereign, anted -ilenlly t > any
express promise, and although the subject n- vet swore any
faith or allegiance m form. Allegiance, both expie^ and
implied, is distinguished into two species, the one natuial, the
other local. Natural allegiance is such as is due from all men
born witliin the king'* dominions, immediately upon their birth;
for immediattly upon their birth they are under the king's
protection; and this allegiance cannot be forfeited, camelled,
or altered by any change of time, place, or circumstance ;
nor by any thing but by the united concurrence of the legisla-
ture. An Englishman who removes to J'Yance or to China,
continues the learned commentator, owes the same allegiance
to the king of England there as at home, and twenty \cm>
hence as well as now ; for it is a principle of universal law,
that the natural-born subject of one prince cannot, by any act
of his own, put off or discharge his natural allegiance, \\ith-
wt the concurrent act of that prince to whom it \\.i- lirM dip-.
CHAP. IV.
Of the Liberty of t/u Sut :
THE absolute rights of \ ,hman, (which taken n,
a political and extensive MUM-, m, nMulix eall. d tln-ir li 1
) ;ii they are founded on nature and n . ;
Ailh our form of government, tln.u-li Mihjo t .it t.
to fluctuate and change; tlu-ir -si;iblish:nei.; .
is, being still Imuian. At some times we ha\t sceu them
pn
Of the Liberty of the Subject. 41.
pressed by overbearing and tyrannical princes: at others, so
luxuriant as evew to. tend to anarchy, a worse state than tyranny
itseit ; as any government is better than none at all. But the
vigour of our free coaiitution has always delivered the nation
from these embarrassments; and as soon as tue convulsions
.consequent on the struggle have been over, the balance of our
rights and liberties has settled to its proper level; and their
fundamental articles have been, from time to time, asserted
iu parliament as otten as they acre thought to be in danger.
First, by tbe great charter of liberties, which was obtained,
.fword m hand, from King John; and afterwards, with some alte-
rations, confirmed in parliament by King Henry the Third, his
on ; which charter contained very few new grants, but, as Sir Ed-
ward Coke observes, (2 JUist. Proem.) was for the most part de-
clacatory of the principal grounds of the fundamental laws of
Jnglanid. Afterwards by the statute called Cotiftrmatio Cur-
tarurn, (25 Ed. I.) whereby the great charter is directed to
be allowed as the common law : all judgments contrary to it
are declared void ; copies of it are ordered to be sent to all
cathedral churches, and read twice a year to the people ; and
sentence of excommunication is directed to be as constantly
denounced against all those who by word, deed, or counsel,
act contrary thereto, or in any degree infringe it. Next, by
.a multitude of corroborating statutes from Edw. 1 . to Hen. 4.
of which the following are the most forcible.
Stat. 25 EdK. 3. st. 5. c. 4. None shall be taken by pe-
tition or suggestion made to the king or his council, unless it
fce by indictment of lawful people of the neighbourhood, or
by process made by writ original at the common law. And
none shall be put out of his franchise or freehold, unless he
be duly brought to answer, and forejudged by course of law :
and if any thing be done to the contrary, it shall be redressed.
Stat. 4'2 EdK!. S. c. 3. No man shall be put to answer
without presentment before justices, or matter of record of
due process, or writ original, according to the ancient law of
the land. And if any thing be done to Uie contrary, ^it shall
be void in law, and held for error.
After a long interval these liberties were still further con-
firmed by the Petition of Right, which was a parliamentary
declaration of the liberties of the people, assented to by King
Charles the First, in the beginning of his reign. This was
closely followed by the still more ample concessions made by
that unfortunate prince to la's parliament (particularly the dis-
of tbe star-dasuuber, by *Ut. 16 Car. 1. c, 10.) be-
fore
42 Of the Liberty of the Subject.
fore the fatal rupture between them; and by many salutary
laws, particularly the Habeas Corpus Act, passed under King
Charles the Second.
To liitsc .succeeded the Bill of Rights, or declaration deli-
Tered by the lords and commons to the Prince and Princess of
Orange, Febinaiy 13th, 1688, and afters aids enacted in par-
liament when they became king and queen; which is as fol-
lows:
Stat. 1 W. and iV .st. 2. c. 2. s. 1. Whereas the lords
spiritual and temporal, and commons, assembled at \N estmin-
ster, icprt'scr.img all the estates of the people of this realm,
did, upon the J3th of February, Jt)88, present unto their
majesties, then Prince and Princess of Orange, a declaration,
co laming thu*
r i he said I- r itual and temporal, aud commons, being
asstn.buti in a fi r reo representative of this nation, for
vindicating tUc-ir an- Jih and liberties, declare,
Thai the pretuuicd pv^er. of suspending laws, or tlie exe-
cution of lav.s, by, regal authority, \vithout consent of parlia-
ment, is illf-ual.
That the j reu-nded power of dispensing >\ith laws, or the
execution oi bus, by regal authority, as it has been assumed
>nrt < .xortistd of laie, is illegal.
' Mr.it ilu < >n for erecting the late court of commis-
01 < .elt- .apical causes, and other commissions arid
< la liLe i.ature, are illegal and pernicious.
levying money for or to tlu- use .f the crown, by prei-
Ictice of prerogat'vo, \\iiliout giant of parliament, for longef
t.tnr . 01 in otlar manner than the same is or shall be grai.
is nl -al.
That it is the right of the subjects to petition the king;
aud all commitnuius and piosicutions for such petitioning, ac
illegal.
That the raising or keeping a standing army within tire
kingdom in time of peace, unlos it be with consent of par-
liament, is ugaiust law.
That the subjects who are protestants may have arms for
their defence suitable to their conditions, and as allowed by
law.
That election of members of parliament ought to be t
1 hat tlu- trteilom ! -|x c ( li, and debates or proem In i
patlumeiit, uu-ht not to IK- impeached or questioned in any
couit or plu.cc out of purliaiucut.
That
Of the Liberty of the Subject. 43
That excessive bail ought not to be required, nor excessive
fines imposed, nor cruel and unusual punishments inflicted.
That jurors ought to be duly impannelled and returned, and
jurors who pass upon men in high treason ought to be free-
holders.
That all grants and promises of fines and forfeitures of par-
ticular persons before conviction are illegal and void.
And for redress of all grievances, and for the amendment,
strengthening, and preserving of the laws, parliaments ought to
be held frequently.
And they do claim, demand and insist upon all and singular
the premises, as their undoubted rights and liberties ; and that
no declarations, judgments, doings, or proceedings to the pre-
judice of the people in any of the said premises, ought in any-
wise to be drawn hereafter into consequence or example.
All and singular the rights and liberties asserted and claimed
in the said declaration are the true, ancient, and indubitable
rights and liberties of the people of this kingdom, and so shall
be esteemed, allowed, and adjudged, and taken to be; and all
tiie particulars aforesaid shall be firmly holden as they are ex*
pressed in the said declaration; and all officers shall serve their
majesties according to the same in all times to come. s. {).
No dispensation by non ohstante of any statute shall be al-
lowed, except a dispensation be allowed in such statute ; and
except in such cases as shall be specially provided for during
this session of parliament, s. 12.
No charter granted before the Q3d of October, \6&9, shall
be invalidated by this act, but shall remain of the same force
as if this act had never been made. s. 13.
Lastly, these liberties were again asserted at the commence-
ment of the present century in the Act of Settlement, (stat.
12 and 13 \V . 3. c. 2.}, whereby the crown was limited to his
present majesty's illustrious house; and some new provisions
Avere added at the same fortunate ra, for better securing our
religion, laws, and liberties, which the statute declares to be
"_the birth-right of the people of England," according to the
ancient doctrine of the common law.
Thus much for the declaration of our rights and liberties.
The rights themselves, thus defined by these several statutes,
consist in a number of private immunities, which will appear,
from what has been premised, to be indeed no other thati either
that residuum of natural liberty which is not required by the
laws of society to be sacrificed to public convenience; or else
tliosje civil privileges which satiety has engaged to provide in
44- Of the Liberty of the Subject.
lieu of the natural liberties so given up by individuals. These,
therefore, were formerly either by inheritance or purchase, the
rights of mankind ; but in roost other countries of the world,
being now more or less debased or destroyed, they at present
may be said to remain, in a peculiar and emphatical manner,
the rights of the people of England.
These rights may be reduced to three principal and pri-
mary articles; 1. The right of personal security; 2. The
right of personal liberty ; and S. The right of private pro-
perty.
.As there is no other known method of compulsion, or of
abridging man's natural free will, but by an inf.- ingement or
diminution of one or other ol these important rights, the pre-
servation of these, inviolate, may justly be said to include the
preservation of our civil immunities in their largest and most
extensive sense.
The right of personal security consists in a person's Ujal
and uninterrupted enjoyment of his life, his limbs, his body,
his health, and his reputation. The enjoyment of this n^ht
is secured to every subject by the various laws made for tl*e
punishment of those injuries, by which it is any way vio-
lated.
1 ife, however, may, by the divine permission, be frequently
forfeited for the breach of those laws of society which arr
enforced by the sanction of capital punishments. Ou thi* sub-
ject it is sufficient at present to observe, that whenever tin-
constitution of a state vests in any man, or body of men, n
power of destroying, at pleasure, without the direction of the
laxvs, the lives or members of the subject, such (institution i-
in the .highest degree tyrannical; and that when\er any la\\>
direct such destruction for litiht and trivial causes, such laws
are likewise tyrannical, though in an interior dtjjue ; ItemiM-
here the subject is aware of ihe danger ho is exposed to, and
may, by prudent caution, provide against it. The statute law
of England dors therefore. ^-i\ seldom, and tin- common law
tloo id :-, inflict punishment extending to life or limb, tui-
upon the highest ncce^ity ; and the comtituti ;ittr
straii'4'T l<> :.ny arbitrary power of killing or maiming the
subject without tin: * \pu ^ warrant of law. The woicl- ol the
an- " Ni> 1u< man shall be taken, irn-
prisyiu-d, or any way drstidyi-d, unit ^s [ t \ the lawful judge-
iiii-nt of Ins peers, or by the law of tin- land." \N hidi wordy,
" any way 'in* to Lord Coke, mcl-idc a
pruhihiiion not only of killing or manning, but also of toi-
turing
Of the Liberty of the Subject. 45
faring (to which our laws are strangers), and of every oppres-
sion by colour of an illegal authority. And it is enacted by
stat. 5 Ed&\ 3, c. 9, that no man shall be attached by any
accusation, nor forejudged of life or limb, nor shall his lands
nnd goods be seized into the king's hands contrary to the Great
Charter, and the law of the land. And again by stat. 28
Ed. 3, c. 3, that no man shall be put to death \vilhout
being brought to answer by due process of law.
The right of personal liberty consists in the power of
loco-motion, of changing situation, or moving one's person
to whatsoever place one's own inclination may direct ; with-
out imprisonment or restraint, unless by due course of law.
By 16 Car. 1, c. 10, if any .person be restrained of his li-
berty, by order or decree of any illegal court, or by the com-
mand of the king's majesty in person, or by warrant of the-
council board, he shall, upon demand of his counsel, have a
writ of halicas corpus to bring his body before the court of
King's Bench, or Common Pleas, who shall determine whe-
ther the cause of his commitment be just, and thereupon do
as to justice shall appertain. And by the Habeas Corpus
act, 31 Car. 2, c. 2, a prisoner may have a habeas corpus
from any judge in the vacation, returnable immediately
(unless committed for treason or felony, plainly and specially-
expressed in the warrant); and upon his being brought up,
such judge shall discharge him upon bail (if the offence be
bailable), to appear at the next ensuing court where the of-
fence is cognizable: and all persons committed for treason or
felony, who shall petition in open court, the first week of
the term, or the first day of the sessions after, such commit-
ment, to be brought to trial, and who shall not be indicted
some time in such term or session, shall, upon motion the
last day of the term or session, be let out upon bail, unless
it appear upon oath, that the king's witnesses could not be
produced that term or session ; and if such persons, upon such
prayer, shall not be indicted and tried the second term or
session after commitment, they shall be discharged. And,
lest this act should be evaded by demanding unreasonable bail
or sureties for the prisoner's appearance, it is delared by 1 IV.
and M. st. 2, c. 2, that excessive bail shall not be required.
The confinement of the person in any wise is an imprison-
ment : so that keeping a man against his will in a private
house, putting him in the stocks, arresting or forcibly detain-
ing him in the street, is an imprisonment. The law favoiirg
liberty, and gives an action, of trespass for false imprison-
ment,
45 Of the Liberty of the Subject.
meni, to recover damages; which, on serious occasions, is in
general verv high and exemplai v.
The king cannot send any subject out of England against
liis Will, to serve liim out of Lngland, not ex en into Ireland
as Lord Lu.nie.nant there, for that xvould be banishment, \\lucli
none but the legislature can inllict; except in the singular in-
stance of pressing sail rs, u|>on urgent necessity, in time of
\\ar. But the king, bv his ro\al prerogative^ may issue out
Lis writ //f e.ii'fit n'!f>mtn t and prohibit any of his subjects
from going into foreign purls without licence; for this also
may be iu-ce--ary for the public set vice and .safeguard of the
commonxxealth. The laxv, indeed, so much discourages un-
lawful confinement, that if a man is under dines* of imprison-
inent until he seals a bond, or the like, he may allege this
duress, and avoid the extorted bond. To make imprisonment
lawful, it must be either by pn-ces* from the coHrts of judi-
cature, or by warrant from .-onu- Kgal ofiiecr, ha\ ing autho-
rity to commit to prison : which v. an tut inu.st be in writing,
under the liand and seal of the nu;gi .irate, and express ihecai
of commitment, in order to be examined into, if necessary,
upon a hahca* corpus ; for it there be no cause expressed, the
jailer is not bound to detain ihe prisoner.
The absolute right of property inherent in every English-
man, consists in the fuv MM, cnjovimnt, and disposal of all
his acquisitions, without any controul or diminution, save
only by ihe h'xs of tlie land. The origin of private property
is probably founded in nature; but certainly the modilications
under whu h xve at present lind it, the method of conserving
it in tin 1 piesent owner, and of translating it from man to man,
are entirely derived irom society ; and are some of those civil
advantages, in exchange for xvhich every individual has re-
signed a pait of his natural l.berty. The laws ot Kngland
are, tlieu'tort, in point of honour and justice, extremely
watchful in a.%certaimng and protecting this right. Upon
this principle the (jitat C^harter, c. 'J(), lias declared, that
HO I M ill be disM'isi-d or dixested of his freehold, or
of hi$ liberties or :; e tusiums. ir be. <>ntla\xid, or banished,
i, lint b\ the judgment of his peers, of
by tin' lax\ of the land. Am! bv a variety of ancient
:!a! no man's lands Ol into
th< king's 1; ,,iisl the < .nat Charier and the law of
the hud: and that no man shall be disinherited, n .1 put out
i'| hi,i. . unless he be duly biou^ht to aiis\\: r and b<
Of the Liberty of the Subject. 47
forejudged by course of law ; and if any tiling done to the
contrary, it shall be redressed and holdeu for none.
So great, moreover, is the regard or" the law for private
property, that it will not authorise the least violation of it : no,
not even for the general good of the whole community. In
instances, where the property of an individual is necessary to
be obtained for the accommodation of the public, as in the
case of enlarging anil turning highways, all that the legislature
does, is to oblige the owner to alienate his possessions for a
reasonable price ; and even this is an exertion of power in-
dulged with caution, and which none but the legislature, or
those acting under their immediate direction, can perform.
Another effect of this right of private property is, that no
subject of England can be constrained to pay any aids or taxes,
even for the defence of the realm, or the support of the go-
verment, but such as are imposed by his own consent, or that
of his representatives in parliament. By stat. 25 Edzs. 1,
c. 5, 6, it is provided that the king shall not take any aids or
tasks, but by the common assent of the realm. And what
that common assent is, is more fully explained by stat. 34,
Edic. 1, st. 4, c. 1, which enacts, that no talliage or aid shall
be taken, without the assent of the archbishops, bishops,
earls, barons, knights, burgesses, and other freemen of the
land : and again by stat. 14 Edw. 3, st. 2, c. 1, the prelates,
earls, barons, and commons, citizens, burgesses, aud mer-
chants, shall not be charged to make any aid, if it be not
by the common assent of the great men and commons in par-
liament. And as this fundamental law had been shamefully
evaded under many preceding princes, by compulsive loans and
benevolences, extorted without a real and voluntary consent,
it was made an article of the Petition of Right, 3 Car. 1, that
no man shall be compelled to yield any gilt, loan, or bene-
volence> tax, or such like charge, without common consent
by act of parliament. And, lastly, by the Bill of Rights,
stat. 1 W. and M. st. 2, c. \, it is declared that levying money
for or to the use of the crown, by pretence of prerogative,
without grant of parliament, or for longer time, or in other-
manner than the same is or shall be granted, is illegal.
The right of petitioning the king, or either house of par-
liament, for the redress of grievances, appertains to every in-
dividual in cases of any uncommon injury or infringement of
the rights already particularized, which the ordinary course
of the law is too defective to reach. The, restrictions, tor some
there are,, which are laid upon this right of petitioning iu
48 Of Aliens, $c.
England, tvhile they promote the spirit of peace, arc fo
check upon that of libeity ; care only must be taken, lest,
under the pretence of petitioning, the subject be guilty of any
riot or tumult (?').
CHAP. V.
Of Aliens, Denizem, and Naturalization.
BY the law of nations, no member of one society has a
right to intrude into another; tin- admission of Mranu-
therefore, entirely depends upon the will of tin- state. But
great tenderness is shewn by our laws, not only to foreigners
driven on the coast b\ met s-ity, or by any cause that de*< i
pity or compassion, but with regard also to the admission of
strangers, who come spontaneously ; for, so long as their na-
tion continues at peace with ours, and they themselves behave
peaceably, they are under the king's protection, though liable
to be sent home whenever the king sees occasion. But no
subject of a nation at war with us tan, by the law of nations,
conic into the realm ; nor can travel UJKJU the. high seas ; uor
send his goods and merchandises from one place to another,
without danger of being sei/ed by our subjects, unless he has
letters of safe conduct; which, by clivers ancient statutes,
Duist b,e granted under the king's seal, and enrolled in chan-
cery. But passports under the king's sign manual, or lice,,
from his ambassadors abroad, are now more usually obtained,
and are allowed to be of equal validity.
Aliens, as contradistinguished from natural-born subjects,
are such a> an: not born within the dominion-, of the noun
of England, or v.ithiu the allegiance of the king. But from
this rule of the common law must be excepteil the thildn u
of the kings of Midland, in w ha! soever paits tiny be born;
the children of the Icing*! ambassadors bi.rn abroad ; for as the
lather, though in a foreign country, owes not even a local al-
legiance to the prince to \\hom he is sent, so his children ait
held to bo born (by a kind of pu^lnithiiuin) under the kiii of
Knglawf BC6, i presentc-H by his fallu-i the ambas-
sador. r l'o i-nrouiage also loiei^n conum-rcr, it i< (iiaittl
by 15 Erin: 3, st."'J, that ull children born \\nhout the
mo of tin- king, \\liosu lathe s and mothers at the linn- of
their birth shall o\\t.- allegiance to the king, shall be tin- >umc
(i) BL Cm. c. i.
as.
Of Aliens, $c. 4
as subjects born within the dominions of the crown, if the
mothers of such children do pass the sea by the licence and
will of their husbands. And it seems not to be material,
whether the parents of such children be married abroad or
in England ; or whether the mother be an alien or not ; pro-
vided the father be a merchant, and resided out of the king's
dominions for the purpose of merchandizing.
By the 7 Ann, c. 5, the children of all natural-born sub-*
jects, born out of the dominions of the crown, shall be
deemed natural-born subjects of this kingdom. And this act
is, by 4 Geo. 2, c. 21, explained to mean all such children,
whose fathers are natural-born subjects at the time of the birth
of such children, except their fathers were attainted or ba-
nished beyond sea for high treason, or were then in the service
of a prince at enmity with Great Britain.
But the children born abroad of a mother, a natural-bora
subject, married to an alien, are not entitled to the privileges
of natural-born subjects (&).
By the 13 Geo. 3, c. 21, all persons born out of the alle-
giance of the crown of Great Britain, whose fathers, by the
7 Ann, c. 5, and 4 Geo. 2, c. 11, are entitled to the rights of
natural-born subjects, shall be considered as natural-born
subjects.
By the policy of the English constitution, aliens lie under
several disabilities, and are denied, in several instances, the
benefit of our laws : they cannot purchase lands except for th
king's use ; they are incapable of taking by descent or of inhe-
riting ; they cannot take benefices without the king's licence ;
they cannot enjoy a place of trust, or take a grant of lands
from the crown ; they cannot maintain a real action ; there are
also, some obsolete statutes of Henry 8, prohibiting alien ar*
tificers to work for themselves in this kingdom ; but it is ge-
nerally held, that they were virtually repealed by 5 Eliz. c. 7 ;
and they are here, as in most other countries, allowed to mer-
chandize ; which privilege is confirmed to them by Magua
Charta, and divers other acts 6f parliament : and the-spirit of
modern jurisprudence rather contracts than extends the dis-
abilities of aliens, because the shutting them out tends to th
loss of the people, which, laboriously employed, are the tru
riches of the country ; they are iherefore allowed to maintain
personal actions, for this privilege is essentially necessary to
their character as merchants. An alien merchant may, upon,
(*) 4 T. R. 300.
E statute
50 Of Aliens, $c.
a statute extend lands ; and upon office, the king .shaft not
have them ; and upon ouster he shall have an assize ; fur the
ma : . nid and design of both the statute staple and merchant
uas !.) pi civ t< and encourage trade, by providing a sure and
ipeedv r ,r 'i:wt- strangers as well a? natives to re-
cover their debts at t'ue day assigned for payment.
So an alien may lake a lease of a house for his habitation,,
for years only ; tl'ough formerly, leases of any dwelling-house
or shop, made '.> an alien artificer or handicraft-mini, were
void by 3'2 1! n. 8, c. 16, s. IS. J3nt bo cannol t;il>e a
for years of land, meadow, Sec. not being necessary for
his trade or traffic (/).
A deni7.cn is an alien born, bnl who has obtained., rr doiifi-
tiont regis, Utters patent to make In in an English subject. A
denizen is a kind of middle state between an alien and natural-
bora subject, and partakes of them both. He may take
lands by purchase or devise, which an alien may not ; but
he cannot take by inheritance; for his parent, through whom
lie must claim, had no inheritable blood ; and therefore could
convey none to his son. The issue of a denizen, born be-
fore deni/ation, cannot inh< rit to him, but his issue born
alter mav. A dcuizeu i" not exmsed from paying the nli< n'
duty; neither can he be <.f the privy council, or cither house
of parliament, or have any cilice of tri^t, civil or military; or
be capable oi" any grant from the crown : ~"2 lien. 8, c. 8 ;
12 n .j. p, 'j.
. .Naturalization cannot be performed but by act of parlia-
ment, for by this an alien is put t xactl\ in the same state
as if Lr had been born in the king's Icgkmce; except only, tliat
he is incapable, as well as a denizen, <>t bi'ini: a member of the
privy council, member of parliament, &* . i'J t\ . :5. c. i ;
and no bill ot uatviralizatio'i can be received in either house of
lament without such di>abling clause in it, 1 (reo. l^c.4.
Neither can anv per^un be naturalized, or restored in blood,
unless be has received the iarumirnt within one month pre-
n to the introduction of the bill, and unless he aJso takc,
the oa'.hs ol .;!legiance and suprenacy in the presence of the
parliament, / Jac. 1, c 2.
AU>. h- the ! 3 ('ten. 2, c. 3, every foreign seaman who, itt
time of war, serves t\u> li-cnl an F.u-lisli ship is,
ipso I'tn'tu, ualuralized ; and all foreign pnti -Maiits and jews^
thrir residing seven years in any of the American co-
l/) i Ul. Com. c.
Of the Clergy. 51
Ionics, without being absent two months at a time ; and all
foreign pi otestants, serving two years in a military capacity
there, or being three years employed in the whale-fishery, with-
out afterwards absenting themselves from the king's dominions
for more th;;n one year, and none of them falling within the
incapacities declared by stat. 4 Geo. 2, c. 21, shall be (upon
taking the oaths of allegiance and abjuration, or in some cases,
an affirmation to that effect) naturalized to all intents and pur-
poses, as if they had been born in this kingdom, except as to
sitting in parliament or in the privy council, and holding offices
or grants of lands, &Cc. from the crown within the kingdoms
of Great Britain and Ireland: 13 Geo. 2, c. 7 ; 20 Geo. 2,
c. 44; 22 Geo. 2, c. 45 ; 2 Geo. 3, c. 2o ; 13 Geo. 3,
C. 2,5*
CHAP. VI.
Of the Clergy.
THE clergy comprehend all persons in holy orders, and
in ecclesiastical offices. A clergyman cannot be compelled to
serve on a jury, nor to appear at a court leet, or view of
frank pledge ; but if a layman is summoned on a jury, and
before trial takes orders, he shall notwithstanding appear
and be sworn (m) Neither can a clergyman be chosen to
any temporal office, as sheriff, bailiff, constable, or the
like(w); ana " dining his own continual attendance on the
sacred function, he is privileged from arrests in civil suits ;
that isy for a reasonable time, eundo, redeundo, et morando (o).
In cases of felony also, a clerk in orders shall have the be-
nefit of clergy more than once, without being branded in
the hand (p). But they have certain disabilities ; they are
incapable of sitting in the house of commons (q), and by
21 Hen. 8, c. 13, are not allowed to take any lands or te-
nements to farm, upon pain of lOl. a month, and for-
feiture of the lease ; nor shall they engage in any manner of
trade, or sell any merchandize tinder forfeiture of the treble
value. But by the 8th section of the same statute, if they
have not a sufficient glebe, they may take a farm for the ne-
cessary expellees and consumption of their households. To
entitle them/ however, to hold any farm, they must, by the
(m) Fitz. N. B- 160. alnst. 4. 4 Leon. 190. (n] Fincb. SS.
() i* Co. ico. (/>) 50 Edw. 3, c. 5; i Ric. 2, c. i6j a last. 637; 4,
iKen. -jj c. 13 ; i Edw. 6, c, 12. (q) i Bl. Com. 377.
K 2 4
52 Of the Clergy.
43 Ge*. S, c. 84, obtain the consent of tlie bishop, and then
they are not liable to the penalties of fhe .l Hen. ^.
And by the 6th section of the same statute, they may buy
and sell corn and cattle, the produce of their farms, or such
as are necessary for their cultivation, provided they do not buy
or sell in pci-on in any fair, market, or public sale.
An archbishop it the chief of the clergy in a \vhole pro-
vince, and has the inspection of the bishops of that provincf,
as well as of the inferior clergy, and may deprhe them on
notorious cause. Je has also his own diocese, wherein he
exercises episcopal jurisdiction, as in his province he ex-
ercises arcluepi.seopal. As archbishop he calls the bishops
into convocation by virtue of the king's writ ; receives appeals
from inferior jurisdictions within his province; is entitled to
present by lapse to all ecclesiastical livings in the disposal of
his diocesan bishops, if not filled in .six months; has u
customary prerogative, when a bishop is COIIM c rah l by him,
to name a clerk or chaplain ; and it is the privilege, by cus-
tom, of the archbishop of Canterbury, to crown the kings
and queens of this kingdom. He has also a power by ,5 lien.
8, c. 21, of granting dispensations; which is the foundation
of his granting speeial licences to marry at any time or pla
to hold two livings; of conferring degrees, in prejudice of
the two universities, and the like (r).
A bishop has power and authority, beside his sacred func-
tions, to inspect the manners of the people and clergy, and
to reform them by ecclesiastical censures; for which purpose
lie has courts under him, which are holden by his chancellor,
and may visit at pleasure every part of his diocess. It is aN<>
the business of a bishop to institute and to direct induction
to all livings in his diocess. An archbishop, or bishop, is
elected by the chapter ot his cathedral church by \iitne ot u
licence from the crown ; and the form of giaiuiii-^ a lie-
to elect, is the original of the cone if e lire. By the -<~> //</'.
tf, c. 20, it is enacted, that at every avoidance of a bishop,
the king may send the dean and chapter his usual licence to
proceed l-t election ; which is always accompanied with a
letter mi-r. lioin the king, containing the name of the
person whom he would ha\e them elect; and il they dehv
election ubo\.- twelve da\s, the nomination shall d. -\olve to
the king, \.li-. in:i\, by letters patent, appoint such person as
he pl<;;uc. Tim election or aiomination, if it be wf u bishop,
(0 1 SI. Coja, . i*.
must
Of the Clergy. 53
must be signified by the king's letters patent to the archbishop
of the province; if it be of an archbishop, to the other
archbishop and two bishops ; or to four bishops, requiring
them to confirm, invest, and consecrate the person so elected ;
after which, the bishop elect shall sue to the king for his
temporalities, shall make oath to the king and none other,
and shall take restitution of his secular possessions out of the
king's hand on !}'(*')
Archbishoprics and bishoprics may become void by death,
deprivation for any very gross or notorious crime, and also by
reiiguation. All resignations must be made to some superior,
and therefore the bishop must resign to his metropolitan, but
the archbishop can resign to none but the king himself.
A dean and chapter are the council of the bishop, to assist
him with their advice in affairs of religion, and also in the
temporal concerns of his see. All ancient deans are elected
by the chapter by conge d'elire from the king, and letters mis-
sive of recommendation, in the same manner as bishops ;
but in those chapters which were founded by Hen. VIII. out
of the spoils of the dissolved monasteries, the deanery is do-
native, and the installation merely by the king's letters patent.
The chapter, consisting of canons or prebendaries, are some-
times appointed by the king, sometimes by the bishops, and
sometimes elected by each other.
Deaneries and prebends may become void like a bishopric
by death, deprivation, or resignation. And if any spiritual
person be made a bishop, all the preferments of which he
was before poflefled are void ; and the king may present to
them in right of his prerogative: however, they are not void
by the election, but only by consecration (#).
An archdeacon has an ecclesiastical jurisdiction immediately
subordinate to the bishop throughout the whole of his diocess,
or in some particular part of it. He is usually appointed by
the bishop himself, and has a kind of episcopal authority in-
dependent of the bishop ().
The rural deans are very ancient officers of the church, but
almost grown out of use, though their deaneries still subsist,
as an ecclesiastical division of the diocess or archdeaconry (x) .
A parson, persona eccles/<e, is one that has full possession of
all the rights of a parochial church. He is called parson,
persona, because by his person, the church, which is an invi-
(4) i Bl. Com. c. IT. XO Ibid. () i Burn's Eccl. Law, 6S.
<*) Gib. Cod. 972.
ubfc
54 Of the Clergy.
sible body, is represented, and he is m himself a body coj>
porate, in order to defend and protect the church by a per-
petual succession. He is sometimes called the rector or go-
vernor of the church, but the appellation f pai on is the
most legal, beneficial, and honourable title that a parish priest
can enjoy.
A parson has, during his life, the freehold in himself of the
parsonage house, the glebe, the tithes, and other dues. Hut
those are sometimes appropriated, that is to say, tin- K-neticc
is perpetually annexed to some spiritual corporation, either
sole or aggregate, being the patron of the living, whom the
law esteems equally capable of providing for the service of the
church as any single clergyman. This appropriation ma-.
severed, and the church become disappropriate two. \\;
First, if the patron or appropriator presents a clerk wli
instituted and inducted to the parsonage; for the incumbent
so instituted and inducted is to all intents and pi.: .nn-
plete parson; and the appropriation, being once severed, can
never be united again, unless by a repetition of the taim
lemnities. And when the clerk so presented is distinct from
the vicar, the rectory, thus vested in him, becomes what i-
called a sinecure, because he has no cure of souls, having
a vicar under him, to whom the cure is committed. SecoiidU ,
if the corporation which has the appropriation is dissolved,
the parsonage becomes disappropriate at common la\\ . ! -
cause the perpetuity of the person is gone, which is neces-
sary to support the appropriation.
A vicar, therefore, is a person who has generally an appro-
priator over him, intilled to the best part of the profits, to
vl.oin he is in effect perpetual curate, with a .standing salai\ ;
though in some places the vicarage has been considerably aug-
mented by a l;ir_r share of the great tithes; and by '2<j Car. 2,
c. 8, such ^fcuginentationSj which were only temporary, arc
now render. -d pcrpetnal.
Th method <>J becoming a parson or a \icir i.- much the
same. Holy orders, presentation, institution, and indue',
are necessan to both. By the common law a deacon of any
age might be instituted and inducted to a pai >onai. r <
but by 13 Eliz. c. H, no person under twenty--
age, and in deacon's orders, shall be presented to am bew
with cure: and by 13 and 14 Car. 2, c. 4, no person is capable
of being admitted to any benefice, unless IK L:~ Utnfnu
ordained a priest ; and then he is, in the language of the law,
a clerk in orders. By stat. 44 Ceo. 3 f c. 43, no person shall
hi
Of the Clergy. 5$
t>e admitted a deacon in England or Ireland before l*e shall
Irave attained the age of twenty-three years complete, nor be
admitted a priest before the complete age of twenty-four. But
this statute does not deprive the archbishop of Canterbury and
the Archbishop of Armagh of granting faculties to be ad-
mitted deacons at earlier ages. Whilst a man is only a deacon
he can quit his profession for any other, but not so when once
ordained priest. .None can administer the sacrament but a
priest; nor can a deacon preach without being first licensed by
the bishop. If any man obtains orders or a licence to preach
by money or corrupt practices, the bishop on conferring such
orders forfeits 40/. ;.nd the person receiving them 10/. and is
incapable of any ecclesiastical preferment for seven years after.
Any clerk may be presented to a parsonage or vicarage, that
is, the patron may offer him to the bishop to be instituted;
but the bishop may refuse him if the patron is excommuni*
cated and remains in contempt forty days, or if the clerk be
an outlaw, excommunicated, -an alien, under age, guilty of any
heresy or gross immorality, or insufficient in point of learning.
If the bishop has no objections, the clerk so admitted is
iext to be instituted by him, which is a kind of investiture of
the spiritual part of the benefice; for by the institution the
cure of tl^e souls of the parish is committed to the charge of
the clerk. When the ordinary is also the patron, and confers
the living, the presentation and institution are one and the same
act, and are called a collation to a benefice. By institution
or collation the church is full, so that there can be no fresh
presentation till anotlier vacancy, at least in case of a common
patron ; but the church is not full against the king till indue-
tion. Upon institution also, the clerk may enter on the par-
sonage-house and glebe, and take the tithes, but he cannot
grant or let them, or bring an action for them, till induction.
Induction is performed by a mandate from the bishop to
the archdeacon, who usually issues out a precept to other
clergymen to perform it for him. It is done by giving tlie
clerk corporal possession of the church, as by holding the ring
of the door, tolling a bell, or the like; and is a form required
by law, with intent to give all the parishioners due notice to
whom their tithes are to be paid. This, therefore, is the in-
vestiture of the temporal part of the benefice, as institutiou is
of the spiritual ; and when a clerk is thus presented, instituted,
and inducted, he is thenj and uot before, in full and complete
.possession,
A parson
Of the Clergy.
A parson or vicar may cease to be so, 1. By death; *. By
cession in taking another benefice; lor by 21 Jim. 8, c. 1J,
if any one having a benefice of Si. per annum or upwards iu
the kind's books, accepts any other, both livings having cure of
souls, the first shall be adjudged void, unless he obtain a ills.
pensation, which no one is entitled to have but the chaplain*
of the king, ancl others therein mentioned, the brethren and
sons of lords and knights, and doctors and bachelors of divinity
and law, admitted by the Universities of this realm. And by
the 41st canon of l6o3, the two benefices must not be farther
distant from each other than thirty miles, and the person ob-
taining the dispensation mu-t at least be a master of arts in one
of the Universities. But the provisions of this canon an- not
enforced or regarded in the temporal courts (y). 3. By con-
secration; for when a clerk is promoted to a bishopric, all his
other preferments are void, except he obtains a commendam,
which is done by the crown, for the purpose of making an ad-
dition to a small bishopric. 4. By resignation, accepted by
the ordinary. 5. By deprivation, either by canonical censures,
or for some malefeasance, as simony; maintaining doctrn
derogation to the king's supremacy, the thirty-nine articles, or
the Book of Common Prayer ; for neglecting to read the
liturgy, or to take the abjuration oath; for using any other form
ef prayer than the liturgy; for absenting himself sixty da\s in
one year from a popish benefice presented by the Univi isii\ :
in all which and similar cases the benefice is ipso facto void,
tiithout any formal sentence of deprivation (a).
The residence of the clergy upon their benefices and eccle-
siastical dignities is regulated by the 43 Gt'o. 3, c. 84. In-
cumbents are permitted to absent themselves three months
without being subject to any penalty. If they are ab>cnt be-
tween three and six months, they forfeit one-third of the annual
value of the benefice after all deductions, except the curate's
stipend; between six and eight, one half; between eight and
twelve, two-thirds; and the whole year, three-fourths, to any
one who will sue. Sinecure rectories arc exceptcd. All \\lio
were exempted by the statute '21 Hen. 8, c. 13, an
exempt, and this statute extends the exemption to M\>:..;
otlurs specified in the statute, and to all public otliceis in
either University, and to tutors and public officers in any col-
lege. But by this statute, students residing in the Lniveisitio
(y) i Bi. Rep. 968. (t) i ttl. Com c. 10.
for
Of the Clergy. 57
for lona fide study are exempted till they are thirty years of
age only.
But by this statute the bishop may, at his discretion, grant a
licence for non-residence, on account of the illness or infirmity
of the incumbent, his wife or child, and where there is not a
Jit house of residence 1 , if the unfitness is not occasioned by the
incumbent s neglect ; if he lives in his own or any relation's
house within the parish ; if he serves another church as curate
or preacher; and if he is a master or usher of an endowed
school, and licensed by the bishop : these and some others
are grounds for the grant of a licence ; and if the bishop re-
fuses, the incumbent may appeal to the archbishop. The
bishop may grant licences for causes not enumerated in the
statute ; but they must have afterwards the allowance of the
archbishop. Licences may be revoked, but if not revoked are
in force for two years.
A curate is the lowest degree in the church, being in the
same state that a vicar was formerly, an officiating temporary
minister instead of a proper incumbent; though there are what
are called perpetual curacies, where all the tithes are appro-
priated, and no vicarage endowed.
By the 33d canon of 1603, if a bishop ordains any person
not provided with some ecclesiastical preferment, except a
fellow or chaplain of a college, or a master of arts of live
years standing, who lives in the University at his own expence,
lie shall support him till he shall prefer him to a living (a). And
the bishops, before they confer orders, require either proof of
such a title as is decribed by the canon, or a certificate from
some rector or vicar, promising to employ the candidate for
orders bond fide as a curate, and to grant him a certain allow-
ance, till he obtains some ecclesiastical preferment, or shall be
removed for some fault. And in a case where the rector of
St. Ann's, Westminster, gave such a title, and afterwards dis-
missed his curate without assigning any cause, the curate re-
covered, in an action of assumpsit, the same salary for the time
after his dismission as he received before (/>). And when the
rector had vacated St. Ann's, by accepting the living of Roch-
dale, the curate brought another action to recover his salary
since the rector had left St. Ann's; but Lord Mansfield and
the Court held, that that action could not be maintained, and
that these titles are only binding upon those who give them
(a] 3 Burn, Ecel, tr.w, a$. (4) Cowp. 437.
2 while
58 Of the Clergy.
while they continue- incumbent of the church for which such
curate is appointed (c).
The king and royal family may retain as many chaplains as
they please; and such chaplains may hold any number of be-
nefices of the king's gift as the king may think fit to bestow
upon them. An archbishop may have eight, a duke and bishop
six, a marquis and earl live, a viscount four; the chancellor, a
baron, and knight of the garter three; a duchess, marchioness,
countess, and baroness, being widows, two; the king's trea-
surer, comptroller, secretary, dean of the chapel, ;l;mmer, and
the master of the roll, twt; the chief justice >l the king's
bench, and warden of the cinque ports, one: all \vhirh chap-
lains may, by the stat. 21 Hen. 8, c. 13, purchase a licence
or dispensation, and take two benefices with cure of souls.
Also, by stat. 25 Hen- 8, c. H), every judge of the king's
bench and common pleas, and chancellor and chief baron of
the exchequer, and the king's attorney and solicitor general,
may each of them have one chaplain, attendant on his person,
having one benefice with cure, who may be non-resident on the
same. And the groom of the stole, treasurer of the king"*
bed-chamber, and chancellor of the duchy of L-iwaster, may,
by the stat. 33 Hen. 8, c. <J8, retain each one chaplain. But
the chaplains under these two last statutes are not entitled to
dispensations under statute 21 //.;;. 8.
If one person has two or more of these titles or cliaracters
united in himself, he can only retain the number of chaplain*
limited to his highest degree ; and if a nobleman retain his mil
number of chaplains, no one of them ran !> discharged, so
that another shall be appointed in his room during his iii'e(d).
And if a woman that is noble by marriage, afterwards marries
one that is under the degree of nobility, her po\ver to retain
chaplains is determined ; though it is otherwise where a woman
is noble by descent if she marries under the degree of nobility;
for in such case her retainer before or after marriage is good (f).
The king can give a licence to his chaplains for non-resi-
dence, even whilst they do not attend his houshold ; but the
chaplains of noblemen are onK < -\cu- -d during their actual
attendance upon their lords or ladies (J ).
(c) Doug. 137. (J) 4 Co. 90. (t) 4 Co. if. (f) 3 Burn,
led. Law, 297.
CHAP,
Of Titles and Degrees. 59
CHAP. VII.
Of Titles and Degrees,
THE degrees of nobility now in use are, dukes, marquisses,
tarl.s, viscounts, and barons.
The right of peerage seems to have been originally territo-
rial ; that is, annexed to lands, honours, castles, manors, and
the like; the proprietors and possessors of which were (in
right of their e. Lates) allowed to be peers of the realm, and
were summoned to parliament to do suit and service to their
sovereign ; and when the land was alienated, the dignity passed
with it as appendant. Thus the bishops 'shall sit in the house
of lords,, iu right of succession of certain ancient baronies an-
nexed, or supposed to be annexed, to their episcopal lands.
But afterwards, when alienations grew to be frequent, the dig-
nity of peerage was confined to the lineage of the party en-
nobled, and instead of territorial became personal. Actual
proof of a tenure by barony became no longer necessary to
constitute a lord of parliament; but the record of the writ ot
summons to him or his ancestors was admitted as a sufficient
^vidence of the tenure (g).
Peers are now created by writ or by patent; for those who
claim by prescription must suppose either a writ or patent
made to their ancestors. The creation by writ, or the king's
letter, is a summons to attend the house of peers, by the stile
and title of that barony which the king is pleased to confer:
that by patent is a royal grant to a subject, of any dignity or
degree of peerage. The creation by writ is the more ancient
way ; but a man is not ennobled thereby, unless he actually takes
his seat in the house of lords. The most usual way is to grant
the dignity by patent, which enures to a man and his heirs ac-
cording to the limitations thereof: though he never himself makes
use of it, yet it is frequent to call up the eldest son of a peer
to the house of lords by writ of summons, in the name of his
father's barony; because in that case there is no danger of his
children's losing the nobility, in case he never takes his seat;
for they will succeed to their grandfather (/?). Creation by
(g) Glanv. Bk. 7. c, i. (b} Whitloek, c. 114. Co. Lit. 16.
writ
66 Of Titles and Degrees.
writ has also one advantage over that by patent ; for a pors-on
created by writ holds the dignity to him and his heirs, without
any words to that purport in the writ ; but in letters patent
there must be words to direct the inheritance, else the dignitr
only enures to the grantee for life (z). For a man or woman
may be created noble for their own lives, and the dignity not
descend to their heirs at all, or descend only to some particu-
lar heirs; as where a peerage is limited to a man, and the In IM
male of his body by Elizabeth his present wife, and not to
luch heirs by any former or future wife.
Every peer has, in criminal cases, the privilege of In ini;
tried by his peers; but in all misdemeanours, as li!>els, riots,
perjuries, conspiracy, 8tc. he is tried like a commoner by a
jury (/:). But this does not extend to bishops, who though
they are lords of parliament, and sit there by virtue of the
baronies which they hold jure ecc/esitc, yet are not ennohled
in blood, and consequently not peers with the nobility. By
the 20 Hen. 6, c. Q, peeresses, either in their own right or by
marriage, are tried by the same judicature as the pens of the
realm. If a woman, noble in her own right, marries a com-
moner, she does not lose this privilege; but if she is only
noble by marriage, then by a second marriage with a com-
moner she loses her dignity. Yet if a duchess dowager mar-
ries a baron, she continues a duchess still ; for all the nobility
are peers, and therefore it is no degradation. A peer or
peeress (either in her own right or by marriage) cannot be ar-
rested in civil suits. A peer sitting in judgment gives not hi*
verdict upon oath like an ordinary juryman, hut upon his
honour. Bills in chancery he also answers upon his hon i.r.
But when he is examined as a witness in eitlu r t nil or 1 1 imi-
nal cases he must be sworn. So if he is examined a- a wit
in the high court of parliament he must be sworn. The
honour of a peer, in short, is so highly thought of in law,
tbut scandal agaiust them is called scundaiitm magnatum.
TABLE OF PRECEDENCE.
The king'* children and grand- 1 The king's urn l< -,
children, I The king's nephews,
The king's brethren, * Archbishop of Canterbury
/;; Co. Lt. 9. *6. (k) 3 Inst. 30. 2 Hawk. 414.
Lord
Of Titles and Degrees.
Lord chancellor or keeper, if
a baron,
Archbishop of York,
Lord treasurer,
Lord president of the"^ c
council,
Lord privy seal, .) <*-
Lord great chamberlain.") _
But see private statute,
1 Geo. I, c. 3.
Lord high constable,
Lord marshal,
Lord admiral,
Lord steward of the
household,
Lord chamberlain of the
household,
Dukes,
Marquisses,
Dukes' eldest sons,
Earls,
Marquisses' eldest sons,
Dukes' younger sons,
Viscounts,
Earls' eldest sons,
Marquisses' younger sons,
Secretary of state, if a bishop,
Bishop of London,
Bishop of Durham,
Bishop of Winchester,
Bishops,
Secretary of state, if a baron,
Barons,
Speaker of the house of com
mous,
Lords commissioners of the
great seal,
Viscounts' eldest sons,
Earls' younger sons,
Barons' eldest sons,
Knights of the garter,
Privy counsellors,
Chancellor of the exchequer,
Chancellor of the duchy,
Chief justice of the king's
bench,
Master of the rolls,
Chief justice of the common
pleas,
Chief baron of the exchequer,
Judges, and barons of the coif,
Knights bannerets, royal,
Viscounts' younger sons,
Barons' younger sons,
Baronets,
Knights bannerets,
Knights of the bath,
Knights bachelors,
Baronets' eldest sons,
Knights' eldest sons,
Baronets' younger sons,
Colonels,
Sergeants at law,
Doctors,
Esquires,
Gentlemen,
Yeomen,
Tradesmen,
Artificers,
Labourers.
N. B. Married women and widows are entitled to the
flame rank among each other as their husbands would re-
spectively have borne between themselves, except such rank
is merely professional or official ; and unmarried women, to
the same rank as their eldest brothers would bear among men,
during the lives of their fathers.
With respect to the rank of esquire, what constitutes the
distinction, or who is a, real escpiire, is somewhat unsettled ;
for
Of Public Officers.
for it is not an estate, however large, that confers this rank
upon its owner. Camdcit, who was himself a herald, dis-
tinguishes them the most accurately, and he reckons up foxir
sorts of them. 1. The eldest sons of knights, and their eldest
sons in perpetual succession. 2. The li't.-t sons of younger
sons of peers, and their eldest sons, in like perpetual succes-
sion. 3. Esquire* created by the kind's letters patent, or
other iiivt-stiiurc, and their eldest sons. 4. Esquires by virtue.
f their offices; as justices of the peace, and others who !>< :;'
any office or trust under the crown, and who are stiled esquire*
by the kins in their commissions and appointments ; to \\hidi
may be added barristers (/;.
CHAP. VIII.
Of Public Officers.
THE sheriff is an officer of very great antiquity in thi*
kingdom ; he was formerly, except where the shrievalty was of
inheritance, chosen by the inhabitants of the several counties ;
but these popular elections growing tumultuous, thcfj 7u/<o. 2,
st. 2; 14 </<v. 3, c. 7; 23 ll.-n.G, c. 8 ; and J1 Hm
c. 20, enact, that sheriffs shall be assigned and elected by
the chancellor, treasurer, president of the king's couneil, chief
justices, chief barons, all the judges and great -.Ou, ;-, of .state.
on the morrow of All b>oul* in the Exchequer, which is now
altered to the morrow of St Martin, when they j.
persons to the king, who afterwards appoints one of them t
be sheriff. By the 14 Edw. 3, c. 7, he is to continue in
office only one year; and, by 1 lien. 5, c. 4, is not com-
pellableto serve again for three, years after.
The sheriff is in his official character, a judne, a keeper of
the king's peace, a ministerial officer of the upper courts of
justice, and the king's bailiff.
In his judi ial < apacity he is to hear and determine all
causes of forty shillings value, or under, in his county court.
Hi is likewise to determine thp elections of tbe knjghu of the
jhire, of coroners, and of verderers ; to judge of the- qualifi-
cation of voters and to return such candidates as he khall de-
termine to be duly elected.
(!) iBl. Com. c. i.
Ai
3
Of Public Officers. 63
.As keeper of the king's peace, he ranks before any person
MI the county during his office* He may apprehend and
commit to prison all persons who break the peace, or attempt
to break it, and may bind any one in a recognizance to keep
the king's peace. He may, and is bound ex ojficio, to take all
traitors, felons, murderers, and other misdoers,and commit them
to gaol for safe custody. He is nbo to defend his county
against the king's enemies, and for this purpose may raise the
posse cotnitatus, or power of the county ; that is, he may com-
mand the people of his count}' to attend him ; and every
person above fifteen years of age, and under the degree of a
peer, is bound to obey his summons, on pain of fine and im-
prisonment. But he cannot try any criminal offence, nor can
he, during his office, act as a justice of the peace.
[n his ministerial capacity, he is bound to execute all pro-
cesses issuing from the king's courts of justice in civil causes ;.
he, or his substitutes, must serve the writ, arrest, take bail,
summon and return the jury, and see the judgment of the court
carried into execution. In criminal matters also, he arrests,
imprisons, summons the jury, has the custody of the delin-
quent, and executes the sentence.
As king's bailiff, he is to preserve the king's rights within
his county ; to seize to the king's use all lands devolved to the
crown by attainder or escheat ; levy all fines and forfeitures ;
seize and keep all waifs, es trays, wrecks, and the like, unless
granted to some private persons ; and if commanded by pro-
cess from the exchequer, must collect also the king's rents-
within his county.
For the execution of these offices, he has under him many
inferior officers : an under sheriff, bailiff, and gaolers.
It is the business of the under sheriff to perform all the
duties of the office of the sheriff, a few only excepted ; but he
cannot practice as an attorney during his office, which he
cannot hold for a longer term than one year.
Bailiffs, are either bailiffs of hundreds or special bailiffs*
The former are appointed by the sheriff over certain districts,
to collect fines, summon juries, attend the judges and justices
at the assizes and quarter sessions, and serve wriis and pro-
cesses in the several hundreds. The latter are employed to-
serve writs, make arrests, and take executions ; and being
usually bound to the sheriff for the due execution of their office,
are called bound bailiffs.
Gaolers are officers under the sheriff, who is answerable for
their conduct. Their business is to keep in safety all who are
committed
64- Of Public Officers.
committed to their custody ; and if they suffer any such to
escape, the sheriff must answer to the king, if it be a ci iminal
mailer; if a civil, to the party injured.
The coroner derives his name Iroiu having to do chiefly ii>
picas of the crown, and is chosen by the freeholders. The
number of eoront rs is not ti\ed ; in some counties there are
four, some six, and some have fe\\ r.
The power of the coroner is either judicial or ministerial.
The judicial authority of the coroner, is to enquire into the
cause by which any person came to a violent death, to pro-
nounce judgment upon outlawries in the county court, to t;il\<*
and enter appeals of murder, &cc. He ma\ also enquire of the
escape of a murderer, of treasure trove, wreck deodauds ; but
of no felony, except the death of a man, aud upon view of
the body. For if the body be not found, the coroner cannot
sit. lie must sit also in the very place when' the death hap-
pened; and his enquiry is made by a jury from nnv of the
BOgtibMfring towns over which he pn -id >. ll l>\ this in-
quest any is found guil'y of minder, lie is to commit the
offender to prison for trial, and also to make enquiry con-
cerning his lands, goods, and chattels, which are forfeited
thereby, and must certify the whole of the business to the
court of Kind's Bench, at the next assixes (/;/).
The next order of subordinate magistrate! are justir
the peace ; the chief of whom is the Citxfoa Rotulunim, or
keeper of the county records.
Theae justices are appointed by the kind's special commis-
sion under the great seal. Their commission appoints them
all, jointly and severally, to keep the peace; and any two or
more of them to enquire of and determine felonies and other
misdemeanors.
As the office of these justices is conferred by the kin
it subsists only during his pleasure; and is determinate,
1. By the demise of the crown; that is, in six months after,
stat. 1, Ann. c. 8. '2. By express writ under the great seal(/o.
o. By superseding the commission by writ of tttftntdiua^
which .-n-pciiiis tl.-- power of all the justices, but does not
toftlly destroy it : for it may be atrain renewed by pmccJcndo*
4. Bv .1 new commission, which virtually, thouirh silenth. dis-
charges all former justices that are included therein ; for two
commi i -t at once. 5. By accession of th
office of sheriff, or coroner, stat. 1 Mary. at. I, c. 8.
(tr.) i 11. Con. c. 9. (; Lamb. 6-.
Touching
Of Putiic Officers. 6S
Touching the qualifications of these justices, it is provided
ty stat. 2 Hen. 5, st. 1, c. 4, and st. 2, c. 1, that they must
be resident in their several counties. And by the 18 Geo. 2,
c. 20, every justice of the peace must have an estate pro-
ducing IOO/. per annum t clear of all deductions: and if he
acts without such qualification, he shall forfeit lOO/. Also
by stat. 5, Gw. 2, c. 18, no practising attorney, solicitor, or
proctor, shall be capable of acting as justice of the peace for
any county.
By the aforementioned stat. 18 Geo. 2, c. 20, it is pro-
vided, that no person shall be capable of being a justice of the
peace, or acting as such, who shall not have in law or equity,
for his own use or possession, a freehold, copyhold, or cus-
tomary estate for life, or some greater estate, or for years
detenninable upon a life or lives, or twenty-one years, in
lands, 8tc. of the clear yearly value of 100/. over and above
all encumbrances, rents, and charges ; or entitled to the im-
mediate reversion or remainder in lands, &c. of 300/. per
ann. under the penalty of 100/. But this does not extend
to corporation justices, or to the eldest sons of peers, and
of gentlemen qualified to be knights of shires, the officers
of the board of green cloth, principal officers of the navy,
under secretaries of state, heads of colleges, or to the mayors
of Cambridge and Oxford ; all of whom may act without any
qualification by estate.
The power, office, and duty of a justice 6f the peace de-
pend oil his commission, and on the several statutes that have
created objects of his jurisdiction. His commission em-
powers him singly to conserve the peace, in suppressing riots
and affrays, irt taking securities for the peace, in apprehending
and committirig felons, and Other inferior: criminals. It also
Empowers any ttvo or more of them; to determiu'e all felonies
and other offences.
If a justice makes any undesigned slip in his practice, great
lenity and indulgence are shown him in the courts of law ; and
there are riiany statutes made to protect him in the upright dis-
charge of his duty; which, among other privileges, prohibit
such justices being sued for any oversights Without notice on
mouth before the writ is sued out, or a copy of it served uport
him ; and stop all suits begun, On tender made of sufficient
amends; 7 Jdc. I, c. 5 ; 21 Jac. 1, c. 12; 24 Geo. 2, c. 44.
And to protect justices of the peace in the execution of their
duty, it is provided by 43 Geo. 3, c. 141, that in all actions
which shall be brought against apy justice of the peace on ac-
JF eouut
'6 Of Parish Officers.
count of any conviction, in case such conviction shall have
been quashed, the plaintiff', besides the amount of the penalty
which may have been levied, shall not recover greater damages
than two-pence; nor any costs, unless it shall he alleged in
the declaration in the action, (which shall be an action upon the
case onl)) that such acts \vcre done maliciously, and without
any reasonable or probable cause. Hut, on the other hand,
any malicious or tyrannical abuse of their office is usuall .
veivly punched; and all persons \vlio rrcou-r a verdict, for
any malicious or wilful injury, are entitled to double costs.
CHAP. IX.
Of Parish Officers.
1. CHURCHWARDENS.
speaking, all inhabitants of the parish
are liable to serve the office of churchwarden; but peers of
the realm, members of parliament (o), clergymen (p), bar-
risters at law and attorneys (q), clerks of court (;), physicians,
aur^eons, and apothecaries, .3 Hen. 8, c. 6; 32 lien. 8, c. 4;
\S Geo. C, c. 15 ; and, generally, all persons holding any office,
which requires a constant and personal attendance (*).
iSo by slat. 1 /i . ;.', c. 18, dissenting ministers are exempted
on taking the oaths of allegiance, &c. as are all dissentei
providing a ?ufriciu/ . And by the 10 and 11 IV. 3,
c. 'IS, prosecutoi :md the first ay-1. their
certificate, are disrhau;-,-d fiuin all parish office* vulhin the
parish in which the fclony was committed. And by slat.
'j :>. C, r. So, ail >t ,ji I ants, corporals, driimmexs, and pri-
vate men serving in the militia, are privil.
':.t:rdens are iht. guardians and keepers of the church,
tin- paiish. By the 89 and
a:. non, lr)0:>, the) are to be- chosen ycaily in Muster
\veek, by the joint content of the mini-ti-r and pari>hi'.ner> (0-
; pointed by the minister, and sometimes
Ly tlic paiiih,
I'or tin- bt it- -fit ci the church, churchwardens are for ;
; i .iiMiiuii law j-, a kiud >f coipo-
aie intrusted with the care aud management
() Gib*. Cd. Jij. (p) Ld. Raym. 1107. (j) Sid. /)jr
( r) i Holl. Rep. 36!* (t) L. t . X T. U js>. (') Wood'
Of Parish Officers. 67
of the goods and personal property belonging to the church;
and for the recovery of which, if stolen,, they may bring
actions, or may sue the offender in the spiritual courts (M).
They 'may purchase goods for the use of the parish ; and,
with the assent of the parishioner^ may sell or otherwise
dispose of the goods of the church (x). But they have no in-
terest or power over the freehold of the church itself, nor
over any land, or other real property belonging to it. If;
therefore, the trees in the churchyard be cut down, or the
grass destroyed, or if the walls, windows, or doors of the
church be broken, the incumbent or his lessee, and not the
churchwardens, is entitled to the recompehce for the in-
jury (y).- Neither can they take lands, even for a term of
years, devised to the parish for the repair, or other use of the
church, jLitiless through the intervention of a trustee for the use
intended (z).
The duties of the churchwardens are, to bind out poor
children apprentices, 43 Eliz. c. 2 ; to collect and disburse
assessments made by the parishioners in vestry for the re-
pairs of the church (); to keep the keys of the belfry, and
take care they be rung only on proper occasions (6) ; during
a vacancy of the benefice, to manage all the prorits and ex-
pences for the benefit of the succeeding incumbent ; to take
care that the church be duly served by. a curate. approved of by
the bishop (c); to collect and receive all monies given in pur-
suance 'of a brief, st. 4 Ann. c. 14; to grant consent for thb
burying of persons in a different parish from that in which
the person dies (cZ); to prevent sell-murderers, as also ex-
communicated persons, from being buried in the church or
church-yard, without a special licence from the bishop of
the diocese ; to sign certificates to enable the out-pensioners
of Greenwich Hospital, residing in their respective parishes,
to receive their pensions, 3 Geo. 3, c. Ifj; to see that the
chancel is kept in due repair and order, and to present the
.defects to the bishop (e) ; to take care of the church and its
appendages ;. to see that it is properly aired and kept clean
and in good repair; to provide all requisites for the commu-
nion service, christenings, and other ceremonies (f) ; to pre-
vent any irreverent or disorderly behaviour at church : for
1*1
\vmch purpose they may, xvilhout being guilty of an Assault,
(a) a Keb. 23. (x) Cro. Car. 552. jCro. Jac. 234. (j) z Roll.
Abr. 337. (3) Het. 74. Co. Lit. "3- (} Ld - Raytn'. 59. (b}L..n.
SS. (c) Shaw's Parish Law, 99, (d) Gibe. God. 453. (e) Can. 80.
. (f) Il d-
F take
63 Of Parish Officers.
take oft" a person's hat, or even turn him out of th church (g);
to keep the \\a\-. leading to ihc church in repair ;'/?); to keep
the church-yard ili a good and passable state, and not to per-
mit any plavs, temporal courts, &.c. to be h-ld therein;
uor are they to allow any idle persons to abide therein, or in
the church porch, during divine service, nor any tumult or in-
decency dining the rites of burial (/) ; to pay, within thirty
days after notice in writing to them given, or affixed to the
door of the church, out of the money rnlKrteu lor the relief
of the poor, such sums as shall be rated upon the pariah by
any or quarter sessions, 1-2 Cn'o. '2, c. '2[); to provide and
keep a large lire-engine, ami a hand engine, with proper ac-
coutrements, and to fix stop locks and ihe-cocks upon the
pipes belonging to the water works, and mark upon the
front of some opposite house the place where they are to be
found, and keep in such house an instrument for opening the
plug, stat. C Ann. 31 ; to apprehend and carry before a jus-
tice all hawkers and pedlars trading without a licence, 9 and
10 W. 3, c. 27 ; to advertise stolen lead deposited in their
hands by any justice of the peace, 29 Geo. 2,, c. 30; to ap-
prehend and safely secure, by order of two justices, all lu-
natics and insane persons, 1? Geo. 2, c. .5 ; to raise and levy
the assessments for the support of the militia, and provide vo-
lunteers for the militia, '2b Gco. .'*, c. 107 ; 3-1 Geo. S, c. 16;
to maintain actions for the destroying or defacing of the engines,
or the monuments or tomb-stones within the church and
charch-yard (A') ; to provide decent ornaments of public wor-
ship and religious ceremonies (I) ; to see that the parson does
his duty according to the rites of the church of England, and
to present any deficiency therein to the ordinary at the Easter
visitation; to levy the Mini of twelve- pence on all persons not
resorting to the parish church on Sundays and other holiday?,
1 I'Aiz. c. 2 ; and the sum of three and four pence for using
unlawful sports on those days, 1 CVrr. 1 ; to present or cer-
tify to the bishop, at least once a year, all matters relative to
any defect in the duty of the minister, the religious or moral
conduct of the parishioners, or the repairs of the chancel ;
. that every nrw pr< :u her is j.ropnly tmaliticd by licence
from the bishop, and to see that he subscribes his name in
a book kept for that purpose, with the day on which
he prea< lu (!, and the nanie of the bishop who granted the
( f ) iSanr.d. 13. (b) a Roll. Abr. 187. (i) IbiJ. 19, 18, 91.
(*) J>hvr't lUr. L^r, . 15. Cn>. J.ic. 367. (/) * RolL Abr. 291.
licence
Of Parish Officers: 69
licence (r); to summon a vestry of the parishioners' for tlte
purpose of making a rate for the repairs of the church, which,
\vhen agreed upon, is to be levied by the churchwardens
upon every occupier of lands or house within the parish,
M hether he reside in the parish or not () ; to see that the mi-
nister enters in the parish register all weddings, christenings, and
burials, which may have happened in the preceding week (o) ;
to keep the parish church in good repair ; but if the churchwar-
dens would make any material improvement or alteration, they
hould obtain the consent of the majority of the parishioners,
and also a licence from the ordinary (p); to see that the Lord's
day is duly observed ; to give public notice of vestries on the
Sunday before the convening of the vestry, or at the church
door, as the parishioners depart (q).
In making assessments for the relief of maimed soldiers and
pensioners, the churchwardens are to join with the constable;
and in making such assessments for the relief of the poor and
indigent in general, by the 43 Eiiz. c. 2, they are to join with
the overseers.
By the 8 9 th canon of the church, churchwardens at the end
of their year, or within a month after, are to give in to the
minister and parishioners a just account of all monies they
have received and expended for the use of the church, during
the time they were in office ; and also to deliver up to the said
parishioners the money and effects remaining in their hands (r).
If the churchwardens defer making or gathering their rate
till tlieir office is expired, they are deprived of all legal au-
thority of doing either, unless they have previously made a
presentment of the defaulters; for which reason they ought to
take care to gather in the rate as soon as it can conveniently
be done, and prosecute before the expiration of their office
those who refuse to pay the sums they are rated at ; or, if
this be neglected, present the defaulters at the Easter visita-
tion, when they go out of office; in which case they will still
have authority to recover their arrears. If, however neither
of these things have been done, they must transfer the sums
in arrear to their successors, who have authority to recover
them for the use of the parish.
For a fulfer and more circumstantial detail of the duty and
authority of churchwardens, we beg to refer the reader to Mr.
() Can. 50, 52. (n) i Mod. 97. 5 Co, ,,57. () Gifcs. Co4. .
(/>) I Mod. 73. (jj Paul's Complete famish Officer, tit; Churchwarden.
ir) (Jibs. Cod. c. ic.
N ' }
Paul'*
70 Of Parish Officers.
Paul's useful publication, entitled " The Complete Pau/a
pracer.'
2. OVERSEEHS.
. By virtue of the statute of 45 Eliz. c. 2, overseers, who may
be any of the eul -stantial h< timekeepers in the parish, uuless
there is not a sufficient ruinbtr of substantial hoaelte&pen(
are apj oint ed, and then, the appointment of a poor pti ton \\ iil
be good (9).
\\ Lai persons are exempted from the service of tbia paro-
chial office, we reitr to ihe list of exemptions mentioned, wbtn
treating of ihe office of churchwarden. Indeed, the persons
specified in that list aie t\tn;pud from all parothial vlb
By the afoiementioncd slat. 43 /V:. c. 2, and 13 and
34 (-Q) . 2, c. 12, overseers are to be nominal* i>ter
week, < r \viihin one mouth afu-r (though a sub*
nation will be valid) (' justices d will si bf puriah.
Their orhce and duty, accoiding in the
opaily these; iir>t, to raise con ipeunt sums for tlu i
i 1 1 01 ihtr poi-r, inipotti.t, old, blind, and such oil
poor, and not atle .to %\ ork ; and secondly, to \s 6rk
tor *uch a> :.rt abk, and cui'not otiiei >
, urpose&, the;. take and
Kto upon the several inhabitants ot the paiish, by the
^ame act vi parliamtut ; \\lnch has been farther explained and
.enh'Ktci by se\ciui *ub.->eqtu-nt statutes.
Ind it id to bt ob:tned, that >\hen any poor person is re-
lieved uiulfr this sta'.ute, and money is ordeied to be paid to
Jritt kiy iQSUilmirnis, such money is t> be paid at the
.Beginning of each week, and not. a* washes are, at the eud of
tfae'veek )
As to the duty of oversews in respect to bastards it i* pr-
virled bvirfjt. to'.CJseo. 2, c. 51. that if aoy single v<MDart shall
.be dthierrtl of a 1 u^Urd child, which shall be or shall be likely
Tto bei"UMrcbar^aa!/!e to any parish, < roc hwl place,
florjiitUjojEckreiierst.-if with child, and that .ii i likely
-.to be ininj a basted, cad ak.il, upon out!
charge any pttson with having gotten her \\rli chiid. -n h
jtu'.Ki, on irppBOkbou made to LID i by ilie o\erset^i of the
.poor of Mich .pansh, or one of them, or by aoy iubslantul
housekeeper ot any evtia parochial place, .hull cause such per.
9ODk> be 3pdr:litoikd. and commit him to the COHUDOD gaol.
|)T. R. 395. (r) Sir. 1113. () jT.lt 316*
Of Parish Officer*. 71
or house of correction, unless he shall give security to indem-
nify such parish or place against any charge in respect of such
child, 01 to appear at the next general quarter sessions, and
abide by the order that shall there be made.
And in respect of bastard children delivered in hospital?, it
is piovided by 13 G'eo. 3, c. S2, that if any woman shall be
delivered of any bastard child in any hospital, or place of pub-
lic reception for pregnant wqmen, the keeper or other person
having the management thereof shall, four days before she
shall be discharged therefrom, give notice thereof to the
churchwardens or overseers of the parish where such hospital,
Sec. shall be situated ; and such overseer or churchwarden shall
attend there at the time therein specified, (and so from time to
time, as often as may be necessary, if the woman shall then be
unfit to be removed,) and convey such woman before some
justice of the peace, in order to be examined relative to her
place of settlement, and such examination shall be delivered
in writing to the overseer or churchwardens, and by him or
them deposited amongst the parish books and papers.
The authority of overseers of the poor in respect of 6 ***'
parish apprentices is given by the stat. 43 Eliz. c. 2, whereby ft&fi. 7 A.//V*.
it is provided, that it shall be lawful for the churchwardens and
overseers of the poor, or the major part of them, with the
assent of any two justices of the peace, (one of whom must
be of the quorum,) to bind out as apprentices, where they
shall see convenient, all such poor children of their parish
whose parents are not able to provide for them ; such children,
if male, to be bound till the age of twenty-one, and if female,
till the age of twenty-one or marriage.
By 2 and 3 Ann. c. 6, churchwardens and overseers of the
poor, with the approbation of two justices, or head officers of
cities and towns' corporate, may bind out any boys of the ag
of ten years or upwards, who, or whose parents, shall be
chargeable to the parish, or beg for alms, to be apprentices
to the sea-service, to any of his majesty's ships, or any owner
or master of ships belonging to any port in England, Wales,
or Berwick, until such boys shafl attain the age of twenty-one
* P j T
years.
Churchwardens and overseers of the poor may also, by
SS Geo. 3, c. 48, with the consent of two justices (signified
under their hands,) or the consent of their parents, bind any
boy of the age of eight years, who is chargeable to the parish,
pr whose parents are so, or who shall be^.fqr alms, to be ap-
7 prentice
7S Of Parish Officers.
prentice to any chimney-sweeper, until he attains the age of
sixteen years.
As to the duty and authority of overseers in respect of
rates for the relief <>f the poor, it is enacted ly die 4!i Etiz.
c. '2,ihai the churchwardens and overseers of the poor of every
p:u jsh, or the greater part of iheni, shall, with the consent of
txvo justices of the j>eace, raise weekly or otherwise (but nu
rate ouyht to be made for a longer time than three months)
(*), by taxation, of every inhabitant, parson, vicar, and otkcr,
and every occuper of lands, bouses, tythes impropriate, pro-
priation of tythes, coal mines, or saleable underwoods in the
parish ; a sufficient stock of rlax, hemp, wool, yarn, and other
necessary uare and sniff, to set the poor to work ; and al-o
money for the relief oi' the lame, impotent, old, blind, and other
beinj uoor, and not ab|e to wqrk ; and also for putting out poor
children appreutice, and generally to do all other things con-
cerning the premises, as to them shall seem meet.
But they cannot make a rate for the purpose of reimbursing
their predecessors what they expended whilst in office (j/).
Neither can they borrqw money for the purposes of tht
poor (z)
But if the overseers, \\hile, in office, have themselves made
a rate for any of the purposes aforesaid, and their year expire
before they have collected sufficient of it to repay them-
selves the money they may have expended, their M
are empowered to get in the same, and reimburse their pre-
decessors ; the statute 17 Gco.%, c. 38, enacting, that in < :-e
any person shall neglect to pay to the overseers for the tinu;
being any sum they shall be legally rated to, the succeeding
overseers shall levy such arrears, and reimburse their pmle-
cessors all sums expended for the use of the poor, and allowed
to be due to them in their accounts.
By the 17 Geo. 2, c. 38, it is enacted, that the church-
wardens and overseers of every parish, &c. shall within four-
teen days after overseers shall have been appointed for tin*,
t Mining year, deliver unto such succeeding overseers u
Just account in writing, fairly entered in a. book to be kept
for that purpose, and signed by them, of all sums by them
received, or rated on the inhabitants (though the sum lu i*>t
received), and also of all goods, chattel?, stock, ami mate-
rial* in tbeir luinds, or in the possession of any poor ot the
(*; 6 Mod. Rep. 10. Bl. Rep. 694. (y) i Sou. 75. a 6. {*) Dovg. 1 10.
said)
Of Parish Officers. 73
aid parish, to be wrought or worked, and of all monies b
them the said churchwardens and overseers paid (luring their
office ; and finally of all matters and things relative to their
said office, proper to be transmitted to their -successors.
A* the management and direction of the poor belong parti-
cularly to overseers, we shall treat of their settlement and re-
moval.
The plan of the statue of the 43 Eliz. for providing for the
poor, we have seen to have been the relief of the impotent, and
them only, and the employment of such as Mere able to work
at their own separate homes, instead of accumulating them
together in one common workhouse ; a practice which Sir
\Villiam Blackstone observes, puts the sober and diligent upon
a level, in point of earning, with those who are dissolute ad
idle ; depresses the laudable emulation of domestic industry
and neatness, and destroys all endearing family connections,
the only felicity of the indigent (a).'
The principal defect of this statute seems to have been the
confining of the poor to small parochial districts, which are
frequently incapable of furnishing proper work for the poor,
or of providing them an able director. The laborious part
of the poor were, however, at that time, at liberty to seek
employment wherever it was to be had, none being obliged to
reside in the places of their settlement, but such as were un-
able or unwilling to work ; and these places of settlement
were only such wherein they were born, or in which they had
made their abode for three years. But after the restoration/ a
very different plan was adopted, which has rendered the-em-
ployment of the poor more difficult, by authorising the subdi-
visions of the parishes ; has greatly etfcreased their number by
confining them all to their respective districts ; has mven birth
to the intricacy of the poor laws, by multiplying and remv>-ing
more easy the methods of gaining settlements; and of conse-
quence, has created an infinity of expensive lawsuits bt ' ii n
Contending neighbourhoods concerning those settlements and
removals. Thus, by statutes passed in the reigu ot Charles
the Second, settlements were declared to be gained by birth,
by residence, by apprenticeship, or by service ; afterwards no-
tice of inhabitancy was required; subsequent provisions al-
lowed other circumstances of notoriety to be equivalent to such
nptice, and these circumstances have, from time to time, been
altered, enlarged, aud restrained, whenever the experience ;of
(a) I Bl. Com. 361.
new
74 Of Parish Officers.
new inconveniences, arising daily from new regulations, sug-
gested the necessity of a remedy (b).
The law of settlements may be therefore non reduced to the
follow i. g general heads; or a settlement in a parish may be
acquired, 1. By birth ; for wherever a child is first known to
be, that i> always, prima facie, the place of settlement, until
some other can be shown (<). This in also ir>nerally the place
pf MtttleinfiU of a bastard child ; for : bastard, having iu tl:
eyeot the "law no taili. r, cannot be ref* -ired in his settlement,
as olher children may ('/). Hut, in legitimate children, though
the place of birth be the jtritna facie settlement, ytt it is not
conclusively so ; for there are, 2. Settlements by parentage,
beius ihe settlement of one's father and mother; all legitimate
children oeing real'y settled in the parish \\heie theii parents
are settled, until they get a new settlement tor th m-t Uf s(f).
And if the parent* acquire a new settlement, the children also
follow, and belong to the last settlement <f the latlu r ; or
after the death of the father, to the last settlement of the mo-
ther whilst she is unmarried, till they are emancipated or be-
come independent of their father's or mother's family ; and in
thai CUM, they have that settlement which iheir parent had
at the tiine oi the emancipation ; the operation of which has
aKvajs been decided on the circumstances cither of the son's
bciug twenty-one, or married, or having gained a settlement
in In- own light, or having couti acted a relation, which was
inconsistent \ulh the idea of his being iu a subordinate situa-
tion in his lather's, family (_/")
A new stttltn.etit may be acquired several ways; as S. By
marriage. For a uoman marrying a man \\ho is settled in
another parish, changes her own settlement ; the law not per-
mitting the separation of husband and \\ife (t') But if the
man has no settlement, hcis is suspended during his life, if he
remains in Ki-jiland, and is able to maintain her; but in his
absent e, or after death, she may be removed to her maiden
nettlement (//) But *he cannot be separated or removed from
her husband during his inability to support her; but must be
6upprted ui'-h htr family, as casual poor, in the parish where
they happen to \\ajit relief (/)
The other methods of acqninnp; settlements in any parish
are all reducible to thw one, ut forty day& reside me iln i
(f>) i Bi. Com. 361. 4-,3- f'omH. 3JR4. 81^.485. i 1.<I.
Ky.n. 567. (/) SUt. :447. <t) Ibjd. 518. a Ld. K*)Wfl. 1473-
i j er Lord Kfnyon, } T. R. 356 . Ibid 479. tf) i btr. 544.
(*) Folej, 149. Bur. S. C. 370. () liur. S. C. 813. i Su. 544. CW. 39^
but
Qf Parish Officers. 75
.but this forty days residence (which is construed to be lodging
or lying there) must not be by fraud, or stealth, or any clan-
destine manner j but made notorious, by one or other of the
following concomitant circumstances. The next method
therefore of- gaining a settlement, is, 4. By renting for two
mo.ntlv>, or .forty days only, a tenement of the yearly value of
ten pounds, and residing forty days in the parish, gains a set-
tlement (A). It need not be one entire tenement ; for if on* /
tenement in. one parish, and another in a different parish
amount together to the value of 10/. a year, the person
renting them will gain a settlement by residing in either parish ; \
the value is only .material ; and it will be sufficient to give a set-
tlement, if the enjoyment of the tenement is gratuitous, or if
no rent is to be paid for it(/). Nor is it necessary -that there
should be any house upon the premises ; even a renting of the
aftergrass or pasturage will be sufficient (m).
5.. Executing, when legally appointed, any public parochial
office for a whole year in the parish, as churchwarden, 8cc.
*vill gain a settlement, if coupled with residence for forty
days.
6. Being hired for a year, when unmarried and childless,
and serving a year in the game service, also entitles to a set-
tlement, 3 and 4 W. and M. C- 1 1.
A widower or widow with children emancipated is con-
sidered as childless, for such children cannot loilow the set-
tlement gained by their parent's service (n). And if an un-
married man is hired for a year, but, before he enters upon
the service, or during the service, marries, he may gain a set-
tlement (a). But this will not extend to the continuance in
the service a second year; for he was married when this new
'contract was expressly or implicitly entered into (p) Hiring
for 'any time certainly less than a year will not be sufficient;
tut from Whitsuntide to Whitsuntide is considered a year,
though it will frequently happen to be a period less than .jo5
day's. To gain a settlement as a servant, there must be a
hirtg for ,a year, and a continued service for a year ; but it is
not necessary that the service should be subsequent to the
hiring ; for, if there is a continued service for eleven months,
or any other part of a year, by any number or modeaof hirings,
or with any difference of wages, and afterwards a hiring tor a
year and a service to complete the year, a settlement is
(*) Stat. 13 and 14. Car. 2, c. 12. Bur. S. C. 474. (/) I T R. 458.
() 4T. R. 348. (n) 3 Bum, JuSfc 445. (*} 3 T. R. 3811
(f) Cald. 54.
gained.
75 Of Parish Officers.
gained (7). There seemed to be great reason to think, that
the service subsequent to the hiring for a year should at
least be forty days ; but it is now decided that it is not necei*
*ary (r). The settlement of a servant or an apprentice, is
where they last reside forty days in their master's employ ; fnd
where they do not reside forty days successively in one place,
but alternately in two or more parishes, and more than forty
days upon the whole in each in the course of the year, the
settlement is in that parish in which they deep the tat
pight (.).
7. Being hound an apprentice gives a settlement in the place
where the last forty da\s were served. 3 and 4 IV. and M.
e. 11.; 8 and 9 W. S, c. 10.; 3} Geo.Q.c. 11.
8. The having an estate of one's own, and residing thereon
forty Hays, however small the value may be, in case it bo ac-
quired by act of law, or of a third person,, as by descent, gift,
devise, &.c. is a sufficient settlement (f) ; but if a man acquire it
Ly his own act, as by purchase, (in its popular sense, in conside-
ration of money paid,) then, unless the consideration advanced,
bona jide, be SO/, it is no settlement for any longer time than
the person shall inhabit thereon. Q Gco. I.e.?.
Formerly there were two other methods of gaining a settle-
ment, viz. 1. By notice, and forty days unmolested residence
aft or such notice; and <2. By being charged to and paying the
public taxes and levies of the parish, excepting those for scavuge,
highways, and the duties on houses and windows. But t
species of settlement are abolished by stat. 35 Geo. 3. c. 101,
which enacts, that no person shall in future gain :i settlement
by notice, or the payment of taxes for a tenement of less yearly
value than !()/.
All persons not so settled might, by the 13 and 14 Car. 1,
c. 12, be removed to their own parishes, on complaint or the
overseer?, by two justices of the peace, if they should adjudge
them likely to become chargeable to the parish in \\lmli they
had intruded, unless they had been in a way of getting :i li'qal
>fttlenjeut. But, this statute being an infringement of Magna.
Charta, the legislature, to alleviate the hardship and inconu -
nience introduced by it, provided by the 8 and 9 IV. 3, c. SO,
that if the major part of the churchwardens and of
any parish or township will grant a certificate under their hands
and seals, attested by two wi.. nid allowed and sub-
jcribvd by two justices acknowledging the person and his fa-
Jf) Cild. 179- CO 5 T. R. 5 1. ' (i) Deo|. JJ. (0 \ ** 5*4-
Of Parish Officers. 77-
xxnly therein specified to have a legal settlement in their parish
or township, and shall direct it to .some particular parish or
township, such person, having delivered this certificate to the
parish officers of the place to which it is directed, then neither
he nor his family are removable from thence till they are ac-
tually chargeable. But as the object of the certificate was to
prevent him from bringing any incumbrance upon the parish,
where he is thus permitted to reside, by the 9 and 10 W. 3, c. 1 1,
he is restrained from gaining a Settlement where he lives under
the protection of the certificate, by any means whatever, ex-
cept by renting a tenement of the yearly value of 10/. and by
JL residence in the parish for forty days, or by executing an an-
nual office. But besides these two cases mentioned in the act,
it has been held, that a certificated person may gain a settlement
by residing upon (or having in the parish where he resides) any
estate whatever of his own, provided it has been actually pur-
chased by him, or that he has bond fide paid SO/, for it (it).
But the object of granting certificates is now put an end to
by the stat. 35 Geo. 8,c. 101, which enacts, that no person shall
be removed by an order of removal till he becomes actually
chargeable. But every unmarried woman with child shall be
deemed to be actually chargeable, and also all persons con-
victed of any felony, and rogues, vagabonds, and idle or dis-
orderly persons, and persons of evil fame, or reputed thieves
Dot giving a satisfactory account of themselves, may be re-
moved as if they were actually chargeable. And where a
pauper is ordered to be removed by an order of removal, or %
vagrant pass, in case of the sickness of the pauper, the jus-
tices making such an order may direct the execution of it to
be suspended ; and in the case of an order of removal, the
expences of the maintenance of the pauper shall be borne by
the parbh to which the order of removal shall be made. And
if an unmarried woman is delivered of a child during such
suspension, it shall be settled in the parish which at the time
of the birth was the legal settlement of the mother.
3. OF CONSTABLES.
Constables are of two sorts, high constables, and petty con-
stables. The former were first ordained by the statute of
Winchester, 13 Ediv. I.e. 6; are appointed at the court leeU
of the franchise or hundred over which they preside, or, in de-
(*) i Str ; 163. a Str, 1193. Butr. S. C, wo.
fault
78 Of Parish Officers.
fault of that, by the justices at their quarter sessions; and are
removable by the same authority that appoints them (r). The
putty constables are inferior officers in every tovrn and parish,
subordinate to the high constable of the hundred, first insti-
tuted about the reign of Kd\v. :] (?/).
The exemptions from serving the office are : 1 . Aged per-
sons, incapacitated by weakness; and in Westminster those of
sixty-three years old are expressly exempted. J. \lderrnen
of London. *J. Apothecaries practising in, or within seven
miles of London, free of the company, or in the country, hav-
ing served seven years. 4. Attorhies of the courts of K. B.
and C. P. 6. Practising barristers. 7- Dissenters, being
teachers and preachers, but not others. 8. Foreigners natu-
ralized. 9- Serjeants or private men serving in the militia.
10. President and fellows of the college in London. 11. Pro-
secutors of felons, and the first assignee of the certificate. 12.
Surgeons, free of the surgeons' company iii London, exa-
mined, approved, and exercising that science; and by custom,
all surgeons. It also seems that barbers free of the surgeons'
- ^3
company are exempted (r).
If a gentleman of quality, or physician, officer, &c. be
chosen constable, where there are sufficient persons t>eside,
and no special custom concerning it, it is said that such per-
sons may be nTruved in 15. R. (a}.
Ilie general dnty of all constables, both high and petty, as
ttell as of the other officers, is to Icrop the Ling's peace in their
Several*! ;md to th;it purpose they are armed \\ith ury
large potvern of arresting, mrd imprisoning, of breaking open
houses, and the like, bat with n-srunl t. the infinite number
of duties that :nc htid upon con*tab!r-> 1>\ :l diversity of statnt. -i
v.r r.i'in again refer to Ihfe .above-mentioned jnihlicatiou of
Mr. Paul; in whose compilation may ! e n what pi.^crs
"and duties belong to thi* . '.KHI and indemnity
in the hont -:her \\ith his re-
sponsibility and punishment fur neglect and inalver.-atioii.
4. or v T:N.
P,v the stain'. . !. fl ' Ed. I, it. '-'.> it is
I dcd, that il , pass
by tilt watch, h.- .-hall br :ui it" i\<,
(x) i SjiV (y) I Bl. Com. -;6. (at) Paul's Complt
Piuh Officr, In. Ctiuublc. (* t 9 Hawk. P. C. ica c. lu. s. 41.
pickf
'Of Parish Officers. 79
picion be found, he shall go quit; but if there be cause of
suspicion against him, he shall be delivered to the sheriff, (viz.
to the county or common gaol,) who .shall keep him till he be
acquitted in due manner ; and if such person will not submit
to the arrest, the watchman shall raise hue and cry upon him,
and such as keep the watch shall follow him with the town's-
people, and so in the next town, from town to town till lie be
taken. Or he may force such person to submit to his autho-
rity by beating him, or may set him in the stocks until the
morning, and he shall not be punished for the assault (6).
The watchman may also deliver suspicious persons, j.nd all
night-walkers and vagabonds, to the constable of the district,
or after detaining him till morning, may convey him before a
justice of the peace to be examined (c).
If a watchman take any one for suspicion of^felony, he may
enquire of his good name and fame, and if lie tind him of
good name and fame, he may let him go, without being guilty
of an escape (d).
If a watchman is killed in the execution of his duty it is
murder (e). And should he lose his life in endeavouring to
apprehend a burglar or house breaker, his representatives will
be entitled to receive the sum of 40/. from tke sheriff. 5 Ann*
c. 31. s. .
5. OF PARISH-CLERKS.
Parish clerks were formerly very frequently in holy orders,
and some are to this day. They are. generally appointed by
the incumbent, who, by the 9 1st canon of the church, is to
signify such nomination to the parishioners on the next Sunday
following, either before or after the conclusion of divine ser-
vice. But by custom they may be chosen by the parishioners
at a ve&try held for that purp6se ; and if such custom appears,
the court of king's bench will grant a mandamus to the ardi-
deacon to swear him. in, for the establishment of the Custom
turns it into a temporal or civil right (/').
As parish clerks are regarded by the common law to have
freeholds in their offices, they cannot he deprived of them by
ecclesiastical censures; but they are liable to be punished by
the ordinary (g).
(l>) 5 Burn's Just. 756, Dalt. c. 104. (c) Ibid. (</) Dalt. c. 159.
(<)~ Barn's Just. 768. (f) a Bl. Com. 395. (g) 1. P.al. Abr. 234.
A per-
80 Of Parish Officers.
A person chosen tr> be parish clerk must be a* least twenty
rs of age; be able to read and write, and should bavt. a
. competent knowledge of psalmody.
6. OF SEXTONS.
Sextons, like parish clerks, cannot be removed from their
offices by the ordinary, though they may be censured or
punished by him (A). He is chosen by the parish, and his
business is to keep the church and pews cleanly swept, and
suflic'u ntly aired, to make uraves and open vaults for the burial
' of the dead ; to provide (under the churchwardens' direction)
candies, &c- for lighting the church ; bread and wine, and other
" necessaries for the communion, and also water for baptisms;
. to attend the church during divine service, in order to open the
pew-doors for the parishioners, keep out dogs, aiid prevent
disturbances, &c.
7. OF VESTRY-CLERKS.
Vestry-clerks are choseri by the vestry, during pleasure.
Their business is to attend all parish meetings; to draw up
and copy all orders and other acts of the vestry, and to give
copies thereof to the parishioner-* when required. They arc
also to have the charge and custody of all books and papers
belonging or relating to the biuiaess of the vestry (/).
8. OF BEADlts.
This is an officer appointed by the vestry. His business is
to give notice to the paibhi<>ners when and where a vestry is
appointed by the churchwardens ; to attend upon it vvhen met,
and to execute its orders. He is also to assist the church-
wardens, overseers, and constables in their respective dir
when commanded, and generally to do and execute all the
orders and business of the vestry and of the parish (A").
9. OF SURVEYORS OF THE HIGHWAYS*
\Vr are next to co-.isid. r the" snr\e\<.rs of the highways.
Every parish is bound of common right to keep the high roads'
. . 234. a Leo, jS. () i Shiw, r. 1. 59. (fc) IbiJ.U.
8 that
Of Parish Officers. 31
that go through it, in good and sufficient repair, unless by reason
of the tenure of lands, or otherwise, this care is consigned to
some particular private person. From this burthen no man
was exempt by our ancient laws, whatever other immunities
he might enjoy. And indeed now, for the most part, the care
of the road.s only seems to be left to parishes ; that of bridges
being in great measure devolved upon the county at large, t>y
stat. 2-2 Hen. 8, c. 5. If the parish neglected these repairs,
they might formerly, as they may still, be indicted for such
their neglect ; but it was not then incumbent upon any parti-
cular orricer to call the parish together, and set them upon this
work; for which reason, by the statute of 2 and S Ph. and
AI. c. S, surveyors of the highway* were ordered to be chosen
in every parish.
These surveyors were originally, according to the statute of
Philip and Marl/, to be appointed by the constable and
churchwardens of the parish; but now they are constituted by
two neighbouring justices, out of such inhabitants or others
as are described in statute 13 Geo. 3, c. 78, and may have sa
laries allotted to them lor trouble.
Their office and duty consists in putting in execution a va-
riety of laws for the repairs of the public highways; that is, of
ways leading from one town to another : all which are now re-
duced into one act by statute 13 Geo. 3, c. 78, which enacts,
1. That they may remove all annoyances in the highways, or
give notice to the owner to remove them, who is liable to
penalties on non-compliance. 2. They are to call together all
the inhabitants and occupiers of lands, tenements, and heredi-
taments within the parish, six days in every year, to labour in
fetching materials or repairing the highways: all persons keep-
ing draughts-,^ (of three horses, Sec.) or occupying lands, being
gbliged to send a team for every draught, and for every 50/.
a year, which they keep or occupy; persons keeping less than
a draught, or occupying iess than j()l. a year, to contribute in
a less proportion; and all otkcr persons chargeable, between
the ages of sixteen and sixty-five, to work or hnci a labourer.
But they may compound with the surveyors at certain easy
rates established by this act, as also 34 Geo. 3, c. 74, s. 3 ; 44
Geo. 3, c 52, s. 2. By the former of which acts (viz. 34
Geo. 3,) justices are-empowered to exempt thy poor occupiers
of tenements from the payment of assessments towards the
highways, and the whole burthen of the repairs of such high-
ways is thrown upon the occupiers of tenements. And every
cartway leading to any market-town must be made tweuty feet
G wide
82 Of Corporations.
vide at the Uast, if the fences will permit, and may be in-
\ed b\ t\vo justices, at the expence of tlie parish, to the
bieadth of thirty feet. Also two justices, where tht-y think it
will render the road more commodious, may order it to be
diverted; but this power to enlarge do- not ex4$nd to pull
down any buildings, or to take in llie ground ol any rard n.
paddock, court, or yard. And no tree or bush shall be permit-
ted to p-ow in any highway, within liftcen feet from the eentre
of it, except for ornament or shelter to a house; and
owners of the adjoining lands may be compelled to cut their
hedges, so as not to exclude the sun and wind from the high-
way 3. The surveyors may lay out thtir own money in pur-
chasing materials for repairs, m erecting utiide- posts and
making .drains, and shall be reimbursed by a rate, to be al-
lowed at a special sessions.
CHAP. X.
Of Corporations.
A CORPORATION is a person, in a political capacity, created
t>y, the law, and is a body politic framed by policy and fiction
to endure in perpetual succession; for as all personal rights die
with the natural person, and as the necessary forms of invest-
ing a siries of individuals one after another with the same
individual rights woidd be very inconvenient, if not imprac-
ticable, it has been found necessary, v.hen it is for the uu
tage of the public to have any particular rights kept on
and continued, to constitute artificial persons, who may main-
tain a perpetual succession', and enjoy a kind of legal immor-
tahty (/).
Of corporations some are sole, some n'lcrreu;- when
in one shit;' 1 \ "i, as the king, a bishop, adiar., , -
gre^iiie, which is the mast usual, ^con.-i.'ting of many persons,
a's mayor and commonalty, dean anil chapter, &.C. C
tioiis are likewise spiritual or temporal; spiritual, of him
rh ;.;is arrhdt u. mis parsons, vicars, &c.; temp-md, of ma
liinonalty, baililVs, ami hur^essrs, c
mi-.-Jl i-iitii! scd of, spiritual and temporal per
such a> h. :M'S of colleges, ami 1 Stc.
I . . ' ;. i> sprts, ci-.il and elcr-.
f jlc t;>U ait-'crcctcd fora variety of purposes; as the king, to
(/) Wool's Jut. icJ.
prevent
Of Corporations. 83
prevent an interregnum or vacancy of the throne ; a mayor and
commonalty, bailiff, and burgesses, and the like, for the ad-
vancement and regulation of manufactures and commerce.
The eleemosynary sort are such as are constituted for the per-
petual distribution of free alms, or bounty of the founder of
them, to such persons as he has directed, as all hospitals, col-
leges, &c. (m).
A corporation may be created by the common law, by the
king's charter, by act of parliament, and by prescription.
When a corporation is created, a name must be given to it, and
by that name alone it must sue and be sued, and do all legal
acts ; for the name is the very being of its constitution ; and
though it is the will of the king that erects the corporation,
yet the name is the knot of its combination, without which it
could not perform its corporate functions (/z).
When a corporation is duly created, all other incidents are
tacitly annexed to it: as, 1. To have perpetual succession ; and
therefore all aggregate corporations have a power, necessarily
implied, of electing members in the room of such as go off (o).
And where the mode of election is not prescribed by the
charter, or established by immemorial usage, it may be regu-
lated by a bye-law (/) 2. To sue and be sued, implead or
be impleaded, grant or receive by its corporate name, and do
all other acts as natural persons may. 3. To purchase lands,
and hold them, for the benefit of themselves and their suc-
cessors ; and to have a common seal. But to enable corpo-
rations to purchase and hold lands in mortmain, they must
have a licence from the king (q). 4. To make bye-laws or
private statutes for the better government of the corporation..
And where the power of making bye-laws is in the body at
large, they may delegate their right to a select body, who thus
become the representative of the whole community (/). But
no trading company is, with us, allowed to make bye-laws,
which may affect the king's prerogative, or the common profit,
of the people, under a penalty of 40l. unless they be approved
of by the chancellor, treasurer, and chief justices, or the judges
of assize in their circuits; and even though they'be so ap-
proved, still, if contrary to law, they are void (s).
Corporations may have power not only to enfranchise free-
men, but to disfranchise a member, and deprive him of his
() I Bl. Com. 470. (B) Hob. 211. TO Co. 33. ( ) i Rol.
Abr. 514. (f) 3 T. R. 189. ( f ) Co. Lit. z, 7 and 8 W. 3, c. 37.
\r) 3 Burr. 1837, (i) j Rol. Abr. 514. 19 Hen. 7, c. 7. u Co. 54.
& S freedom,.
84 Of Cqrporation*.
freedom, if he does any act to the prejudice of the bom, or
contrary to his oath, &c. Though tor conspiring to do anv
thin.: contrary to his duty, or for words of contempt a-rain-i the
chief officer, he may not he disfranchised, hut he inav he com-
mitted till he tind sureties for his irood behaviour (/X Neitlici
an a corporation disfranchise for breach of a bye-law '
.And one wrongfully disfranchised may be re>torcd, and h:\<-
Ins remedy by mandamus, &c. in B. 11. AM uldenmn or IV-
man of a corporation cannot be removed from Ins fi.'cdi!i ><
place without good cause, and a custom to miK>ve t!i- m ad
libitum is void, becau-e the party lias u freehold therein t / '.
An a'4:;r.-;iaU' corporation must always appear bv alto.
it cannot be made plaintiff or defendant in an action of bat-
teiv, or for the like peVsonal injuries; it cannot commit tn :.
r felony, or other crime, in its corporate rapacitv, though its
members may in their iiulividual capacities : it is inn , ij>al>i
suffering a traitor's or a felon's punishment, for it is not liable
to corporal penalties, nor to attainder, forfeiture, or corruption
of blood. It cannot be executor or administrator. 01 ptiloiiu
any personal duties. It cannot be seized of lands to ilu
of another; neither can it be committed to prison, and tin
fore cannot be outlawed. It cannot be cxcommnnicati c
summoned into the ecclesiastical courts, on any account. Imt
an aggregate corporation may take goods and chattels to:
bent lit of themselves and successors, which a sole cor|><>i:,;io; (
cannot do. In ecclesiasticaf or eleemosynary corporations the
kin, or founder, may mark out the rules and ordinam .-- th.-y
shall observe; but corporations instituted for civil |
are only subject to the common law, ami their o\\n )
not repugnant to the laws of the realm. A
t.ons also, that have by their constitution a
warden, or master, cannot do :mv acts during the \.
flic headship, except only appointing another; butt!
.1 corporation aggregate without a head, as tbegOfcmon of
I liarVrhouse. In agu'ieiiale corporalions also, the act of
major part i-- e-teemed the act of tin- \\hole. .No < -ipo-
rat ny description, can take a devise of land
by. '. C, !, for charitable uses, which exception is nar-
vcd by 9 < . 1>;. an nbridirement of tlu-ir pii\,
o> pun basing from any living grantor without the king's li> i-nee :
.e.h jiurcha-es made by corporate bodies are considered i<
"o. s*. 5 Mad. 157. (*) i Lil. 331. (xj Cro. Jac. 543.
be
Of Corporations. 85
!)t purchases in mortmain, of which we shall treat here-
after (//).
The ordinary is the visitor of all ecclesiastical corporations;
and the founder, his heirs. and assigns, of all lay corporations,
whether civil or eleemosynary (2).
A corporation may be dissolved, 1. By act of parliament.
2. By the natural death of all its members, in cases of an ag-
gregate corporation. 3. By surrender of its franchises into
the h?w!s of the king. 4. By forfeiture of its charter through
negligence, or abuse of its franchises; in which case the la\r
judges that the body politic has broken the condition upon
which it was incorporated, and thereupon the incorporation is
void. And the regular course is, to bring an information in
nature of a writ of quo warranlo, to enquire by what warrant
the members now exercise their corporate power, having for-
feited it by such and such proceedings (a).
To facilitate the proceedings in cases of mandamus and quo
carranto, and to prevent any undue advantage on either side,
the statute 'i '2 Geo. 3, c. 21, provides, that where any person
>hall be entitled to be admitted a freeman, &c. of any corpo-
ration, &c. and shall apply to the proper officer to be admitted,
and shall give notice of his intention to move the court of
king's bench for a mandamus in case of refusal, the officer
shall pay all the costs of the application. And the same sta-
tute enacts, that the proper officer shall, on the demand of two
freemen, permit them and their agents to inspect the entries of
admission of freemen, and to take copies and extracts, under
penalty of 100/.
And to prevent improper conduct in trading corporations
in elections, and in disposing of the joint stock, it is by stat.
7 Geo. 3, c. 48, enacted, that no member of such corpora-
tion shall be admitted to vote in the general courts, unless he.
shall have been six months in possession of the stock necessary
to qualify him; unless it comes to him by bequest, marriage,
succession, or settlement.
No stranger shall sell by retail any woollen or linen cloth,
or mercery wares, in corporate towns, except at fairs, on pain
of forfeiture, &c. But by 1 and 2 P. and M . c. 1, such per-
sons may sell wares by wholesale, and cloth of their own
making by retail.
(y) i Bl. Cora. c. 18. (*) Ibi<i. (a) Ibid,
CHAR
86 Of Master, Servant > and Apprentice*
CHAP. XI.
Of Master and Servant.
SERVANTS are of several kinds. The first sort ac-
knowledged by the laws of England arc menial servants ; so
called from being ititra mania, or domestic servants living
within the walls of the house. The contract of relation be-
tween master and servant arises from the hiring. If the hiring
be general, without iiiiy particular time mentioned, the law
construes it to be a hiring tor the year, upon a principle of
natural equity, that the -.eivant shall serve and the master
maintain him, throughout all the i evolutions of the respective
seasons; but the contract may be made tor anv longer or
shorter time (/>). By tin; statute 5 tiliz. c. 4, all single men
between twelve years old and sixty, and married men under
thirty years of age, and all single women lxtv> * en twi-ke and
forty, not having any visible livelihood, are compellable by
two justices to go out to service in husbandry, or certain
specific trades. And on every general hiring for a year, a
ijuurler's warning must be given before the contract can be
dissolved ; unless some reasonable cause, to be allowed b\ a
justice of the peace; but they may part by consent, or make
a special bargain. But it has been held, that a ina-ttr may
turn a servant away for incontinence, or moral turpitude,
without any notice; i-.,r >uch misconduct produces a d.
Intion of the contract (c). But a Mi\ant cm viis-
charged for being the fatl:< r ot a bastard child, if the crime
was coivmitted prior to the master's hiring of him
The statute 20(/c'i.'J. c. 19 gives the maun ate juris-
diction to determine differences between masters ai.d seivanu
hired in 1 ::>! o.ndry, where the sum dots not exceed tt u
pound-, :;nd wjlh re-pect to artificers, haudu -lal'l-man. mn
&c. or ether labourers hired for any ceitam turn , vln ir the
unm dors not exceed five pounds. Tl.e vvoul labouier ill
ibis sta' : - i" lal'cuifis tf all dt>< i.|'ti- "*(?)
nd kind of servants are apprentices (from ap-
prendre, to loam), and arc usually bound for a term of )eais
(*) Co. Lit. 41; (0 C*W. Ca. 14, 57. (i) Ibid. IJ 9 . () 8 Eufi
Of Master, Servant, and Apprentice. 87
by deed indented or indentures, to serve their masters, and be
maintained and instructed by them.
[t seems clearly agreed, that by the common law, infants,
or persons under the age of twenty-one, cannot bind them-
selves apprentices, in such a manner as to entitle their master
to an action of covenant, or other action against them, for
departing from their service, or other breaches of the inden-
tures; which makes it necessary to get some of their friends
to be bound for the faithful discharge of their offices, accord-
ing to the terms agreed on (f). And notwithstanding the
statute 5 Eliz. c. 4, enacts, that although persons bound ap-
prentices shall be within age at the time of making their in-
dentures, they shall be bound to serve for the years in their
indenture contained, as if they were at full age at the time
of making them ; it has been held, that although an infant
may voluntarily bind himself an apprentice, and if he continufe
an apprentice for seven years, he may have the benefit to use
his trade ; yet neither at the common law, nor by the words
of the abovementioned statute, can a covenant or obligation
of an infant for his apprenticeship bind him ; but if he mis-
behave himself, the master may correct him while in his ser-
vice, or complain to a justice of the peace to have him pu-
nished according to the statute ; but no remedy lies against an
infant upon such covenant ( g).
But, by the custom of London, an infant unmr.rried, and
above the age of fourteen, may bind himself apprentice to a
freeman of London, by indenture with proper covenants ;
M hich covenants, by the custom of London, shall be as binding
as if they were of full age.
By stat. 6 Eliz. c. 4, s. 35, the justices may compel cer-
tain persons under age to be bound as apprentices, and on
refusal may commit them, &c. And by stat. 43 Eliz. c. C Z,
and 18 Geo. 3, c. 47, churchwardens and overseers of the
poor, may bind out the children of the poor to be appren-
tices, with the consent of two justices ; if boys till twenty-
one; if girls till that age or marriage. And by statute 8
and 9 W'3, c. 30, s. 5, if any person refuse to accept a
poor apprentice, he shall forfeit 10/. Also justices of the
peace, and church wardens, &c. may put out poor boys ap-
prentices to the sea-service, stat. '2 and 3 Ann. c. 6, and
(/) ii Co. 8g. b. * Inst, 379, 580. . teen. 63, 7 Mod. 15. (g)
C[<. Car. 179. Cro. Jac. 154.
4
83 Of Master, Secant, and Apprentice.
4 Ann. c. 19. And by .stat. 7 Jac. 1, c. S, apprentices bound
out bv public charities are regulated.
Indentures must be enrolled in all towns corporate under
titat. .5 Eliz. c. .;, and 5 dco. 2, c. 46; and in London, by
MII, in the chamberlain's office.
In London, it" the indentures be not enrolled before the
chamberlain within a year, upon a petition to the mayor and,
jilderman, &.c. a s, iic facias shall issue to the master, to
fliow can.se why not enrolled ; and if it was through the mar-
tyr's default, the apprentice may sue out his indenture.*, and
be discharged: otherwise, if through the fault of tin- ap-
prentice, as if he would not come to present himself b i<uv
die chamberlain, Sec. for it cannot be enrolled, unless the ap-
prentice be in court and acknowledge it (/t).
Indentures are likewise to be stamped, aud are chargeable
with several duties by act of parliament.
Bv stat. 8 Ann. c. 9, made perpetual by () Ann. c. 21, a
duty of sixpence in the pound under lifty pounds, andtweUe-
pcnce in the pound for sums exceeding it, given with appren-
tices (except for poor apprentices) is granted. And if the full
sum agreed be not inserted, or the duty not paid, indentures
shall be void, and apprentices not capable of following trades;
and the musters are liable to oO/. penalty.
But there are several statutes allowing farther time to pay
the duties and stamp indenture-, omitted through in
&c. And acts of indemnity of this nature aie usually passed
every two years.
r lhc payment of th duties on apprentice-fees is eofoi
by acts, 18 Gect. 2, c. 2'2 ; 'JO (u-o. -2, c. '.2.3 ; the furme-r of
which provides, that if the apprentice shall pay the dutir.-,
on tbe neglect of the master, he may ieeo\<r pack the ap-
prentice fee; and the latter, that if no suit is comnn
and the master shall pay double duties within two
after tie end of the apprentireship, the indentures shall !
]jd, or tl.e apprentice may pay them, and in such case rc-
i double tl.e apprentice fee, l-y aclion fu.m his master.
1 lie justices o the peace may disdiaig'- an up.nenticc
not o ilv on tin.- di i";:ull of the maslei , but also on hi-
default ; for in sucli < a-e it is but reasonable that the routiai t-,
which were made by their aiuhoriiy, should be <ii-<.!\td by
. -ne power (/'). And under the beforementioned statute
i Rol. Rep. 305. Pilra. 361. i Mod. a;i. (0 Skie. 108 5 Mod.
7i. '
5 Eltx,
Of Master, Servant, and Apprentice. 89
S //r. c. 4, justices, or the sessions, may hear and determine
disputes between masters and apprentices ; and the sessions
may discharge the apprentice, and vacate the indentures, or
correct the apprentice. By stat. 20 (/eo. <2, c. 19, parish ap-
prentices may be discharged in the same manner by two
justices. And by 32 Geo. 3, c. 57, whtre a parish appren-
tice is discharged from a master on account of ihe misconduct
of the master, the justices may order the master to deliver up
the clothes, and to pay a sum not exceeding lOl. to place him
with another master.
By the 33 Geo. 3, c. 55, wherever a master or mistress has
not received more than 10/. with an apprentice, two or more
justices at a special or petty sessions may, upon complaint
or ill use of 4he apprentice, tine the master or mistress any
sum not exceeding forty shillings ; and the fine may, at the
discretion of the justices be applied to the use of the ap-
prentice, as a compensation for the injury which he may have
sustained.
\\ hatever an apprentice gains is for the use of his master ;
and whether he was legally bound or no, is not material,
if he was an apprentice de facto (/c). And an apprentice
leaving his master's service, must serve beyond the term for
the time he was absent, if it be within seven years after the
expiration of his term (/).
If a master gives an apprentice license to leave him, he
cannot afterwards recal it. And if a master discharges hi.s
apprentice on account of negligence, equity will decree him
to refund a rateable part of the money given with him,
according to the length of time he has been in his service (?).
So, if an apprentice marries without his master's privity, that
will not justify his turning him away, but he must sue his
covenant (tt). But, by the custom of the city of London, a
freeman may turn away his apprentice for gaming (o).
A master may correct and chastise his apprentice for ne-
glect or misbehaviour, provided it be done with moderation ;
but his mistress is not entitled to the same power (p).
The enticing an apprentice to depart from his master sub-
jects the offending party to an action on the case (</).
An apprentice is protected also from being impressed (/).
(4) i Salk. 68. (/) Ves. 8 j. 6 Mod. 69. Stat.. 6 Geo. 3, c. 26.
(m] i Vern. 460. () z Vern. 492. (o) Ibid. 241. (f) Bl. Rep. 428.
{?) 3 Bur. 1306. (r] i Burn. Just. 134.
With
90 Of Master, Servant, and Apprentice.
With regard to the assigning of apprentices, it has been
held that they are not assignable (s). But, by the custom of
London, he may be turned over to another (?) And if the
assignee does not provide for him, the tirst master may bo
compelled to do it (M).
And this inability of assigning apprentices extends to jus-
tices of the peace, who, though they have the power of dis-
charging apprentices, and of binding them to other mas-
ters, yet they cannot turn them over ; and therefore an order,
that an apprentice, whose muster was dead, should serve the re-
mainder of his time with the husband of his master's widow,
was quashed (JP).
By the death of either the master or apprentice, the in-
terest being a mere personal trust, is determined. But if
the master covenant to find the apprentice, during tin- term,
in necessaries and clothing, the death of the master will not
detei mine the condition, but his executors will be bound to
perform it as far as they have assets (//).
In the case of Coam r. Bowden and Eyles, the master having
received 2oO/. with his apprentice, it was determined, that
after specialty debts were paid, the executors should repay the
2oO/. first deducting for his maintenance '2<V. a year for the
fAn years the apprentice had served (z\ The same practice
takes place when the master becomes a bankrupt (a).
\Ye now come to treat of the nunim-i in \\hieh the
tion of service, affects either the master or sen ant. ^
vants, by a hiring for a year, and apprentices by their binding,
gain a settlement in the parish where they M -no the last ;
days. Apprentices, serving s< vui yeais as apprentices to any
trade, have an exclusive right to c.\ein>e iliat trade in any
part of Ivijjand, stat. h FJiz. c. 4. But no trades are held
to be within the statute, but such as weir- in being at the
making of it (M : for trading in a country village, apprentice-
ships are not requisite (c.) : and following the trade
either :is a master (</), or a servant, or a- the mnMir> v
(r), without any ett.( tna! piosecution, is sutiicicnt without an
actual apprenticeship * (J).
(0 Dalt. c. 58. (r) i Bon. P. L. 57*. pi. 811. () i Sen. C
(x) Comb. 314. (y) i Uv. 177. i Sjlk. 66. () i
{) K* parte Sandby, Atk. 149. (*) Ld. Rayrn. 514.
^ K.b. 583- (d) I Wil.. 16?. (*) 1 Barr..;67. (/) Ld. Riym. 11-9.
* The penalty far exrrci>ing a trade without having terved an afpicnticeihip,
i* 40*. a month, 5 Elit. c. 4.
Though
Of Master, Servant; and Apprentice. 91
Though a master may by law correct his apprentice for
negligence or other misbehaviour, yet he is not allowed to beat
any other servant ; for if he does, it is a good clause of departure,
or at least of complaint to a magistrate, in order to be dis-
charged. But if any servant, workman, or labourer assaults
his master or mistress, he shall suffer one year's imprisonment,
and other open corporal punishment, not extending to life or
limb, stat. 5 Eiiz. c. 4.
If a servant retained for a year, happens within the time
of his service to fall sick, or be otherwise hurt or disabled in
the service of his master ; the master cannot put him away,
nor abate any part of his wages for that time (g).
A master is not bound to give a servant a character, there
being no legal obligation to that effect. But if he does give
a character, he must take care to give a true one ; though if
the words are spoken in conlidence and without malice, no
action lies ; as where a mistress told a lady, enquiring after
the character of a servant, that she was saucy and impertinent,
and often lay out of her own bed ; but was a clean girl, and
could do her work well ; notwithstanding the plaintiff proved
that she was by this means prevented from getting a place.
But had this been said without ground, and purely to defame,
action would lie (//)
Let us, lastly, see how strangers may be affected by the
relation of a master and servant.
And, first then, a master may support or maintain his
servant in any action at law against a stranger, or may bring
an action against another for beating or maiming him, as-
signing as a ground for the action, a loss of service (/) ; or he
may even justify an assault in his defence; as may a servant
in defence of his master (k). And if any person knowingly
hire the servant of another, while in the service of the first mas-
ter, the iirst master may have an action to recover damages
against the servant and the person hiring him, or either of
them ; but if the new master did not know that the ser-
vant was already hired, no action lies ; unless he afterwards
refuse to restore him upon information and demand (/).
As for those things which a servant may do on behalf of
his master, they seem all to proceed upon this principle, that
the master is answerable; for the act of his servant, it done by
his command, either expressly given or implied: nam quifacit
(g) Dalt. c. 58. (b) 3 Esp. Rep. 201. Bui. N. P. 8. (f) z Rol. Abr.
l*j. 9 Co. 113. () 2 Rol. Abr. 546. (1) F. N. B. 167.
-per
.02 Of Master, Serein t, and Apprentice.
per uliuin, facit per sc (/;.). And therefore, it" a servant com-
mit a trespass by t!><; command ;!iiti < U'-OUIH:< incut of his
master, the master shall be guilty of it, thoujli ilie servant
is not excused tlieub\ ; for In- is only to >l-e\ ln>> master
in matters that art- honest, and lawful. If an innk . |> -i-V -< i-
vunts rob hi- 'md t<> iv.ntu'ii.u (n\
if tlio drawer at a tav< in sells a wan I.M| wine,
v hereby, his health is injured, he may bring an : mist
tlie inasti r (o).
in the same manner, whatever a servant is p-rmiUed to <i in
the COtiree ot' his business, is equivalent to a gi ncial r'mma.d.
It' I pay money to a banker's servant, the banker i* :'.iis\\uabl
lor H : if i pay jn-mey tu a eli ruMiian's or )>' nit.
whose usual business is not to receive money tor lu^
and he embexxles it, i must pay it over :i^in. If a stew aid
kts a lease of a farm, without the owner's knowledge, tlic
ow>r muststaud to tlie bargain ; for this is the steward's Im-
siiuss. A wife, a friend, a relation, that use to transact bu-
Mue.ss lor a man, are f/u<>ud hoc his servants ; and the prin-
cipal must answer for their conduct. If i deal usually with
a tradesman by myself, or constantly pay him ready money,
J am not answerable for what my servant takes up upon tru-i :
tor here is no implied order to the tradesman to trust my
sen ant: but, if i usually send him upon tr: JIMS
upon tin^t ;;nd sometimes with ready money, 1 am aiiMveiable
im all he takes up; for the tradesmen cannot pos^hly dis-
tinguish when he comes by my order, and \\hcii he c-
upon his own authority (/)). And if I once pay what my
servant has -bought upon trust, without expressing my d ^ap-
probation of it, it is equivalent to a direction to trust him in
future; and i shall be answerable for all lie takes up upon cre-
dit, till an expiess order is giveu to the tradesman not to
linn faitlm credit (f/) .
Lastly, if a servant, by his m-gliiience, does any dttMgl
to a :, the master .shall ansun for his neglect. 1
.:.. ml lame-. :ilior>e \\ hile he is shoeing him, an a> '
tlie mush r, and not against the servant, l^ut iu
th( . the damage must be done while !)<> is actually om-
j>loyid in tin- ma-lei'-. SIIMCC; otherwise the servant shall
answer for his ow 11 nn-lx ha-.iour. I JH n this principle,
the common law, if a servant kept his n::Mi i's {'IP- ii-
() 4 lnt. 109. (r)N - r.43. () j RoL Abr. 95. (f) i BL
450. (f) Ibiu. n.
Of Master, Servant, and Apprentice. 93
/, so that his neighbour's house was burnt down thereby,
an action will lay against the master, because this negligence
happened in his master's service : otherwise, if the servant,
going along the street with a torch, by negligence sets fire to
a house; for there he is not in his master's immediate ser-
vice, and must himself answer the damage personally. But
now the common law is, in the former case, altered by the
jstat. () Ann. c. S, which ordains, that no action shall be
maintained against any, in whose house or chamber any fire
shall accidentally begin. But if such fire happens through
negligence of any servant, such servant shall forfeit 100^. to
i i distributed among the sufferers ; and, in default of payment
shall be committed to some workhouse, and there be kept to
hard labour for eighteen months. A master is, lastly, charge-
able if anv of his family lays or casts any thing out of his house
into the street or com 11*1011 highway, to the damage of any in-
dividual, or the common .nuisance of any of his majesty's
liege people: for the master has the superintendance and
charge of all his household.
But where the act of the servant is wilful, the master is not
-iv>|HM>;iible, unless the act is done by his command or assent.
But .where the mischief ensues from the negligence' and
unskilfelnesa of the servant, so that an action upon the case
must be brought, and not an action of trespass, then the mas-
ter will be answerable for the consequences, if it is shewn, that
the servant is acting in the execution of his master's business
and authority (/).
To prevent masters from being imposed upon in the cha-
ruotiTs of their servants, it is enacted by the 32 Geo. 5, c. 5(3,
that if any person shall give a false character of a servant, or
a false account of his former service ; or if any servant shall
give such false account, or shall bring a false character, or
shall alter a certificate of a character, he shall, upon convic-
tion before a justice of the' peace, forfeit 20/. with 10s. cost.
And if any servant will inform against an accomplice, he shall
be acquitted.
An action was tried at the sittings after Trinity Term, 1792,
fct Guildhall, against a person who had knowingly given a
false character of a man to the plaintiff', who was thereby in-
duced to take him into his service. But this servant soon
Afterwards robbed his master of property to a great amount 1 ,
for vvhic!) he was executed ; and the plaintiff recovered da-
mages against the. defendant to the extent of his loss (s).
(r) i East. 106. (i) Parley t>. Freemaa.
CHAP.
9* Of Husband and Wife.
CHAP. XII.
Of Husband and Wife.
THE law considers marriage in no other light than a civil
contract; and therefore like all other contracts, it is cood
when the parties at the time of making it were willing to
contract, able to contract, and actually did contract, in proper
form of la\v (t).
As to the tirst, the maxim is, that consensus, iinn mn-
cubitus, facit mtptisa. As to the second, all persons are able
to contract themselves in marriage, unless they labour under
the canonical disabilities of precontract, consanguinity or re-
lation of blood, and affinity or relation by marriage, and sonio
particular corporeal infirmities (but these disabilities only
render the marriage voidable, and not tpxtfacto void) ; or under
the civil disability of a prior marriage, as having another hus-
band or wife Jiving (M) ; of being under age; of wanting the
consent of parents or guardians; or of being insane (r).
As to the third, no marriage actually performed, is by tin-
temporal law, ijmo facto, void : that is, which is celebrated
by a person in orders, in a parish church or public chapel (or
elsewhere by special dispensation) in pursuance of bunds, or
a licence, between .single persons consenting, of sound
mind, and of the age of twenty-one years, or of the age of
fourteen in males, and twelve in females, with consent o( pa-
rents or guardians, or without it in case of widowhood. .Ami
110 marriage is voidable by the ecclesiastical law, after tin-
death of either of the parties, or during their livt tor
the canonical impediin< nts of precontract, of consanguinity,
of affinity, or of corporeal imbecility, subsisting prexio:.-
the marriage ( iy).
Marriages may be dissolved either by death or by divorce.
Divorce is either a rinculo matfimOHtt, for some of tin
in.nieal causes before mentioned, and thos 'ore
the marriage, as is always the case in consanguinity ; iu>t
supervenient and ari.-ins; Afterwards, as may be the c;re in af-
finity or corporeal imbi < ilit\ ; or nicielv, a inen&a tt thoro,
for some supervenient cause, which makes it improper or
Lit. 112, (*) Ibid. 33. (*) I Bl. Com. c.
) Jl"J-
impossible
Of Husband and Wife. 95
impossible for the parties to live together ; as in the case of
intolerable ill temper or adultery in either of the parties.
In case the divorce is a vinculo matrimonii, the marriage is
declared null, as having been absolutely unlawful a b initio ;
and the parties are therefore separated, pro salute animarum ;
but in divorce a mensa et tkoro, the marriage is suspended,
but not destroyed (2).
In case of divorce a mensa et thoro, the law allows alimony
to the wife, which is that allowance which is made to a wo-
man for her support out of her husband's estate : being
settled at the discretion of the ecclesiastical judge, on con-
sideration of all the circumstances of the case. It is ge-
nerally proportioned to the rank and quality of the parties.
But in case of elopement, and living with an adulterer, the law
allows her no alimony.
The law considers husband and wife as one person ; for
the very being or legal existence of the woman is suspended
during marriage, or at least is incorporated and consolidated
into that of the husband, under whose wing, protection, and
cover, she performs every thing, and therefore is called afeme
covert. A man, therefore, cannot grant any thing to his
wife, but by the intervention of trustees (a), or enter into
covenant with her; for the grant would be to suppose her
separate existence ; and to covenant with her would only be
to covenant with himself (b). But a woman may be attorney
for her husband, for that implies rather a representation of,
than a separation from him (c). And by the assent of her
husband, she may contract as his substitute, as in case either
of sale or loan. This assent may be either expressed or im-
plied; it may be prior or subsequent to the contract. If prior
and communicated to the defendant, the contract made is an
actual contract and not merely virtual with the husband ; if
subsequent, then the wife's contract is inchoate and imperfect,
until affirmed by her husband ; and such affirmation, if given,
transfers the contract to him (d ). If the wife be indebted be-
fore marriage, the husband is liable to such debts, and the
husband and wife may be sued for them during the cover-
ture (?). But if these debts are not recovered against the hus-
band and wife, in the lifetime of the wife, the husband cannot
be charged for them, either in law or equity, after the death
of the wife ; unless there is some part of her personal property
()'iB:. Com. c. 15. (a) Co. Lit. 30. (b} Ibid. 112. (c) Cro.
Car. 551, (d] z'Bl. Rep. 873. ( e ) 3 Mod. 186. F. JN T B. IZQ.
which
9t> Of Husband and I fife.
which he did not reduce into his possession before her denlli :
to the extent of which, hit \vill be liable to pay his wife's
debts dttm sola, which remained undischarged during tiie co-
verture (/). I'ut if the wife survive the husband, an action
wiay be maintained against her for these debts Co-). If t) ie wife
fee injured in her person or property, she can bi!:rr no action
for redress without her husband's < onriinence, and in his
name as well as her u\vn (//) : neither can she be sued with-
out making her husband a defendant. Tin-re is indeed one
case, where the wife shall sue and be sued as a /'a/if sole,
vix. where the husband has abjured the realm, Or it banished,
for then he is dead in law (/). Hut this principle will not
extend to. an agreement of separation, with a separate main-
lenanre by deed; for a man and his wife cannot by their own
net change their legal capacities and characters (/$. In cri-
minal prosecutions, it is true, the wife may be indicted and
punished separately (/). But, intiialsof any sort, th
not allowed to be evidence for, or against, each other (/).
Yet in all ci*es, where the crime is a violence done to the
person of the other, the husband may bf evidence airainst the
tvife, and the wife against the husband (n). And when- the
offence is directly against the person of the wife, this rule has
been dispensed with (o> : and tlrcrefore by slat. :/ ////. 7. c. '.',
in case a woman be forcibly taken away, and married, she may
he a v\ itiu -.^, against such her husband, in order to convict
him of felony.
In the civil law, the husband and wife are considered as
two distinct persons ; and mav have separate estates, con':
debts, and injuries (p); ana therefore, in oir
courts, a woman may sue and be sued without her hus-
band (<y). So in a court of equity, a feme covert, having a
separate estate, may be sued as aj'eme sole, and may be pr-
eceded again.st without her husband (r) And as baion and
feme in such cases are looked upon as distinct persons, a wife
mav, b\ her prochcin ami/, sue her own husband (s).
But though our law in general considers man aiul wife n-
one person, vet there are some instances in which she i*
rntrly considered as inferior to him, and acting by his com-
pulsion. And therefore all deeds executed, and acts done by
r/) i Roil. AW 3 jr. (C) p!. i. I P. Wmi. 46?. (g) 1 Camp. N. P. C.
189. (*) i Rol. Abr. 347. (i) Co. Lie 113. (*) 8 T. R. 54$.
3. (m) a Ibid. 431. (r.) i Bl. Com. 443. n. () Su*e
Trial*, vol.i. Lord Audley't Catc. i Str. 633. (/) Cod. 4. 12. i,
(/; a Rl. Akr. 198. (rj i 'Vera. 614, (il 3 P Wai. 39. n.
her,
Of Husband and Wife. . $7
ber, during her coverture, are void ; except it be a fine, or
the like matter of record, in which case she must be solely
and secretly examined, to learn if her act be voluntary (t).
She cannot by will devise her lands 'to her husband, unless
under special circumstances; for at the time of making it she is
supposed to be under his coercion (11). And in some felonies,
and other inferior crimes, committed by her, through con-
straint of her husband, the law excuses her (r) : but this ex-
tends not to treason or murder ( y).
A wife may have security of the peace against her hus-
band (z) ; or, in return, a husband against his wife (a) : and
the courts of common law will still permit a husband to re-
strain his wife of her liberty, in case of any gross misbe-
haviour (b).
With respect to the husband's liability for his wife's con*,
tracts, it may be observed in general, that a husband being
bound to provide his wife with necessaries, if she contracts
debts for them, he is answerable (c) ; unless he gives express
notice to the tradesman not to trust her (d). For during co-
habitation, the law will presume the assent of the husband to
all contracts made by the wife for necessaries suitable to his
degree and estate, and the misconduct, or even the adultery
of the wife during that period will not destroy the presump-
tion. The same law is, when the husband deserts his wife,
or turns her away, without any reasonable ground, or corn-
pells her by ill treatment or severity to leave him ; although he
advertises her, and cautions all persons not to trust her,
or gives particular notice to individuals not to give hr
credit; still he \\ill be liable for necessaries furnished to
her (e).
But if a wife elopes from her husband and lives in adultery,
jhe husband cannot be charged by her contracts (f). And
although the husband was the aggressor, by living in adultery
with another woman, and although he turned his wife out of
doors at a time when there Was not any imputation upon her
conduct ; yet if she afterwards commits adultery, he is not
bound to receive or support her after that time, nor is he liable
for necessaries, which may have been provided for her after
that time (g). Neither when the husband turns his wife out
of doors, on account of her having committed adultery under
(0 Lit. 669. () Co. Lit. 112. (*) i Hawk. 2. (y) Ibid. jjp.
(z) 1 Leo. 120. (a) Str. 1207. () i Str. 478 875., (c) i Salk. 118.
(d ) 3 Esp. N. P. C. 150. (<)4 Bur. 2177. i Esp. N. P. C. 441. 4 Ikid*
fz. i Sid, iz?. (/) t Str. 647. (s) 6 T. R. 603,
H fc ' his
98 Of Husband and Wife.
his roof,. is he liable for necessaries furnished to her after the-
expulsion (//). Yet if he receives her again, the presumption
jof his assent revives, and attaches upon the contracts made by
lier after the reconciliation (i).
.' So if a woman elopes from her husband, though she does
,not go away \vith an adulterer, or in an adulterous manner,
the tradesman trusts her at his peril, and the husband is not
bound (A-).
If the wife, uith Ihe consent of her husband, lives apart
from him, and has a separate maintenance, and contracts
debts for necessaries during the separation, the law w ill pic -
snme, that she is trusted on her own account, although the
tiade.srnan had not any notice of the separation at the time of
the contract, if it was the general reputation of the place
vhere the husband lived, that he and his wife were living
apart (/). But if the demand is for necessaries, it is then in-
cumbent on the husband to shew that the tradesman had'n.
tice of the separate maintenance (m).
If a man cohabits with a woman, to whom he is not mar-
ried, and permits her to assume his name, and appear to the
Avorld as his wife, and in that character to contract debts for
nei i lie will become liable, although the creditor be
acquainted with her real situation (n).
if a man marries a woman having children by a former
husband, he is not bound by the act of marriage to maintain
such children (o); but if he holds them out to the world a*
part of his family, he will be considered as standing in low
paienth, and liable even to a contract made by his \\it':
during his residence abroad, for their maintenance and edu-
cation (/>).
A husband cannot be charged at law for money lent t
his wife, even for the purpose of buying necessaries, because
it may be misapplied. But if the money be laid out in necejr
es, equity will consider the lender as >tandiir.r in the place
of the pci son providing the necessaries, and decree relief (9),
ft) i Sclw. N. P. 290. 4 Esp. N. P. C. 41. (*) I Sir. 875.
(Q Id. Uiym. 444. () 3 E-p. N. P. C. 250. () a E.p. N. 1' C.
637. j C*mf. N. P. C. 245. (o) 4 T. R. u8. 4 *' Kep. ;.
ff) 3 tip. N. 1'. C. i. (j) i P. Wiai. 48*.
CHAP.
Of Parent and Child. 99
CHAP. XIII.
Of Parent and CMM.
CHILDREN are of two sorts, legitimate and spurious. A
legitimate child is he that is born in lawful wedlock, or within
a competent time afterwards. Pater est quern nupiiee demon-
stranl ; but the nuptials must be precedent to the birth.
Parents are, by a principle of natural law, obliged to main-
tain their legitimate children (r) ; and it is provided by the stat.
of 4') E/iz. c. 2, that the father and mother, grandfather and
grandmother, of poor impotent persons, shall, by order of two
justices, allow them twenty shillings a month, or thirteen
pounds a year ; and by 5 Geo. 1, c. 8, if a parent runs away/
and leaves his children, the churchwardens and overseers of
the parish shall seize his rents, goods, and chattels, and dispose
of them towards their relief. It has been held, that the statute
43 Eliz. c. 2, extends only to relations by blood; and there-
fore a husband is not bound, even whilst his wife is alive, to
support her parents, or children by a former husband, or ar
other relation (s). If such second husband does maintain "'.
children of his wife by a former husband, it is a good' , 1 ^
deration for a promise by such children to repay, r** *
come of age, the expence of their maintenance (* . . ,.,
But no person is bound to make this provisi^ 1 .
dren, unless where the children are uuaj^ * ***>. ellh< T r
through infancy, disease, or accident auc * .n 1S OI
obliged to find "them with necessarie^ the P euait ? on reiusing:
being only twenty shillings a mo^, as beforeinentioned : which
is the greatest allowance whin* a sou can be obh S et j tO make
an aged parent, or a parent > legitimate child, by our law.
By stat. 1 Ann st. 1. c. 30, if Jewish parents reft
allow their protestant children fitting maintenance^ suitable to-
the fortune of the parent, the lord chancellor may make such
order therein as he may see proper; and by the 1 1 and :
3, c. 4, the same is enacted as to popish parents with respect
to their protestant children.
It is also the duty of parents to protect their legitimate ch
Uren, and therefore a parent is permitted to support his clul-
(r} Puff. lib. 2. c. II. <,0 4T. R- "8- CO 4 East's R. 76.
100 Of Parent mid Child.
dren in law-suits, without being guilty of maintenance (u); he
may also justify assault and battery m defence of the persons*
of his children (T).
'I he last duty of parents is to educate their children ; and it
is therefore provided by 1 Jac. 1, c. 4, and .'5 .Inc. 1, c. 6,
that if any person sends any child under his government beyond
the seas, either to prevent its -jood education in England, or in
order to etitcr into or reside in any popish college, or to lie
instructed, persuaded, 6r strengthened in the popish religion.
he shall forfeit 100/. And by 3 (.'/-. 1, c. 2, if any paienr.
or other, shall send or convey any person beyond sea, to be
trained up in any priory, abbey, nunnery, popish nnivrrMt\,
-.11, _, . -e:hool, or house of Jesuits, or priests, or in any piivate.
popi.th familv, in order to be instructed in the popish religion,
ho shall be disabled to sue in law and equity, or to be executor
or administrator to any person, or to enjoy any legacy or (U < <!
or ' hear any office in the realm and shall forfeit all
his goods and chattel?, and likewise all his real estate for life.
Uut by the 31 Geo. 3, c. 32, no person professing the Homi-h
f ligion, who shall take and subscribe the oaths required by
-tatute, shall be subject to these penalties *.
. ''In- p-.\ver of parents over their children is given to enable
, 'V' lo nerform their duty, and therefore a parent may la\v-
% (> -vet his child, being under age, in a reasonable man-
jjjp* Sd in the '2f> Geo. 2, c* 33, the consent of a pan in
of his child is absolutely necessary to rendu
Jtuct v:.i,i A fat|u , r has ||o othej : power ovcr his sou ' s
frsiaie Ibau as Ins tru. re or guar(i j :il); f or t h, m h he ma
e the profits dunng lhe chiurs in i nor i lVf vt , t |, r nw ^ m
ouni lor them when hie ^mes of age. \\ here the children
- in.u-pi M,!em fortunes tM t | H , ir parenls are not o f abi | ity
it-ni to mauilam them, tlu courl ot c h ;mrtrr v w ill , ,
a piopn- luaintenaoct out of the ., ate bcque^tod (z). He ma%
HMlced have the benefit of },> -liil(li, u -j, h.bot-.r while they live
itb him, and arp mamtamed by him. 'Hie Irjpil power of a
tath.r (for mother, as such, is entitled to no pouer at all.) over
lhe person of his children ceases at the age of twenty-one,
vVK*Lft. "'**'.*'* <*'**
U it to be hoped that the time it now not far distant when the miserable
emMt oJ the dliflMtfid code of peaal and dii S nalifymg statutes con> -
Jed ; and instead of a lyjtem fanuuicallr compounded ot
iibcjalityand fragments of decayed oppression, the whole POPU-
the Britiih domuuoai wul be |overocd b/ one coi>!stot c4c of indul-
i jMiUce.
yet
Of Parent and Child. 101
yet till that age arrives, his empire continues, even after his
death; for he may by his will appoint a guardian to his clrfl.
dren. He may also, during life, appoint a tutor or school-
master, \vho is then in loco parentis, and has such a power of
restraint and correction as may he necessary to answer the pur-
poses for which he is employed (a).
The duties of children to their parents also arise from a
principle of natural justice and retribution, and a child is jus-
tifiable in defending the person or maintaining the cause of his
parent ; and by 43 Eliz. c. '2, is compellable, if of sufficient
ability, to provide for his support. And this he must do for a
wicked and unnatural progenitor, as for one who has shown
the greatest tenderness and parental piety.
\\ e are next to consider the case of illegitimate children or
bastards.
A bastard is one who is not only begotten but born out of
lawful wedlock; or if the father and mother be married, is
born so long after the death of the husband, that, by the usual
course of gestation, he could not be begotten by him. But in
the first case, if a child be begotten while the parents are
single, and they will endeavour to make an early reparation for
the ofTence, by marrying within a few months after, our law is
so indulgent as not to bastardize the child, if it be born, though
not begotten, in lawful wedlock. And in the second, though
the usual course of gestation is forty weeks, the law is bt
exact as to a few days (b). If a man dies, and his widow
soon after marries again, and a child is bora within such time
as that by the course of nature it might have been the child of
either husband, in this case he is said to be more than ordina-
rily legitimate ; for he may, when he arrives at years of dis-
cretion, choose which of the fathers he pleases, (c).
So if the husband be out of the kingdom, (or, as the law
.-omewhat loosely phrases it, extra quatuor maria,} above nine
months, so that no access to his wife can be presumed, her
issue during that period will be bastards (d). So if from
circumstances a natural impossibility can be shown, that the
husband could be the father of the child of which his wife is
delivered, whether arising from his being under the age of
puberty, or from his labouring under disability occasioned by
natural infirmity, or from length of time elapsed since his
death, are grounds on which the illegitimacy of the child may
be founded (e). And the courts have held, that the legitimacy
(a) i B'. Com. c. 16. (t>) Cro. Jac. 541. (c) Co. Lit. 8.
V/j Ibid. 244. ( s ) 8 East's Rep. 193.
or
102 Of Parent and Child.
or illegitimacy of the child of a married women,' livii .
notorious state of adultery, is a question for a jury to deter-
mine (/). But generally, during the cove-nun. 1 , access ot' the
husband shall be presumed (g).
In a divorce a nicns'i ct thorn, if the. wife breeds children,
they arc bastards, unless access be proved; but in a voluntary
separation by agreement the law \vill suppose access, unless
the negative, b# sho\\n (h}. Likewise, in case of a divorce in
the spiritual court a vhifiilo ntatrhnonii, all ihe issue born
during the coverture are bastards, because snch divorce is al-
ways upon some cause that rendered the marriage unlawful and
null from the beginning (t),
The duty of parents to their bastard children is principally that
of maintenance; and therefore the legislature has ordained,
that when a woman is delivered, or declares herself with child
of a bastard, and will, by oath before a justice of the prace,
charge any one \\ilh having gotten her with child, the justice
shall cause such person to be apprehended and committed till
he gives security by bondeiilur to maintain the child, but they
cannot compel him to give security for the performance of th-
bond (A - ) or appear at the next quarter sessions to dispute ami
try the fact (/). But if the woman dies or is married before
the delivery, or miscarries, or proves not Jo have been with
child, or the justices at the sessions, upon hearing all the cir-
cHmstanceg of the case, shall be of opinion that he is iv>t the
father of the child, he shall be ditcbarged: othrrvti-e the
scv-ions, or two justices out of sessions, upon original applica-
tion to them, may take order for the keeping MI' the bastard,
by charging the mother or the reputed father with the paxuient
of the money, or other sintentation for that purpose. Ami it
Mich putatiu- father, or lewd mother, run away from the
parish, :'.< i v tin- direction of two justices uiav
id*, and chattels, in order to briii'j up the
vaid ! t snch is the humanity of our laws,
that no woman ( I concerning UM
i of her i-!ii!d till one month after her doli\, i\.
juitice near : :<>n of the repntcd
father in custody, shrill summon the to ' cau^
against his bcii: aiuf if ii" <'ni'r be madi: in pur-
nian' the maintenance oi
ff} 4T.K. (^) JC </) Sa'V. iti. ' I .
(*)6T. P.. (/} i? E'iz c. 3. 7j*r. 1,0.4. '3 "'
K. 6Cico. i, c. 31.
.ilun
Of Guardian and Ward. 103
within six weeks after the woman's delivery, he shall be dis-
charged.
A bastard can/have no rights but what he can acquire; for
he can inherit nothing, being looked upon as the son of no-
body : yet he may gain a name by reputation, though he has
none by inheritance (ra). All other children have their pri-
mary settlement in their father's parish, but a bastard in the
parish where born (ii). However, in case of fraud, if a woman
be sent by order of justices, or comes to beg as a vagrant, to
a parish to which she does not belong, and drops her bastard
ihere, the bastard shall, in the iirst case, be settled in the
parish from whence she was illegally removed (o): or, in the
latter case, in the mother's own parish, if the mother be ap-
prehended for her vagrancy. 1? Geo. 2, c. 5. Bastards also
born in any licenced hospital for pregnant women, are settled
in the parishes to which the mothers belong. 13 Geo. 3, c. 82.
The incapacity of a bastard consists principally in this, that he
cannot be heir to any one, neither can he have heirs but of his
own body ; for being nulfius jiliw, he is therefore of kin to
nobody, and has no ancestor from whom any inheritable blood
can be derived. But though civil policy renders it necessary
to incapacitate a bastard from inheriting, yet he may be made
legitimate arjd capable of inheriting by act of parliament.
CHAP. XVI.
Of Guardian and Ward.
GUARDIANS are of six kinds: 1. Guardians by nature.
2. Guardians for nurture. 3. Guardians in socage. 4. Guar-
dians by testament. 5. Guardians by custom of particular
places. 6. Guardians by election of the infant.
]. Guardians by nature. The father, mother, and every
other ancestor of an infant, may, in particular cases, be en-
titled to be his guardian ; the father, however, has the first
title to such guardianship, and the mother the second. As to
other ancestors, it is said, that where an infant happens to be
heir apparent to two, as a grandfather by the father's side, and
likewise a grandfather by the mother's side, he who happens
first to have possession of the infant's person shall be his na-
tural guardian (p),
( 3- () Salk. 427. () j Salk, Ui. (/>) Co. Lit.
1$
Guardianship
104 Of Guardian and Ward.
Guardianship by nature extends to the person only of the
infant, and continues till the age of twenty-one years in males,
and to that age or marriage in females (q).
2. Guardians for nurture. Guardianship for nurture belongs
to the parents; but in default of them, the ordinary usually
assigns some discreet person to take care of the inl'.mt's per-
sona! estate, and to provide for his maintenance and educa-
tion (r).
Guardianship for nurture extends no further than the custody
and government of the infant's person, and determines at the
the age of fourteen, both in males and females (s).
3. Guardians in socage. Guardians in so< age are also culled
guardians by the common law. These take place onlv when tin:
minor is entitled to somi- estate in hinds, and then h ; tin common
law the guardianship devolves upon his next of kin, to whom
the inheritance cannot possibly descend, as where the estate
descended from his father, in this case his uncle by the mo-
ther's side cannot possibly inherit this estate, and therefore
shall be the guardian. For the law judges it improper to trust
the person of an infant in his hands, who mav by possibility
become heir to him, that there may be no temptation, or even
suspicion of temptation, for him to abuse his trust ().
This species of guardianship being a personal trust, \\holly
for the infant's benefit, is neither transmissible by descent,
grant, nor devise; if, therefore, the guardian in socage die or
become incapable of performing his trust, the guardianship de-
volves on the next nearest of kin to the infant. But yet where
a woman is guardian in socage, and marries, her husband will
in her right become the infant's guardian (>/).
This guardianship, like that for nurture, ends upon the in-
fant's attaining the age of fourteen, whether male or female,
unless the female marry, in which case her wardship ceases (r);
for then, in both cases, the infant is presumed to have discre-
tion, so far as to choose his own guardian. This he may d .,
unless one be appointed by the father by virtue of the statute
1. Car. 2, c. 24.
4. The power of appointing these guardians by *t-ilutr, or,
as they are usually called, testamentary guardians, arises fioni
tlie constitution 4 and .3 I*hi/. and Mur. c. $, by which the
father was allowed the privilege of a sluing a guardian, either
by deed or will, to am woman child under the age ..I
(7) Co. Lit. S8.b. n. 12. (r) 2 Lev. 163. () 300.38. (/) I
81. Com. 401. (j Co. Lit. 88.b. n. Jj. (r) i Bl. Com. 461. ala.t. z6o.
Lut
Of Guardian /.;/ Ward. 105
but by the before-meutioned statute, f ft Car. 2, c24, it is ex-
pressly enacted, that any father, under age or of full age, may
by deed or will dispose of the custody aud tuition of his child,
either born or unborn, to any person, except a popish recusant,
either in possession or reversion, till such child attains the age
of one and twenty years. And the person or persons to \\ horn
the custody of such child is so devised may take into his cus-
tody, for the use of such child, the personal and real estate
of the infant till the age of twenty-one years, or any leso time,
and bring actions relative thereto.
There are also special guardians, by custom of London and
other places. By the custom of London, if the father is a
freeman of London, he cannot devise the disposition of the
body of his child, but the court of orphans, which is held by
custom before the mavor and aldermen of London, shall have
the custody of the body and goods of the child of every free-
man or free woman, within age and unmairied. And though
the executors have been bound in the spiritual court, yet they
may be compelled to give other security to the chamberlain to
the use of the orphans (y).
& Another species of guardians is that by the election of the
infant himself, in case he has no guardian appointed him. The
form of the election is immaterial; but it should be made in
writing, under the infant's hand and seal.
The power and reciprocal duty of a guardian and ward are
the same, pro tempore, as that of a father and child.
The same policy, by which the law has appointed guardians
of infants, has invested them with such an authority and in-
terest over their property as may be conducive to the infant's
benetit. All lawful acts done by the guardian during the infant's
minority are good, and may subsist after the authority by which
they were done has determined (z). As if leases for years of
an infant's estate made by a guardian in socage extend beyond
the term of his minority, they may become valid and unavou' t ._>io
by the infant's acceptance of rent from the lessee, or any oilier
actj showing an acquiescence in the lease; for they are not
absolutely void on his attaining his full age, but only voidable
by him at his option (a).
But this power does not extend to a testamentary guardian,
or a guardian for nurture ; for the power of the former extends
no further than to the preservation of the infant's estate in
(y) Priv. of London, 280, 287. i Rol, Abr. 550. () 3 Bac. Ak. 414.
() Co. Lit. 88. Cro. J. 55* 98.
safe
J00 Of Guardian and Ward.
safe custody, unless cr^atcr powers arc expressly given liim bv
the testator; and the latter has only the care of the person and
education of the infant, and nothing to do with his e>tate ,/<).
But this pouer and authority of a gnardi:in being coniined
to such acts as are apparently for the infants benefit, a guardian
cannot change the nature of the infant's estate, unless it be
manifestly for the ward's benefit (r).
But where an estate descends to an infant, subject to in-
cumbrances, the guardian may and ought to apply tin- profit*
to keep down the interest (d), as h may also to pay oft a
mortgage judgment, or any other direct and immediate charge
upon the land(<); but he cannot for any other real incum-
trance (f).
The most usual remedy a ward has against his guardian for
abuse of tru-t i.-> by application to the court of chancery, to
which the power of determining the right of guardianship,
vho is the next of kin, and who the proper guardian; of
making orders on petition or motion for the provision of in-
fants during anv dispute on these points; of removing guar-
dians, or compelling them to give security; ami of pn\ ntni^
their committing, and to punish them for abuses committed
upon the person or property of their wards (g) belong.
-\ndthisapplication maybe made by the infant himsili
upon his attaining the age of twenty-one, or by Ins prnc/u in
ami/,, or next friend, dm ing hi* minority (A); and this court
vfill even in some cases permit a stranger to the infant to
f orae in aud complain of tlte guardian's abuse of the infant's
tate (i).
But courts of equity will not give validity to any contract
between <iiiardian and ward, unless the terms are indubitably
fair and equal, nor ven allow any gift or release from a ward
to liis guardian on his coming of age (k).
To prevent tli^ajrreeuble contests, it is now usual for guar-
dians. especially of large estates, to indemnify themselves b.
applying to th court of chancery in the liist in tin_
under it-; din '-lion, aud accounting annually before the ofi'i'
of that i-onrt
(*) 2 Wiis. iz;. 5 Ef. Atr.4T4. VnHI. 3-0.
P. \Vmt. 7. (0 i Vrn. 4^6. (/) i EI. Ca. A
i--\'s Lwe; (/) I '
ji^. 3 Atk. 3ic- \ (*) i P. Wnw. n'J. 7. \ft. 54?.
/) i B!. Com. .v
I TAP,
Of Executor and Administrator. 107
CHAP. XV.
Of Executor and Administrator.
AN" executor is he to whom a man commits by will the
Execution of his last will and testament. And all persons are
capable of being executors that are capable of making wills,
and many others besides; as feme coverts and infants: nay,
even infants unborn, or in "Centre sa mere, may be made execu-
tors. But then by stat. 38 Geo. 3, c. 87, s. 6, such executor-
ship shall be granted to the infant's guardian, or such other
person as the spiritual court shall think fit, until the infant has
attained the full age of twenty-one years. In like manner it
may be granted durante absentia or pendcnte lite; when the
executor is out of the realm, (38 Geo, 3, c. 87, s. 1,) or when
a suit is commenced in the ecclesiastical court touching the
validity of the will, or right of administration (m). This ap-
pointmen.t of an executor is essential to the making of a will;
and it may be performed either by express words, or such as>
strongly imply the same. But if the testator makes an in-
complete will, without naming any executor, or if he names
incapable persons, or if the executors named refuse to act, in
any of these cases the ordinary may grant administration cum
teptamc)ito annexo to some other person ; and then the duty of
the administrator, as also when he is constituted only .durante
minore setate, &c. of another, is very little different from
that of an executor.
With respect to the distinction between executors and ad-
ministrators, it may be observed, that the power of an execu-
tor is founded on the special confidence and actual appointment
of the deceased by his will; but an administrator is merely an
officer of the ordinary, prescribed to him by act of parliament,
in whom the deceased had reposed no trust at all, and whose
power oyer the effects of the deceased arises from several
statutes made for that purpose, and on whose death it results
back to the ordinary to appoint another, who is then called an
administrator de bonis 11011, that is, of the goods not adminis-
tered by a former administrator. And in such case the ad-
ministrator is the only legal representative of the deceased (?z).
Executors are of two sorts; a rightful executor, and a
wrongful executor, called*in law an executor de SQH tort : the
(m) Atk. 785. () Wms'. Law of Wills, 5$.
former
408 Of Eivctdor and Administrator.
former is appointed by the will of the testator; the latter takes
upon himself the office of executor by intrusion, \\ithout be-
ing constituted by the testator or the ordinary (o).
A wrongful executor is liable to all the trouble of an
cutor, without any of the prolils oradvantaire> (/;). But merely
tlonig acts of necessity, prudence, or humanity, as locking up
the goods, or burying the deceased, or fettling his cattle. \\ill
not amount to such an intermeddling as will charge a j
with the consequences of being an executor of hi- ;\vn wrong.
Neither will the bare possession of goods make a man an exe-
cutor of his own wrong, unless he undertakes to do some arts
which an executor only can lawfully do, as to release the debts
of the testator, Sec. (//). Such an one cannot bring an action
lnm-rif in right of the deceased, but is liable to ;iu^\\.. io the
executors, as also to the creditors am! i
to the amount of the testator's goods which lie shall have im-
properly administered, and will also be liable to an action,
unless he deliver over the intestate's goods to the rightful ad-
ministrator before a suit be commenced against him (/) In
equity, however, he will be allowed all such pa\nui,;
rightful executor ought to have paid (s), unless perhaps on a
deficieiK of assets the rightful executor i^ prevented from
satisfying his own debt (t).
An executor of his own wrong cannot retain the property
of the intestate in discharge of his own debt, though of a
superior degree ( v). But if an e-xecutor of his own wrong
poise- If of goods, and afterwards administration is
granted him, he may by virtue thereof retain goods for his o\\u
debt (.r).
If a creditor takes an absolute bill of sale of his debt ;,
and agrees to leave them in his possession for a limited time,
and in the mean time the debtor dies, whereupon the creditor
, he tii ere by becom< ut<>j tit > -
But a person who possesses himself of the effects of tin-
deceased, under the authority and a> agent for the rightful ^
cutor, cannot be di.schargi d as an v tort (:).
Neither if after the executor 1 i the \\ill, an
ministered, a stranger tal.es any of P. . aiming
them as hi-> o\\n, uses and < f the m according!}, tin*
will not make him, in construction of law, an executor de sun
() Wnw f . Law of Wills. f/) j Co. 34. .t. ' (y) Fr-r:
(r) i Bl. Com. 5=6. (i) aChanc. Rp. 33. (M Wrat. Off.it
T. R. 100. 5 C. 30. O) * T. R ( ; Pcke'
N F.C.86,
tort;
Of Executor and Administrator. 109
fort ; because there is a rightful executor, \vho may be charged
with these goods so taken from his possession, as assets, and
to whom the stranger will be answerable in trespass for taking
the goods (a).
Li the appointment of an executor, though it is usual ex-
pressly to name him as such in the will, yet any words which
imply the testator's intention that a person shall have the exe-
cution of his will, will be sufficient. And as such appoint-
ment may be of part or whole of the testator's estate, if the
executorship expires before the effects have been completely
distributed, the ordinary may grant administration of the re-
mainder- (6).
The interest vested in the executor by the will of the de-
ceased may be continued and kept alive by the will of the
same executor ; so that the executor of A.'s executor (if A.'s
executor has proved the will) (c) } is to ail intents and purposes
the executor and representative of A. himself, 25 tidw. ^,
st. 5, c. 5; but the executor of A.'s administrator, or the ad-
ministrator of A.'s executor, is not the representative of A. (d).
In these cases when the course of representation from
executor to executor is interrupted by an intestacy, it become. 1 ?
-necessary that the, ordinary should grant a new administration
of the goods of the deceased, not administered by the former
executor or administrator, as the case may be ; which new ad-
ministrator is, as we have already seen, called an administrator
de bo ft is non.
The cases in which a/lministration dt bonis non is necessary
are: 1. When the executor of the deceased, having proved
the will, dies intestate. 2. Where there are several executors,
uud the surviving executor having proved the will, dies intes-
tate. 3. Where an administrator dies before he has admi-
nistered the whole personal estate of the deceased (e).
But though a person is appointed an executor by will, he
cannot be compelled to undertake the executorship against his
own desire, unless he has, after the death of the testator, per-
formed those acts which are proper for an executor, as by
paying debts due .from- the testator, or receiving any debts due
to him, or giving acquittances for the same, or other such like
acts; for then he is not only compellable to perform the office
of an executor, but even if he should refuse so to do, his re-
fusal will be void. Yet where a person is not compellable to
(a) 500.34.3. () Wood's Jnst. 3x0. (c) Cro.Jac. 614.
(J) Bro. Abr; tit. Administration, pi. 7. (e} z Sclw. N. P. 793.
accept
1 1 Of Executor and Administrator.
accept the executorship, if lie refuse to take upon himself the
execution of the will, he shall lose any legacy \\hich is be-
queathed to him, unless it is probable, from nearness of kin-
dred or other circumstances, the testator would iie\eiihi 1 >s
have given the legacy (f). However, where a legacy is left
to a person as executor by the will, he may take time to con-
?ider whether he will accept the executorship or not, and in
the mean time the ordinary may grant letters to any tl
person to collect in the effects of the deceased (). And it
has been held, that if an executor has accepted of the e,xc-
t-ntorship, he will be entitled to a legacy given to him m that
character, though he dies belore probate of the testator's
uill (h).
If there are many executors of a will, and only one of them
proves the will, and takes upon him the e\ culm-ship, it is
sufficient for them all; and even after the death of their fellow
executor, the right of executorship survives to them (i). JJut
if all the executors refuse to prove the will, they cannot aftei-
wards administer, or in any respect act as executors; but he-
lore they are thus incapacitated they must be twice cited ().
It is, however, to be remarked, that executors it -fusing to act
must be joined in all suits where the executors who have j>m\. i
are made plaintiffs, because they are all privy to the will;
though it is not necessary where they are defendants, h
ihc plaintiiY in any action against them is not bound in law
to take notice of any but those who have proved the will.
If two executors are appointed by will, and one of them
proves the will in the names of both, without the consent of
the other, this will not bind him who refused the executorship,
unless he administers. But see Cro. Jv//z. f)2, and ' An>tr.
594, where an account was directed against two executors
though the will had brcn proved but by one of tht-m. Hut
if lie ouce administers he cannot afterwards* renounce, for he
has made his election (/).
And if an executor takes out administration, or is swoin,
but afterwards refuses to administer, the ordinary cannot giant
administration to any other during his life (m). lie may, ho\v-
t .< i , issue process to compel him to prove (;<)
Neither can the ordinary set aside an executor for any dis-
ability at law, aft on his becoming bankrupt; nor can he insist
(f) 4 Vei. Juu. ta. Ow. 44. (f ) Cro. t\\t. 91. (b) 4 Vei.
luii. 212. (1) i Slk. 311. (*) 9 Cro. 37. Cro. tlu. 92.
(/) 9 Cro. 36.. (*) l Salk. 3 ol. (n) 9 Co. Jo.
5 on
Of Executor aud Administrator. Ill
*rtt his giving security. For the executor being appointed by
the testator, has been considered by him as a qualified per-
son (o). But if an executor becomes subject to any natural
disability, as to insanity, idiotism, or the like, the spiritual court
will grant administration (p). And if it appears that the exe-
cutor is wasting the goods of the testator, the court of chan-
cery will, on the application of a creditor, appoint a receiver
of the testator's effects, in order to protect them (q).
If a creditor constitutes his debtor his executor, it is at law
a release or discliarge of the debt, whether the executor act*
or not, provided there are assets sufficient to pay the testator's
debts ; for though the discharge of the debt .shall take place of
all legacies, yet it will not be allowed against the testator's cre-
ditors (/). But it is otherwise in equity, for there the appoint-
ment of a debtor as executor is only a discharge of the action
at law, and not of the debt (s). If there are several joint
debtors, and the creditor makes one of them an executor, the
debt is extinquished in law ; nor is this consequence varied by
the fact of the debtor's administering or not administering :
the reason whereof is, that the other cannot bring an action
without joining him -who refuses, and they cannot sue one of
themselves for a personal thing (). And on this principle, if
a woman, whose husband is indebted to the testator, is made
executor, the husbaud'b debt is thereby released (#).
If executors retain money in their hands longer than is ne-
cessary, they shall be chargeable with interest, aud costs, if
any have been incurred (z). But one executor shall not be
answerable for money received, or detriment occasioned by
his co-executor, unless it has been by means of some joint act
done by them ( y).
We have seen, that if the testator makes an incomplete will,
without naming any executors, or if he names incapable per-
sons, or if the executors named refuse to act ; in any of these
cases the ordinary must grant administration with the will an-
nexed to some other person. But where a person dies wholly
intestate, it is provided by stat. 31 Edw.3, c. 11, that the
ordinary shall depute an executorial power to the nearest and
most lawful friends of the deceased, to administer his goods ;
.and these are interpreted to be the next of blood to the intes-
tate, not being under any legal disability (z). These admi-
(e) iSalk.zgg. {/>) Ibid. 307. ( ? ) 3 Bro. C. C. 365. (r)
184. Salk. 299. (i) 3 Bro. C. C. no. (t) Plowd. Com. 184,
() West*. Off Ex. 3Jt, 907. {*) 7 Ves.Jun. 1*4. {y) 4 Yes.
Jun. 620. ' (*) 9 Co. 31.
nistrators
1 12 Of Executor and Administrator.
nistrator > by the same .statute put upon the same foot-
nr.s ith it.'ii'l t . Mills, and to accounting, as executors ap-
poiiikd !>> will. The statute <il Hen. 8, c. .5, enlarges the
power of the ecclesiastical judge a little more, permitting
him to grant administrations cither to the widow or the next
of kin, or to both of them, at his discretion ; and where t\v<
or more persons are in the same decree of kindred, the statute
gives the ordinary the election to accept which he pleases (6).
The rules for ascertaining the next of blood, or as it is
usually called, the next of km, are as follow :
I. The ordinary is com pellabic to grant administration of
the goods of the wife to the husband, or his representative ;
and of the husband's effects to the widow, or next of kin, or
to both at his discretion it). 2. That among the kindred,
those are to be preferred who are the nearest in degree to the
intestate; but of persons of equal degree the ordinary may
choose, which he pleases J. That this nearness oi do-ne
shall be reckoned according to the computation of the ci\i-
lians (fl), and not of the canonists; because in the civil com-
putation the several degrees are numbered from the testator
himself, and not from the common ancestor, according to the
ride of the canonists (e). And therefore, in the tir.-t pi
the children, or on failure of children, the parents of the
deceased are entitled to administration ; both which are in-
deed in the first degree, but the children are allowed the pre-
ference (/ ;. Then follow brothers, grandfathers, uncles or
nephews, and the females of each class respectively ; :'.nd
hi-tly cousins (g). 4. The half blood is entitled to the admi-
niotration as well as the whole, for they are equally of the
kindred of the intestate, and only excluded from the inhe-
ritance of the laud on feudal reasons. Therefore, the hio-
ther of the half blood will exclude the uncle of the whoU
blood (h) ; and the ordinary may Arrant administration to the
sister of the half, or the brother of the whole blood, at his
discretion '/) .">. it" none of the kindred of the testator will take
out administration, a creditor may do it (k). (). And by Mat.
38 Geo.3, c. 87, if at the end of twelve months from the
death of a testator, the executor to whom the probate shall
have been granted, is residing out of the jurisdiction of tie
(*) Williami* Law of Wills. 60. (0 I Str. 551. (J) Free, in
CKan. 593. (t) a Ve. aij. . (f) a Vern. 11$. (g) I P. Wrai.
41. lAttc. 45j. (i)iVcab4*5. (i) Aleyn, 36. Styl. 74.
(*) i SaUc. jS.
king's
Of Executor and Administrator. 1 1 3
king's courts, a creditor may, on application, obtain letters of
administration, for the purpose of having his demand satisfied
out of the assets of the testator. ? If the executor refuses,
or dies intestate, administration may be granted to the resi-
duary legatee, in exclusion of the next of kin (/). 8. And
lastly, the ordinary may, in defect of all these, commit ad-
ministration (as he might have done before the stat. 3 1 Edvs.
3, c. 11,) to such discreet person as he approves of; or he
may (in these cases, as well as in that of the executor's refusal)
grant to any one letters to collect in the effects of the de-
ceased, which neither makes him executor nor administrator,
his only business being to keep the goods iu his safe custody,
and do other acts for the benefit of the persons entitled to the
property of the deceased (in).
Where two or more administrators are appointed, one of
them cannot, as in the case of executors, act alone, release
the debts of the intestate, or otherwise dispose of his pro-
perty, but they must all join in such release or disposition ;
for the authority delegated to them by the ordinary is a joint
and not a several authority (M).
If a bastard dies intestate, and without wife of children,
or if any other person dies' without kindred, the king is en-
titled to the personal property as administrator (a). But in
the case of a bastard, it is now usual for the crown to grant
administration to some relation of the bastard's father or mo.
ther, reserving a tenth part, or some other small portion, by
way of preserving its rights (p).
If a married woman, as next of kin, has a right to admi-
nister, the administration ought not to be granted to the hus-
band and wife jointly, but to the wife only. BiJt if a wife, who,
as a residuary legatee, has a right to take administration, re-
fuses so to do, it may be granted to her hitsband, he being en-
titled to all she would have as residuary legatee.
By statute 22 and 23 Car. 2, c. 10, the administrator, on
his appointment, enters into a bond, v. ith two sureties, to the
satisfaction of the ordinary, for duly administering the intes-
tate's effects; and should he negleet the requisitions of the
bond, he may, with the permission of the ordinary, be sued by
any of the creditors, or next of kin to the deceased ((]},
(/) i Sid. 281. j Vent. 119. fw) z Inst. 398. () i Atk. 460*
(<0 3 P. Wms. 33. 0). i Woodd. 398, (?) Cfcvrp. 140.
I The
1 14 Of Executor and Administrator.
'I 'In- duties and office of executors and administrators are
very much the same, excepting first, that the executor being
appointed by will, is bound to perform that will, \\hich au
administrator is not ; unless where the will is annexed to his
administration, and then he di tiers still less from an ext tutor;
and, secondly, that an executor may do several things, before
he proves the will; but that an admiiiistiator can do nulling
till letters of administration are granted him; for the former
derius his power from the N\ill, and not from the probate;
the latter o\\cs his entirely to the appointment of the or-
lih.ary (r).
J"he first thing neee^vtry to be done by an executor or ad-
^linistrator, is to bury the deceased in a manner suitable to bis
rank in life, and the estate he has left behind him. Neces-
timeial expences are allowed, in preference to all othei
d< hts and charges : but if the executor or administrator is ex-
travagant, it is a waste of the effects ot the iWeased, which
shall be prejudicial to themselves only, and not to the credi-
tors and legatees of the deceased (s).
The next duty of an executor, or of an administrator ap-
pointed during infancy, absence, litigation, or administia-
rion, with the will annexed, is to prove the will of the de-
fl: which is done cither in common form before the or-
[ut\, In the oath of such executor or ad-
miuistiator, or, as ii is >aid, in some of the dioceses in York,
T, uli the additional oath of one witness. But if the validity
of the will be disputed, it then becomes necessary to pro\c.
and otubi^h the will in the solemn way or form; that is,
L. \.i'!i-Mv in the pie-nice of such persons as would be in-
ttie.-ed if th uec-;ised had died intestate. Two \\itm
i.i.i-t iu'ti be sworn and examined on interrogatories aUmi-
uistered by the adverse pait\, who must be able at least to
depose, that the testator declared the writing produced to
Re Ins last will and tesument ; unless where the will or co-
: was written by the U -lator. himself, and then the evidi-iu c
of one '.vitnt' 1 "*, *h> can attest the fact of the identity of the
, will splfice i '
'I'lure i- atial diflerence of effect, however, be-
tween these two forms of proving wills ; for after :m in-
forinaJ proof the executor may be compelled again to prove
( 'am. _jo4. Ji) Silk. 296. (0 \\i!fuiJu' LAW f
. *3
tbe
Of Executor and Administrator. 115
the will in due form of law. The executor may, therefore,
for greater safety, if he himself have an interest in the will,
elect to have the will proved in the solemn form ; and in such'
case he must cite the persons who would be interested under
an intestacy, to be present at the proof thereof. If the will.
is proved only in the common form, it may at any time within
thirty years be disputed ; but if the solemn form is pursued,
and no adverse proceedings are instituted within the tim
limited for appeals, the will is liable to no future contro-
Versy (?/) '
When the will is proved, the original must be deposited
in the registry of the ordinary, and a copy thereof is made
upon parchment, under the seal of the ordinary, and delivered
to the executor or administrator, together with a certificate
of its having been proved before him : and this is called the
probate (,r).
In defect of any will, the person entitled to be adminis-
trator must also at this period take out letters of administra-
tion, under the seal of the ordinary ; whereby an exe.cutorial
power to collect and to administer, that is, to dispose of the
goods of the deceased, is vested in him (y}. And to prevent
delay in the administration of the effects of the deceased, it is
provided by stat. 37 Geo. 3, c. 9, s. 10, that if any person
administer the personal estate of another dying, without first
proving the will of the deceased, or taking out letters of ad-
ministration within six calendar months after the person's
decease, he shall forfeit 50/. to be sued for within six months
after the time when the probate or administration ought to
have been taken.
By the (J'2 canon of the church, 1603, it is ordained,
that if all the goods of the deceased lie within the same
diocese, a probate is to be made, or administration taken out
'before the ordinary or bishop of the diocese, where the de-
ceased lived ; but if the deceased had bona notabilid, that is
personal property of the value of 5^. in several dioceses or
jurisdictions, the will must be proved, or administration
taken out, in the prerogative or metropolitan couic of the
province in whichj the deceased died, by way of special
prerogative ; and every probate or administration., aot so
granted, is declared void. If the bona notabw.ti OR in dif-
ferent dioceses of different provinces, adruinisu.tr on must
() 4 Burn. Seel. Law, 207. (*) 1 Bl. Cr>,50$, (/} Itid.
1 % fc*
1 lt> Of Executor and Administrator.
"be taken out in the archiepiscopal court of each province*
IJut if they lie in cue diocese of earh province, administra-
tion may be granted by the bishop of each diocese, of such
bona iwtvbi/ia, as are within his Jurisdiction (r).
15y the QSd canon, goods in different dioceses, unless of
the value of 5/. shall n<.t lie accounted boua iiotubilia.
15 nds ami other specialties an: bona notabilia in the dio-
ces.' where they happen to he at the time of the death of the
te tator or intettate (</). Hut simple contract debts and se-
curities are such only iu the diocese where the debtor then
resided (If)-
After obtaining the probate, the executor or administrator
gaust immediately proceed to make an inventory of all the
goods and chattels, whether in possession or action of the de-
ceased ; wiu'ch, if required, nm&t be deliui t -d to the ordi-
nary nprn oith, in the presence of two credible witnesses;
and to \\hich, if so delivered, 110 creditor is at liberty to
object, slat. 21, Hen. 8, c. 5.
The executor, by virtue of the will of the testator, and the
administrator, by \iittie of his administration, are to collect
in all the goods and chattels of the deceased, whether real or
personal, in possession, as ready money, money in the funds
go. ds, cattle, stock on farm, or in trade, &.c. or in action*
as debts owing to the deceased, securities for money, &cc. ;
and to that end they have hum: powers and _iiiiciest-> con-
ferred on them by law, beint; the representatives of the
ceased, and having the same property in and right to his
goods a.- he deceased had when living, and the same rein.
to recover them (.).
And such goodl and chattels, when recovered by the ex-
ecutor or administrator, will be assets in their hands to make
them chaigeablc to creditors, legatees, and the kindred of the
docc:;-"-d. a> tar as the \akie of such goods and effects ex~
luidiJ, ac.cordiuu; to the lollowing rules.
The fxecutor anil administiator mutt first pay the debts
of the deceased ; and in payment of these he is bound to ob-
serve the nile-N of tlir law, which give a preference to them
accordingly as they are differently secured; for otheivii>e, in
case there should be a dilieimcy of a>-el-, and he pays debts
of a lower drt-ne ni>t. he wdl bi- obliged to answer thosi- of a
higher nature out of his own estate. But it is to be observed,
(*) 4 Insc 13S . (a) i Rol. Abr. 908 (G.) pi. 4. (A) S*JL 57. Sy.
' l f ; Wi:iui.-n'i Uw of Wiu, 64.
that
Of Executor and Adnibristratvr* 117
that the payment of debts according to their priority applies
only to legal assets, that is, such effects of the testator as can
l)e recovered at common law (<:/).
First then, he must pay all necessary funeral charges, thg
cxpenc^s of proving the will, or granting letters of administra-
tion, and other necessary expences incurred by the execution
of his trust. In strictness, no funeral expences are allowed
against a creditor except for the coffin, ringing the bell, parson,
clerk, and bearer's fee ; but not for the pall or ornaments (e).
But if there are assets sufficient, the allowance is always re-
gulated by the estate and degree of the deceased (f) 2. He
must pay debts due to the king, by record, or specialty; for
the king by his prerogative shall be preferred before any
other (g). 3. Such debts as are by particular statutes to be
preferred to all others ; as the forfeitures for not burying in
\voollen ; money due from overseers of the poor for rates col-
lected by them, and not paid ; and money due to the post-
office for letters. 4. Debts of record, as judgments (if pro-
perly docketed or entered according to 4 and 5 W. and M.
c. 0), debts due under a decree of a court of equity, and
debts due on mortgage ; all which debts carry interest to the
time of payment, as do also debts on bond. 5. Recognizances
at the common law ; statutes merchants and staple, and re-
cognizances ia the nature of statutes staple, pursuant to
stat. 23 Hen, 8, c. 6. This must be understood of recog-
nizances and statutes forfeited, where the recognizances are
forfeited, or where they are for keeping the peace, good be-
haviour^ &c. and the statutes are for performing, covenants,
&,c. (/).. ,5. Debts due on special contract, as for rent ia
arrear, and debts due on bonds or covenants under seal. But
if such bond be proved to have been entered into without any
good or valuable consideration, in equity it will be postponed
to simple contract debts (i). 8. Debts on simple contract,
as bills of exchange, promissory notejs, orverbal promise, aS
well where the deceased has really promised, as where the
law will imply that he has, as for goods bought, &.c and
among these simple contract debts, wages due to servants are
first to be paid. And lastly, legacies, c. (&)
Among debts of equal degree, executors and administrfN-
tors are allowed to pay .themselves their whole debt first (/),
(</) 2 Atk. 50;, (<0 Salk. 2.96. (/) 1 Selw. N. P. Sot. (g) Z Inst.
32. (b) zSelw. 8oz. (i) 3 P. Wnw.^a*. (*) i BJ. Com. 511.
^/) 10 Mod. 496.
But
1 ] S Of Executor and Adaiutistrator.
But they are not allowed to retain their own debt to the pre-
judice of those of a higher degree. Neither ran an executor
or administrator retain his own debts in preference to that of
his co-executor or co-administrator, of equal degiee, but both
shall be discharged in equal proportion (///).
If no suit is commenced against an executor or administrator,
he may pay any one creditor of equal degree his \\hole d bt,
though he should in consequence not Inu a Millie, u no n-
maining to satisfy tin: rot ; for till a suit is commenced, he
has no legal notice of the debt (n), except debts due on
record, which he is hound to take notice of \\ithovit suit com-
menced (o). And although executors and a<lmim>tiul<>i > are.
reqniied to pay debts according to their priority, yet if they ha\c
had notice of debts due upon bond or other specialty, they may
pay a simple contract debt before a debt of specialty (]))
And it has been held that even alter notice, an executor
er administrator may still give a preference to other ciediu-is
of the same degree, by confessing a judgment to them bcfon:
plea (7). But after a brll is iiled by a creditor for a dis-
covery of assets and payment of his debt, the executor or
administrator may pay another creditor of equal degree, and
a fortiori of a higher degree, without confessing a judg-
ment (r). Sir James Mansfield said, he v ished it were gene-
rally known (for he brlievtd, that lawyers in the courts of
law were not aware of it) that through the medium of a
court of equity, the creditors of a deceased insolvent may
always be compelled to take an equal distribution of the a.vi ts.
It was only necessary for a friemlK bill to be filed against the,
executor or administrator, to account; alu i which the chan-
rcllor would enjoin any of his creditors from proceeding at
law (.v).
The course of adniini.-tratiou, or payment of the debts ac-
rording to their priority, applies only to legal assets ; hi
natural equity requires that all the creditors should be paid
equally, when therefore tin- t siator leaves his real i state !
trustees or to executors, who thus become iiustee> for il.<
payment of his debts, these are called equitable assets, l>< -
cause a court of equity will order all tin ( ,<<! :i>rs to be paid
pan jHi&u, or an equal share out of this fund (/). Creditors,
\lwhosedemandsaic barred at law In the statue of limitation-,
| M ill be let in (</),
(w) 3 Bl.Com. iS. () Dyer, 31. a 1^-on. 60. () a Vern. 88.
ff) % Bac. Akr. 43. (f) i P. Wmi. 195. Vaugh. 89. (r) 3 P. Wms.
401* (<> i Canip. N. F. 148. (0 i Bro. j8. 2 Alk. 30. (u) i \ cm. 141.
And
Of Executor and Administrator. \ 19
And even where' specialty creditors have received part of
llieir debts out of the personal estate, a court of equity \\ill
restrain them from receiving any part of the equitable fund,
till all the other creditors are paid an equal proportion of their
debts (r).
The personal estate is said to be the natural fund for the
payment of debts, yet it will be exonerated if the testator
leaves by his \vill sufficient real property for the payment of
his debts, provided it is the manifest intention that the per-
sonal estate shall be exonerated, and that the real estate shall
be alone applied to that purpose (?/).
If lands descend to the heir charged by the testator with
his debts, they shall be liable to all his debts, although they
shall be considered as legal assets, and they shall be paid ac-
cording to their priority (z). The equity of redemption of
lands, mortgaged in fee, is equitable assets ; for the creditors
can have no relief from it, but in a court of equity (a).
All specialty creditors, where the testator has bound him-
self and his heirs, have their election, whether they will resort
to the heir, who has lands by descent, or to the executor, for
payment of their debts ; and although a court of equity will
not interpose its authority, and compel the specialty creditors to
apply to the heir, yet if they exhaust the personal fund, or leave
insufficient for the discharge of the simple contract creditors, it
will enable these to stand in the place of the specialty cre-
ditors, and to recover from the heir at law the amount of what
they have drawn out of the personal fund (6). This is called
marshalling the assets.
On the principle, that the personal estate is to be primarily
applied in discharge of the testator's debts, a mortgage mad*
by the testator must be discharged out of the personal estate,
provided there is sufficient to pay the rest of the creditors and
legatees. But though a mortgage is personal in its creation,
yet if it hdfe been contracted by another, and not by the
testator or intestate himself, it is payable out of the real
estate, for the personal estate has received no augmentation
thereby (r).
It being the object of a court of equity, that every claimant
upon the assets of a deceased person shall be satisfied as far
as such assets can, by any arrangement consistent with the
(.v) 3 P. Wms. 312. (y) i Bro. C. C. 462. 2 Ibid. 60. 6 Ves. Jun.
5-67. (*) 2 Atk. 290. i P. Wms- 430. (a) * Atk. a<)0. (b)i\ T *i.
512. (<r) 2 P. Wms, 664. a Bre. C. C. loi.
nature
Of Executor and Administrator.
nature of the respective claims, be applied in satisfaction
thereof; it has been settled, tiiat \\here one claimant has moro
than one fund to resort to, and another claimant only one,
the first claimant shall resort to that fund ou which the se-
cond has no lien (d). And therefore, if a specialty creditor,
vhose debt is a lien on the real assets, has received part of his
debts out of the personal assets, he cannot receive out of the
equitable fund till the simple contract creditors have bei n paid
a portion of their debts equal to \\hat the personal estate
Las been exhausted in payment of the specialty creditors (e).
\\ hen the debts of the deceased are all discharged, the le-
gacies are next to be attended to, and are to be paid by the ex-
ecutor or administrator, so far as the effects which remain
after payment of the debts will extend : but he may not give
himself the preference in this case, as he may in the case of
debts (y'); but shall have an equal portipn with the rest of
the creditors ( ) .
Executors or administrators so entirely represent the per-
sonal estate of the testator or in'< state, that they are liable to
the payment of all tin ; .nenant.s, &c. of the deceased,
as far as the asset;; which have come to their hands \\ill extend
to pay (//), But it is a principle of law, that an executor,
where no default is in him, shall not be bound to pay more
for his testator tlr.ui his goods amount to (/').
Executors may rt lease, or take a release, before probate,
if they prove afterwards (/c). They may commence an action,
but they caimot declare hi the ::ction before probate; for
when they declare, they must produce in court the K
tamentary (/.'. They may release, pay, or receive del*:-, n
1 to legacies, demise land, and do many other acts before
probate (wz).
J'/iich executor has the entire controul of the personal i
if tht testator, may release, or pay a debt, or trailer
pail of;.! >r's property, without concurrency of the other
. (;;). And it seems that the same rule ht'KL, \\ith it
(p).
. a testator, in the possession of the executor,
....t be takuii ju execution of a judgment in an action
(<T> i Atk 44*. a Ves. 53. M iAtk.4-,6. 3 P. Wrat, p*. (f) ^
vcrn.434. iP.~Vms2$. m. Hep. 354. (i>) i lust 109. a. b.
fi) Wrniw. Off Ex c. iz. i*) i Inn. 209. a. i Rol. Abr. 917 (Aj pi. i.
fi) i Kol Ahr. 197 (A) p!. a. (M) I Salic. 199. Conk Dig. tit. Admin.
B, 9 . a Ml. R. 0,14. 3T. U. iz^. (*) i \<->. iV7. ()Selw.
brought
Of Executor and Administrator. 121
brought against the executor in his own right (jp). But if
an executrix use the goods of her testator as her own, and af-
terwards man v ; and then the goods are treated as the goods
of her husband : they may be taken in execution for the hus-
band's debt (</).
Executors and administrators have a joint interest in the
estate of the deceased. Hence ii there are two or more execu-
tors or administrators, and one or more of them die, the admini-
stration of the estate of the deceased belongs to the survivor
or survivors ; and it seems that an action may be brought by
a surviving administrator, without procuring a new grant of
letters of administration (/}. They are entitled to the $ame
remedies for the recovery of debts and duties due to th& de-
ceased, as he himself had while living. But neither they nor
the representatives of the deceased can maintain an action
against another for any personal injury done to the deceased ;
for it is a maxim in law, that persona] actions die with the
'person (s),
But actions arising from a breach of promise, or the like,
and which have abated by the testator's death, may be re-
sumed by or against his executors or administrators; for
actions of this kind are actions against the property of the de-
ceased, and descend to his representatives (t).
So by stat. 32 Hen. 8, c. 37, they may sue for rent in
arrear, and due to the deceased in his lifetime, either in his
own right or that of his wife ; and may also distrain the
lands, &c. charged with the payment of such rent, while
they continue in the possession of the tenant, or any person
claiming under him by purchase, gift, or descent, in the
same manner as the testator might have done during his
life.
And by stat. 1 1 G eo. C, c. 19, s. 1 5 r the executor or ad-
ministrator of a tenant for life, on whose death any lease of
lands, &c. determined, shall, in an action on the case, re-
cover, from the under tenant, a proportion of the rent re-
served, according to the time such tenant for life lived of the
last year, or quarter of a year, or other time in which the
aid rent was growing due ; and if he died on the day 01
which the same was payable, they shall recover the whole
rent.
(/>) 4T. R. 621. (?) i Bos. and Pul. 293. (r) 3 Atk, 51^, * Vern.
14. (1)300.89. ' < v /) a BJ. Com. 302. Cro, Jac66j.
Au
122 Of Executor and Administrator.
An acting executor having once received, and fully had inider
his comroul, assets of the testator applicable to the payment
of a debt, is responsible for the application thereof to that
purpose; and such application having been disappointed by
the misconduct of his co-executor, whom he employed to
make the payment in question, he is liable for the consequences
of such misconduct, as much as if the misapplication had In u
made by any other agent of a less accredited and inferior de-
scription (it).
By stat. <2!) Car. 2, c. 3, s. 4, no action shall be brought to
charge any executor or administrator upon any special promise,
to answer damages out of his own estate, unless the agree-
ment upon \\hich such action shall be brought, or some me-
morandum or note thereof, shall he in writing, and signed l>y
the party to be charged therewith, or some other person tl;
unto by him lawfully authorised.
And the promise, as well as a sufficient consideration to sup-
port it, must be expressed in such written memorandum or
.note (.r).
While an executor is passive, he is chargeable only/ in rr-
speet of the assets; but if he^ promises to pay a debt of the
testator at a future day, he thereby makes it his own debt, and
must be satisfied out of his own estate (if).
. All sperale debts mentioned in the iwentury ^hall he deemed
s in the executor's hands; but tin executor may discharge
. .Limrclf by showing a demand and refusal of them (z).
Where a defendant binchtHiiinself as administrator to abide
nu award touching matters in dispute between hi d and
another, and the arbitrator awards, that the det'< IM nm-
r* shall pay a certain sum, it operates as an admission
assets between the^e parties, and the d< annot plead
n' iif.l/ninisli'tii'it to an action of d;br on the '>
mere submission to arbitration is not ; n a<'.-
of ase^, uiii'<s the arbitrator onifis the adiniiu-
-tiator to pay tlie amount of ti. .
(6).
Nrcntor or ;iilmii)Hmto>- ilml lie assets of lln-
much hmtthbered with debts, r it
r him to admir.i > . n di-cretion, he
:ipplv to '|' lif . v t ' .'n^ecl accord-
.
' 7 T. R. 3jC. n. 5 East** R. u .. (y) Yetv. u.
f. R. f^i. (1) r T. R. o. '0 i Vrra. i-.
If
Of Infants.
IF the property of the deceased is lost, or has become irre-
coverable through the wilful negligence of the executor or
administrator, such executor or administrator will be liable to
make it good, unless it appear that he took all reasonable care
to prevent such loss or defalcation (d},
Special bail is not required of executors or administrators,
in any action brought against them for the debt of the de-
ceased, except where they have wasted the goods of the de-
ceased. Nor shall costs be had against them (f).
CHAP. XVI.
Of Infants.
THOUGH a person is stiled in law an infant till he attains
the age of twenty-one years, which is termed his full age, yet
there are many actions which he may do before that age, and
for which various terms and ages are appointed. Thus a male
at twelve years old may take the oath of allegiance ; at four-
teen he is at years of discretion, and therefore may disagree or
assent to marriage; may choose a guardian; and if his discre-
tion be actually proved, may make his testament of his personal
estate; at seventeen may be an executor; and at twenty-one
is at his own disposal, and may alien his lands, goods, and
chattels. A female also at seven years of age may be be-
trothed or given in marriage ; at nine is entitled to dower ; at
twelve is at years of maturity, and therefore may consent or
disagree to marriage ; and if proved to have sufficient discre-
tion, may bequeath her personal estate; at fourteen, is at years
of legal discretion, and may choose a guardian ; at seventeen
may be executrix; and at twenty-one may dispose^ of herself
and her lands : so that the full age in male or female is twenty-
one years, which age is completed on the day preceding the
anniversary of a person's birth (J). If, therefore, one is born
on the first of January, he is not of age to do any legal act on
the morning of the last day of December, though he may not
have lived twenty-one years by nearly forty-eight hours (g).
But though the age of consent to a marriage in an infant
male is fourteen, and in a female twelve, yet they may marry
(</) a Pro. C. C. in. 3 Ibid. 565. (e) Cro. Eliz. 503. 3 Sallf. 106..
(J) Salk, 44. 625. Ld. Raym. 480. 1096. I Bro. P. C. 467. (g) i Bl.
Com.
before.
12J- Of Infants.
before, and if they agree thereto when they attain these ages,
the marriage is good; but they cannot disagree before thru.
And if one of them be above the age of consent, and tht-
other under such age, the party so above the age may as well
disagree as the other; for both must be bound or neither (// ) .
Infants have various privileges aud various disabilities; but
their very disabilities are privileges, in order to secure them
from hurting themselves by their own improvident acts. An
infant cannot be sued but under the protection, and joining the
name of bis guardian, for he is to defend him against ail at-
tacks, as well by law as otherwise; but his guardian, orpro-
chein amy t as before- mentioned. In criminal cases, an infant
of the age of fourteen years may be capitally punished for any
capital otfence (*); but under the age of seven he cannot. The
period between seven and fourteen is subject to great uncer-
tainty; for the infant shall, generally speakm::, be judged
prima facie innocent; yet if he was doli capiix, and could
discern between good and evil, at the time of the offence com-
mitted, lie may be convicted and undergo judgment and
cution of death, though he has not attained to years of puberty
or discretion (&). And Sir Matthew Hale gives two instances,
one of a girl of thirteen, \\ho was burned for killing her mis-
tress; another of a boy still younger, that had killed his com-
panion, and hid himself, who \\us hanged; for it appealed by
his hiding that he knew he had done wrong, and could discern
between good and evil; and in such cases the maxim of law-
is, that malitid suj.pU't tetutem. So also iu much more mo-
dern times, a boy of ten years oM, who was guilty of a heinous
murder, was held a proper subject for capital punishment by
the opinion of ull the judges (/).
With respect to estates and civil property, an infant has
many privileges, which will be better understood when we
come to treat more particularly of these matters ; but this may
be said in gnwuil, that an infant shall lose nothing by non
claim or neglect of demanding his right; nor shall any othe.
laches or negligence be imputed to an infant, excopt in scum
very particular cases, vi/. intake of a tine, v lit re the linn-
begins in the life of the ancestor; or of an appeal of deatl;
"' his ancestor, where he brings not his appeal within a
and a day, &.c. (//*).
(bj Co. Lit. 33, 78. i Rol. Abr. v;o. 3 Intt. 88. () i Hair, P. C.
*$. (*; Hale, 24. (i) Potter's Crown Law. (*) l fcit. aH>,
3*0. Weed's Int. 13.
It
Of Infants.
It is generally true, that an infant can neither alien his lands,
nor do any legal act, nor make a deed, nor indeed any manner
of contract that will bind him. But still to all these rules there
some exceptions. And first, it is true that infants cannot alka
their estates ; but infant trustees or mortgagees are enabled to
convey, under the direction of the court of chancery or exche-
quer, or other courts of equity, the estates they hold in trust
or mortgage, to such persons as the court shall appoint. 7 Ann.
c. 19; 4 Geo. 3, c. 16'. Also it is generally true, that au in-
fant can do no legal act; yet an infant, who has an advowsou,
may present to the benefice when it becomes void (//), For
the law in this case dispenses with one rule, in order to main-
tain others of far greater consequence : it permits an infant
to present a clerk (who, if unfit, may be rejected by tire
bishop) rather than either suffer the church to be unserved till
he comes of age, or permit the infant to be debarred of his
right by lapse to the bishop. An infant may also purchase
lands, but his purchase is incomplete; for when he comes of
age he may either agree or disagree to it, as he thinks proper,
without alleging any reason ; and so may his heirs after him,
if he dies without having completed his agreement (o). It is-
farther generally true, that an infant, under twenty-one, can
make no deed but what is afterwards voidable ; yet in some
cases he may bind himself by deed indented or indentures for
seven years (p)\ and he may by deed or will appoint a guardian
to his children, if he has any. 12 Car. 2, c. 24.
As to contracts for necessaries made by infants, it is to ob-
served (strictly speaking), thnt all contracts made by infants
are either void or voidable, because a contract is the act of the
understanding, which, during their state of infancy, they are
presumed to want; yet civil societies have so tar supplied that
defect, and taken care of them, as to allow them to contract
for their benefit and advantage, with power in most cases, to
recede from and vacate it when it may prove prejudicial to
them ; but in this contract for necessaries they are absolutely
bound, and this likewise in benignity to infants (y).
Therefore it is clearly agreed, that an infant may bind hitn-
pelf to pay for his necessary meat, drink, apparel, physic, and
other necessaries, as likewise for his good teaching and in-
struction (r). This binding means by parol; for as an infant
is not bound by any bond, note, or bill, which he may give,
fyi) Co. Lit. ijz. (a) Ibid. ^, (f) 5 EJiz. C. 4. 43 Eliz. c. 2.
Cro. Car. 179. ( q) 10 Hen. 6, c. 14. *8 &iw. 4, c. . i Rol. Abr. v
7*9. (r.) Co, Lit. J7.a
even
Of Infants.
even for necessaries, the law implies a promise b)' the infant
lor payment for the necessaries fuini>heJ for his maintenance,
where no promise has been made. \Vith respect to schooling,
fcc. the infant is bound in cases only \\here the credit was />uim
Jide given to him (s). In all cases, however, where the infant
is s// /wtfitntt' fitirentis, and is living in the same house with
his parents, he will not then be liable even for necessaries (0-
It must also appear that the things were actually necc.-sary,
and of reasonable prices, and suitable to the inf;:nt'> drgree
and estate, which regularly must lie left to the jury ; but if
the jury lind that the things were necessaries, and of 11:1^011-
able price, it shall be presumed that they had evident tor
\\hatthey thus find ; and they need not find particularly what
the necessaries were, nor of what price each thing was: also
if the plaintiff declares for other things as well as necessaries,
or alleges too high a price for those things that are necessary,
the jury may proportion their damages according to their in-
trinsic value (//).
An infant is not chargeable on a contract for goods supplied
for the purpose of carrying on trade, \\hercby he deriv-
support (i). Neither is an infant liable for money which he
borrows to lay out for necessaries, though he actually does lay
it out for necessaries; for it is upon the lending that the con-
tract must ari*r, and after that time there could be no contract
raised to bind the infant, because after that he might \\a-tc
vhe money: and the infant's applying it afterwards lor n<
smies will ; ot, by matter c.r post facto, entitle the plaintiff to
au action. In such cas*. the only way for the lender to ha\e
a claim no n the infant, is either to lay out the money lent
himself, 01 to see that it ;-; laid out in necessaries (//). lint
though the nfant is not liaLle at law, he i> in equity; and the
lender of the money stand- in the place of the credited ti
nece-,>am r).
Necessaries for an infant's wife are necessaries for him, but
if provi 'lie mairiage he is not cluij,-. able, though she
uses them l>. (a* 1 . So an int. nt is liable for tliu uuising ol
his ehild.
Debts i-i iifain v, forn, however, a good
consideration tnisc made to p:iv th< m \\lun ;<
person is of lull a CM. /'. id where the deundaul ni^
r e i
(i) Alleyn, 94. (r) 2 Bl. Rep. () Cro. Jac. 360. 2 Rol.
144. IMm. ^61. i Leon. 114, i Uol. ASr. 729. Civ
(j)\ S-k,*79. JJI6. ' 5 M> . . T. Wms. 558.
W-Str. 168. (k) x Le. 144, aLe-a. iij. 4 East's ^76.
uifsuicy,
2
Of Trustees. 1 27
infancy, and the plaintiff replies that the defendant confirmed
the promise or contract when he was of age, the plaintiff need
only prove the promise, and the defendant must discharge
himself by proof of the infancy (c).
Though a promise by an infant will not bind him unless for
necessaries, yet he shall take advantage of any promise made
to him, though the consideration was his promise when an iu-
fant. And an infant plaintiff has been allowed to recover on
mutual promises of marriage (d).
Infants are still a farther object of the care of the laws.
An infant unborn, or according to the legal expression, en reutre
sa mere, is supposed in law to be born for many purposes. It
is capable of having a legacy, or a surrender of a copyhold
estate made to it. It may have a guardian assigned to it, and
it is enabled to have an estate limited to its use, and to take
afterwards by such limitations, as if it were then actually born.
It may have a distributive share of intestate properly, evx-u
with the half blood (c); it is capable of taking a devise of
land (J ) ; it takes under a marriage settlement, a provision
made for children living at the death of the father (g) . Aud
it has lately been decided, that a marriage and the birth of a
posthumous child amount to a revocation of a will executed
previous to the marriage (It). So in executory devises it is
considered as a life in being (i). It takes land by descent,
though, in that case, the presumptive heir may enter and re-
ceive the profits for his own use till the birth of the child (k).
CHAP. xvii.
Of Trustees.
TRUSTEES not having the whole power, and being
obliged to join in receipts, one is not chargeable for money
received by the other. In the case of executors, according to
the old law, it was otherwise (/). But by a modern decision
the rule respecting an executor's liability for the misapplica-
tion by his co-executor of money for which their joint receipt
had been given, has been in some degree jelaxed (*).
(c) i T. R. 648. ( d) Str. 937. (<) rVes. 8x. (f) z Atk.
117. i Freem. 244, 293. . (g} \ Ves. 85. (b) 5 T. 11.49.
,"; 7 T. R. ioo. \k) 3 Wj.ls. 526. (0 I Saik. 318. 2 Vcrn. 515-
(m) 7 Yes, Ju*. 197, '.. "
But
128 Of Partners.
But where trustees so join in a receipt that it cannot be
distinguished what was received by one, and what by the other,
there they shall both be charged with the whole. So where
one trustee having received the trust money, handed it over
to his companion, In- was '-harmed ; for where by any act, or
by any agreement of the trustee, money gets into the hands of
his companion, whether a trustee or co-e\ec.ntor, they shall
both be answerable. AU<> if a trustee be privy to the em-
be/element of the trust fund by his companion, he shall be
charged with the amount '/*).
It seems now to be settled, notwithstanding some old deter-
minations to t'ne contrary, that a trustee or executor is cha:
able in equity with interest on the trust fund in his hands,
wherever it appears he has made interest; and not only ><>,
but if it appears that he has employed the tiu>t money in
trade, whence he has derived prolits bevond the rate of inte-
rest, he shall account for the whole of such profit-,: and still
fartlier, if a trustee, or executor retains money in his hands
for any length of time, which he might, by application to the
court, or by vesting in the funds, have made productive, he
shall be charged with interest thereon (o).
A trustee is not entitled to anv allowance for his trouble in
the trust, but he will be paid his cost^ in case of an un-
founded MI it against him (p).
A trustee robbed by his own servant shall be discharged of
it on account. Hut great negligence in collecting in the debts
under the trust deed may charge him with more than he has
received in the trust ).
CHAP. xvin.
Of Partners.
MERCANTILE associations are either pubfic or private.
In both cases the individual partners arc liable for the d ht<
of the joint trade without limitation, unites when incorpoiateil
by royal charter or act of parliament ; and then the members
arc liable for their respective shares or interest in the joint
slock.
(*) Fonb. Treat- E^ vol. a, c. 7, $. 5, in not. (} Ibid. s. 6, in not.
If) Ib.d. j. 3. iu BOU (j) iCh.Ca. 2, i Ycrn. 144.
If
Of Partners.
If a person suffers his name to be used in a business, and
hold* himself out as a partner, he is to be so considered, what-
ever may be the agreement between him and the other part,
ners, and although it was not known at the time of the deal-
ing that he was a partner, or that his name was used (;).
And the law is the same with respect to dormant or sleep-
ing partners, who, when discovered, are liable to the partner-
ship debts, because were they no;, liable, they would receive
usurious interest (.s).
As to the interest which partners have by law in the goods
or capital which they contribute at the commencement of the
partnership, or acquire in the course of trade, it is held by the
tcgan mercatoriam that the partners have all the same species
of interest in the stock in trade ; and that after an agreement
executed between the parties, the stock and effects which are
put into partnership become common to all the partners; al-
though they remain in possession of that partner who was the
owner of them before the partnership commenced ().
And this community of interest extends not only to such
partnership stock as may be brought into trade at the time of
entering into partnership, but to all such as may at any time
arise in the course of the partnership dealings. But to what-
ever share a partner may be entitled, he has no exclusive right
to it until a balance of accounts be struck between him and
his copartners ()
As to the controul of partners over partnership property,
it depends upon the articles of partnership. But if there has
been no express stipulation between them, the majority must
decide-as to the disposition and management of the partnership
concerns (x).
Of the power of transferring partnership property, it is
to be observed, that where there is any chattel, house, or
real estate, held for the purposes of partnership business, no
partner can dispose of more than his own share in them. But
with regard to all effects contributed, manufactured, or pur-
chased to be sold for the benefit of the partners, each partner
in the course of trade has an .absolute right to dispose of the
w hole ; and such sale is valid on the part of the vendee, if
transacted without collusion (y).
? (r) Younge v, Axtell and another, at Guildhall Sittings after Hil. 24 Geo. 3.
(si Doug. 371. (t) Co. Lit. 182. Dpmat. b. i, tit. 8, s. 3. () i Vrs.
242. Cowp. 449. IMd. 471. (x) Beawe'i LsxMerc. 53. (_y) Wat.
fon n Partnership, 91.
K A secret
130 Of Partners.
A secret act of bankruptcy by one partner docs not fak
away the power of the otlu i .-. to oppose bona jidc of tlie good*
which belonged to them (:).
A promise or undertaking to one of several pnrtr.ers in the
course of business is construed by law to be made fb ail of
them, and all are entitled to take advantage of it f
But though contracts in the course of bikini <v \\iih part of
a firm are considered as for the benefit of all the meinl>< n
composing it, yet there is no transmission of rights to MIC.
sion in a mercantile house, and all running a<ir m m< \\ith a
parnership ctase when any change takes place by death, the
retiring of one partner, or the admission of another in the
set of partners existing at the time \vhen the agreements were
concluded ().
If a contract is entered into by one partner in contravention
of the laws of this country, without the privity or personal
participation of his co partners; as if goods are packed by him
in a particular manner for the purpose of smuggling; m-hlier
the person entering into such illicit contract nor his co-partners
can recover on it. And it makes no difference if the paity
who made the contract lives abroad, if his co-partners reside
in England (c).
Each partner is not only entitled to his proportion of the
partnership estate, according to express agreement or \\hat he
originally contributed, but he has* lien upon it for any sums of
money advanced by him to, or owing to him from, the part-
nership. And this extends even to property in .-hips (d),
If one partner pays a debt arisim: out of a le-;d contr; <f,
for which the partnership was liable, he has an action against
the others for a contribution. But if paiineis should be en-
gaged in any thing maluni in se, one of them could not acquire
a right of action by paying a sum of money which thev had
jointly promised to a third person in the course of their im-
moral tr:>!
A distinction, however, has been taken between a debt
rinsing out of a prohibited transaction paid by one partner
with or without tin of the other.
When the C'liitrn. t is not nvnully b:d, its illegality n
only from its ben il.Uc, it '
held, that a debt paid by one partner K\th tltc consent and
() Cowp. -. O.T P-utncnhSp, in. (i) 2 BL
T.R.a 4 . (<; 3 T. X. ,;4. f"'; Vf -
Of Partners. 131
direction of the other, is recoverable in an actiou for money
paid to the other's use. Accordingly, two persons having en-
gaged in a stock-jobbing transaction, and incurred losses, one
ot' them, uho had repaid the broker employed, the whole dif-
ferences with the privity and consent of the other, was, not-
withstanding the statute 7 Geo. 2, allowed to recover a moiety
from his co-partner in such transaction (e).
We have already seen, that the act of one partner binds the
rest, their liability arising from their being considered as mu-
tually present at and sanctioning the proceedings they singly
enter into in the course of trade (f). And this responsibi-
lity of partners for the acts of each other in the course of
trade cannot be limited by any agreements, covenants, or pro-
visos, in the articles by which the partnerships are consti-
tuted (g).
But though the act of one partner binds the others, yet if
they can show a disclaimer, they will be relieved from such
responsibility. And it should seem, that even during the sub-
sistence of the partnership, and in the established course of
trade, one partner may to a certain degree limit his responsi-
bility. If there should be any particular speculation or bar-
gain proposed which he disapproves of, by giving distinct no-
tice to those with whom his co-partners are about to contract,
that he will not in any manner be concerned in it, they could
not have any claim upon him, as proof of this notice would
rebut his pnma facie liability (/?).
But unless the debt relates to, and has been contracted in
the course of, the parnership concerns, no joint liability arises,
but that partner only will be bound who contracts it (i).
The power of one partner to bn'id his co-partners in draw-
ing bills of exchange, indorsing such as are payable to the
firm, and making and indorsing promissory notes, has never
been doubted, if such bills, &c. concerned the joint trade (&).
But it is otherwise if they concern the acceptor only in a
disjoint interest. For if one of several partners draws, ac-
cepts, or indorses a bill on behalf of himself and co-partners,
it will not bind the others if it concerns him only in a distinct
interest, and the holder of the bill, at the time he became so,
was aware of that fact(0-
If the creditor of one of several partners collude with him
to take payment or security for his undivided debt out of the
(c) 3 T. R. 418. (f) | Salk. 292. (g) Watson on Partner.hlp,
234. (h) Ibid. 194. (i) Vin. Abr. v. 16, p. 242. (k) I Saik.
laS. (/) aEsp. N. P. C. 523.
K. 2 partnership
I
Of Partners.
partnership funds, knowing at the time that it was without tHe
consent of the other partners, it is fraudulent an. I void ; but if
taken bona Jide without such knowledge at the lime, no .sub-
sequently acquired knowledge of the misconduct of the port -
uer in giving such security will prevent the holder from recover-
ing against all the partner* (w).
IJut the power of one partner to bind the firm by a :
ciable instrunvnt ceases with the existence of the pnrlm r^hip.
And therefore when the partnership is dissolved, power to
receive and pay all debts due t> and from the partnership \\i!l
not authorize one of the late partners to indorse a bill <>;
change in the nanie of the partnership, though drawn by him
in that name, and accepted by a debtor 61 tin !iip after
the dissolution ().
And in Abel v. Sutton (o) it was determined, that after a
dissolution of a partnership one of the persons who composed
the firm cannot put the partnership name to a ncgociabi<
curity so us to charge the others, c. i :' existed prior
to the dissolution of the partnership, or were for the pui(
of, liquidating the partnership debts, notwithstanding ^
partner may have had authority to settle the partnership af-
fairs. To render such security negociable all the pan.
imi.st join.
A partner, as such, cannot bind his co-partner by deed.
For the sealing or delivering by the partv, or some one ex-
pressly authorised by him, are indispensably necessary (/).
JLJut though one partner cannot bind his co-p
he may, however, bar him of a right vhirh tin \
jointly. For when there is a promise to several jointly, or
where ti; t-veral joint obligees or covenanlees, a ret-
by one binds all. However, in rases i> g: <>i< \\ith
creditors, relief would probably be granted in a court of
equity [</).
JBut it will alw;r - In considered in what right n
eiv n by a joint obligt< . h he n!< Mel all actions m ;t i,
'alive capacity, a joint bond in his own right is not l. -
charged (r).
But though partners arc thns in general bouvul by thr con-
tracts, they are not answerable for the wrongs of c.nli oilu-r.
If they all join in one tM-.-,pass or tort, - they all nuy
be sued, and compelled to inak for the injnry
(*) 7 EastMtpp. no. (n) i !In. PI. 15$. ft) 5 Ep. N P. R.
fo8. ff ) - T. k. 107. (f ) Coin. Dij. & B^c. Abr. ut. K
(,) S'cr.:. 35.
they
Of Partners:
they have committed ; but this action arises from their personal
.misconduct, and Hot from the relation of partnership which
subsists between them. With regard to matters quite uncon-
nected with partnership trade or business there can be no
..question-; and, in general, acts or omissions in the course of
the partnership trade or 'business in violation of law, will only
.implicate those who are guilty of them (s).
The rule, however, admits of exceptions. Partners, like
individuals, are responsible for the negligence of their servants ;
and if one of the partners act, he is considered in this instance
as the servant of the rest. In these cases, the tort is looked
upon as the joint and several tort of all the partners; so that,
they may be proceeded against in a body, or one may be sin-
gled out, and sued alone for the whole of the damage (f).
J3y the death of one of several co-partners, the partner-
ship is dissolved, unless there is an express agreement for
the transmission of an interest in the business to .the deceased
partner's family, or for its continuation by his executors or
administrators () For, in partnership, no benefit of sur-
vivorship obtains; the representatives of the deceased part-
ner are tenants in common only with the surviving partner of
the partnership effects in possession (x).
The modes by which a partnership contract may be dis-
solved are various. Bankruptcy, death, outlawry, and at-
tainted for treason or felony ase, foso facto., a dissolution of
the contract ( //)
Where the partnership is formed for a single dealing or
transaction ; as soon as that is completed, the partnership is
at an end of course. But where a general partnership is en-
tered into for an unlimited time, it may be put an end to at any
time by ekher of the parties ; so that he acts bona Jide.
Therefore, if either of the partners should think proper to
relinquish the partnership, he may do so, provided he does
not break off with some sinister view, or -does not quit after
.some particular business is begun, or at an unseasonable time,
which might occasion loss and .damage to the partner-
ship (z).
A partnership may also be dissolved by the eflluxion or
expiration of the time for which it was originally consti-
tuted. It may be dissolved by the award of arbitrators.
(j) Williams' Compendium of the laws of Trade and Commerce, tit. Part-
nership. (/) Ibid. (u) a Yes. 33. (x) Williams' Compendium of the
cl Trad* and Commerce, tit. Partnership (y} Ibid. () Ibid.
The
134- Of Partners.
The gross misconduct of a partner will induce a court
equity to disannul the contract. The in.vaiiity of urn- of the
. it not of a temporarv nature, will product- the same
effect ().
Where a partnership has been ron-tituted for any definite
time, if the business should be conducted after thv expiration
of that period, without any new arrangement of the concern,
it would 'probably be held, in analogy to the law of landlord
and tenant, that the partnership continued under the condi-
tions and covenants contained in the original articles, with a
powrr in either party to put an end to it at pleasure (b).
A partnership may be dissolved as between the partners
themselves, and still subsist between them and tin: re.-t of the
Avorld. To free themselves from the responsibility tiny must
<; reasonable notice, that they are no lunger partners ; and
Iti such as may be considered to have had this notue, they
will be answerable only for their own acts and agreenn m>.
jVn advertisement in the London Gazette is the most u>ual
jiul advisable method of giving notice of a dissolution of
partnership to the public at large. For ui.l. ss this, or some-
thing tantamount to it, be don-, co-partners may continue
liable to each others creditors for any length of time after they
Lave ceased to have dealings together (<) Nor is notice in
the Gazette sufficient in itself, unless an actual kuouU-d.
the dissolution of the partnership can be brought home to the
creditor. Thus, when partners dissolve the partnership, they
.should, besides inserting an advertisement in the C:i/tUr, .-end
notice to all persons with whom they had dealings while in
partnership (<l).
When a partnership is dissolved, it frequently happens, that
it is only to make some alteration in the linn, after \\liidi the
partnership business goes on as before. In the . the
partner coming in, or retiring, generally pays or itn T.
Mim of money in proportion to hi.s share in the coin/eni. If
the hiisinc-x is to be given up, or the partners cannot arrive at
any amicable arrangement, then the partnership ttfn-ts :IK all
to be reduced into money, and the produce, tout th< r \\ith
the other hums of the hou.se, rateably divided among the part-
ner-. lJut l> i'ox- tl.rre is any di.idcnd, the partnei-hip <
must be paid; and it is only to his share of the s-nplus that
any partner is entitled. Upon this principle it has bi en
.rm* Compendium of the Laws of Trade and Commerce, tU.
ncr (1) Ibid. (/) Fcakc, N. P, C. 4*. (W) lbd. 154,
held,
Of Landlord and Tenant. 1 35
held, that if a partner, when he retires, draws cut of the part-
nership stock all that he had paid in, the hone e being insol-
vent at the time, he will be obliged to refund to the creditors
of the other partners (e}>
CHAP. XIX,
Of Landlord and Tenant.
THE estates ht 'which landlords and tenants, as such, are
peculiarly interested, are those for life, for years, at will, and
at sufferance.
An estate for life is where a man has lands or tenements
to hold during his own life, or the life of some other person,
or for some uncertain period, which, by possibility, may con-
tinue for life (f).
A tenant for life has a right to the full use and enjoyment
of his estate, and of all protits and advantages which may
arise from it, such only excepted as would, if taken, be na-
turally prejudicial to the persons entitled to the premises iif
reversion : he may therefore, unless restrained by particular
covenants, take sufficient wood for the necessary purposes of
repairs, tiring, and implements of industry. JBut he is not
at liberty to cut down timber trees, pull down houses, or com-
mit other waste upon the premises (<?).
If this estate is determined by the act of law, or by any ca-
sual or sudden determination, as by death, the tenant or his
executors, as the case may be, are entitled to the emblements ;'
\\ hich are not only corn and other gram sown, but also roots
planted, and in general all annual, artificial protits of the
land. Fruit-trees, grass, and the like, are not reckoned em-
blements (k], And this privilege extends to his under tenant
or lessee (2).
An estate for years is a contract or agreement between
the lessor (i. e. that is the person making the lease), and the
lessee (th person to whom it is made), for the possession and
profits of lands and tenements for a certain rent and recompence.
And it is immaterial whether it be for the complete term of a,
jear, or for a longer or shorter period (/)
(e) 4 Bro. C. C. 423. z Ves. Jim. 244. (/) Co. Lit. 41. b. (%) Ibid.
3. 4 Co. 6j. a. ah) 5 Co. 116, a Bl. Com, izz. (r) Co Lit. 55. a,
a fit, COM. 140*
1 36 Of Landlord and Tenant.
All persons may grant leases for any term Ic?s than the ir
own respective interests. Tenants in fee simple may grant
s of an absolute, an unlimited estate for life or years, or
otherwise, at their pleasure; tenants in tail, for three lives or
onc-and- twenty years ; tenants for life, by the curtcsv, and in.
dower, for their own lives, or the life of the person on whose
death the estate is to" detenuine; husbands seized of land in
right of their wives, for twenty-one years or three lives ; joint-
tenant, tenants in common, and co-parcenary, for life or years,
or at will ; executors, in right of their testators and intestates ;
ecclesiastical persons and eleemosynary corporations, for three
lives, or t\\enty-one years ; guardians of infants, for any term
not extending beyond the infant's minority (/).
There are two instances, however, in which leases, though
made for a larger term than in the cases above specified, will
not be void: 1st. a lease made by a corporation abnegate,
vhich will be valid as long as the person lives v\h<> \\as at
the head of the corporation \\hen it was made (m)> and 'J.
a lease by a guardian, which though made to continue beyond
the infant's minority, is not absolutely void, but only voidable
at the option of the infant's attaining his full age ().
The persons who are prohibited from granting leases arc as
follow: mortgagors, otherwise than subject to the inort*::
unless with the consent of the mortgagee ; infants, x as to
l)ind them when they come of age; married women, unless
the power of making leases is expressly reserved to them on
their marriage ; aliens, copyholders, for a longer term than
one year, unless by the custom of the manor, or the lice
of the lord ; and, lastly, a bailiff" of a manor, uulcss a special
power is given for that purpose (o).
\\ hh respect to \\hom leases may be granted, it may be said
generally, that a lease made to all persons born within the do-
minions of the united kingdom, or naturalized therein, is valid.
All leases granted to all; ; id , but, by the policy of
more modern times, a lease of a house or shop to an alien
merchant ha,s not been deemed invalid (/))
By the statute 29 Cur. 2, c. 3, : the prevention of
frauds, it is enacted, thut " ah her
of freehold or term of years, or any uncertain interest not
being cii'-tonniiv or cop}hold, of, in, to, or out of any mes-
suages, lands, tenements, &c. not put into writii
(!) Paul', Law of landlord a*J Tenr.f. () Co. Lit. 45. a. (}Cro.
Jac. 55. () Paul'itaw of Laadiord indTcium. (f) ibid.
bj
Of Landlord and Tenant. 137
by the parties creating or making the same, shall have the
force and effects of estates at will only, and shall not, either at
law, or in equity, be taken to have aiiy greater effect ; except
such as do not exceed three years from the making, where-
upon the rent reserved shall be at least two-thirds of the im-
proved value."
But under this statute, a paper purporting to be only an.
agreement for a future lease, will, if it contains words of
present contract, and it appears to have been the intention
of the parties that it should have the effect of a lease, be
valid as such (q).
The commencement of a lease for years may be at any fu-
ture period which shall be agreed upon between the parties (;),
And if no time is mentioned in the lease at which it is to begin,
it will commence on the day it bears date; and if that be
omitted, on the day it is executed (.s).
A lease may bear date as far back as the parties choose,
but not on a day subsequent to its execution. It must be
read by or to the parties, if required ; must be signed and
sealed by them, or their agents properly authorised; and
must be delivered either by the lessor himself, or his attorney
lawfully authorised, in the presence of one or t\vo wit-
nesses (t).
Tenant for years is, as well as tenant for life, entitled to
sufficient wood for repairs and firing; for making instruments
of husbandry ; and for hedging and fencing (if). But he is not
entitled to emblements ; unless the determination of his estate
depends upon an uncertainty, as when the lessor is only te-
nant for life. A lessee for years may also be empowered to
enter upon the land to cut, and carry away the produce
which 'may be growing upon the land when his term ex-
pires, where a clause has been inserted hi the lease to that
effect (j).
With respect to running leases, that is where leases are
granted for three, six, qr nine years, or seven, fourteen, or
twenty years, great contrariety of opinion prevailed as to their
duration : it has however been determined, that they are deter-
minable at any of the intervening periods at the option of
the tenant alone (y).
(y) z Bl. R. 973. i T. R. 735. 2 Ibid. 739. (r) Co. Lit. 46.
(i) Ibid. (t) Paul's Law of Landlord and Tenant. (u) Co Lit. 45.
i*) Ibid. 56. (^) 3 Bos. and Ful. 399, 442,
It
138 Of Landlord and Tenant.
It is a general rule in law, lhat \\hatever is fixd to the
oil, so as 10 become, as it were, a part thereof, cannot be
removed, and will at liie expiration of the lea>e belong to tUe
lessor: but it has been held lhat a tenant may remove w hat
*V* bp hj*s jLhMxediojj^e convenience of his business, as counters,
""shelves, cider-mills, brewing vessels, &c. and also chimney-
pieces- aud \\ainscot put up by himself; provided he does it
during the continuance of bis term ; tor after the expiration
of his term he cannot remove them without committing tres-
pass (Z).
If a tenant covenants to pay rent during the term, he will
be bound to continue the payment of it, though the premises
shouid be destroyed by tore or oilier accident, and not be re-
built by the lessor (a).
So if lie covenants to repair, and the premises are con-
fiuned bv h^luning or the king's enemies, he is bound to re-
build it '(if)-
. By the statute 6 Ann. c. 31, no tenant will be liable in
case of these casualties, unless ihere is a special Agreement to
tl*al effect between himself and his landlord.
Though a tenant covenants to pay the reserved rent
** without any deduction or abatement whatever," it has
been determined, that he may nevertheless deduct and retain
the laud tax out of his rent, if such tax is to be paid by the
landlord (i).
As he may likewise ground rent, which he may have paid,
on a di mand from the ground landlord, and also money ex-
pended in repairs (d ).
And as a covenant extends only to such things as are in
being at the time of the agreement; if a tenant c>v n.mt-;
to pay all taxes, he is bound to pay such taxes only as were?
, in being at the time the lease was made (<)
But under a covenant to pay all the taxes except the land
tax, the landloid is only to pay the old tax, and not the ad-
ditional tax occasioned by the improvement of the estate (J ).
A covenant to repair and deliver up the demised premi-n
at the end of the term, extends to elections made during the
derm'se, as well as those in being at the time of the e.\eculiou>
of the lease .
. (*; i P. Wm. 94. i Hen. B!. ic*.
JHid. 650. 3 Bur. 1637. (A) IbiJ. (.-) Esp. N. P. C. a;8.
Annr. 57 j. (e) j Vent
3 Lev. 164.
(a) Dyer, 3^. a. i T R- 3 TO.
_.,. .* P. C. a;8. (/)4 I'. R- S".
2 Lev. f 8. C/)JT- R- 377<
Of Landlord and Tenant.
And where a lessor covenants to repair, and neglects to do
it, it seems that the lessee may repair, and deduct the expences
out of the rent (h).
Where a tenant covenants to keep a house in repair, and
Jo leave it in as good condition as he found it, he is not an*
swerable for the natural and inevitable decay of the premises-;
but he must keep it wind and water tight, so that it does not
decay for want of cover (?'). J^LJJb^.JuJferj_it tg_dgcay
JIQ flrtioi> lie.? against hunjjjljhe end of j.he_tgr_m^f)~
An estate for years may be forfeited not only by the com,
mission of those acts, which by the grant or lease are ex-
pressly forbidden on pain of forfeiture, but generally by anj
act done b.y the tenant, which is inconsistent with the nature
of his estate, or the implied conditions on which it is held;
these are principally, 1. Alienation, contrary to the law; as
where the tenant grants to another a greater estate in the pre-
mises than he has himself; if he commits 'felony ; or does
any act in a court of record, which amounts to an express uy
virtual disclaimer of his estate. 2. By waste ; as by pulling
down houses ; suffering buildings to decay for want of nece*,-
-?ary repairs ; tearing up floors, wainscots, benches, doors,
windows, walls, and whatever else is fixed to the freehold so
as to become a part of it ; to convert one species of land
or building into another, even though it should be improved
in value ; to diminish the number of fish in a fish-pond,
pigeons in a dove-house, rabbits in a warren, or the like, be-
low the stock necessary to be kept for the purpose of breed-
ing ; to cut down or lop timber-trees, or trees likely to be-
come such, or to hinder the growth or to pull up filbert-trees
or willows ; to open coal-pits, mines, &.c. but if they are
Open at the time that the premises Avere demised, it is otherwise.
3. By nou payment of rent ; as if the tenant shall be one year'*
rent in arrears, and shall desert the premises demised, leaving
Jhe premises uncultivated or unoccupied, so that no sufficient
distress can be had, two justices of the peace (after nodes
affixed to the premises fourteen days before) may give the landr
lord possession, and the lease shall be void (/).
In all these cases of forfeiture, or other cessation of the
lessee's estate, the lessor has the power of re-entry. But tin*
right may be waived by any act of the lessor indicating hi*
Intention of not availing himself of his right ; as if he accept*
(b) Co. Lit. 54. Ld. Rayin, 420. I -Anstr. 575. (') i Esp. N. P. C- *77-
ity p. N, B. 342. (/> PaqTs ia\v of landlord and Tenant,
lent
] A Of Landlord mud Tenant.
rent to a time subsequent to the forfeiture, as rent under the
lease, and not as a penalty incurred, or a satisfaction *or the
time vince occupied by the tenant (;.").
Whether the premises consist of houses or lani, it is a
general rule, that half a year's (viz. the period elapsing from
one feast Hay to another, and not six months, to be computed
from any intermediate dayj notice to quit must be given by th
landlord to his tenant, and so by the tenant to his landlord (or
their representatives respectively), before the one can leave, or
the other recover possession of the premises demised (). And
this notice mu>t expire at the end of the year, to be computed
from the commencement of th^e tenancy. Thus, it" the tenancy
commenced at Midsummer, notice must be given on the pre-
ceding Christmas, to quit on the Midsummer following (o).
But where three months notice to quit was given, \\lu-n six
was in strictness necessary, no objection being made to it at
the lime, the notice was deemed good awl binding on the party
accepting ii(/>).
A relaxation has also been admitted to the strictness of the
nile, where the nature of the agreement or tenancy implies,
or the custom of die country sanctions, a departure from the
rule (/?).
Where the duration of tlie tenant's term or interest i^ lixid,
and limited by previous agreement, no notice to quit need be
given on cither part, unless it should be expressly required ia
the lease. If, however, the tenant continues in pMaenwM^
after the expiration of his term (no notice having bet n irivt-u)
be iviti be considered as tenant from year to year, and have u
right to hold till notice be given (;).
Nor is notice requisite where a tenant is in possession
under a void lease (s), or if he lias attorned to a strait -r, <>r
done any act disclaiming to hold of his landlord or coiitrovnt-
ing his title (0.
In respect to lodgings, it is generally understood, that a,
week's notice will br sufficient, if the apartments art taki n by
the week ; a month's notice, if taken by the month ; a quar-
ter's notice, if taken by the quarter ; :uul this seems to IK- sanc-
; d by the c;:>e of I'nm v. IKi-ell, ui \\hicii it \\.:s agreed,
that notice had reference in all cases to the letting, uuK -> con-
trolled by the express agreement of tin- parties ().
{*) 6T. R. 319. () j Will. 15. () a Bi. R. 1224. (f) Eip.
C fttf, (j) ^H. R. ai7J. | Skin. 649. 3 Bur. 1609. i'cakc'i
S3- *<>* iO * '
() E:p.N.r.C. 94.
Of Landlord and Tenant. 1 4 !
Notice by parol or word of mouth only, will be sufficient,
if it can be proved to have been given, and was explicit as to
the time of quitting, and absolute and unequivocal in its requi-
sition to quit (V).
Notice to quit should be served on the party himself for
whom it is intended, or else left with his wife or servant, at
the usual place of his abode (?/).
And if the tenant does not comply with a notice to quit
given by his landlord, he is subject to an action of ejectment,
or by stat. 4, Geo. 2, c. 28, double the yearly value of the
premises he is required to deliver up.
And by stat 11 Geo. 2, c. 19, a non-compliance with a no-
tice given to the landlord by the tenant will subject such
tenant, his executors, and administrators, to double the re-
served rent so long as he shall continue in possession thereof
after the giving of such notice.
It is to be observed on these statutes, that the notice to
be given by the tenant under 1 1 Geo. 2, may be by parol ;
but that to be given by the landlord, under 4 Geo. 3, must bs
in writing (z).
But a notice to quit may be waived, or tacitly withdrawn,
by any act or conduct implying a permission on the part of
the landlord, and an acquiescence on the part of the tenant,
that the tenancy shall continue as before. Thus the receipt
of rent for the premises up to a period subsequent to the ex-
piration of the notice, will be deemed a waiver; unless it ap-
pears to have been accepted merely as a satisfaction for the
tenant's subsequent occupation of the premises ().
In some cases an express demand of rent in arrear must be
made before it can be recovered, and in others no demand is
necessary. Where the remedy given by the lease for non-
payment of the rent is by way of re-entry, or where the lease
is declared to be void on non-payment of rent, or where a
penalty is reserved in case of non-payment, a demand of lite
rent must be made^ before entry can be lawfully made, or
the penalty is recoverable (b). When the remedy is by dis-
tress (which, when no other is reserved, is the legal and pro-
per remedy), no previous demand is necessary in order to*
entitle the landlord to distrain, not even though the lease
(*) 3 Bur. 1603. Doug. 167. (y) Paul's Law of Landlord and Tenant,
fa) Ibid. (a] i Hcn.Bl. ju. fT. R. 219. (*)-C9, Lit, 153. 201,
Hob, 207,
expresses
142 Of Landlord and Tenant.
expresses that the rent behind may be distrained, being law-
folly demanded ; for,in fact, the distress isvlf is a demand (r).
Kent may be demanded, and is payable, at any time before
sun-set on the day upon which it becomes due (rf). But the
demand must be made upon the premises, or else it is not
sufficient (e).
A demand of it must be made by the landlord himself, of
some person specially authorised by him ( /') ; and care must
be taken to demand the precise sum due, and to mention
the time when it became due, otherwise the demand is
void (g).
As to the time of tender, it may in general be made at any
time before sun- set on the la-t d;ty of agreement.
A tender of the residue, after deducting the expence of
repairs, which the landlord was bound to do ; of the ground
rent, demanded of and paid by the tenant ; and of the land
tax, payable by the landlord ; is a sufficient tender (A).
If a lessor accepts rent from his lessee's assignee, knowing
of the assignment, lie caunot afterwards distrain or have an
action of debt against the lessee for rent, for the privity of
contract is destroyed ; but he may bring an action on the lessee's
covenant (/).
All persons having the reversion or remainder of lands, &c.
may, after the determination of the particular estate or existing
term therein, distrain for rent in arrear, without any rl.msc
of distress to that etfect contained in the lease. But if he as-
sign his t rtn, he cannot distrain, because he has not the re-
version (X-)
It may be said, in general, that distress may be taken of
all goods and chattels personal, found on the premises de-
mised, whether they le the property of the tenant, or of a
stranger (/) But dog* , eats, hares, rabbits, poultry, fish, or
other things of a wild nature ; things on the premiss m the
way of trade, as 1 OPM x in a -niiih's shop, corn at a null, or
cloth and garments at a taylor's shop; the cattle ai, I good f
a tempoiai\ -iiu-t at an i.m ; llu- '.M!S and iinp!e>iu n'> >f a
man's Hi -he books of a scholar, the a\e oi a rarm-nter,
and the like, \\hilc he is using th; >s other I if-
licitnt (listit^s upon the pi-anises; wia.mg apparel, when
(c) Co. Lit. 15 v 201. Hoi. 197. 7 Co. 18. S. (d) Co. Lit. 40*. (e) Cro
Cu. 511. (J) 4 Leon. 179. (g) I'jul'i Law o' LmdlofJ aad Tenant.
(*) IbiJ. (.) 3 Co. 24. ' (k) Co. Liu i<ji. (I) I'auri Law of Land-
lord aad Tauou
actually
Of Landlord and Tenant. 143
actually upon the back ; what is in the actual use of another,
as the horse a man is riding upon ; things affixed to the free-
hold, as chimney-pieces, anvils, mill-stones, even though re-
moved, if the removal has been for some necessary purpose;
loose money ; goods in execution and cattle impounded for
damage feasant, are not distrumable (in).
But deer kept in a private inclosure ; a coach standing at
livery; hay, corn, and other products of the earth; together
\viih any cattle or stock of the tenant depasturing upon any
common, appendant or appurtenant to the premises ; may be
distrained for arrears of rent (ri).
The cattle of a stranger found on the premises of a te-
nant are distrainable or not according to the following circum-
stances :
A stranger's cattle are distrainable, if they are turned oa
the land with the consent of the owner, or if they break
through the fences by his default (o). And the law is the
same although they are depasturing there only on their way to
market (p). But if they come upon the land from the te-
nant's neglect to repair the hedge-;, they are not distrainable,
antil they have been levant and couchant, i. e. one night at
least upon the land, and notice has been given to the owner,
and he neglects to remove them (</).
Distress for rent must be made in the day time, and not
until the day after that on which the rent is reserved in the
lease (/). If made after the tender of the arrears, it will be
illegal ; and though the tender be made after the distress, but
before it is impounded, if the landlord refuse to deliver up the
distress, the detainer is unlawful (s).
By stat. 1 1 Geo. 2, c. 19, if any tenant for life or other-
vise, of any messuage or hereditaments, upon the demise
whereof any rent is reserved, shall fraudulently carry away
from such premises his goods and chattels, to prevent the
landlord from distraining, the landlord, or any person by him
lawfully authorised, may seize such goods within the space of
thirty days next after they shall have been carried away, and
dispose of the same as if they had been distrained upon the
premises; unless such goods be, buna, fide, sold before such
seizure.
(w) Paul's Law of Landlord and Tenant. () Ibid. (o) Cro. Eli/.
549. i Raym. 168. (/>) Gilb. 46. (</) z L^tvf. 1573. (r) Co. Lit~
241. (J.I S Ca. 147.3. Co. Lit. 160. b.
And
J44 Of Landlord ami Tenant.
And if any tenant or lessee shall fraudulently remove, or
Conceal his goods as aforesaid, every person so offending, "i"
assisting in so doing, shall forfeit to the landlord double the
value of the goods; which two justices of the j -:n v for the
county may, on complaint, adjudge to the landlord, if the
goods so carried oif do not exceed the value of bOl.
By the stat. ll Gco. 2, c. 19, if the landlord has a reason-
able suspicion that goods are concealed in any IK-H . or pLue
fastened, to prevent their being taken in disln --, 1 .< . -M any
oth< r person authorised to take a distress for rent, in.,
oath before a justice of the peace, and with t! met of
the constable or other peace oliicer of the p;n>h or place
where the same are suspected to be concealed, break open in
the day time, and enter into any such house, and sci/:e such
g )od< for the rent in arrear.
By the Ifilh sue lion of the same statute, it is provided, that
if any tenant at a rack rent, Sec. \\lio *.hall be - i< nf
in ai rears, shall desert the premises, leaving them unculti-
vated and unoccupied, so that no sufficient < ! an IK:
found, two justices of the. peace may, at the <i the
landlord, allix a written notice on the most notorious part of
the premises, slating what day (at the distance of fourteen
days at least) they will return to take a second view of the
premises ; and if, upon such second view, the arrears be not
paid, or there be not sufficient distress, the justices may
put the landlord into possession, and the lease shall become
void.
A further remedy is given for the recovery of posseskm of
the premises by the 4 Gco. 1, c. 28, which enacts, that in all
cases between landlord and tenant, as often as one half year's
rent shall be in arrear, and the landlord has a right by law to
re-enter for non-payment, and no sufficient distress is to bo
had ; such landlord may, without any formal demand, or re-
entry, icrve a declaration in ejectment for recovery thereof;
or, in case the same cannot be legally served, or no tenant be
in possession, afiix the same upon the door of any <!imiid
messuage, or upon some notorious place of the land, tene-
ments, or hereditaments, mentioned in such declaration, \\hieli
affixing shall be deemed legal notice thereof, and shall stand
in-teud of a legal demand and re-entry ; and a recovery in such
ejectment shall be final and conclusive, both at law and in
equity, unless all arrears of rent with full costs be paid, or
.x-d Ytithio six months thereafter.
After
Of Landlord and Tenant.
After a landlord has brought an ejectment, he must not re-
ceive any rent of his tenant nil such ejectment be determined ;
if ,he does, it will be a waiver of the action, and he will be
nonsuited (0
If a landlord, making a distress for rent, turns the te-
nant's family out of the house, and keeps possession after the
rent is paid, trespass lies against him (it).
Though a landlord ought to distrain for the whole rent at
once, yet if there is not sufficient distress on the premises,
and he mistake in the value of the thing, and take too little,
he, his executors, or administrators may, by stat. \1 Car. ,
c. 7 , make a second distress to complete his remedy.
Distresses ought not to be excessive, but in proportion to
the duty distrained for(.i); and if made \\ithout cause, or
contrary to law ; as if it be taken upon the highway ; the
owner may, at any time before it is impounded, rescue it (y).
After the distress is made, the first thing the distrainer is
to do, is to impound it. For this purpose, it is enacted by
stat. 1 W. and M., that no distress of cattle shall be driven
out of the hundred, rape, wapentake, or lathe, where the same
were taken, except to a pound overt within the same shire,
and within three miles of the place where taken ; nor shall
any distress be impounded in several different places, under
penalty of 100s. and treble damages.
By 11 Geo. 2, c. 19* it is lawful to impound a distress for
rent on such part of the premises as shall be most convenient.
But if the things distrained are goods, and they are removed
off the premises, notice (which will be sufficient if personal
or verbal) (z) must be given of the place whither they are re-
moved, and such notice contain an inventory of the goods
distrained (a).
And where any goods or chattels shall be distrained for
rent, and the owner shall not, within five days next after sdcli
distress taken, and notice thereof, and of the cause of taking,
left at the dwelling house, or other notorious place on the
premises charged with the rent, replevy the same ; it is pro-
vided by the statute 1 W. and M. that then, at the expiration
of the said rive days, the distrainer may, with the assistance
of the sheriff, under sheriff, or constable, cause the goods and
chattels so distrained to be appraised by two sworn ap-
praisers, and sold for the best price that can be got for the
(0 z Bur. 66$. (u} i East'* R*p. 142. (x) 2 Inst. 106. (y) Go-
Lit 47. ' (} iz Mod. 76. (<0 I'-? N. P. C. 419.
L . same.
14fy Of Carriers.
same, towards satisfaction of ilie rent for which the said gooclf
and chattels shall have been distrained, and costs and charges
of such distress, appraisement, and sale, leaving the over-
plus, if any, in the hands of the said sheriff, or constable,
for the use of the owner.
Jf the tenant means to replevj the goods distrained, he
must, within five days after notice given him of the distress,
:<> with two housekeepers to the sheriff's office, or, it in the
country, to a person whom the sheriff' has authorised to grant
replevics, and enter into a bond with two sureties in double
the value of the goods, to try without delay the right of dis-
training, and to return the distress in case the right should
be determined against him ; upon which the sheriff shall direct
a precept to one of his bailiffs to restore the goods to the
tenant (b).
CHAP. xx.
Of Carriers.
ALL persons carrying goods for hire, as maslers and
owners of ships, lightermen, proprietors of waggons, Mage
coachmen (but not hackney coachim u in London, e.\c-pt
there is an t > pi ment, and money paid for the carriage
of the goods), and the like, come. under the denomination of
common carriers ; and arc bound on the general custom of
the realm, that is, by the common law, to receive and cany
the goods of the subject for a reasonable hire or reward, to
take due care of them in their passage, to deliver them salcly
and in the same condition as when thc\ \\erc ncrmd, or, in
default thereof, to make compensation (c) ; nnlos the loss or
riainnge arises from the ac.t of God, as storms, tempests, and
the like ; or of the king's enemies ; or -from the default of
the party sending them (</).
.And where a person undertakes to carry goods safely and
securely, he \\ill be responsible for the damage lluy sustain
in the carriage, through his neglect, though he i> u"t a coin-
mon cr.'nirr, nor takes any premium for the carnage (f) ;
and this julc holds, although the plaintiff, for greater caution,
(t) Staf. $ a Hen. 3, c. n, and *ec Paul'* Law of Landlord and Tenant.
(<) Com. Rfp.5. Bui. N. P. 70. i HI. R. oib. Ow. 57. (d) i Imt. J< 9 .
Eip. N. 1'. C. 619. (t) Ld. Raym. 909. Cam. Krp. 133.
sends
Of Carriers* 147
sends his servant with the goods, who pays a person for guard-
ing them, because he apprehends danger of their being
stolen (f).
Where a carrier entrusted with goods, opens the pack, and
takes away part of the goods, he is guilty of felony (g). And
it is the same if the carrier receives goods to carry to a certain
place, and carries them to some other place than that ap-
pointed, with an intent to defraud the owner (k). So if a
carrier, after he has brought goods to the place appointed,
takes them away privately, he is guilty of felony; for the pos-
session which lie received from the owner being determined,
his second taking is in ail respects as if lie were a mere
stranger (/).
If a common carrier who is offered his hire, and who has
convenience, refuses to carry goods, he is liable to an action
in the same manner as an innkeeper who refuses to entertain
his guest, or a smith who refuses to shoe a horse (&).-
But a carrier may refuse to admit goods into his warehouse
at an unseasonable time, or before he is ready to take his
journey (/).
Though a carrier uses all proper care, yet in case of a loss
he is liable; for negligence does not enter into the grounds of
this action. And therefore it is no defence " that the ship
was tight when the goods were placed on board, but that a rat
by gnawing out the oakum had made a hole, through which
the water gushed (m) ; or that the loss of the goods was occa-
sioned by the vessel's striking against the anchor of another
vessel, which had not a buoy to mark the place where the
anchor lay (w).
A carrier is also responsible for a loss occasioned by acci-
dental fire, provided such loss happens while the goods are ia
his custody.
Thus if goods entrusted to a common carrier are consumed
by an accidental fire, communicating to a booth in which the
goods had been deposited by the carrier in the course of the
journey, he was held to be liable (o).
So where common carriers from A. to B. charged and re-
ceived for cartage of goods from a warehouse at B. (where
they usually unloaded, Juut which did not belong to them,) to
the house of the consignee in B. it was held, that they <vere
{/) z Bos. and Pul. 416. (g) Kale's P. C. 61. () J last. 367.
(i) i Hawk. P. C. c. 33. s. 5. C*) 2 Show - R - 3*7- (') U. Rayrr.
652. (m) i Wiis. 281. () 3 Esp. N. P; C. iz;. (c) j T.
,L 2 responsible
14S Of Carrit /
responsible for a loss by an accidental lire while the goodfc
were in the warehouse ; although they allowed the protits of
the cartage to another person, and that circumstance was kuo\vi>
to the consignee (p).
But where the goods are not remaining in the rarrier's cna-
lody, he is not liable ; as where the goods had been carried
by the defendant from A. to B., and there deposited in a
warehouse r merely tor the convenience or the owner, nitiil
thevcoukl be forwarded by anotlier conveyance (th> OVMUT not
paying tlie defendant any thing for the warehouse room) and
were consumed by an accidental tire there, it was held that the
defendant was not liable (q).
If a carrier be robbed of the goods, he shall be liable for
tin; loss (/) ; for having his hire, there is an implied under-
taking for the sate custody ami delivery of the goods. But
the carrier may bring an action on the statute of Winchester
against the hundred to make good his loss (.s).
In every contract for the carriage of goods, between a per-
son holding himself forth as the owner of a lighter or vessel
ready to carry goods for hire, and the person putting goods on
board, or employing his vessel or lighter for that purpose, it
is a term of the contract on the part of the carrier or lighter-
man, implied by law, that his vessel is tight and fit for thn
purpose of employment, for which he offers and bolds it forth
Jo the public (/). And the carrier or lighterman will be rc-
sponfible for a breach of this implied undertaking, although
he ihould give notice, '' that he v\iJl wot be answerable for any
loss or damage, unless occasioned by want of ordinary care in
the master or crew of the vessel, in which case he will pay
ten pounds per cent, on such loss or damage, so as the \\i
does not exceed the value of the vessel and freight." In l.lli-
i. Turner (w), when- a similar notice was given, the owner of
the vessel was held liable for the whole loss, upoa the special
undertaking of the muster.
But by the stat. 7 GO. '2, c 1 5, it is provided, that if any los*
arises by the ei', in /./lenient or dishonesty of the nn-d -i <>r any
of the mariners in the sh^p, the owner shall onl\ be liable to
the amount of the value of the ship and freight.
And on this statute the defendant \\as held not to be liable
to make good a theft committed ou board the vessel, during
fjT.R. sSj. (y) 4 T.R. 381- (') i Inrt. 19. . rRoJ.
Abr. 338. (i) Style, 427. a Saund. 380. () 5 tau'i Rep. 418.
(.) ST.R-53I.
7 tfee
Of Carriers,
fiie -flight, and by force, by a number of fresh-water pirates^
'beyond the value of the vessel and freight (.r).
The 20' Geo. 3, c. 86, still further provides, that the ship-
owners shall not be liable for a loss occasioned by a robbery
or embezzlement, committed by any person whatever without
their privity, beyond the value of the ship aiid the vessel.
And it further exempts them from all liability to answer fora
-loss occasioned by fire, and also in the case of robbery of gold,
silver, watches, and precious stones, unless the proprietor de-
clares to the master or ship-owners, in writing, the nature aud
value of such articles.
Upon tl*e ground that a carrier is not liable for an accident,
occasioned by the act of God, it has been held, that if a
bargeman in a 'tempest, for the safety of the lives of his pas-
sengers, throws overboard any trunks or packages, he is not
liable (y).
By the custom of the realm a common carrier is bound to
-carry the goods of the subject for a reasonable reward, to be
therefore paid, by force of which he has a lien as far as the car-
riage price of the particular goods, but not to any greater ex-
tent (z). A lien claimed by a carrier for a general balance,
not being founded on the common law, but arising by contract
between the owner of the goods and the carrier, must be sup-
ported by the general, uniform, and long- established usage of
trade; for as general liens are not favoured in law, evidence
of a few recent instances of detainer by carriers for their
general balance will not be sufficient to furnish an inference
that the party who dealt with the carrier had knowledge of the
usage, and so to warrant a conclusion, that he contracted with
reference to it, and adapted the general lien into the particu-
lar contract (a).
A common carrier having a special property in the goods
entrusted to him, and being, liable to make satisfaction for them
to the owner, may have action of trover or trespass if they are
taken out of his possession by a stranger. And where goods
are stolen from a carrier he may bring an indictment against
the felon as for his own goods, though he has only the pos-
sessory, and not the absolute property; and the owner may
likewise prefer an indictment against the felon (/>).
The action against a carrier for the non-delivery or loss of
goods must be brought by the person in whom the legal right
(x) i T. R. iS. (y) i Rol. Rep. 79. (*) Ld. Raym. 752.
$*) 6 East's Rep. 519. 7 ll>id. 3124. (*) K.el. 3$.
Of
150 Of Carriers.
of property in the goods in question is vested at the time; for
In is the person who has sustained the loss, if any, by the
iigence of the carrier. Hence, where a tradesman orders
goods to be sent by a carrier, at the moment the goods are de-
livered to the carrier it operates a* a delivery to the purchaser,
and the \\hole property (subject only to the right of stoppage
in tnmsitu by the seller) rests in the purchaser ; he alone cau
maintain an action against the carrier for any loss or damage
to the goods ; and this rule holds as well where the particular
carrier is not mentioned by the purchaser as where he is ; anil
it holds as well in the case of a carrier by water as where th
goods are conveyed by land (c).
But if there is a special agreement by the parties, that the.
consignor was to pay for the carriage of the goods, the action
is maintainable by the consignor (</).
In order to charge the carrier, these circumstances are to be
observed.
1 . The goods must be lost while in possession of the car-
rier himself, or in his sole care. Therefore where the plain-
tiffs, the East India Company, sent their servant with the goods
in question on board the vessel, who took charge of them, and
they were lost, the defendant was held not to be liable (f\
2. The carrier is liable only so far as he is paid, for he ig
chargeable by reason of his reward.
A person delivered to a carrier's book-keeper two bags of
money, sealed up, to be carried from London to Exeter, and
told him that it NVUS L'uu/. and took his receipt for the rame,
with promise of delivery for ten shillings per cent, carriage and
risk; if the carrier is robbed, though the bags contained 400/.
he shall be answerable for two hundred pounds only ( f).
So where 100/. \\as delivered in a bag to the carrier's book-
keeper by the plaintiff's servant, and paid for as a common
parcel, when lost the carrier v as not held to be liable, it being
proved that, he had, by puLli" advertisement, limited his icspon-
lity as t" any money, plate. or other \a-
liiabh 1 goodbj 'mil -.^ they were entered as MI< .1), and paid
accordiir
1 u(i r a special or qualified acceptance the canu i i> boiuid
jio farther than he undertakes. For \\iiei nei m :
, <.'Ut ;!n ftdreriifefnent " that he \\ill not br
(c) 8 T. R. 5^0. jF. $ Burr. 2680. i T. K.
*59- (r) Sti. 6jo. <y) Hul. N. P. 71. (j) O.hi.on* Poynton
. another, B. , . _j.
Of Innkeepers. 151
answerable for money, plate, jewels, watches, writings, goods,
or any package whatever, (if lost or damaged,) above the value
of oL, unless insured and paid for at the time of the delivery,"
all goods received by him are under that special licence, and
if they are lost, the proprietor of the stage-coack is not an-
swerable ; not ev<m to the extent of the ol or the sum paid
for booking (A). But in order to defend himself in an action,
the carrier mitst prove, that such notice was stuck up in a coifr-
spicuous part of the office when the owner brought his goods,
or that it was advertised in a newspaper which he was accus-
tomed to read; and Lord Ellenborough has expresj-ed strongly
his disapprobation of the great alterations which have been
made in the common law obligation ; and has declared, that m
every case where a carrier sets up a special engagement as his
defence, he would require proof of actual notice to the owner
of the article (').
4. A delivery to the carrier's servant is a delivery to himself,
and shall charge him; but they must be goods such as it is his
custom .to carry, not out of his line of business (k).
Coach-owners are not liable for injuries which passengers
may sustain from inevitable accidents, as from the overturning
of the coach from the horses taking fright, there not being
any negligence in the driver; but it is otherwise if there should
fcave been negligence or misconduct of the driver (/),
CHAP. XXI.
Of Innkeepers,
AT common law, any man might erect and keep an inn, of
Alehouse, for the reception of travellers, without any licence
or allowance for such erection, but now a licence is necessary
for the purpose (ni).
If a keeper of an inn harbours thieves or persons of
scandalous reputations, or suffers frequent disorders in his
house, or takes exorbitant prices, or sets up a new inn iu
a place where there is no manner of need cf one, to the hin-
drance of otlier ancient or jyell-governed inns, or keeps it in a
(>) 4Burr. azo8. a Ilen.Bl. 2$S. 4 East's Rep. 371. (') 4 East, 57 r.
{*) Salk. aSa. (/) zEsp. N.P.C. 533. Peakc's N. P.C. 81. () I>alt.
e, 56.
situation
Of Innkeepers.
situation wholly unfil for that purpose, he may by the common
law be indicted and lined (//).
By stat. 21 Jac. 1, c. 21, s. I, innholders shall sell their
horsebread, (which, unless there is none in the same town, they
are prohibited from making,) hay, oats, beans, pease, provender,
and all kinds of victuals both for man and beast, for reasonable
gain, having respect to the prices for which they shall be sold
in the markets adjoining, without taking any thins; tjr litter.
By the commission of the peace, two justices, one of whom
must be of the quorum, may inquire of mnholdcrs, ami of all
and singular other persons, who shall oftend in the abuse of
weights and measures, or in the sale of victuals, against the
I'm m of the ordinances in that behalf.
By the stat. 35 Geo. 3, c. 113, so much of 5 Gco. 3, c. 46,
as relates to the penalties for selling ule without licence is re-
pealed, and other penalties are inflicted in lieu thereof, as fol-
lows: after the -20lli of Sept. I79'> every person who shall .-..- 11
or permit to be sold in his house, outhouse, .c. or other place,
rile or beer, or any other exciseable liquors, li\ retail, without
Leing duly licenced, shall forfeit L'O/. vmh costs; and for a i-
cond ofteiice nach person shall moreover be rendered incapable
01 being afterwards licenst.d to keep an alehouse, or to sell
beer, or oiher exciseable liquors, by retail. 8. 1.
But no person shall be liable to tho .said penalty for selling
beer or ale in rztsks containing not less than five gallons, or in
bottles not less than two dozen quarts, not to be drunk in his
house, outhouse, garden, ya^d, orchard, or other place. 38
Geo. 3. c. 54. s. 13.
And every alehouse-keeper, victualler, or retailer of beer
or ale, who shall have in hit custody or power any beer or ale
to sell by retail, shall, three days at least before he begins to
ell or dispose thereof, make entry, in wiiting, at the next
fvise-oftitv, <if every house, outhouse, cellar, vault, room,
*toi <>r other, place, to be used for keeping or selling
the same, on pain of forfeiting 50/.
And if any person shall be disabled, by conviction, to ^ell
nle, brer, cyder, or p-'rry, he shall, by the same coiniction,
be disabled to S' 11 an\ tpirttaOUS ItqitOTS, am licence before
obtained notwithstanding; ami CM i y U-cnre granted to him tor
Hflling ale, Ix-rr, culei, |.n\. or spirituous liquors, shall be
void; and if he shall sell during Midi disability, he shall be
() i Hawk. c. 78. . i.
punished
Of Innkeepers. 153
punished as for selling without licence. 26 Geo. , c. 31,
s. 11.
By the II and 12 W. c. 15, which is required to be given
in charge at the sessions to the grand jury, it is enacted, that
all innkeepers, alehouse-keepers, sutlers, victuallers, and other
retailers of ale or beer, and every person keeping a public house,
and retailing or selling ale or beer, shall retail and sell the same
in and from their houses by a full ale quart or ale pint, accord-
ing to the standard of the exchequer, in a vessel made of wood,
earth, glass, horn, leather, pewter or of some other good and
\vholesome metal, made and sized to the standard, either from
the exchequer, or from a city, town corporate, borough, or
.market-town, where a standard ale quart or pint, reade from
the said standard, shall be kept for that purpose ; and shall not
retail or utter any ale or beer in any other vessel not signed
and marked, on pain of forfeiting, not above 40s. nor under I Os.
for every offence, half to the poor, and half to him that shall
prosecute or sue for the same, to be recovered before one
juftice, by the oath of one witness, and to be levied by war-
rant of distress, rendering the overplus, the reasonable charges
being first deducted thereout. The prosecution to be within
thirty days.
Innkeepers are bound by law to receive guests who come to
their inns, and are also bound to protect the property of those
guests. They have no option either to receive or reject guests;
and as they cannot refuse to receive guests, so neither can they
impose unreasonable terms on them (o).
And inns, being intended for the lodging and reception of
travellers, may be suppressed, and the innkeepers indicted and
fined if they refuse to entertain -a traveliet \\ithout a very suf-
ficient cause (p).
If, there-lore, one who keeps a common inn refuse either to
receive a traveller as a guest into ins house, or to find him
victuals -or lodging, upon his tendering him a reasonable price
for the same, he is not only liable to render damages for the
injury, in an action on the case at the suit of the party
grieved, but also may be indicted and fined at the suit of the
king (7).
Also it is said, that he may be compelled by the constable
of the town, or by a justice of the peace, to receive and en-
tertain such a person as his guest; and that it is no way inate-
() 6 T. R, 17. (f>) 4 BL Cam. 17. (?) I Hawk. c. 78. s. z.
rial
154 Of Innkeepers.
rial whether ke lias a sign before his door or not, if he make
it his common LuMneas to entertain passengers (/).
He may also be compelled to receive a horse, although the
o>\ uer does not lodge in his house (s).
liy the statute 1 Jac. c. 9, if any innkeeper, victualler, or
alehouse-keeper, or tavern-keeper, keeping an inn or victual-
ling-hou^e, shall suffer any person inhabiting any crty, town
corporate, market-town, village, or hamlet, where such iun,
tippliug-house, or alehouse shall be, (and 1 Car. c. 4, where-
ever he shall inhabit,) to continue drinking or tippling therein,
(except kuch as shall be invited by any traveller, and shall ac-
company him only during his necessary abode there; and ex-
cept labouring and handicraftsmen in cities, towns corporate,
aud market towns, upon the usual working days, for one hour
at dinner-time, to take their diet in an alehouse; and except
labourers and workmen, which, for the following of their
\\oik, by the day or by the great, in any city, town corporate ,
market-town, or village, shall, for the time of their said con-
tinuing to work there, sojourn or lodge, or victual in any inn,
alehouse, or other victualling-house; and except for urgent
and necessary occasions, to be allowed by two justices;) he
shall, ou conviction thereof before the mayor, or a justice of
the peace, on view or confession, or oath of one witness, for-
feit ICXs. to the poor. J Jac. c. 9, s. 2; 1 CQI: c. 4; 21 Jac.
c. 7.
And moreover, if any alehouse-keeper shall suffer any per-
son inhabiting in any city, town corporate?, market town, vil-
lage, or hamlfct, where such inn, tippljng-house, or alehouse
shall be, to continue drinking or tippling therein aforesaid, he
-.mil be disabled for the space of three )eais to keep such ale-
house. 21 Jac. c. 7, s. 4.
And if any person licensed to sell any sort of Jiquors, or
who shall st'il or suffer the same to be sold in his house,
outhouse, ground, or apartments thereto belonging ; shall
knowingly suffer any gaining with cards, die--, duiuulits, shntnV-
boardf, mis?u-sipi orbitfcara tubles, skittles, nine-pin*, or \utli
any other implement f gaining, in his house, outhouse, ground,
or apartment thereunto U'lonving, by any joimuviuan, la.-
bourer, servant, or apprentice, and shall be convicted thereof,
on confession, or oath of une witness, beforr one justice, within
<L;.i after the oftcncc committed, he shall tuiieit for tl;c
first olltuce 40^. and fo L very other offence I'/, by dial;-
(r) i Hawk. c. 78. i. 2. (f) i Silk. 388.
Of Innkeepers. 155
"by warrant *>f such justice ; three-fourth'i of which shall go to
the churchwardens for the use of the poor, and one-fourth to
the informer, s. 14.
And if any journeyman, labourer, apprentice, or servant
shall game in any house, outhouse, ground, or apartment
thereto belonging, wherein any liquors shall be sold, and com-
plaint thereof shall be made on oath before one justice, where
the offence shall be committed, he shall issue his warrant to
the -constable or other peace officer of the place wherein the
offence is charged to have been committed, or where the of-
fender shall reside, to apprehend and carry the offender before
some justice of the place where the offence lhall be committed,
or where the offender shall reside; and if such person shall be
convicted thereof by the oath of one witness, or on confession,
he shall forfeit not exceeding 20s. nor less than 5*., as the jus-
tice shall order, every time he shall so offend arid be convicted
as aforesaid; one-fourth to the informer, and three-fourths to
the overseers for the use of the poor; and if he shall not
forthwith pay down the same, such justice shall commit him to
the house of correction, or some other prison of the place
where he shall be apprehended, to be kept to hard labour for
any time not exceeding one month, or until he, shall pay the
forfeiture, s. 15.
If any person (unless those excepted by 1 Jac. c. 90 shall
.continue drinking or tippling iu any inn, victualling-house, or
alehouse, he shall, on conviction thereof, before tke mayor
or a justice of the peace, on view, confession, or oath of one
witness, forfeit for every offence Ss. 4d. to be paid within one
week next after the conviction to the churchwardens, who
shall be accountable for the same to the use of the poor; and
if he shall refuse or neglect to pay the same, it shall be levied
by distress ; and if he is not able to pay the forfeiture, then tha
mayor, justice, or court, where the conviction shall be, may
punish the offender by setting him in the stocks for every of-
fence for the space of four hours. 1 Jac. c. 9 ; 4 ibid. c. 5,
s. 4; '21 Jac. c. 7, s. 2; 1 Car. c. 4.
If any alehouse-keeper shall be convicted of the above
offence, he shall, moreover, for the space of three years, be
disabled to keep any such alehouse. 7 Jac. c. 10; 2^ Jac.
c. 7, s. 4.
An innkeeper may detain the person of his guest who eats, or
the horse which eats, till payment. And this he may do without
any agreement for that purpose. Therefore, in trover for a horse
jui an innkeeper's hands, denial is no evidence of conversion,
unless
156 Of Innkeepers.
' tmless the plaintiff tender \vhat the horse has eaten out; and
the jury is to judge if sufficient was tendered (f).
But an horse committed to an innkeeper may be detained
only for his o\vn meal, and not for the meat of his guest, or
of any other horse (it).
And if any innkeeper, alehouse-keeper, victualler, or sutler,
in jrivjng any account or reckoning in writing, or other\vi><-,
shall rt-UiM; or deny to give in the particular number of quarts
or pints, or shall sell in mcasnrcs under-marked, it shall not bo
l;i rill 1 >r him, on default of payment ot such reckoning, to
detain any goods or other things belonging to the person or
persons from whom such reckoning shall be due ; but he shall
be left to his action at law, any custom or usage to the con-
tttry notwithstanding. 11 and 12 W. c. 15, s 'j.
In the like manner, if the innkeeper give credit to the per-
son for that time, and let him go without payment, then he
lias waived the benefit of the custom, and must rely on his
other agreement; for no person can in any case retain where
there is a special agreement, because then the other party is
personally liable (r).
An innkeeper may detain for his keep a horse left with
tiim to be kept, though the persons who left him had no right
to him, and though such persons did not stay in t!. inn (y).
And if a man commits his horse to an innkeeper, and lie
puts him to pasture, he may detain the horse until lie is satis-
fied for the meat; for the pasture has tlje same privilege as
the stables (z).
If a horse committed to an innkeeper is detained by him
for his meat, and the owner takes him away, the innk -rprr
must make fresh pursuit after him, and retake him, otlaiuix-
the custody of him is lost, for he cannot retake him at any otlu r
time; for if a distress is rescued, and the party on fresh pur-
suit does not retake it, the distress is lost (a).
But if a horse is committed to ;m hostler, who detains him
for his meat, and afterwards thn <>vrn< i ;i^i <> that In- >liail
detain him til! he shall be satisfied, here he has not only the
custody of him as a distress, but also the property in him as
a pl< (!_:'; and if the owm r i:iV.s it from him, h- may not
only retake it upon fn-li juiiMiit. Imt viVrever he meek it,
because he had a property by such agreement (h).
ft) IJul. N. P. 4J. () i Bulit. 107. (*) 8 Mod. 171. Bu). X.
P 4>. (v) Ld. Raym. 866. () 2 RoL Abr. Sj. (4) Ibid.
238. (J) Ibid.
An
Of Innkeepers. 157
An innkeeper who detains a horse for his meat cannot use
him, because he detains him as in custody of the law (c).
But by the custom of London and Exeter, if a man com-
mits a horse to an innkeeper, and he eats out his price, the
innkeeper may take him as his o\vn, on the reasonable ap-
praisement ot four of his neighbours (d).
An innkeeper has no power to sell the horse by the general
custom of the realm, though he may by special custom, as in
the city of London (e).
Inns being allowed for the benefit of travellers, the inn-
keeper shall answer for those things which are stolen within
the inn, though not delivered to him to keep, and though he
was not acquainted that the guests brought the goods to the
inn - r for it shall be intended to be through his negligence, or
occasioned by the fault of him and his servants (f).
So if he put a horse to pasture, without the direction of
his guest, and the horse is stolen, he must make satisfac-
tion ( g).
t And though an innkeeper bids his guest take the key of his
chamber and lock the door, and tells him that he will not take
the charge of the goods, yet if they are stolen he will be an-
swerable, because he is charged by law for all things that
come to his inn, and he cannot discharge himself by any such
or the like words (//).
It has long been established law, that the innkeeper is bound
to restitution if the guest is robbed in his house by any person
whatever, unless ifc appears that he was robbed by his own
servant, or by a companion whom he brought with him ; and
it is no plea for the innkeeper, that at the time his guest's
goods were lost he was sick and insane (0- Hut if the guest
is not a traveller, but one of the same town, the master of the.
inn is not chargeable for his servant's theft; and if a man is
robbed in a private tavern the master is not chargeable (k).
So where the plaintiff's servant came to the inn, and de-
sired to have the liberty of leaving his goods, which he could
not dispose of in the market, until the next week, which pro-
posal was rejected, whereupon he sat down in the inn as a
guest, with the goods behind him, and during the time the
goods were taken away, it was held, that although his request
was not complied with, he was entitled to protection for hi*,
goods during the time he continued in the inn as a guest (I).
(c) Bac. Abr, tit. Inns. (d) Ibid. (e) St-r. 556! (/) 8 Co.-
(g) Ibid. (b) Dale. c. 56. (0 SCe. 5J. Cxo, az..6za, (*) S
Co. 31, 33. ' (/) 5 T. R. 273,
It
\5 8 Of Innkeepers.
It is clear that the goods need not be in the special keeping
of the innkeeper in order to make him liable; if they are at
the inn, that is sufficient to charge him (w).
I3ut an innkeeper is bound to answer for those things only
that are infra hvspitinm. If therefore he refuses, because his
house is full, to receive a person, who thereupon says he will
shift, and then is robbed, the innkeeper is not liable ().
Holt, C. J. doubted whether a in;ui is a guest bv setting up
his horse at an inn, though he never \vtnl into the inn himself;
but the other three justices- held, that such person is a giu *t
by leaving his horse, as much as if he had staid himself; be-
cause the horse must be fed, by which the innkeeper has gain;
but otherwise if he had left a trunk or a dead thing (o).
But if a man comes to an inn \vith a hamper, in which he
bas certain goods, and departs, leaving it with the host, and
two days after comes again, and in the time of his absence it
was stolen, he shall not have any action against the host, be-
cause he was not a guest at the time of the stealing, and the
host had no benefit by tin- keeping thereof, and therefore wai
held not to be liable for the loss thereof in his absence ()>).
If one comes to an inn, and makes a previous contract for
lodging for a set time, and does not eat or drink there, he is
no guest, but a lodger, and so not under the innkeeper's pro-
tection ; but if he eats, drinks, or pays for his diet, it is other-
wise (</).
So if :m attorney hires a chamber in an inn for a \vh->!<-
term, the host-is not chargeable with any robbery in il, because
the party is as it were a lessee (r).
Soldiers billeted are guests ; but before they can be con-
sidered as Mich, it is said that they must have beeii quartered
as guests (<).
A '/nest in a common inn arising in the night time, and
earning goods out of his chamber into another room, and
from thence to the stable, intending to ride away with them,
is guilty of felony, although there wns no trespass in the taking
of them (0. So a guest ma\ li- guilty of felony in fraudu-
lently taking away a piece of plate which was set before him
in :m inn (u).
By the mutiny act, \\hidi is renewed annually, all keepers
of inns, livery-stables, alehouses, victualling houses, and the
() 5 T. R. *73- (*) Bui. N. P. 73. () i Salk. 388. (/ ) I
Rol. Abr. *. (?) 11 .Mod. 255. (r) Moore, 877. (i> <
Dig. tit. Action on thi Ce for Ntli|encc. (r) Dalion, C. 40. I Hawk.
p. c. c. 33, . 18. (; jw.. e.
bouses
Of Innkeepers. 159
houses of sellers of wine by retail to be drunk in their own
houses, or places thereunto belonging, (other than persons'
canteens held under the authority of the commissioners for the
affairs of barracks, and other than persons who keep taverns
only, being free of the vintners' company in London,) and all
persons selling brandy, strong waters, cyder, or metheglin, by
retail, to be drunk in houses, (other than the houses of
distillers, who keep places for distilling brandy and strong
\vaters, and of shopkeepers, whose principal dealings shall be
more in other goods than in brandy and strong waters, and who
do not permit tippling in their houses,) are obliged to receive
all officers and soldiers quartered or billeted upon them But if
a person shall be aggrieved by having more soldiers billeted
than in proportion to his neighbours, on complaint thereof to
one justice of the division, &c. where quartered, or if the per-
son so billeting them be a justice, then on complaint to two
Justices he may be relieved. %'
And if any victualler, 8cc. having any officer, See. billeted
upon him, refuse to receive him, or refuse to furnish him as
herein provided by this act, and shall be thereof convicted
by one justice of the county, &c. where such offence was
committed, on confession or the oath of one witness, he shall
forfeit not more than 5/. nor less than 40s. to be levied by dis-
tress; which sum shall be applied, first to satisfy such soldier
for the expence thereby occasioned to him, and the remainder
to the overseers of the parish where the offence was committed.
By the 56th section of the same act, if any officer, military
or civil, shall quarter any of the wives, children, or servants of
any officer or soldier in any house against the consent of the
owner, he shall forfeit 20s. to the party aggrieved, on proof
thereof to the next justice of the peace.
By s. 53, officers and soldiers billeted as aforesaid shall be
received and furnished with diet and small beer, paying for
the same, as hereafter mentioned, out of their subsistence-
money.
By s. 54, if any person shall chuse rather to furnish non*
Commission officers or private men with candles, vinegar, and
salt, gratis, and allow them the use of fire, and the necessary
utensils for dressing and eating their meat, and shall give notice
thereof to the commanding officer, and shall furnish them
accordingly ; in such case they shall provide their own victuals
and small beer, and the officer who receives their pay shall
pay tjie sums after-mentioped out of the subsistence uiony
for
160 Of Innkeepers.
for diet and small beer to them, and not to the persons on
whom they are quartered.
By s. 5.3, every officer receiving the pay or subsistence
money, either for a regiment or lor particular troops and com-
panies, or otherwise, shall immediately, upon each receipt of
each sum, give public notice thereof to all on whom officers
and soiditrs are quartered ; and shall also appoint such persons-
to repair to their quarters, at such times as they shall appoint
for the payment of the said pay or lubsi&tence money to the
officers or soldiers, \\hich shall be within lour days at the
farthest after the receipt of the same, as aforesaid ; and such
persons shall then and there acquaint such officer with the
accounts or debts between them and the officers and soldiers
quartered : which accounts the said officer is to accept of, and
immediately pay the same, before any part of the pay or sub-
sistence be distributed. And if Mich officer shall not so give
notice, and shall not immediately, upon producing such ac-
count stated, satisfy the same ; upon complaint on oath by two
witnesses, at the next quarter SLSMOIIS for the county or city
where such quarters were, the paymaster of the guards, gar-
risons, and marines, are authorised (upon certificate of the said
justices before whom such oath was made, of the sum due
upon such accounts, and the persons to whom the same is
owing) to pay the said sums out of the arrears due l the said
officer, upon pain of such paymaster forfeiting his place, and
being incapacitated from holding it again.
By s. 4U, the commanding officer may exchange any men or
horses quailed in any plate \\ith another man ir horse quar-
tered in the same place, piovided the number of the men and
horses do not excved the number at that time billeted on such
house.
By s. 47. where any horse or dragoon shall be quartered
upon any pci son who lias no stable; upon his complaint to
two justices of the division, and his making such allowance as
such justices shall think reasonable, they may order the nit it
and their Jii -is, or the horses yiih. a the case may be, to
(e removed ood quartered upon s.>mc other person who has
stables, and may order and M tile a projKjr allowance to be
made by the person having no stables, in lieu of his quartering
such hoise or dragoon, and order payment tliereoi to the.
perbon to whom the removal is made, for or to be applied for
ihe fn. -I ijiiuitirs for such men and their hi
B> 4<4 CM >. J, c. :)7. it i* rnacled, that every non-com,
missioned officer and private soldier, who shall be furnished
with
Of Innkeepers. 161
with diet and small beer by the persons on whom they are quar-
tered, shall pay for the same Is. and 4d. per day.
By s. 2, where the innholder, &c. furnishes certain articles
in lieu of diet and small beer, as in the former act mentioned,
he shall have one halfpenny per day for each non-comissioned
officer, &c.
By s. 3, Is. Qd. per day is to be paid for each horse.
By s. 5, all non commissioned officers and soldiers shall
receive their diet and small beer at the above rates while oii
the march, and on the day of the arrival at the place of their
final destination, and on the two subsequent days, unless either
of the two be a market day for the place where billeted, or
within two miles thereof; in which case the innkeeper, &c.
shall discontinue on and from such market day the diet and
small beer, and furnish in lien thereof the articles in the said
former act specified, and at the rate in this act prescribed.
By s. 6, if any person, liable to have soldiers quartered
on him, shall pay any sum to any non-commissioned officer
or soldier on the march in lieu of the diet and small beer, he
may be proceeded against and fined as if he had refused to
furnish according to the former act tUe things to be furnished
to non-commissioned officers and soldiers so quartered as
aforesaid.
By s. 7, the provisions of section the 5th, are extended to
halting on a march.
By s. 8 ; but if the halt be for longer than one day, and
the day after the arrival be market day, as aforesaid, there is
to be no discontinuance of diet and small beer.
By s. 9, non-commissioned officers and private men em-
ployed in recruiting, and the recruits by them raised, shall,
while on the march, and for two days after the day of their
arrival at any recruiting station, be entitled to the same benefit
as before provided for troops on their march ; but no recruit
enlisted after the two days subsequent to the arrival of the
party at their recruiting station, shall be entitled to be sup-
plied with diet and small beer at the rate herein-before pre-
scribed, except at the option of the party where quartered.
Provided that in case any recruiting party, v/ith the recruits
by them raised, shall remove from tkeir station, and after a
time shall return to the same place, they and their recruits
shall not be again entitled to the diet and small beer for two
days, unless their time of absence exceeded twenty days.
M CHAP,
164 Of Witnesses.
CHAP. XXII.
Of Jl'itncsscs.
ALL witnesses, of whatever (religion or country, that Iiavr
the use of their reason, are to be received and \aiuiued,
except such a> an- infamous, or such as are interested in the
event of the cati-e. All others are competent w lines
thoimh the jury, iVom other circumstances, will judge of their
credibility (-0-
A Mahometan may be sworn upon the Alcoran, and a
Gentoo according to the custom of India, and their evidence
may be received even in a criminal case (y). Quakers, \\h<
refuse to take an oath under any form, are, by the 7 and S l\ .
c. 34, permitted in judicial proceedings to make a solemn
affirmation ; and if such affirmation, like an oath, is proved to
be false, they are subject to the penalties of perjury. In
JH nal actions, as for bribery, they are also entitled to the name
privilege (:). But this privilege of solemn affirmation docs
not extend to criminal causes; 8 Geo. 1, c. ti ; '20. Gto. <2,
c. SO, t6.
It is a principle of law, that no man is to be examined to
prove his own infamy. However, a witness may be exa-
mined with regard to his own infamy, if the confession do*s
not subject him to any future punishment; as a witness may-
be asked if he has not stood in the pillory for perjury (?t).
By the statute 46 G'co. f!, c. J7, it is enacted, that a wit-
ness cannot refuse to answer a <|ueMion relevant to the matter
in issue, the answering of which has no tendency to accuse
himself, or to expose him to penalty or forfeiture, by reason
only that the ansv.i-r to such question may establish, or tend to
establish, that he owvs a debt, or is subject to a civil suit.
No counsel, attorne\, or other person, intrusted with the
secrets of the cause by the party himself, >hall be compelled,
or perhaps allowed, to give evidence of such conversation or
matters of perjury, as came to his knovvlt-iL*; by virtue of
such trust and coniiu< ii> i (h)^ but he ir.:i\ ' < vunined as to
mere matters of fact. \ecution of a deed or the like,
(*) 3 BI. Com. 267. (jO *s, 54. i Ad. 21. () Cowp .
3i. (-} 4 T. R. 44. (*) Ibid. 4ji. 7^3.
which
Of Witnesses. 163
xvhich might have come to his knowledge, without being en-
trusted in the cause.
As all demonstration, says Lord Chief Baron Gilbert (c),
is founded on the view of a man's own proper senses by a
gradation of clear and distinct perceptions, so all probabi-
lity is founded upon obscure and indistinct views, or upon
report from the sight of others. The attestation of a wit-
ness, therefore, must be to what he knew, and not to that
only which he had heard, for a mere hearsay is no evidence.;
although, under certain circumstances, it may be allowed in'
corroboration of what has been directly sworn (r/). The ge-
neral rule is, that testimony upon oath must clearly express
the fact sworn to, to have been so far within the' party's owix
and certain knowledge, that perjury may be assigned upon it/
if it shall turn out that he has intentionally sworn what is
false. Therefore, an affidavit to hold a man to bail, where
the words were " in indebted," instead of " is indebted," was
rejected as containing no assertion ; for there is nothing pre-
dicated (e). So, also, an argumentative affidavit is insuffi-
cient; as if a legatee swear, that the executor made him
such a promise, and therefore he is indebted (/'). But as-
signees, executors, Stc. who are plaintiffs, are allowed, ex ne-
cessitate rci, to swear to a debt as to their belief only ; for
they cannot have certain knowledge of the fact of its existence,
and therefore cannot take a positive oath ( g). And although
it has been generally conceived, and said by great authority,
that perjury cannot be assigned in any thing, which is not
within the knowledge of the deponent ; as if he swears upon
his belief, &c. for what he swears upon his belief is not
within the compass of his oath (h). Yet that opinion is now
entirely exploded ; for it has been declared by Lord Chief
Justice de Grey, in the common pleas (z), and Lord Mans-
field, in the king's bench (/c), that a man may be indicted for
perjury, in swearing he believes a fact to be true, which he
must know to be false.
In all cases of high treason, petit treasoa, and misprison of
treason, by statutes 1 Ediv. 6, c. 1'2, and 5 and 6 Edw. 6, c. 1 1,
two lawful witnesses are required to convict a prisoner, unless
he shall willingly and without violence confess the same; and
by the 7 W. 3, c. 3, the confession of the prisoner shall not
(c) Law of EviJeace, p, 3. (d) Ibid. 149. (<) a Wils, 424,
(/) i T. II. 716. (g) Ibid. 83. (b) Gilbert's Law of Evidence, 55.
60 Milter's Case, jWils. 427. (*) Fcdley's Case, Trisuty Terra, 1784.
M 2 couutervail
164 Of -Juror i.
countervail the necessity of two witnesses, unless such con--
fession be made in open court (/).
To endeavour to dissuade a witness from giving evidence,
is a high misprison and contempt of the king's courts, and pu-
nishable by tine and imprisonment (ni).
By statute 27 Ceo. 1, c. 3, explained by the statute 18 Gco.
3, c. 19, all persons appearing upon recognizance or sub-
poena to give evidence, whether any indictment be preferred
or no, and as well without conviction as with it, are entitled
to be paid their charges, with a further allowance (if poor) tor
their trouble and loss of time.
When subpoenaed, witnesses must appear at the trial, on
pain of forfeiting 100/. to the king; to which the statute
5 Eliz. c. 9, has added a penalty of 10/. to the party ag-
grieved, and damages equivalent to the loss sustained by want
of his evidence. But no witness, unless his reasonable -\-
pences be tendered him, is bound to appear at all ; nor, it li
appears, is he bound to give evidence till such charges an-
actually paid him : except he resides within the bills of
mortality, and is summoned to give evidence wilhiu the
same.
CHAP. XXIII.
Of Jurors.
TRIAL by jury, says Sir William Blackstone, lias
used time out of mind in this nation, and .seems to have ;
coeval with the first civil government thereof. Some ami.
have endeavoured to trace the original of juries up as high as
the Britons themselves; but certain it is that tlu-v \\ue in
among the earliest Saxon colonies. By the lav.s of king
Lthelred, it is apparent that juries wire in use mam
before the Conquest ; anil tin van, as it were, incorporated
\iith our constitution (n). The establishment, hout\tr, and
use of this tribunal in this island, ef what date soever it be,
though for a time greatly impaired and shaken by the intro-
duction of the Norman trial by lialtle, wa^ala\s .so highly
esteemed and valued by the people, that no commit, HO
(/) a St. Tr. 108, 144. alhiJ. 40. Fo*leri45. a Hawk. 60 J. () 4
Ji. Cn. Ufi. () WUk.LL.Ant;!. fex. 117.
change
Of Jurors. 16$
change of government, could ever prevail to abolish it. In
Magna Charta it is more than once insisted on as the principal
bulwark of our liberties ; but especially by chapter 29, that
no freeman shall be hurt in his person or property <c nisi per
Ifgfi/ejiidicium parium suonim vel per legem terr<e."
Trials by jury, in civil causes, are ordinary and extraordi-
nary. The extraordinary trials of this kind are: 1st. By the
grand assize, in which a writ de magna assisa etigenda is
presented to the sheriff to return four knights, who are to
elect and chuse twelve others to be joined with them to try
the matter of right (o). 2dly, By an attaint, which is a pro-
cess commenced against a former jury for bringing in a false
verdict. The jury in this case must consist of twenty-four of
the best men of the country, who are called ihe grand jury iu
the attaint, to distinguish them from the first, or petit jury ;
and these are to hear and try the goodness of the former ver-
dict. The ordinary trial by jury is, where an issue is joined
upon a matter of fact. In this case, the court awards a
venire facias to the sheriff of the county in which the venire
is laid ; or, if the sheriff be a party, or related to either of the
parties, to the coroner, commanding him to cause twelve free
and lawful men of the body of the county to appear and try
the cause the last return of the same term in which the issue i
joined, viz. Hilary and Trinity terms, which, from the making
up the issues therein, are usually called issuable terms. But
this being matter of form, the jurors' names only are returned
on a panel, or oblong piece of parchment ; and they not ap-
pearing, a habeas corpora jurat or um in the common pleas,
and a distringas in the king's bench, issues to compel their
appearance on the day appointed at Westminster. The jurors
contained in the panel are either special or common jurors.
Special juries were originally introduced in trials of bar, when
the causes were of too great nicety for the discussion of or-
dinary freeholders ; as where the sheriff was suspected of par-
tiality, though not upon such apparent cause as to warrant an
exception to him. He is in such cases, upon motion in court,
and a rule granted thereupon, to attend the prothonotory, or
other proper officer, with his freeholders' book ; and the of-
ficer is to take indifferently forty-eight of the principal free-
holders in the presence of the attornies on both sides ; who
are each of them to strike off twelve, and the remaining
twenty-four are returned upon the panel. By the stat. 3 Geo.
() Co. Lit 1556.
2, c, 25,
166 Of Jurors.
C, c. 25, either party is entitled upon motion to have a special
jury struck upon the trial of any issue, as \vell at the as.sizes
as at bar; he pacing the extraordinary expence, unless the
judge will certify (in pursuance of the statute 24 Geo. 2, c. 18)
that the cause required such special jury- But there cannot
be a special jur) in cases of treason or felony; for the party
must have the advantage of making twenty peremptory chal-
li nges in a prosecution for felony, and thirty -five in the case of
treason ( p).
A common jury is one returned by the sheriff according to
the slatute :) Gen. '2, c. 25, which appoint* that the sheriff or
officer shall not return a separate panel for every separate
<:!iUM, as formerly; but one and the same panel for every
cause to be tried at the same assizes, containing not less than
forty-eight, nor more than seventy- t\vo jurors: and that their
names being written upon tickets, shall be put into a box or
glass; and when each cause is called, twelve of these persons,
v hose names shall be first drawn out of the box, shall be
sworn upon the jury, unless absent, challenged, or excused ;
or unless a previous view of the messuages, lands, or place in
question, shall ha\e been thought necessary by the court,
Mat. 4 Ann, c. l(j; in which case si\ or more of the jurors,
returned, to br agreed upon by the parties, or named by a
judge, or other proper officer of the court, shall he appointed
by special writ of habeas corpora, or dutrittgat, to have the
matter in question shewn to them by t\\o person- named in
the writ ; and then such of the jury as have had the view, or
vj many of them as appear, shall be sworn on the inqut.-t pn -
vious to any other jurors.
As the jurors appear, when called, they shall be sworn,
unless challenged by either paity. Challenges are of t\\o
sorts; challenges to the array and challenges to the polls.
Challenges to the array are at once an e.xcrption to the
whole panel, in which the jury are arrayed, or set in oider by
the sheriff in his return; and they may be made upon ac-
count of partiality or some default in the sheriff, or his mult r
officer who arrayed the panel. And, generally speaking, th*
ame reasons that before the awarding the venue were suffi-
cient to have directed it to the coroners, or cli/m-, \\ill I r
also sufficient to quash the aira\, \\htn made by a \ raon or
officer, of whose partiality tin n is ;,ny tolerable ground of
nicion. Also, though there be no personal objection
(f) 21 Yin. Abr. 301.
against
Of Jurors. 167
against the sheriff, yet if he arrays the panel at the nomination,
or under the direction of either party, this is a good catise of
challenge to the array. Formerly, if a lord of parliament
had a cause to be tried, and no knight was returned upoh
the jury, it \vas a cause of challenge to the array (q) ; but an
unexpected use having been made of this dormant privilege
by a spiritual lord, it was abolished by statutes 24 Geo. 2,
c. 18. But still in attaint, a knight must be returned upon
the jury (r). Also, by the policy of the ancient law, the
jury must come de vicineto, from the neighbourhood of the
vill or place where the cause or return was laid in the de-
claration ; and therefore, some of the jury were obliged to
be returned from the hundred in which such vill lay; and, if
none were returned, the array might be challenged for de-
fect of hundreders. But this cause of challenge is now by
the statutes 4 and .5 Ann. c. 1 6, entirely abolished upon all
civil actions, except upon penal statutes ; and upon these also
by the 24 Geo. 2, c. 18, the jury being now only to come
de cot-pore comitatus, from the body of the county at large,
and not de vicineto, or from the particular neighbourhood.
The arrav by the ancient law may also be challenged, if an
alien be party to the suit, and, upon a rule obtained by his
motion to the court for a jury de medietate linguse, such a one
may be not returned by the sheriff, pursuant to the statute
28 Edzo. 3, c. 13, enforced by 8 Hen. 6, c. 29, which
enact, that where either party is an alien born, the jury shall
be one half denizens, and the other aliens (if so many be
forthcoming in the place) for the more impartial trial. But
where both parties are aliens, no partiality is to be presumed;
to one more than the other ; and therefore it was resolved
soon after the statute 8 Hen. 6, that where the issue is joined
between two aliens (unless the plea be had before the mayor
of the stable, and thereby subject to the restrictions of sta-
tute 27 Edw. 3, st. 2, c. 8, the jury shall all be denizens (s).
Challenges to the poll, in capita, are exceptions to par-
ticular jurors.
Challenges to the polls may be reduced to four heads:
propter honoris respect urn; propter defection; propter af-
fectwn ; and propter delictiim.
\. Propter honoris respectum ; as if a lord of parliament
be impanelled on a jury, he may be challenged by either
party, or he may challenge himself.
(?) Co. Lit. 156. (0 Ibid. (<) Yeaibook, jlHen. 6, 0.4.
2. Prjpter
168 Of Jurors.
2. Propter defect um; as if a juryman be an alien bom,
this is delect of birth ; if he be a slave or bondman, this is
defect of liberty, and he cannot be liber et tegalis homo.
Under the word homo also, though a name common to both
sexes, the female is however excluded, prupter dejection
sexus ; except \\ht-n a widow feigns herself with child, in order
to exclude the next heir, and a supposititious birth is sus-
pected to be intended; then upon writ dt -centre inspicimdn,
a jury of women is to be impanelled to try the question,
whether with child or not (0- But the principal dtlk iency
is defect of estate sufficient to qualify him to be a juror.
This depends upon a variety of statutes. And, first, by the
statute Westm. 2, 13 Edw. 1 c. 38, none shall pass on juries
in assizes within the county, but such as may dispend 20.?. by
the year at the least; which is increased to 405. by the sta-
tute 21 Edw. I, st. 1, and 2 Hen. 5, st. 2, c. 3. This was
doubled by the statute 27 Eliz. c. 6, which requires in every
buch case the jurors to have estate of freehold to the yearly
value of 4/. at the least. But the value of money decreasing
at that time very considerably, this qualification was raised by
the statute 16 and 17 Car. 2, c. 3, to 20/. per ann. which,
being only a temporary act for three years, was suffered to
<x|>ire without renewal, to the great debasement of juries.
However, by the statute 4 and 5 W. and M. c. 24, it \\a^
again raised to !<)/. per ann. in England, and 6V. in Walts, of
freehold lands or copyhold ; which is the first time thut copy-
holders (as such) were admitted to serve upon juries in any of
the king's courts, though they had before been admitted to
serve in some of the sheriff's courts, by the statutes 1 Ric.
3, c. 4, and 9 Hen. 7, c. 13. And lastly, by statute 3 Geo.
2, c. 25, any leaseholder for the term of five hundred years
absolute, or for any term determinable upon life or lives, of
the clear yearly value of 20/. per ami', over and above the
rent reserved, is qualified to serve upon juries. And upon
account of the small number of freeholders in the county of
Middlesex, and the frequent occasion for juries at Westminster
in that county, it is enacted by the 4 Geo. 2, c. 7, that a lease-
holder for any number of years, if the improved annual value
of his lease be .">()/. above all ground-rents and other reser-
vations, shall be liable to serve upon juries. By the 3 Geo. 2,
c. &}, persons impanelled upon any jury within the city of
London, shall be householders, and possessed of some estate
(/) Cro. E1U. 566.
cither
Of Jurors. 169
cither real or personal value of 100/. When the jury is de.
medietate lingua, that is one moiety of the English tongue or
nation, and the other of any foreign nation, no want of land*
shall be any cause of challenge to the alien ; for he is inca-
pable to hold any ; this would totally defeat the privilege ;
2 Hen. 5; st. 2, c. 3; 8 Hen. 6, c. 19.
3. Jurors may be challenged propter ejfectum, for suspicion
f bias or partiality. This may be either a principal challenge,
or to the favour. A principal challenge is such, where the
cause assigned carries wilh it, prima facie, evident marks of
suspicion, either of malice or favour : as that a juror is of
Ivin to either party within the ninth degree; that he has been
arbitrator on either side ; that he has an interest in the cause;
that there is an action depending between him and the party ;
that he has taken money for his verdict; that he has formerly
been a juror in the same cause; that he is the party's master,
servant, counsellor, steward, or attorney, or of the same so-
ciety or corporation with him : all these are principal causes
of challenge, which* if true, cannot be overruled; for jurors
must be onmi exceptione mcjores. Challenges to the favour,
are where the party has no principal challenge ; but objects
only some probable circumstances of suspicion, as acquaint-
ance and the like ; the validity of which must be left to the
determination of the triors, whose office it is to decide whe-
ther the juror be favourable or unfavourable. The triors, in
case the iirst man called be challenged, are two indifferent
persons named by the court ; and if they try one man, and
find him indifferent, he shall be sworn ; and then he and the
two triors shall try the next ; and when another is found in-
different and sworn, the two triors shall be superseded, and
the two first sworn on the jury shall try the rest.
4. Challenges propter dctictum are for some crime or mis-
demeanor, that affects the juror's credit, and renders him
infamous. As for a conviction of treason, felony, perjury,
or conspiracy ; or if for some infamous offence he has re-
ceived judgment of the pillory, tumbrel, or the like ; or to be
branded, \\hipped, stigmatized; or if he be outlawed or ex-
communicated, or has been attainted of false verdict, prve-
munire, or forgery ; or lastly, if he has proved recreant, when
champion in the trial by battle, and thereby has lost his li-
beram legem. A juror may himself be examined on oath of
voir dire, vcritatem dicere, with regard to such causes of
challenge, as are not to his dishonour or discredit ; but not
with
1 70 Of Jurors.
with regard to any crime, or any thing which tends to his dis-
grace or disadvantage. .
Besides these challenges, which are exceptions against (he
fitness of jurors, and whereby they may be excluded from
.serving, there are also oilier c.iu- . t > be made use of by
the jurors themselves, which are matter of exemption;
whereby their sen-ice is excused, and not excluded. As by
statute West. '2, 1:5 7,V<v. 1, c. 38, sick and decrepid persons,
persons not cormorant in county, and men above seventy
years old ; aiul by the slat. 7 and 8 W. 3, c. 32, infants under
twenty-one. This exemption is also extend* -\ by divers sta-
tutes^ customs, and charters, to physicians and other medical
persons, counsel, attornies, officers of the courts, and Un-
like ; all <>f \\hom, if impanelled, must show their special
exemption. Clergymen are also usually excused, out of
favour and respect to their function : but, if they are seized
of lands ami tenements, they arc in strictness liable to be
impanelled in respect of their lay fees, unless they be in the
service of the king or some bishop.
If by means of challenges, or other cause, a sufficient
number of unexceptionable jurors does not appear at the
trial, either party may pray a tales. A tales is a supply of
such men as are summoned upon the first panel, in order to
make up the deficiency. For this purpose a writ of decem
talcs, veto titles, and the like, \vas used to be issued to
the sheriff at common law, and must be still so done at a
trial at bar, if the jurors make default. But at the assizes
or nisi jn-iny, by virtue of the statute 3.3 Hen. 8, c. (>, -and
other subsequent statutes, the judge is empowered, at the.
prayer of either party, to award a talcs dc circumstantibus,
of persons present in court, to be joined to the other jurors
to try the cause; who are liable however to the same chal-
lenges as the principal jurors. This is usually done till th*
legal number be completed.
The provisions of these statutes respecting a tales, are
now, since the practice introduced by the 3 uto, ', c. 26,
of impanelling not less than forty-eight, nor more than se-
venty-two, for the trial of all common causes, confined in a
preat measure to special juries. If a tales, in default of
>pecial jurymen, is |.ia\tl, it is supplied agreeably to the
7 and 8/1'. c. .'>', trom the panel uf the common juryntfc,
N'. tal(s caji be pra\ed whcie all the *pccial jumnrn ar
absent.
If
Of Jurors. 171
If after the jury have witlnlrawn from the bar to consider
of their verdict they eat or drink at all, or have any eatables
about them, without consent of the court, and before verdict,
it is iineable ; and if they do so at his charge for whom they
afterwards find, it will set aside the verdict. Also if they
speak with either of the parties, or their agents, after they are
gone from the bar ; or if they receive any fresh evidence in
private; or if to prevent disputes they cast lots for whom they
shall tind ; any of these circumstances will entirely vitiate the
verdict, and they are tineable. And it has been held, that if
the jurors do not agree in their verdict before the judges are
about to leave the town, though they are not to be threatened
or imprisoned, the judges are not bound to wait for them,
but may carry them round the circuit from town to town in a
cart (w).
After a juror is sworn he may not go from the bar until the
evidence is given, for any cause whatsoever, without leave of
the court; and with leave he must have a keeper with him(jr).
If there arises in the case any difficult matter of law, the
jury, for the sake of better information, and to avoid the dan-
ger of having their verdict attainted, may find a special verdict,
which is grounded on the stat. Westm. 2. 13 Edw. 1, c. 30,
s. 2. And herein they state the naked facts as they find them
to be proved, and pray the advice of tire court thereon, con-
cluding conditionally, that if upon the whole matter the court
shall be of opinion that the plaintiff had cause of action, they
then find for him ; if otherwise, then for the defendant. Another
method of finding a species of special verdict is where the
jury find a verdict generally for the plaintiff, but subject never-
theless to the opinion of the judge or the court above, on a
special case stated by the counsel on both sides with re-
gard to the matter of law. But in both these instances
the jury may, if they think proper, take upon themselves to
determine, at their own hazard, the complicated question of
fact and law, and without either special verdict or special case,
may find a verdict absolutely either for the plaintiff or the de-
fendant (y ).
The trial by jury in criminal cases is more peculiarly the
grand bulwark of the liberties of every subject of Great Bri-
tain, and is secured, as has already been mentioned, by the
Oreat Charter, 9 Hen. 3, c. 29.
(u) 3 Bl. Cn. c, 33. (*) 2 tit. 123. (y) .i Bl. Com. c. zj.
Th
172 Of Jurors.
The antiquity and excellence of this trial, in civil ra*p. has
already been mentioned. The arguments in it** favour hold
much stronger in criminal cases. ( )nr law has therefore wisely
and mercifully placed the strong two-fold barrier of a present-
ment and a trial by jiny I ; ;e liberties of the people
and the prerogative of the frown. It has with excellent fore-
cast contrived, continues Mr. .Justice Bla- -Lstone, that no man
should be called to answer for auy capital crime, unless on the
preparatory accusation of twelve or morr of his fallow-sub-
jects, the grand jury * ; and that the truth of every accusation
should be afterwards continned by the unanimous suffrage of
twelve of his equals and neighbours, indifferently rhosni, and
>tiperior to all suspicion. So that the liberties of England
cannot but subsist .so long as this palladium remains sacred and
inviolate, unawed by the power of the monarch, and unstani'-d
by the weakness or the wickedness of those who are called
upon to exercise this invaluable privilege.
The grand jury generally consists of twenty-four men of
greater quality than the oilier, chosen indifferently out of the
Notwithstanding the eulogium of the elegant commentator on the institu-
tion of the grand jury, it must be acknowledged, that is only one of the many
relics of antiquity which Englishmen worship, out of mere superstition. The
se of its finding an indictment, before a man suspected of a capital offence can
be submitted to trial, was, that no one suspected merely of guilt should b-
jected to the hardship ot imprisonment, and the expcncc and delay of public
tiial at the discretion of an individual. At a period when trials come round
orJy once in seven years, and when the powers of law were wielded by fierce,
impatiert,ynJ uibitrary barons, or the ministers ot" an arbitrary king, a security
like this, against the dreadful hardship of imprisonment, of any lei.gth \tf to
seven years was f no light importance. Since the 2nd and 3rd of Philip and
Mary, which conferred upon justices of the peace the power of impri>on-
ment before trial, the grand jury, which now sits only at the time the court
at which the alledged offence may be tried, has evidently lost all power to .save
any man from the hard.>hip of undue imprisonment; and seems really to
no purpose, whatsoever, but that of furnishing to actual delinquents an additional
chance of escape. The court appointed to try the man in the bjst mode, it
ready to try him. Then why try him twice ; first in a bad and insufficient way,
and only after that, in the good and final way ?
A grand jury must do one of two things: it must send a man to frill or dis-
charge him: it snu>t End the bill a true bill, or the contrary, la all cases ia
which it vends the man to his trial, it neither does good nor evil; for the m.itt
is tried, and sustains the consequence! of hi* ti'ul, exactly as if no such
thing as a grand jury had h--.n in existence. In the case<> in which the grand
jury discharge, the man must be cither innocent or guilty; if innocent the grand
jury is useless again; for, immediately, or in a short -pace, the man would have
received the same discharge fiomthc court that would have tried him. Tl>-
only case, therefore, in which a grand jry can do any thing which would
not be done without it, is the case in which it discharges a man really guilty,
whose guilt would have been ascertained by the couit. There is only onr
ih'n. in which it can be any thing but uelc->, and that ii a case in which it it
f urely nmchicvou*.
wfcolc
Of Jurors. 173
whole county by the sheriff; and the petit jury consists of
of twelve men, of equal condition with the party indicted,
impanelled in criminal cases, called the jury of life aud death.
The grand jury find the bills of indictments against criminals,
and the petit jury convict them by verdict, in the giving where-
of all the twelve must agree.
.Challenges may be made in criminal cases either on the
part of the king (the proscecutor) or on that of the prisoner ;
and either to the whole array or to the special polls, for the
very same reasons that they may be made in civil causes. l'\>r
it is here at least as necessary as there that the jury be liable to
no objection; that the sheriff or returning officer be totally
indifferent; and that where an alien is indicted, the jury should
be de medietate, or half foreigners, if so many are found in
the place, which does not indeed hold in treasons, aliens being
very improper judges of the breach of allegiance ; nor yet in
the case of Egyptians under the statute 2*2 Hen. 8, c. 10.
Challenges upon any of the accounts specified in civil cases
are styled challenges for cause, which may be without stint ia
both civil and criminal trials. But in criminal cases, at least
in capital ones, there is in favour of life allowed to the pri-
soner an arbitrary and capricious species of challenge to a e'er-
lain number of jurors, without showing any cause at all : a
provision full of that tenderness and humanity to prisoners for
which the English laws are justly famous. This is grounded
on two reasons, viz. the sudden impressions and unaccountable
prejudices which every one is apt to conceive ou the bare looks
and gesture of another ; and the consideration that the very
questioning a person's indifference may provoke resentment : ai
juror therefore challenged for insufficient cause may afterwards
be peremptorily challenged.
This privilege of peremptory challenge, though allowed to-
the prisoner, is denied to the king by statute 33 Edic. \, st. 4,
which enacts, that the king shall challenge no jurors without
assigning a cause certain, to be tried and approved by thw
court. However, it is held that the king need not assign his
cause of challenge till all the panel is gone through, and unless
there cannot be a full jury without the persons so challenged;
and then, and not sooner, the king's counsel must show the
cause, otherwise the jurors must be sworn.
These peremptory challenges of the prisoner must, how-
ever, have some reasonable boundary. This is settled by the
common law at the number of thirty-five; that is, one under
the number of three full juries. If a prisoner peremptorily
9 challenged
Of Jurors.
challenged above the number, and would not retract his chal-
lenge, he was formerly to be dealt with as one who stood
mute, or refused his trial, by sentencing him in rases of fe-
lony to the peine forte et dare (pressing to death, which is now
totally abolished,) and by attainting him in treason. And so
the law stands at this day with regard to treason of any kind.
But by statute 22 Hen. 8, c. 14, (which, with regard to lelo-
iiies, stands repealed by statute 1 and 2 Ph. and Miir. c. 10,)
no person arraigned of felony can be admitted to make any
more than twenty peremptory challenges. If in such case the
prisoner peremptorily challenged twenty-one, the old opinion
was, that judgment of pcine forte ct dure should be given,
as where he challenged thirty-six at the common law. Hut
the better opinion seems to be, that such challenge shall be
only disregaided and over-ruled, and the juror be regularly
sworn (r).
If by reason of challenges, or the default of jurors, a suf-
ficient number cannot be had of the original panel, a talcs
may be awarded, as in civil causes. When at length the num-
ber of twelve is completed, they are sworn " well and truly
to try, and true deliverance make, between our sovereign lord
the king and the prisoner whom they have in charge ; and a
true verdict to give according to their evidence."
When the evidence on both sides is closed, and indeed when
any evidence has been given, the jury cannot be discharged,
unless in cases of evident necessity, till they have given in
their verdict; but are to consider of it, and deliver it in with
the same forms as upon civil causes ; only they cannot, in a
criminal case which touches life or member, give a privy vi i -
diet. But the judges may adjourn while the jury are with-
drawn to confer, and return to receive the verdict in open
court. And such public or open verdict may be cither p.-nu-
ral, guilty or not guilty; or special, setting forth all the cir-
cumstances of the case, and praying the judgment <!" the
court, whether, for instance, on the facts slated, it be nun
manslaughter, or no crime at all. Thisjs where they doubt
the matter of law, and therefore choose to leave it to the de-
termination of the court; thouuh they have an inujue.itioiiablo
right of deleimmiirj, upon all the circumstances, and finding
a general verdict, if they think proper so to ha/ard tin- !>;
e| iheir oath-; and if their verdict be notoriously wronu, they
mav be pu.ii^licii, ami the verdict set aside by attaint ut the
() ; last 117. alia!. P. C. 170.
Of Auctioneer. 175
suit of the king, ,but not at the suit of the prisoner. But the
practice, heretofore in use, of fining, imprisoning, or other-
wise punishing jurors, merely at the discretion of the court,
for finding their verdict contrary to the direction of the judge,
was arbitrary, unconstitutional, and illegal (a).
We shall conclude this branch of our subject with the
emphatic words of Sir William Blackstone, " It is a duty
which every man owes to his country, his friends, his poste-
rity, and himself, to maintain to the utmost of his power this
valuable constitution in all its rights; to restore it to its ancient
dignity, if at all impaired by the different value of property,
or otherwise deviated from its first institution ; to amend it
wherever it is defective ; and above all, to guard with the most
jealous circumspection against the introduction of new and
arbitrary methods of trial, which, under a variety of plausible
pretences, may in time imperceptibly undermins this best pre-
servative of English liberty." (6).
CHAP. XXIV.
Of Auctioneers.
By the statute 29 Car. 2, c. 3, s. 4, it is enacted, " that
no action shall be brought whereby to charge a defendant upon
any contract or sale of lands, tenements, and hereditaments,
or any interest in or concerning them, unless the agreement
upon which such action shall be brought, or some memoran-
dum or note thereof, shall be in writing, and signed by the
party to be charged therewith, or some other person thereunto
by him lawfully authorized."
By the l?th section of the same statute it is further enacted,
" that no contract for the sale of any goods, wares, and mer-
chandizes, for the price of ten pounds and upwards, shall be
good, except the buyer shall accept part of the goods so sold,
and actually receive the same, or give something as earnest to
bind the bargain, or in part of payment, or that some note or
memorandum in writing of the same bargain be made and
signed by the parties to be charged by such contract, or their
agents thereunto lawfully authorized."
With respect to sales of lands under this statute it was held,
in. the case of Stanfield c. Johnson (<;), that auctioneers are
() 4 Bl. Com. c. 37. (*) 2 Ibid. c. 13, (c) i Esp. N.. P. C. 101.
not
6
Of Auctioneers.
not to be considered as agents of both parties ; but in the late"
case of Emmerson r. Heelis, 2 Taunt. 38, it has been de-
cided, that they are agents lawfully authorized by both parties,
as well for any interest in land as for goods ; and that a note or
memorandum in writing of the bargain, made and signed ly
them, will be sufficient to give validity to the contract (d). The
signing of the purchaser's name oppofite the article bought
has been held a sufficient compliance with the requisites of the
statute on the part of the auctioneer.
Every auctioneer, on receiving his licence, shall give bond
to his majesty in '200/. with sureties, that he will within <8
days after each and every sale by way of auction, deliver at tin:
Excise Office in London, an exact and particular account in
writing of the total amount of the money bid at each sale, &c.
and at the same time make payment of all such sums of money
as shall be due to his majesty in pursuance of this act, which
sum he is authorized to retain out of the produce arising by
such sale, or deposit made at such sale, or otherwise recover
the same by action of debt, or on the case, against such per-
son by whom such auctioneer shall be employed. 19 Geu. 3,
c. 56, s. 7-
But if the owner of estates or other property sold by auc-
tion, or any other person on his behalf, buy in the same with-
out fraud or collusion, no auction duty will become payable,
IQGeo. 3, c. 56, s. 12; provided notice be given in writing,
28 Geo. 3, c. 37, s. 20, to the auctioneer before such bidding,
signed by the owner and the person intended to be the bidder,
of the latter being appointed by the former, and having agreed
accordingly to bid at the sale for his use ; and provided the
delivery of such notice be verified by the oath of the auc-
tioneer, as also the fairness of the transaction to the best of
his knowledge. And to exempt a vendor from the payment
of the duty, every notice must, at the tiim- appointed by law
for the auctioneer's pricing his account of the sale, be pro-
duced by the auctioneer to the officer authorized to pass the
account of Mich sale, and also be left with the officer. 42
Geo. 3, c. 93, s. 2.
Any thing which is in the nature of a bidding is within tlio
avts; and therefore where the owner put the price under a
caiuik'stick in the room, (which is called a dumb bidding,) and
it uiis agreed that no bidding should avail if not equal to that,
it was held to be within the acts, as being iu effect an actual
(J) 3 Bur. 921.
bidding
Of- AuctiweTz. 1 77
bidding* of so -much, for the purpose of superseding smaller
biddings at the auction (e).
But to bring a bidding within the acts, the sum must be
named by the party eo intuitu, with a view to the purchase of
the estate. Therefore in the case of Cruso v. Crisp (J') it was
decided, that putting up an estate in lots at certain prices was
not a bidding within the acts; and consequently, where the
owner intends only to put up the estate at a certain price, and
not to bid for it in case of an advance, no previous notice o
his intention need be given.
If an estate, &,c. be bought in by the owner, and proper
notices were not given of his intention to bid, the duty must
be paid, however fair the transaction may be.
A statement by an auctioneer to the vendor or his agent, that
he has done what is necessary to avoid payment of the duty,
will amount to a warranty, although the duty becomes payable,
not by the default, but by the ignorance or mistake of the auc-
tioneer (g).
In ihe sale of an estate, &c. if the vendor's title prove bad,
the auction duty will be allowed, provided a complaint thereof
be made before the commissioners of excise, or two justices of
the peace within whose jurisdiction such sale was made, 19
Geo. 3, c. 56, s. 1 1, within twelve calendar months after the
sale, if the same shall be rendered void in that time ; or other-
wise, within three mouths after the discovery that the owner
has no title. 28 Geo. 3, c. 37> s. 1<J. But the commissioners
will not allow the duty- unless they think that the vendor has
used his utmost exertions to make a good title. An appeal,
however, lies from the judgment of the commissioners ; but
as the king never pays costs, they fall upon the vendor.
Although the duty is by the acts imposed on the vendor, yet
he is not restrained from making it a condition of sale, that
the duty, or any certain portion thereof, shall be paid by the
purchaser, over and above the price bid at the sale by auction;
and in such case the auctioneer is required to demand payment
of the duty from the purchaser, or such portion thereof as is
payable by him under the conditions ; and upon neglect or re-
fusal to pay the same, such bidding is declared by the acts to
be null and void to all intents and purposes. 19 Geo. 3, c.
56, s. 8.
If an auctioneer sells an estate without a sufficient authority,
so that the purchaser cannot obtain the benefit of his bargain.,
(0 3 Eaft's Rep. 340. (f) Ibid. 337. (s) 6 Ibid. 39*.
N to
178 Of the Sale and Purchase of Estates.
he (the auctioneer) \vill be compelled to pay all the costs \vhicb
the purchaser mav have been put to, and the interest of the
purchase-money, if it lias been unproductive.
If an auction* cr uiu' credit to the vendee, or take a bill or
"other security, for the purchase-money, it is entirely at his O\MI
risk, and the vendor can compel him to pay the money (//)
The auctioneer should not part with the deposit until tle
sale is carried into effect (/'}, because he is considered as a
stake-holder or depository of it; and therefore an action \\ill
lie against him for leeovery thereof, if the purchaici be en-
titled to recover it.
Unless aai auctioneer disclose the name of his principal, an
action will lie against him for damages for breach of the con-
tract (A').
And if any money is paid as a deposit, though short of the.
sum stipulated In the conditions, and accepted us Mich h\ the
auctioneer, it \\ill bind the bargain r/uuml the auctioneer (/ ; .
A bidder at an auction, under the usual conditions that the
highest bidder shall be the purchaser, may retract his bidding
any time before the hammer is down (/).
PART IIL
Of the Rig/its of Things.
CHAP. I.
Of the Sale and Purchase f Eslaln.
IN the purchase of an estate, if all latent d K-cK eith. r iu
t-.ite or in the title to it, and of \\hich the vendor or his
agent vas axvare at the lime of the contract, are not di>< l'i>ed
t the purchaser, the \endoi cannot compel tliv e\e. nii<n of
the contract, althoi -late be .-old r\pu-K Mil.jct i<
all it-> faulls. But if the defect* \ure pattnl, nnd such as could
(b) i Utn. Bl. It. C') 3 Barr. a6jf. (*) PfAc'sN. P. C. no.
rK. (*>) jT. H 1J.
Of the Sale and Purchase of Estates. 1 79
be discovered by a vigilant man, the purchaser will be com-
pelled to fulfil bis contract, notwithstanding the vendor was
acquainted with them, and did not disclose them.
No relief can be obtained against the vendor of an estate
for a false affirmation of its value (77), or for having falsely
affirmed, that a person bid a particular sum for the estate, al-
though the vendee wa? thereby induced to purchase (o).
But if a vendor affirm, that the estate was valued by per-
sons of judgment at a greater price than it actually was, and
the purchaser act upon such misrepresentation, the vendor
cannot compel the execution of the contract either in equity or
at law ( p). And a remedy will lie against a vendor for a false
affirmation of rent (</).
The same rules apply to incumbrances as to defects in the
estate itself or the title to it. If on enquiry whether the estate
contracted for is subject to incumbrances, the incumbrancer
or trustee should make a false representation^ in the first case
the incumbrancer would not be allowed to enforce his demand
against the purchaser (/) ; and in the second, the trustee
would be compelled to make good the loss sustained by the
purchaser in consequence of the fraudulent statement (s).
When an estate is pat up to auction, and bought in by the
owner, or any other person on Ins behalf, without fraud or
or collusion, no auction duty is payable ; provided, when the
bidding is made by the agent of the owner, that notice is
given in writing to ihe auctioneer before such bidding, signed
by the owner and the person intended to be the bidder, of the
latter being appointed by the former, and having agreed ac-
cordingly, to bid at the sale for his use. 1<) Geo. 3, c 50, s.
12; 28 Geo. 3, c. 37, s. 20. If the bidding is made by the
steward or known agent of the owner, notice in writing must
be given by such steward or known agent; rnd if he appoints
another to bid, by him and the bidder. 42 Ceo. 3, c. 93,
s. 1.
The appointment of one person by the owner to bid pri-
vately in ord'.-r to prevent the estate from being sold at an
undervalue, is valid. And it has been decided, that if there
were real bidders at a sale, it must be supported, although
the bidding immediately preceding that of the purchaser was
fictitious (t) ; and where public notice has been given, the
contract will be binding on the purchaser, although there was
(n) Yelv.zo. (o) j Rol. Abr. 101, pi. 16. (f ) 1 Atk. 385.
(<j} I Ld. Raym. 1118. (r) 2 Vern. () 13 V'ss. Jun. 470.
Ol 12 Ibid. 47 7.
.N 2 n
1 SO Of the Sale and Purchase of Estaics.
no contest between real bidders, but only the purchaser ami
the person employed to bid, bid against each other (it). It
should seem, that the rule would be the same, even \\lui*
public notice had not been given, provided the bidder was
appointed only to protect the vendor's interest.
But it seems, tlia'. where ihe person is employed, not for
the precaution of preventing a sale at an undervalue, but
but merely for the purpose of enhancing the price, that will
be deemed a fraud, and the purchaser cannot be compelled t
perform his agi cement (JT).
Where the particulars or advertisements state, that the
estate is to be sold without reserve, there is no doubt but
that the sale will be void against a purchaser, if any person
has been employed as a puffer, and actually bjd at the sale.
The verbal declaration of the auctioneer in the auction
room cannot contradict the printed conditions of the sale,
such verbal declarations being inadmissible as evidc.ice (/).
If, however, the purchaser have particular personal in-
formation given him of an incumbrance, it t,oem that parol
evidence may be admitted (:>.
A contract for the sale of an estate is not discharged by
the bankruptcy of either the vendor or vendee (a), or the
death of either of them before the conveyance of a sur-
render (A), or even before the time agreed upon for com-
pleting the contract (r).
A purchaser may sell or charge the estate before the con-
veyance is executed (d). So he may devise tin < state, if free-
hold, before conveyance; and, if copyhold, before the sur-
render (e) ; and the devisee will be entitled to have the estate
paid for out of thr pt-i -oir.il estate of the purchaser (f).
tes contracted for alter the making of a will, will not
pass by it(^); nor will lands pass by the will, although run.
ve\t<lio the purchaser subsequent to his will, in pursuance
of a contract prior to the will, unless it was a valid binding
.tract (/i). Hut in these cases, tin- li ir at law will be en-
titled to have 'lie i -tate purchased 1m hi-* "wn benefit, out of
the J).MS ii.il estate of his ancestor (;'). The rotate will, how-
.< ts in the hands of the heir.
'] $ Ve-. JIM. <jf8- , v' TI IbiJ. 48}. Cj) i Hen.BI. 2*9. 6 V.
(a) i I' W,-, .737. 3 Ves. Jim. 255.
(A) i i " nj. (f) J Eq. Ca. Abr. vs. pi. 41. (</) 7 Ve Jun.
ilk. 8$. a Vfr>. 679. (f) 10 Vc$. Jun 597. ([)*?
6*,. (^Ji - ^$o- (') Moselej, 113.
Of the Sale and Purchase of Estates. 1 8 \
So if the purchaser die intestate, the heir will, in like man-
ner, be entitled to have the estate purchased for him ; and if
his ancestor die before the conveyance is executed, the heir
may devise, charge, or sell the estate, in the same manner as
the ancestor himself might have done (&).
If the personal estate is insufficient to perform the contract,
and the agreement is on that account rescinded, yet the heir
or devisee will, it should seem,. be entitled to the personalty
as far as it extends. And it has been decided, that if by reason
of the complication of the testator's affairs, the purchase mo-
ney cannot be immediately paid, and the vendor for that reason
rescinds the contract; yet on the coming in of the assets, the
devisee of the estate contracted for may compel the executor
to lay out the purchase money in the purchase of other estates'
for his benefit (/).
If a purchaser, previously to a contract, make a general
devise of all his lands, and after the contract execute a codicil,
according to the statute of frauds, unless an intention appear
not to affect it (ni), the after purchased lands will pass under
the devise in the will, although legacies only are given by the
codicil, and no notice is taken of the estate ().
And if a purchaser, previously to a contract, direct his after
purchased lands to be conveyed to the uses of his will, and
make a provision for his heir at law, and afterwards die with-
out republishing his will, and the after purchased lands devolve
upon the heir at law, equity will put the heir to his election, ,
and not permit him to take both the descended estate, and the
provision made for him by the will (o).
From the time of the contract, the purchaser, and not the
vendor, being owner of the estate in equity, it follows, that
if a man devises his estate, and afterwards contracts for the
sale of it, the devise will thereby be revoked in equity (p).
And even where an estate was by a will directed to be
sold, and the money to be paid to certain persons, and the
testator himself afterwards sold the estate, it was held, that
the legatees were not entitled to the money prr ducqd by the
sale (q}. ' '"
If an estate directed to be bought, but not actually con-
tracted for, is not, or cannot be bought, yet the money must
be laid out in other lands for the benefit of the devisee (>)
(*) 2 P,Wms. 6z 9 . (/) 4 Bro. C. C. 31. '(m)j T. R. 148* () 7
Ves. Jun. 98. (o) 13 Ibtd accj. (p) z P. Wins. 333. . (j) i Bro.
C', C. 4.01. (r) 4 Ibid. 31.
* A specific
1 62 Of the Sulc and Purchase of Estates.
A specific performance of a contract for the sale of nn
estate \\ ill be enforced, notwithstanding l|)f price \vas unrea-
sonable (s); unless tlie purchaser was induced to givr Mich un-
reasonable price by the fraud, or gross misrepresentation of
the vendor ; or by an industrious concealment of u defect in
the estate (t).
A conveyance obtained for an inadequate consideration,
from one not conusant ot his right, by a person who had no-
tice of such right, will be set a>ule, although no actual fiaud or
imposition is proved (H).
So jf advantage is taken of the distress of the vendor, tjie
sale will be set aside (.1).
A vendee being equitable owner of the estate fi<m the
tjuie of the coinratt lor sale, njust pay il,r consideration for
it, although the es'ate itself he destioyed I'ctvm-n tin- ag'c<--
ment and conveyance, provided the title be good, or that the
purchaser has waived any objections to it ( ;/). On the other
lijiiid, he will be entitled to any benefit which may acmu t>
the estate in the intei '. - ;ilso to the profits fuun the tune
lixed upon for c"mi,ieiing the contract, whether he does or
docs not take possession of the estate (a).
If a person agree to give a contingent consideration for
an estate, as an annuity for the life of the vendor, and the
vendor die before the conveyance is toa-rute-d, bv which -\ut
the annuity ceases, \et the purchaser will be rntitlid to a spe-
cific performance of his contract (b).
lint if, in a case of this nature, a payment of the annuity
becomes due before the death, and the purchaser neglect to
make -.or tender it, he cannot insist upon a spcciuc per-
formance (c).
\Vhcre an incumbrance is discovered previously to the ex-
ecution of the cmive '\aitces, and pavtmnt of the pin chase-
money, the vendor must discharge it, \\hctl.) lie- lias 01
not agreed to covenant aji:t:ii"t incumbraiK e*, bt-f.ne he eau
compel payment of the purchase money (<l),
Hut if a [iiichaser, l>efore executing the article.-". ha> notice-
of n incumbraiKe, which is contingent, and it is by tin-
articles agreed, that the vendor shall ct>venai.t agam.>l 11.111111-
() 2 Vere. 421. (rt i Ler. in. 3 Atk. 383. i Bro. C. C. 440.
(l i Hro. C. C. i 50. (JT) I Vffi. 465. (y) 2 K<. " Co,itr..it>. 01.
<i \ H. Jun. 340. (; z t'ow. or. Contracts, hi. b Vr. JUM. 143.
,M i Itro. 0. C. 156. 3 Ibid. 6oj. (() ^ Bto. I'. C. 184. (d) i
0$.
.Of the Sale and Purchase of Estates. 1 83
brances, equity will not assist him, and he, therefore, cannot
detain any part of the purchase money (e).
If the purchaser has paid the money, but is evicted be-
fore any conveyance is prepared and executed, or before the
conveyance is executed by all the necessary parties, he may
recover the purchase money in an action for money had and
received, although the intended covenants do not extend to the
title under which the estate was conveyed, and he may have
taken possession of the estate ( / ).
But if the conveyance had been actually executed by all
the necessary parties, and the purchaser is evicted by a title
to which the covenants do not extend, he cannot recover the
purchase money either at law 7 or in equity ( g).
Where the purchase money is not paid 'by the day agreed
upon, the purchaser will be compellable to pay interest for
it to the vendor from the time he is intitled to the
profits (//).
If the delay in completing the purchase be attributable to
the purchaser, he wUl be obliged to pay interest on the
purchase money from the time the contract ought to have
been carried into effect, although the purchase money hns
been lying ready, and without interest having been made
of it (t).
But if the delay be occasioned by the default of the vendor,
and the purchase money has laid dead, the purchaser will
not be obliged to pay interest. The purchaser must, how-
ever, give notice to the vendor, that the money is laying
dead (*).
If a vendor cannot make a good title, and the purchaser's
money has been laying dead, without interest being made of
it, the vendor must pay interest to the purchaser (/).
\\ here a trust is raised by deed or will for sale of an estate,
the purchaser is bound to see to the due application of the
purchase monev according the terms of the trust, unless he
is expressly relieved from that obligation by the author of the
ti ust.
If the trust be of such a nature, that the purchaser may
reasonably be expected to see to the application of. the pur-
chase money, as if it be for the payment of legacies, or of
() Gilb. Ej. Rep. 6. (f) 6 T. R. 606. (g) Ibid, a freem i,
(b) i Bro. C. C. 396. (>) i Yes. Jun. sui. (*) I'sii. (I) z HI. Kef
IP) 8,
1 84 Of the Sale and Purchase of Estates.
debts which are scheduled or specified, he is bound to JK.O
that the money b applied accordingly (/;*)
Where a trust is for payment of debts generally, a pur-
chaser is not bound to see to the application of the purchase
money, although he has notice of the debts (/*); unless. ihcie
has been a decree.
Where a vendor delivers possession of an estate to a pur-
chaser, without receiving the purchase money, equity, whe-
ther the estate be or be not conveyed, and although there \\a>
not any special agreement for that purpose, gives the vendor a
lien on the land for the money ; so on the other hand, if the
vend r cannot make a title, and the purchaser has paid any
part of the purchase money, it seems that he has a In 11 for it
on the estate, ah'.ou^li he may have taken a distinct security
for the money advanced (o).
If a vendor take a distinct and independent security for the
purchase money, his lien on the estate is gone; sued a secu-
rity being evidence, that he did not trust to the estate as a
pledge for his money (/;).
And the same rule must prevail \\here a vendor accepts
a mortgage of another csiute fur the purchase money (r/). So
even wlure. the vendor lakes a mortgage of the estate, sold only
for part of the purchase money (;).
But taking a covenant, bond, or note, for the purchase
money, or any part of it, will not discharge the vendor's
equitable lien on the estate (s). And it seems that the same
rule must prevail although the estate is s-.ld for an annuity and
a covenant bond, or note is taken for securing the pay-
ment (0-
The persons who are incapable of purchasing lands are as
follow :
The parishioners, or inhabitants of any place, or tin*
churchwardens, are incapable of purchasing lands by those
name s (//).
But it stems that in London, the parson and thechunh-
wardens are a < :i t< purchase lands (i)- Anil church-
wardens and oveiM<i- are < nabled by statute |) (n'O. 1, c. 7,
0. 4, to purcliu i a \\<ukh<. use fui the. poor; but this is nuuly
as trustees, and does not affect the general rule of law.
(m) * Chan. C.is. 1*1. (it) i Eq. Ca. Abr. 358. pi. 4. () I Vern.
467. 9 Mod. r5. 3 Atk i. /f) 6 Vcs. Jyn. 753- (?)
(r) ^ \ n. 181. ( i Bro.C. C. 410- 6V<s]uti. 752. (t) i
C. C. 413. ()Co..Lit. 3. a. (x) Cro. Jac. 531.
Al
Of the Sale and Purchase of Estates. 185
Aliens may purchase ; but upon an office found the king
shall be entitled to the lands so purchased by his prero-
gative (;//).
But if an alien be made a denizen by the king's letters
patent, he is then capable of holding land purchaoed after
his denization (z).
And it seems, that if an alien purchase lands, and before
office found the king make him a denizen by letters patent,
and confirm his estate, the confirmation will be good ; as the
land is not in the king till office found ().
Persons who have committed felony, or treason, or have
been guilty of ihe offence of premunire, and afterwards pur-
chase lands, and then are attainted, are incapable of purchasing,
though they are not of holding; and the lard of the fee
shall have the lands : but if they purchase after they are at-
tainted, they are then in the same situation as aliens, and the
lands must go to the king (6).
Corporations sole, or aggregate, either ecclesiastical or
temporal, cannot hold lands without due licence for that
purpose (c) : and the lord of the fee, or in default thereof
within the time limited by the statutes, the king may
enter (d ).
Infants under the age of twenty-one years, may purchase,
and at their full age may bind themselves by agreeing to the
purchase ; or they may waive the purchase, without alledging
any cause for so doing. If they do not agree to the purchase
after their full age, their heirs may waive the purchase
in the same manner as the infants themselves could have
done (e).
Femes covert are capable of purchasing, but their hus-
bands may disagree thereunto, and divest the whole estate, and
maintain trover for the purchase money (f). But if the husband
_ neither agree nor disagree, the purchase by the wife will be
effectual; but after his death she may waive the purchase,
without giving any reason for so doing, although her hus-
band may have agreed to it. And if, after her husband's
death she do not agree to it, her heirs may waive it (g).
A feme covert may however purchase lands pursuant to
an authority given by her husband, and he cannot afterwards
avoid it (h}
(y) Co. Lit. 2. b. (a) Ibid. (a) Goulds. 29. pi. 4. (I) Co. Lit.
ft. b. fc Ibid. 99. a. () Ibid. 2. fc. (e) Cro. Jac. 3x0,
(fj i Ld P* m 224. (g ) Co. Lit, 3. u. (b) i Ld. Raym. 224.
Lunatics,
1S6 Of Mortgages.
Lunatics or itliots are capable of purchasing; but al-
though they recover their senses, they cannot themselves
waive the purchase. But if they recover, aud agree thereto,
their heirs cannot set it aside (/').
If they die during their lunacy, or idiocy, then their heir*
may avoid the purchase (/;). And as the king has the care of
idiots, upon an otHce found he may annul the purchase (/) :
and after the lunatic is found so by inquisition, his committee
may vacate the purchase (;//).
Lastly, papists and persons professing the popish reli-
gion, who have neglected to take the oath prescribed by the
3l Gco. 3,-c. 32, are incapacitated from purchasing lands ;
unless for the benefit of their protestant next of kin, till their
conformity ; and for the benefit of his heir after his death.
Trustees (M), unless nominally so, as trustees to pi \. serve
contingent remainders (o), agents (/>), commissioners of bank-
rupts (j), assignees of bankrupts (r), solicitors to the com-
mission (s), auctioneers, creditors who have been consulted
as to the mode of sale (f), or any person who by his con-
nection with the vendor, or by bcin-jr employed or concerned
in his alVairs, has acquired a knowledge of his properly,
are, in general, incapable of purchasing such property them-
selves.
CHAP. II.
Of Mortgage*.
A PAWN of land or tenement, or any thins imnv \ ;,b! ,
Tmund for money borrowed, to be the creditor's for \i,
if the money be not paid at the day agreed upon is called
a mortgage; and the creditor holding land and tenement upon
this bargain, is called tenant .n mor^e. [Ir who pK-dg -
this pawn or gage, is called the mortgagor, and he who takf
it the mortgagee.
The notion of mortgaging and redemption seems to be of
.'i\\i>!i * \ttactioD, and from them derived to the Ginks and
(?) a Bl. Com. 191. (*) C. Lit. i.b. (.') Ibid. 147. i. (r) l
Vrrn, 411. (*) Bro. C. C, 400. () M Vfs. Jun. Ji6. [fi] 13
Ibid. 95. (j] to Ibid 381. (r) 5 Ib.J. 707. (t) 6 Ibid. tjO.
(r) 6 Ibid. 17. 9 Ibid. 434.
Of Mortgages. 187
Romans. The plan of the Mosaic law constitutes a just and
equal agrarian, that the lands may continue in the same tribes
and families, and the people might not be diverted by any
exotic arts and inventions from the .exercise of agriculture,
in which innocent employment they were to be constantly
educated; therefore, whoever were compelled by want to
sell, could transfer no estate in the lands, farther than the
next general jubilee, which returned once in tifty years ;
wherefore they computed till the jubilee, that, according
to .the distance from thence, such was the interest that could
be transferred to the buyer; but the vendor had power at
any time to redeem, paying the value of the lands to the
jubilee ; but though he did not redeem them at the year of
the jubilee, yet the lands came back again free to the vendor
and his heirs ().
But our notion of mortgaging and redemption seems to
have come more immediately from the civil law (r).
When a licence of alienation was given about the time of
Hen. 3, and it became a maxim of law, that the purity of a
fee simple imparted a power of disposing of it as the owner
pleased ; there were two ways of mortgaging lands introduced,
which Littleton, who is followed by BJackstone, distinguishes
by the names of vadium zivum, or living pledge ; and vadium
mortuuni t or dead pledge.
frivitm I'adium, or living pledge, is, when a man boiTows
a sum, suppose '200/. of another, and grants him an estate
as of 20/. per aim. to hold, till the rents and profits shall
pay the sum so borrowed. This is an estate conditioned
to be void as soon as such sum is raised. And in this case
the land is said to be living : it subsists and survives the
debt ; and. immediately on discharge of that, results back to
the borrower (j/). But mortuuni vadium, a dead pledge, or
mortgage (which is much more common than the other), is
\yhere a man borrows of another a specific sum (e. g. 200/.)>
and grants him an estate in fee, on condition that if he, the
mortgagor, shall repay the mortgagee the said sum of 200/.
on a certain day mentioned in the deed, that then the
mortgagor may re-enter upon the estate, so granted in pledge ;
or, as is now the more usual way, that then the mortgagee
shall reconvey the estate to the mortgagor : in this case the
land, \\hjch is so put in pledge, is by law, in case of non-
payment at the time limited, for ever dead and gone from
() Cumjeus, fi. {*} Justin. 592. (>) Co. Lit. 205.
the
J8S Of Mortgages.
the mortgagor; and the mortgagee's estate in the lands is then
no longer conditional, but absolute. But so long as it continues
conditional, that is, between the time of lending the nun.ey,
and the time -allotted fqr payment, the mortgagee is called
tenant in mortgage (z). But as it was formerly a doubt,
whether, by takimr such estate in fee, it did not become
liable to the wife's dower, and other iiu umbrances of the
mortgagee (though that doubt has been lon ago overruled
by our courts of equity) ; it therefore became usual *to
only a long term of years by way of mortgage ; with condi-
tion to be void on repayment of the mortgage money : v\ hirh
course has been since pretty generally continued, principally
because on the death of the mortgagee such term becomes
vested in his personal representatives, who are aloi.
titled in equity to receive the money lent, of whatever nature
the mortgage may happen to be ().
As soon as the estate is created, the mortgagee may im-
mediately enter on the lands ; but is liable to be dispossessed,
upon performance of the condition by payment of the
mortgage money at the day limited. And therefore the
usual way is to agree that the mortgagor shall hold the land
till the day assigned for payment ; when, in ca.se of failure,
when by the estate becomes absolute, the mortgagee may
enter upon it and take possession, without any possibility at
law, of being afterwards evicted by the morti::ii:r, to \\hom
the land is now for ever dead. But here again the courts of
equity interpose ; and though a mortgage be thus forfeited,
and the estate absolutely vested in the mortgagee at the
common law, yet they will consider the real estate of the te-
nements compared with the sum borrowed; and if the i-i:ii-
be of greater value than the sum lent thereon, they \ull
allow the mortgagor at any reasonable time t to recall or re-
deem his estate; paying to the mortgagee his principal, in-
terest, and expences. And by the statute 7 (*M- '-, c. 2O,
after the payment and tender by the mortgagor of the prin-
cipal, interest, and costs, the mortgagee can maintain no
< i' < uncut, but may be compelled to re-assign his
mil's.
This reasonable advantage allowed to mortgagors is called
the equity of redemption; and this enables n>.
on the mortgagee, who h;i> possession of his estate,- to deliver
itJLiack, and account for the rents and profits received, on p;i\-
() Lit, t. 332. (j) t HI. Com. 158.
ment
Of Mortgages.
ment of his whole debt and interest; thereby turning the
mortuum into a kind of a virnm radium. But, on the other
hand, the mortgagee may either compel the sale of the estate,
in order to get the whole of his money immediately; or else
call upon the mortgagor to redeem his estate presently, or in
default thereof, to be for ever foreclosed from redeeming the
same ; that is, to lose his equity of redemption without pos-
sibility of recall. It, is not, however, usual for mortgagees to
take possession of the mortgaged estate, unless where the se-
curity is precarious or small, or where the mortgagor neglects
even the payment of interest : when the mortgagee was fre-
quently obliged to bring an ejectment and take the lands
into his own hands, in the nature of a pledge, or the pigtnts of
the Roman law. But it has now been determined, that the
mortgagee is not obliged to bring an ejectment to recover the
rents and profits of the estate ; for where there is a tenant in
possession, by a lease prior to the mortgage, the mortgagee may
at any time give him notice to pay the rent to him, and he may
distrain for all the rent which is due at the time of the notice,
and also for all that accrues afterwards (6).
In general, if .the mortgagee has been twenty years in pos-
session, the court of chancery, in conformity to the time of
bringing an ejectment, will not permit a mortgagor to redeem ;
unless during part of the time such mortgagor has been an.
infant or a married woman; or unless the mortgagee admits,
that he holds the estate as a mortgage, or there is some other
*pecial circumstance which forms an exception to the general
rule (c).
Where two different estates are mortgaged by the owner to
to the same person, one cannot be redeemed without the
other (d). So of other securities given by the mortgagor to
the mortgagee (e).
Although after breach of the condition an absolute fee-
simple is vested at common law in the mortgagee, yet a right
of redemption being still inherent in the lands, till the equity of
redemption be foreclosed, the same right shall descend to and
i-3 vested in such persons as have a right to the land, in'case
there had been no mortgage or incnmbrance whatsoever; and
as an equitable performance as effectually defeats the interest
of the mortgagee as the legal performance dots at common
Jaw, the condition still hanging over the estate till the equity is
() Doug. 266. (0 Eq. Ca. Abr. 313. z Bro. 399. a Ves. Jun. 83.
(4) Ambl. 733. () Fonbl, lib, 3, c. i, s. 9.
totally
190 Of Mortgages.
totally foreclosed. On this foundation it has been held, that
a person who conies in under a voluntary conveyance may re-
deem a mortgage; and though such light of redemption be
inherent in the land, yet the party claiming the benefit of
it, must not only set forth such right, but also shew that
he is the person entitled to it (/).
The right of redemption is not confined to the mortgagor,
his heirs, executors, afiignees, or subsequent incumbrauct is
but extends t<> all p< rsom claiming any interest whatever in the
j>r< m.ses a." against the mortgagors ; therefore a person claiming
under a deed void (as being voluntary) against a subsequent
mortgagee, may redeem ; for tin: deed, though void as to the
mortgagee, is binding on the mortgagor ( t). J fortiori may
any person who has acquired for valuable consideration an
interest in the land, as a tenant under the mortgagor ; or a
judgment creditor having previously sued out a \viit <>f execu-
tion; or a tenant by c/t^it, statute merchant, or staple; or
tenant by the curtesy or in dower ; or a jointress ; the cro\\ 11
may also redeem estates mortgaged, and afterwards forfeited
bv the tieason, &.c. of the mortgagor (A).
As the heir M law is regularly entitled to the benefit of re-
demption, he is also entitled to the assistance of the personal
estate of the mortgagors for that purj>osr ; according to the
doctrine established in the courts of equity, that the peiv.iul
estate, in the hands of the executor, shall be eni|lovd in
case of the heir, by whatever means the heir become3 indebted
as heir; for the personal estate having received the In in-lit by
contracting the debt, the real is considered only as a pledge
lor it (/). And on this foundation it has been frequently held,
that if a man mortgages lands, and covenants l-> j>av the
money, and dies, the personal estate of the morivasror shall,
in favour of the heir, be applied in i \oneiation of the mort-
gage (&) And the <U\.M of a particular e>tate shall not
only have his devised estate exonerated out of the personal
estate, but if then be another e-tate. expressly devised for pay-
ment of debts, and the peisoual < >i..u I- |>i> d or ex-
hausted, he may also icsoit to null devisi ,i ( t.itt ; ami that
although the particular estate devised to him be dexiscd sub-
ject t> the incumbrnnei-s thereon (/.. So if the personal islah:
be exempt or exhausted, and there be no real tstatr t\pi
*
(f) HiJr. 465. I Vern. 181, 103. (l) 1 Chan. Ca. 59. i Vrrr.
103. (b) Fonbl. Treat. Eq. lib. 3, c. i, 1.9. (i) Prec. Chan. 477.
(fc) 2 Slk. 499. (/) a 1. V/nu. 385.
devised
Of Mortgages,
devised for the payment of debts, but there be a descended
estate, the devisee of a particular estate shall have it exonerated
out of the descended estate (ni).
So if the mortgagor conveys away the equity of redemption,
the purchaser shall not have the benetit of the personal estate,
but must take it cum onere(n}.
It has likewise been held, that the heir of the mortgagor
shall have the benefit of the personal estate to pay off the
mortgage, though there be no covenant in the mortgage deed
for the payment thereof; because the mortgage money is a
debt, whether there be any express covenant for the payment
of it or not, because the personal estate received the bene-
fit (o/
r .1iere is one case, however, in which the legislature has
thought proper to take from the mortgagor the equity of re-
d^/mption, and to give the mortgagee an absolute estate in
the land ; that is, where the former is guilty of a fraud upon
the latter by concealing prior incumbrances. For by statute
4 and 5 W. and M. c. 16, it is enacted, that if any person
shall borrow any money, and for payment thereof, or for
any other valuable consideration, shall voluntarily give a judg-
ment, statute, or recognizance, and shall afterwards borrow any
other sum of another, or for other valuable consideration be-
come indebted to such other, and for securing the repayment
and discharge thereof shall mortgage lands, or any part thereof,
to the second lender, Sec. or to any other in trust for or to the
use of such second lender, Sec. and shall not give notice to
the said mortgagee, of such previous judgment, &,c. in writing
wilder his hand, before the execution of the said mortgage
or mortgages ; unless such mortgagor or his heirs, upon notice
given by the mortgagee, his heirs, Sec. in writing, Sec. attested
by two witnesses, of any such former judgment, Sec. shall
within six months pay off the said judgment, Sec. and all in-
terest and charges, and procure the same to be vacated, &c.
then the mortgagor or his heirs, Sec. shall have no benefit or
remedy against the said mortgagee or his heirs, Sec. in equity
>>r elsewhere, for redemption; but the mortgagee shall hold
the lands, Sec. for such estate and term as was granted to the
mortgagee, against the mortgagor, and all persons claiming
under him, freed from equity of redemption, Sec.
And if any person who shall once mortgage lands for_ valu-
able consideration, shall again mortgage the same lands, or any
(m) a Atk. 430. () 2 Sulk. 450. () Ibid. 449. I Ve^r. 436.
part
192 Of Mortgages.
part thereof, to any other person tor valuable consideration,
(the former mortgage being in force,) ami shall not discover
tc the second mortgagee the former mortal _e. in \vritiiig un-
der his hand, such mortgagor, his heirs, &c. shall have no n-
lief or equity of redemption against the second or after mort-
-e, iicc. And such second or third moj-tjagees may re-
de< MII any former mortgages, upon payment of the princi-
pal, debt, interest, and costs of suit, to the proper mort-
gagee, &c.
But the statute does not bar any w idow of any mortgagor
from her dower, who did not legally join with her husband
in such mortgage, or otherwise lawfully exclude her-elf.
It has been held, that this statute extends to assignees of a
mortgagee ; and that if a man mortgages certain lands to one
man, and mortgages those hinds with some others to another,
though this seems to be a case omitted out f>f the above statute
^against clandestine mortgages, \it if it appears to be a con-
trivance to evade it, as if an acre or two of land were only
added, this will not exempt it. Also a person who will take
advantage of the statute must !> an honest mortgagee; thert-
fore, if a man has used any fraud in obtaining a second mortgage,
lie shall not have the bcnelit of the statute (/>).
It has been said to be an established rule of equity, that a
second mortgagee, who has the title deeds without notice of
any piior incumbrancc, shall in all cases be preferred; be-
cause, if a mortgagee lend money upon real property without
taking the title deeds, he enables the mortgagor to commit a
fraud (fj\ But Lord Thurlow r.ftenvards observed upon this,
that he did not conceive that the not taking of the title d.
\\ as alone sufficient to postpone the first mortgagee ; if it were
8d, there could be no such thing as a mortgage of the rever-
sion: and he held, that a second mortgagee in possession of the
title deeds was prefeired only in cases where the first had been
guilty of fraud or gross negligence (;*). Jt seems, ho\\i
that fraud < ; would be presumed, unless the
mortgagee could show that it was imp: r him to ob-
tain possession of the title deeds, or that he had u-ed the duo
and necessary diligence for that purpose (.<).
Whatever may lie ih.- value of the estate, it is of great impor-
tance to those who lend money upon u ;d security t un,
that there is no prior mortgage upon the estate; for it has I
(t) a Vern. 589. (?) l T. R. 76*. (r) z Bro. C. C. 651.
(i) z 131. Com. 160.
3 long
Of Tithes. 193
long settled, that if a third mortgagee, who at the time of his
mortgage had no notice ,of the second, purchases the first
mortgage, even pending a bill iilcd by the second to redeem
the first, both the first and third mortgages shall be paid out
of the estate before any share of it can be appropriated to the
second; the reason assigned is, that the third, by -thus obtain-
ing the legal estate, has both law and equity on his side, which
supersede the mere equity of the second. And even Lord
Hale held it right, that the third should thus seize what he
called a tabula in naufragio, a plank in the shipwreck, and
so leave the second to perish (t). But in mortgages where
none has the legal estate, the rule in equity is qui prior est
tempore potior est jure ().
CHAP. III.
Of Tithes.
TITHES are defined by Blackstone to be a tenth of the
increase, yearly arising and renewing from the profits of lands,
the stock upon lands, and the personal industry of the inhabi-
tants : the first species being usually called predial, as of corn,
grass, hops, and wood ; the second, mixed, as of wool, milk,
pigs, &c. consisting of natural products, but nurtured and pre-
served in part by the care of man; and of these the tenth
must be paid in gross: the third, personal, as of manual oc-
cupations, trades, fisheries, and the like; and of these only
the tenth part of the clear gains and profits is due.
Tithes with regard to value are divided into great and small.
Great tithes are chiefly corn, hay, and wood; small tithes are
the predial tithes of other kinds, together with mixed and per-
sonal tithes.
Great tithes generally belong to the rector, and small tithes
to the vicar (x).
Somethings maybe great or small -tithes, in regard of the
place ; as hops in gardens are small tithes, and in fields may
be great tithes ; and it is said, that the quantity will turn a
small tithe into a great one, if the parish is generally sown with
it (y). Great tithes are commonly called parsonage tithes ;
(0 2 Vent. 337. (u) i P. Wms. 491. i Bro. C. C. 63, (x}Ct9.
Car. zo. (y) i Rol. Abr, 463. Wood's Inst. 162.
O small
1<H Of Tifhc*.
Small tithes, vicarage tithe*, as bein? in irr-noral payable, tin*
one to the parson, the other to the vicar.
BJJ-hop Barlow, Selden, Father Paul, ami others, have ob-
served that neither tithes nor ecdesiasticd btnelice* (which are
correlative in their nature), wejv ever heard of for many ages
in the Christian church, or pretended to In- due to the (Jim
tian priffttfeood*
As to their original, .says Sir William Bhickstone. T will
not put the title, of the cle;gy to tithes upon any divine riplit ;
though such a right certainly cointm IK -ed. and, 1 believe, as
certainly ceased, with tin: Jewish ihcociacy. "Wt an honour-
able and competent main'eiumre for the ministers of tin
gospel is, undoubtedly, jure divino; \\hatever the particnlai
mode of that luaintename may be. For, besides the positive
precepts of the New Testament, natural icaon will tell n>,
that an order of nun, whu are separated from ihe world, ami
excluded from other luci alive professum- for tin- sike of tin-
!i<t of mankind, have a li-iht to be furnished with the neces-
saries, cutivenieuces, and moderate enjoyments of life, at their
expeuce, for \\hose bcnetit they foie^o the n-iial means of
proudintr tlu'in. AccoT(lnigty, all municipal laus have pro-
vided a liberal and decent maintenance for their national
priests or eli : -.TV: om'.- in particular- have established this of
tithes, probably in imitation of the ,lev\ish law; ami peihaps,
considering the degenerate state of the world in general, it
mav be more beneficial to the Knulish clorjiv to found their
.
title on the law of the land, than upon any d'nine riyht
whatsoever, unacknoviledged ami unsupported b\ temporal
\N'e cannot, continues the same elegant writer, pi. i i- U
ascertain thr time when tithes were first introduced ;
country. I'o.--ib!y the\ wen eojitemporary with ihe planlinu
of Christianity amon^ the Saxons by .Aumistin ihe monk,
about the end ot the sixth century. .But the ih>t mention
Mhicii I have nut within any written Fuuh.-h law, i> in a
constitulioir.d decree, made in a s\nod held A. \). 7^''-
*.vlien in the paunent of tilhes in ;, r .'iieial is .slroni;lv eMJoim-d.
'I'his etmoJi, or decree, which at first b-umd not the laity,
Mas rftVctnally coniiiined by two kingdoms ot t!ie Hcptaicliy,
in their parliann nt;i!\ < onvcntioiis or . I.-SOK-IIM !\
r.inM<liir.I of the kni'^s of Mei< i.t ai;d N'OI llnnnlii i latkl, tin:
bi-l.o|i<. duki ., < nators, at.d jn ople : which \\a> a feu jt
later than the time that ( harlcma^ne established the pay-
ment of them in -France, and made that famous (li>jsi,.n
of
Of Tithe*.
of them into four parts ; one to maintain the edifice of the
church, the second to support the poor, the third the bishop,
and the fourth the parochial clergy.
The next authentic mention of them is in thfe Feed us
Edwardi et Guthruni ; or the laws agreed Upon between
king Guthrun the Dane, and Alfred and his son Edward the
elder, successive kings of England, about the year 900.
This was a kind of treaty between those monarchs, which
may be found at large in the Anglo-Saxon laws : wherein it
was necessary, as Guthrun was a pagan, to provide for the
subsistence of the Christian clergy under his dominion ; and
accordingly, we iind, the payment of tithes Hot only en-
joined, but a penalty added for non-observance : which law is
seconded by the laws of Aihelstan, about the year ^30. And
this is as much as can certainly be traced out, with regard to
their legal original (z).
Upon the tirst introduction of tithes, though every man was
obliged to pay tithes in general, yet he might give them to
what priests he pleased, which were called arbitrary conse-
crations of tithes; or he might pay them into the hands of
the bishop, who distributed among his diocesan clergy the
revenues of the church, which were then in common (a}:
But when dioceses were divided into parishes, the tithes of
each parish were allotted to its own particular minister ; first
by common consent, or the appointments of lords o'f manors,
and afterwards by the written law of the land (b).
However, arbitrary consecrations of tithes took place again
afterwards, and became in general use till the time of king
John (c). This was probably owing to the intrigues of the
regular clergy, or monks of the Benedictine and other
rules, under archbishop Dunstan and his successors, who en-
deavoured to wean the people from paying their dues to the
secular or parochial clergy (a much more valuable set of men
than themselves), and were then in hopes to have drawn, by
sanctimonious pretences to extraordinary purity of life all
ecclesiastical profits to the coffers of their own societies.
And this will naturally enough account for the number and
the riches .of the monasteries and religious houses \vh;ch were
founded in those days, and which were frequently endowed
with tithes. For a layman, who was obliged tt> pay his tithes
(x) 2 Bl. Com. 45. (a) z Inst. 646. Se!d. 0,9, e- 4,. ' (/>) LI. Edgai,
c. i and a, (t) Srid. c. ijt.
196 Of Tithes.
somewhere might think it good policy to erect an abbey,
and there pay them to his own monk*. or ^i:mt tluiii to
some abbey ftlready erected j since, lor this dotation, which
really cost the patron little or nothinvr, he miviht, according
to the superstition" of the time.-, li;i\<- ma>se* ioi .MI sung
for his soul. But in pr<>< ess of years, the income of the poor
laborious parish priests being scandalously reduced by tl
arbitrary consecrations of tithes, it was remedied by pope
Innocent the third, about the year 12(XJ, in a decretal epistle
sent to the archbishop of Canterbury, and dated from the pa-
lace of J^aterau, enjoining the pauiu-nt of titlu s to the parsons
of the respective parishes where every man inhabited, ague-
able to what was afterwards directed by the same pope in
other countries. This epistle, says Coke, bound not the lay
subjects of this realm; but being reasonable and just (and he
might have added, being correspondent to the ancient law),
it was allowed, and so became tex terra: (d). This put an
effectual stop to all the arbitrary consecrations of tithes; ex-
cept some footsteps which still continue in those portions of
tithes, which the parson of one parish has, though rarely, a
light to claim in another; for it is now universally held, that
tithes are due, ofcoininba right, to the pai>i>n of the parish.
unless there be a special exemption (r). 'lliis parson of the
parish may be either the actual incumbent, or else the appm-
priator of the benefice; appropriations being a method of
endowing monasteries, which s. ems to have been de\i-ed by
the regular clergy, by way of .substitution to arbitrary COIIM -
rrations of tithes. In extraparoehial places, the king, by his
royal prerogative, has a right to all the tithes (f).
In general, tithes are to be paid for every thing that yields an
annual increase, as corn, hay, fruit, cattle, poultry, and the like ;
but not for any thing that is of the .-ubstance of the eaiih, or
is not of annual increase, as stone, lime, chalk, and the like ;
nor for creatures that are of a wild nature, a* deer, hawks,
&c. whose increase so as to profit the owner, is not annual,
but casual; though for deer and rabbits, tithes ma\ be payable
by special custom (g)
Tithes arc due either dc jure, or by custom. .All tithes,
which are due de jin>', aii-e fi./in .-ueh iiuis of the eailh an
are due aunually; or from the piotit which accrues from the
(J) a iLst. 641. (/) Hot. a 5 6. (f) z last. 64. (g} Di. Com.
**
labour
Of 'Tithes. 197
labour of man. Hence it follows, that such tithes can never be
part of, but must always be collateral to, the land from which
they arise (h).
No tithe is clue, dejure, of the produce of a mine or of a
quarry ; because this is not a fruit of the earth renewing an-
nually, but is the substance of the earth (/).
In section the 7th of statute 2 and 3 Edw. 6, c. 13, com-
mon day labourers are exempted from the payment of personal
tithes. Neither are personal tithes due from servants in hus-
bandry (/c).
As to occupiers of mills paying tithes, it is provided by the
statute 9 Edzo. 2, st. 1, c. 5, that new erected mills shall be
liable to the payment of tithes. But as nothing therein is said
concerning ancient wills, there can be no doubt, that such
ancient wills as before the making of this statute, were liable
to pay tithes, continued afterwards to be liable (/).
Such tithes as arise immediately from the fruits of the
earth, as from corn, hay, hemp, hops ; and all kinds of
fruits, seeds, and herbs, are called predial tithes. They are
so called because they arise immediately from the fruits of the
farm (pr&dium), or earth. By the ecclesiastical law, many
things are liable to the payment of predial tithes, which by
the common law, or in the courts of equity, are not held to
be so (in). This may cause, and has caused, some confusion.
In the former case, the last resort is to the delegates ; in the
latter ( to the house of lords () The canons must, in all
cases, give way to the custom of the place.
The predial great tithes now appear to be corn, grain, hay,
clover, grass (when made into hay), wood, underwood, and
beans and peas (when sown in fields). The predial small tithes
are flax, hemp, madder, hops, garden roots, and herbs, as
potatoes, turnips, parsley, cabbage, spffron ; and the fruits
of all kinds of trees, as apples, pears, acorns, &c. All
kinds of seeds, as turnip seed, parsley seed, rape seed, carra-
way seed, aniseed, clover seed, and beans and peas if sown
in a garden (o).
As it would be tedious to enumerate all the things which
are liable to predial tithes, only those shall be mentioned
concerning the tithes of which some question has arisen ; but
from such as will be mentioned, it may be easily collected of
what other things predial tithes are due.
{*) ii Co. 13. (;) Rol. Abr. 637. (1) Ibid. 646. pi. i. (7) iz
Mod, 243. (m) a lost. 621. (n) Shaw's Law of Tithes, 139.
() Ibid.
Agistment,
Of Tithes.
Agistment, aistirig, in the strict sense of the word,
means the depasturing of a beast, the property of a stranger.
But this \\ofd is constantly used in the hooks, tor depasturing
the' beast of an occupier of land, as veil as that of a
st'angcr (/>). The tithe of airistnient is the tenth part of the
value of the keeping or depasturing such cattle as arc liable to
pay it.
An occupier of hind is not liable to pay tithe for the pas-
ture of horse*, Of Other bCMfttj which :ire u- d in husbandry
in the parish in which they are depastured ; IKH ausc tin- trhe
ol" corn is by their labour increased ((j). But if horses and
other beasts are used in husbandry out of the parish in which
they are dcpa-.tuicd, an apstrm-m titlie is due tor them (/).
It seems to be the better opinion, that no tithe is due
for the pasture of a saddle horse, which an occupier of lands
keeps for hiimeU or his servant* to ride ii><>u <*). NnMnr
is tithe due for the pasture ot nuik cattle, \vluch are milked iu
the parish in \vhich they aie depastured (0-
Milch cattle which ;ne rescued for calving, shall pay no
tithe for pasture whilst they are dry (M). Neither is tithe due
from the occupier of land for young cattle, reared to l>c
used in husbandry, or for the pail (r). But if such young
beasts an. s.-'ld beroiv tliey come to such perfection us to be
fit for husbandry, or before they give milk, an : gistnient tithe
must be paid for them (u).
An occupier of land is liable to an agistment tithe for all
such cattle as he keeps for sale (r).
But if any cr:ttle which have neither been used in hus-
bandry, nor for the pail, are, after being kept for some time,
killed, to be spent in the family of llu ocrupn r >f the. laud
on winch they v. re depastured, no tithe is due for their pas-
ture (</). Neither is tithe due ft.r the rank, eitbfH of a
lra!.ier or (f an occupier, v>!;t<h :n .'1111(1-
Kshich have in the jamc u.a;- p:ud tfiie .,t li;v (l,j. lint it is
.< :-:il t.-ur-. that an >t tillit i< (in- for di-jm-tuiiiig
any sort of cattlr, the property of a : ).
No yi!-!im-i.t Iltiit is ai- t\-v .-,i a \-< -:il>. citlier of a
litiatiirer *'i <-J :m 01 mpier. . ii in the liea<i-
laivds of ploughed iields, provided that they an- not \\ider
(p) t; Nf.v A!>r. ^. ' (f) I Rol. ' 114.
Hoi. Abr. 6.11. '^ rhiU. 646. ' ' , m t -^ ' v *)
.176. 86. (*) ( : } ft (-' .
(*) i Ko'. Kfp. . Ore. Jat: 3176.
1.09
than is sufficient to turn the plough and horses upon (<1).
Neither is tithe due for such cattle as are depastured upon
land that has the same year paid tithes of coin (e). If land
\\hich lias paid tithe of corn in one year, is left unsown the
next year, no agistment is due for such laud; because by this
lying fresh, the lithe of the next crop of corn is increased (_/'),
But if land, which has paid tithe of corn, is suffered to lie
fallow longer than by the course of husbandry is usual, ait
agistii'Ctit tithe is due for the beasts depastured upon such
land ()
Whether an agistment tithe is due for sheep depends on the
question, whether there is a new increase ; as if, after shear-
ing, the sheep are fed on turnips, which, if severed, would
be titheable (//.}.
There is a peculiar difficulty attending this tithe, that it
cannot be taken in kind ; custom is therefore the principal
rule to go by in payment of it ; and the old decisions on the
subject vary so much, that it would be difficult to obtain any
general inference from them. Burn says, t!i;it in all cases the
tjtlie of agislment of barren and unprofitable cattle is to bo
pai<l according to the value of the keeping of each per
week ; and the value of the keeping of a sheep", beast, or horse,
upon any particular lands, is easily ascertained from the usual
prices given for their depasture in the neighbourhood, where
proiitable cattle are kept at the same lime upon the lands, to
gather with them, or not {/),
The parson, vicar, or other proprietor of the tithes, is en-
titled to agistment tithe dc jut'C ; because the grass which is eat
is of common right titheable (/I).
Corn. It is laid down iu some book", that no tithe is due
of the rakings of corn voluntarily scattered (/) But if more
of any sort of corn is fraudulenily scattered, than, if proper
care had been taken, would have been scattered, tithe is due
of the takings of such corn (m). Neither is lithe due- of UK-
stubbles left hi corn tields, after mowing or reaping the
corn ().
Hay. Tithe of hay is to be paid, although beasts of thr
plough or pail, or sheep, are to )}<j foddered with such hayj/>).
But no tithe is due of hay grown ppou the head lands, oi
(d) iRol.Abr. 646, ft) Bre.Dism.i8. (/) I Ro!. Air. 647.
(sr) Shep. Abr. 1008. (4) Bunb. 314. ;'<,? ? Burn. Eccl. L:\\'.\ 44*1
. <i) L4. Raym. 137. (/) i Rol. Abr. 645. ' (m) Cro, Eii/. 475,
(a) \ Jnst. a6i. (c) Cre. Jac, 47,
ploughed
200 Of Tithes.
ploughed grounds, provided such head lands me not witi* r
than is sufficient to turn the plough and horses upon
It is laid down in an old case, that it a man cuts down in a--,
and, while it is in the s\\ atlas, carries it away and gives it
to his plough cauie, not having suiiicient sustenance for
them otherwise, no tithe is due thereof "(?) In (l| i<-' case, tin 1 .
court of exchequer st-emed to be <f opinion, that no tithe is
due of vctchts or clover, cut green, and given to cattle in
husbandry (r). Bnt in anothei c.-o, it was afterwards la-Id,
that the riuht to tithe of hay accrues upon mowing the gra>s f
and that the subsequent application of this, while it is in
grass, or when it is made into hay, shall not, allhonuh beasts
of the plough or pail are fid with it, take away this irjjit (>>.
And the doctrine of this last case coincides with that of an
old case, in which it was held, that tares cut green, and given
to beasts of the plough, may, by special custom, be ex-
empted from the payment of tithes; from whence it follows,
that such tares are not exempted from the payment of til lies
de jure (t ).
it is laid down in some books, that no tithe is due of after,
math hay ; because tithe can only be due once in the same
year from the same laud (11). But it is held in other books,
that tithe is due of aftermowth hay (u). And the principle
upon which the doctrine, that no tithe is due of aftermath hay,
is founded, is denied in some modern c;.-
Jn some of these it is laitl down, that tithes shall be paid of
divers crops grown upon the same land in the same year ( //.
In others it is held, that wherever there is in the same yeai,
a new increase from the same tiling, tithe is due (:).
Wood. Tithe of wood is not due of common rhht, bee
wood does not renew annually: but it was in \ery ancient
times paid in many places by custom ().
VV nil respect to the question, what is gross wood, and of
\vhat age gross wood must be before it is exempted from the
payment of tithes? It has been settled, that by gross wood /s
not meant small wood, nor large wood, but such wood
Jierally,or by the custom of a paitienlar part of the couutn, \\
as timber, and that all such wood, if of the age oftweni\
\ ii'pt from the pa\n ei;t of tilhes (/;). (K<k>, ashes, and
cl:i s, being universally used as timber, it has been alwa\s held,
(/^ i Rol. Abr. 646. (?) Ibid. 645. (r) Bunk 179. (j) i
4*8. (0 Ibid. () a Injf. i6z. () fro. Car. 403. I Rol. Ab-
.!. 13. (*) Cilb. T/I. Rep. aji. . (a) z Ian. 64*. (t) Ibia.
thut
Of Tithes. SO?
that such trees, if of the age of twenty years, are gross
wood (f). And, upon great deliberation, it has been held,
that a horn-bean tree, if of the age of twenty years, is gross
wood, because this is used in building and repairing. It has
for the same reason been held, that an aspen tree, if of the
age of twenty years, is gross wood (//).
A difficulty often occurs in fixing the exact age of timber ;
to avoid this in many places where wood is plentiful, it is
the custom to estimate the same by measuring round the
middle part of the tree; and if it is twenty -four inches in
circumference, it is deemed of twenty years growth ; but if
under that measure, it is accounted underwood (e).
Tithes are not in general due of beech, birch, hazel,
willow^ sallow, alder, maple, or white-thorn trees, or of any
/ruit trees, of whatsoever age they are ; because these are not
timber (fj. And if the wood of any of these trees is used in
a particular part of the country, where timber is scarce, in
building and repairing, no tythe is due of such wood, though of
the age of twenty years (").
If the wood of a coppice has been usually felled for firing,
such wood shall pay tithe, although it stands till it be forty
years ot age (h).
Jf when the wood of a coppice is felled, some trees grow-
ing therein, which are of the age of twenty years, and have
never been lopped, are lopped, and these loppings are pro-
miscuously bound up in faggots with the coppice wood, tithe
must be paid of the whole (/').
, If the wood of a timber tree is sold for firing, it was de-
termined in one case, that although the tree was of the age
of twenty years, it Mas liable to pay tithe (/:) The reporter
of this case mentions four others, in which the same had
been held ; and says, that it was in one of them laid down,
that the wood of timber trees is only exempted from tithes,,
on account of its being used in building.
r ihe contrary doctrine, however, of the old books, was
confirmed by a subsequent case in the court of chancery. A
bill being brought for the tithe of loppings of timber trees,
which had been sold for firing, it was insisted that this wood,
which would otherwise have been exempted from the pay-
ment of tithes, was liable thereto, because it was sold to be
(c) 2 Inst. 64. (d) Ibid. 643. (e) Shaw's Law of Tithe?.
(/) i Rol. Abr. 640. Plowd. 470. (g) Hob. 289. (b) i Lev. 189.
(i) 5 Bac. Abr. (k) Bunb. 99.
used
203 Of Tithes.
used for filing; and the cases now cited were relied upon.
But the bill \\as dismissed, Lord Hardwicke observing, " itt
the case in J Lev. 189, and Seld. SOO, the wood in question
was coppice wood, \\hich had been usually felled for firing;
and such wood, of whatever age it is, is always titheabk.
The case of Greenaway anil the tarl of Kent, is quite a sin-
gular one, and is not law; for in the case of Bible and J lux-
ley, 11 Geo. 1, it was agreed, tha*. no tithe is Hue of the
wood of a timber tree, \\hich has been once privilrged from
the payment of tithe, although such wood. is sold to be used
for tiring."
Such tithes as arise from beasts and fowls which are fed
with the fruits of the earth, are called mixed tithes (/). Many
things are, by the ecclesiastical law, liable to pay such tithes,
which by th common law are not (m).
The tithes of colts, calves, lambs, pigs, milk, ch>
agistment or pasturage, eggs, chickens, Sec. are mixed
tithes (//).
Tithes are iu general due of the young of all beasts, . \-
ccpt -urh as are ftrte nature. But none are dae of youn.'
bounds, asses, and the like, because such beasts are k-pt
only for pleasure (o). No tithe is due of the young of (leer, Air
these are frr<r nutura ( p}. And for the same reason none
is due, but by custom , of young conies (if).
The young of all birds and fowls, except such as are fir*
nature, are in general liable to pay tithes; unless the i^gs of
such birds and fowls have before paid tithes (/). Hut no tithes
are due either of th* eggs of any birds or fowls which art- kept
only for pleasure (s). Neither arc tithes due of the eggs or young
of partridge* or phvasnnts, because they urtfenc iiatunc (f^.
1) a man keeps pheasmts, in an inclosed wm.H, >\h<M- \\iir.",
are clipped, and from their rgus hatches and brings up \oung
ones, no tithe is due of these young pheasant*, although IKMU-
> paid for their eggs; because the oil OIM-S ar- imt i< -
flaimed, and would go out of the iuclosure it" tkeir wings were
not clipped (//).
It was heretofore held, that m ither the e?gs nr \
of turkeys Were filhablc ; turkeys bring ffrtt nnfttrn ( i ). Ht
it i-< now held, that as lurkt vs are as tame a. hens, or otlirr
poultry, tithe is Hue ot their eggs er youni: f /) ^" tith*
: Ir..r. 649. ' (m) Ibi.!. 611. (aj-ShnrM-Jw ( Thhev
() P.m. Ih n.. -!. ao. (f) t Inttk ^5-. (<l>if.Ro!. Abr.
(r) i UJ. 641. (r) Bro. Pum, pk.ao. VtalR>Wsu. 463. .().
Rol. Abr. 6j6. (*) Moor, 59 9. (y) i P. Wuv .463,. .
V
J
Of Tithes. 203
is due of such ycung pigeons as are spent in the house of
the person who breeds them (.). But if any young pigeons
are sold., tithe is due for them ().
If a man pays tithe of young lambs at Mark's-tide, and at
Midsummer assizes shears the other nine parts of the lambs,
tithe is due of the wool; for although there are but two
months between the time of paying tithe lambs which are
not shorn, and the shearing of the residue ; there is in this
case a new increase (6). But if a man shears his sheep,
about their necks at Michaelmas time, to preserve their fleeces
from the brambles, no tithe is due of this wool ; for it ap-
pears that this, which is done before their wool is much
grown, can never be for the sake of the wool (c). So, if a
man, after their wool is well grown, shears his sheep about
their necks to preserve them from vermin, no tithe is due of
the wool (d).
If a man, a little before shearing time, cuts dirty locks of
wool from his sheep to preserve them from vermin, no tithe is
due of such wool (e).
But in any of these cases, if more wool than ought to have
been cut off, is fraudulently cut off, tithe must be paid of the
wool (/).
Tithe is due of the wool of such sheep as are killed to be
spent in the house ( g).
Fish taken in a. pond, or in any inclosed river, are liable to
pay tithe (A). But no tilhe is due, except by custom, of fish
taken in the sea, or in any open river, although they are taken
by a person who has a several fishery, because such fish are
fer<e naturte (i). Honey and bees-wax are both tithable (&).
But where the tithe of their honey and wax has been paid, no
tithe is due of the bees (I). No tithe of the milk spent in
the house of a farmer, provided such house stands in that
parish in which the cows are milked, is clue (/).
The subtraction or withholding of tithes from the parson or
vicar, whether the former be a clergyman or a lay appro-
priator, is among the pecuniary causes cognizable in the ec-
clesiastical court. But herein a distinction must be taken ;
for the ecclesiastical courts have no jurisdiction to try the
right of tithes, unless between spiritual persons ; but in or-
dinary cases between spiritual men and laymen, are only to
(z) i Rol. Abr. 644. (a} Ibid. .(i) Ibid. 640. (cj Ifcid.
645. (d) Ibid. M I bill. 646. ' (/) Ibid, (?) Ibid.
(i>) Ibid. () Ikid. 636. (*) Ibid. 635. (/) Cro Cat. 404.
(m) Ld. IUya. 12 j.
compe.1
Of Tithes.
compel the payment of {hem, when the right is not di<-
ptited (i/\ By the statut*-, or ratlu;r writ, of cirnimsp.-
'is, it i* declared that the court chiislian shall not be
hited from holding plea "si rector petal versus pnjo-
chitHw* cbluti(mes ft dcdmas debita* ct cimaurtaa'' So that
if ;-ny cii-pute arises whether such tithes be due and accus-
ed, this cannot be determined in the. ccelesia-tieal court,
hut only bi fere l!ie king's courts of common law; as such
question affect- the temporal inheritance, and the determi-
nation must bind the real property. But \\here the ritrlit *'
not come into (jiie.-lion, but only the fact, \\hether or no
the tithes allowed to be due are really subtracted or with-
drawn ; this is a transient personal injury, for which the re-
medy may properly be had in the spiritual court, viz. the re-
covery of the tithes or their equivalent. By statute 2 and .'>
J..V/.Y. (j, c. U, it is enacted that if any person shall carry off
his predial tithes (viz. of corn, hay, or the like) before the
tenth part is duly set forth, and agreement is made \\ ith the pro-
prietor, or shall willingly withdraw his tithes of the same, or
.vliall stop or hinder the proprietor of the tithes, or* his deputy,
from viewing or carrying them away, such offender shall pay
double the value of the tithes, with costs, to be recovered be-
fore the ecclesiastical jndp 1 , according to the king's eccle-
>:cal la\\.-i. By a former clause of the same statute, the
treble value of the tithes, so .subtracted or \\ithheld, maybe
sued for in the temporal courts, which is equivalent to the
double value to be sued for in the ecclesiastical courts: for
one may sue for and recover in the ecclesiastical courtt, the
tithes thcmsehes, or a recom pence for them, by the ancient
la\v, to which the suit for the double value is siipeiadded by
the >tatnte. But as no such lay in the temporal courts, for
the Subtraction of lithe.- them-elv* s, tlierefnn: the statute (j
_a treble foifeittin, if sued for there; in order to make the
course of justice uniform, by giving the same reparation in
one court as in the oilier (o).
By statute'. '27 //"' S. c. 'JO; r,'2 lien. S, c. 7, upon com-
plaint of tin I judge, ol nfcmpt or misbe-
\ii If. a '. lendant in any suit fyr tithes, any privy coun-
sellor, or any l\\o ju-tux^ i-i' tl ui in rasi of any di.---
obfdience to a d\-linitive sent- nee. any t\\o j-.Miee* ,>t the
e.) nia\ commit the paity to prison, \\ilhont bail or main-
till l.r- tntci> into a reconuauce, with sufficient MIII>
150. . !
Of Tithes. 205
ties, to give due obedience to the process and sentence of the
court.
However, it now seldom happens that tithes are sued for at
all in the spiritual court ; for if the defendant pleads any pus-
torn, modus, composition, or other matter, whereby the right
of tithing is called in question, this takes it out of the juris-
diction of the ecclesiastical judges; for the law will not suffer
the existence of such a right to be decided by the sentence of
any single, much less an ecclesiastical, judge, without the ver-
dict of a jury (p).
The following statutes have also operated to abridge the
power of the ecclesiastical court in this respect.
By statute 7 and 8 W, 3, c. 6, s. 1, it is, for the more
easy recovery of small tithes, where the same do not amount
to above the yearly value, of 40s. from any one person, enacted,
that if any person shall fail in payment for twenty days after
demand, the parson may make complaint in writing to two
justices of the peace, (neither being patron, nor interested,)
who, after summoning the party, are to hear and determine
the complaint, and give a reasonable allowance for the tithes,
and costs not exceeding twenty shillings.
If the person complained against insists on any prescription,
composition, modus decimandi, or other title, and delivers the
same in writing to the justices, and gives to the party com-
plaining sufficient security to pay costs at law, if the title is not
allowed, the justices are not to give judgment. The justices
have power to give costs, not exceeding 105. to the party pro-
secuted, if they rind the complaint false and vexatious. The
act not to extend to tithes within the city of London, or in
any other place where the same are settled by any act of par-
liament. An appeal is given to the sessions, and no proceed-
ings or judgment had by virtue of this act, to be removed or
superseded, by any writ of certiorari or other writ whatso-
ever, unless the title of such tithes shall be in question.
By statute 7 and 8 W. 3, c. 34, s. 4, where any quaker shall
refuse to pay, or compound for, his great or small tithes, it
shall b,e lawful for the two next justices of the peace of the
same county, other than such justice of the peace as is patron
of the church or chapel to which the tithes belong, or any
ways interested, upon complaint, to convene before them sucfi
quaker, and to examine, upon oath, the truth of the complaint,
and to ascertain what is due from such quaker, and by order,
(/) 3BL Com. c. 7.
imdet
206 Of Tithes.
uder their hands and seals, to direct the payment thereof, *e>
a* tbe sum ordered do not exceed 10/. ; and upon refusal of
the quaker to pay, to kvy the money. Any person aggrieved
may appeal to the next irt'iieral quarter sessions.
No proceedings or judgment had by virtue of this act shall
be removed or superseded by any writ of certiorari, or other
writ out of his majesty's courts nt Westminster, unless the title
to such tithes shall bo in question.
By statute 1 (ito. 1. st 1, c. 6, s. 2, the like remedy is
given for the recover}- of all tithes and all other ecclesiastical
dues from quakers as by .statute 7 and 8 IV. 3, c. 34, is i\ 11
for tithe* to the value of 10/.
And such justices of the peace, upon complaint of any
parson, vicar, curate, farmer, or proprietor of .such tithes, or
other person, who ought to have, receive, or collect any such
tithes or dues, may proceed in a similar manner, as directed by
the former act touching quakers.
The tiuies of houses in London, which are regulated by
statute :>7 I!c. 3, c. 12, may be recovered in the court of
of exchequer (q). And under the statute 22 and '23 Oar. c. 15,
the tithes of all the parishes in London, injured by the great
fire in 1(>66, are setlk-d to be levied by an equal rate; and, on
non-payment, the lord mayor is to grant a warrant of distress
for the same; or, on his refusal, the lord chancellor, or two
barons of the exchequer, may grant such warrant; and alJ
courts* ecclesiastical or temporal are ousted of their jurisdic-
tion in this case Uy this statute.
These tithes are a real charge on the houses, payable though
they are empty, and leviable upon the goods of the succeed-
ing occupier; ami appeal lies from the lord mayor to the
lord chancellor (;)
With respect to the particular things of which tithes arc
paid, we shall treat in the following order.
Acorns, as they yearly increase, are liable to the payment
of tithes; but tins is where they are gathered and sold, and
reduced to a certain profit ; not when they drop, and the I:
cat them (s). After-math, or al'h r-pastuie, pays no tithe,
except by custom, being the remains of whut wus before
tithed (f).
Agistment of cattle upon pasture-land, which has paid w>
other tithes that \-ar, pays tithe for the cattle. And if a man
t>reeds or buys unprotitable cattle, and sells them, he shall
( f ) Bro. I. C. (rj 3 Atk. 639. (*) IaU 6+3. (0 ^
r. 589.
pay
Of Ttth**. 20f
pay for the agistment; but if he depastures his land with his
own saddle-horses, he shall pay no tithes. If ground is eaten
up with unprofitable cattle of a man's own, or others, a tenth
part of the yearly value of the rent of the land, i. c. the-siun
of two shillings per pound, is payable by the owner of the
land, or his last tenant ; though the twentieth part is usually ac-
cepted. Alder trees pay tithes, notwithstanding they are above
twenty years growth, not being timber. Ash is timber, and,
therefore, if these trees are above twenty years growth they
are tithe-free. A*sp or aspen trees are exempted if beyoad
that growth, in places where they are used for timber (//)
Bark of trees is not tithable if the trees whereon it was
produced were not timber (.r). Barren land, which is so
of its own nature, pays no tithe. Where land is barren, and
not manui able without some extraordinary charge, in resjxsct
of such charge, and for the advancement of husbandry, such
land being converted to tillage, shall, for the first seven years
after the improvement, be discharged from tithes, statute 2 and
3 Edtc. fi, c. 13. But the barren land, during the seven years
of improvement, shall pay such small tithes as shall be ac-
customably paid before, and afterwards to pay the full tithe
according to the improvement. And if land is over-run with
bushes, or become unprofitable by bad husbandry, it cannot
properly be called barren laud; for if it be grubbed, or
ploughed and sowed, it immediately pays tithes (y). Beech
trees, where timber is scarce, and these trees arc used for
building, if above CO years' growth, are, by stat. 45 Edw. 3,
c. .3, privileged from tithes; though this tree is not naturally
timber, for it is necessity makes it so (-). Bees are tithable
for their honey and w; t x, by the tenth measure and tenth
pound. It has been a question, whether the tenth swarm can
be demanded for tithes of bees, because bees are feree na-
turee ; but when the bees are gathered into the hives they are
then under custody, and may pay tithe by the hive or swarm ;
but the tithe K generally paid in the tnth part of the honey
or "wax (a). Birch wood is tithable, though of above 2O
years' growth (6). Bricks do not pay tithes, for they are matte
of parcel of the freehold, and are of the substance of the
earth, not an annual increase (c). Broom pays tithe, but it
may be discharged by custom, H burnt in ihe owuw's *hose,
or kept for husbandry (d).
[u) i Inst. 643. (x) n Rep. 49. (y) a. Inst. 656. () ft
Danv. Abr. 589. (a) i Rol. Abr. 651, (I) a Inst. 643. (fj (Jru
.Eli*, r. (d) a'Panv, Abr. 597.
Gthca
>COS Of Tithes.
Calves arc lithable, and the tenth calf is due to the parson*
when weaned, ami he is not obliged to take it before; hut if
in one year -a |>eioii lias not the number of ten ,t!u<, the
parson is not entitled to tilhe.s in kind for that year, without a
*.|>ecial custom for it, though he may take it in the next year,
throwing both \<ars together; and it is a good custom to pay
one calf in seven, \\here there has been no mote in one year;
and \\here a man sells a calf, to pay tho tenth of the value,
or for the parson to have the. right shoulder, &c. (().
Cattle sold pay tithe, but not cattle kept for the plough or
pail, which shall pay no tithe for their pasture, by IV:IMHI the
parson has the benefit of the labour of plough cattle in tilling
the ground, by the tithe of corn ; yet if such cattle bought
are sold before used, or if, being past their labour, the co\\,
are barren, and afterwards fatted in order to >iil, titlu> shall
be paid for them; though if the owner kill and spend the
rattle in his own house, no tithe is due for them, being for
his provision to support him in his labour about other affairs,
for which the parson has tithes. Cattle feeding on large com-
mons, \\hcre the bounds of the parish are not certainly known,
>hall pay tithes to the parson of the parish where the owner
lives; and if fed in several parishes, and they continue above
a month in each parish, tithes shall be paid to the two par-
sous proportionally (
Chalk and chalk- pits are not tithable, nor is clay or coal,
as they are part of the freehold, and not annual (g).
Cheese pays tithes by custom, where tithe is not paid for
the milk; but if the milk pays a tithe, the cheese pavs none;
and it may be a good custom to pay the tenth cheese, made in
such a month, for all tithe milk made in that year (//).
Chickens are not tithable, if tithe is paid for thr rggs(/).
Colts pay tithes in the same manner a> calves (/.j. (
tithable only by custom, for those that are sold, not for such
as are spent in the house (/) Corn pay* a predial tithe; ,
tithed by the tenth cock, heap, or sheaf, \\hich if the ounei
not M-t i, ut. he may be .sued in an action tip-m the statute 'J;>i,
/.Vv. 6, c. 13. And if the parishioner v\ill not sow his hind
n- ii lly sown, the parson may bring his action against him.
\Vlun tithe C"rn i- sit forth, the law gives tin .li-
able time to carry it away, and if he sutlers .th- be
(*) i Rol. Abr. 6 4 . (/) Ibid. 635. (i)ilmr. 6T. ,
RoLAbr. 651. (i) Ibid. b^i. (*) Ibid. (/) i DY. Ai-r.
583.
6 too
Of Tithes. 209
too long upon the land, to the prejudice of the owner thereof,
he may be liable to an action; but the parson may set out the
tithes himself, or take them away without have (m).
Deer are not tithable, for they are feres nature ; though in
parks, &c. they pay tithe by custom (n). Doves kept in a
dovehouse, if they are not spent in the owner's house, are
tilhable (o).
Eggs pay tithes when tithes are not paid for the young (p).
Elm trees, being timber, are discharged from the payment of
tithes, but not if under twenty years' growth (q).
Fallow ground is not tithable for the pafture in that year in
which it lies fallow, unless it remains beyond the course of
husbandry ; because it improves and renders the land more
fertile by laying fresh (;).
Fish taken in the sea, or common rivers, are tithable only by
custom, and the tithe is to be paid in money, and not the
tenth fish; but fish in ponds and rivers inclosed ought to be
set forth as a tithe in kind (|s).
Flax. Every acre of flax or hemp sown shall pay yearly
five shillings for tithe, and no more. Statute 1 1 and 12 W. 3,
c. If).
Forest lands shall pay no tithes while in the hands of the
king, though such lands while in the hands of a subject shall
pay tithes; and if a forest shall be disafforested, and within a
pari$h, it shall pay tithes ().
Fowls, as hens, geese, ducks, are to pay tithes, either in
eggs or the young, according to custom, but not in both.
So of turkeys, it is now resolved that tithes are due. of their
eggs orjoung ().
Fruit, apples, pears, plumbs, cherries, Sec. pay tithes in
kind when gathered, and ought to be set out according to the
statute (.r). Fruit-trees cut down and sold are not tithable, if
they have paid tithe fruit that year before they were cut(?/).
Furzes, if sold, pay tithe, not if used for fuel in the house,
or to make pens for sheep, 8cc. (2).
Gardens are tithable as lands, and therefore tithes in kind
are due for all herbs, plants, and seeds sowed in them, but
money is generally paid by custom or agreement. Grass mown
is tithable by payment of the tenth cock, or according to cus-
tom ; but for grass cut in swaths for the sustenance of plough
(m) T Rol. Abr. 644. (n} a Inst. 651. (o) i Vent. 5. (/) i
Hoi. Abr. 642. (?) 2 Tnst. 641- (r) i Rol. Abr. 641. (.0 2
Dtuv. Abr. 683. (0 i Rol. Abr. 655. (B) P. Wms. 463.
(*) 2 Inst. 6zi. (y] Ibid. 652. (*) Wood's Inst. 166.
P cuu'e
210 Of Tithes.
cattle only, and not made into hay, no tithe is to be paid.
Grass or com, &c. vhen sold standing, the buyer shall pay
the tithes ;. and if sold after cut and severed, the seller must
pay it. The parson is not obliged to take tithe- of grass the day
it is cut, but may let it lie loug enough to make it into
hay ().
Hazle, holly, and maple trees, &c. are regularly tithaMe,
although of twenty years' growth (It). Ha\ pays a predial
tithe; the tenth cock is to be set out and paid, after made
into hay, by the custom of most places; and by custom ge-
nerally, but not of common right, the parishioners shall make
the grass cocks into hay for the parson's tithe; but if they aie
not obliged to make the tithe into hay, they may leave it in cocks,
::id the parson must make it, for which purpose he may come
upon the ground, Sec. A prescription to measure out anil
pay the tenth acre, or part of grass standing, in lieu of all
lithe hay, may be good ; and if meadow ground is so rich that
there are two crops of hay in one year, the parson, by special
;;>m may have tithe of both (c). Head-lands are not tith-
able, if only large, enough for turning the plough, but if lai
tithe may be, ami gem -rally is, payable (d).
Herbage of ground is tithable for barren cattle kept for
which yield no profit to the parson (<). Honey pa\s a tithe.
Hops are tithable, and*. the tenth part may In M.-J out after
they are picked. There are several ways of tithing hop-, viz.
by the hills, pole, or pound ; in some places they set forth the
lentil pole for tithes; but Lord Chief Justice Kolle tells us,
ihcy ought not to be tidied before dried (f). It is now settled,
on appeal to the house of lords, that hops ought to be picked
and gathered from the lii th- \ are tithable, and then
measured in bask$tfl*before being dried, and e\ei \ leuth b.
set out for the tithes (<r).
Horses kept to sell, and afterwards sold, tithes shall be paid
for their pasture, but not whc: Bit k ;-t for \u>ik and
labour (A).
House-* for dwelling are not properly tithable: a modus
ma\ in j. :-'.d for houses in lieu of tithes of that land upon
\\hich they are buil' ' many cities ami boro'
have a custom to pay a modus for their hoi: ( may be
iblj Mippi -ed that it \\as n-nal t much for the
land before the houses were erected upon it (/*).
(*) i R!. Abr. 644. (*) 1 Danv. Abr. 589. (c) 1 Rol. Abr. 643.
(J) a lor ' (0 Wood'i Init. 167. (/) j Rol. Abr. 644.
..C. (/) Hut. 77. (i) 2 last. 659.
Kids
Of Tithes. 211
Kids pay a tithe as calves, a tenth is due to the parson (&).
Lambs are tithable in like manner as culves; but if they
are yeaned in one parish, and do not tarry there thirty days,
no tithe is due to the parson of that place. If there be a
custom that the parishioners having six lambs, or under, shall
pay so much for every lamb, and if they have above that
immber to pay the seventh, it is a good custom (I).
Lead may pay a tithe by custom, as it does in some coun-
ties; but without a custom it is not liable to tithes (m}. By
custom only, lime and lime -kilns are tithable (//).
Madder is now tithable in kind. Mast of oak and beech
pays tithes. Milk is tithable, when no tithes are paid for
cheese, all the year round, except custom over-rules ; and it
is payable for every tenth meal, not tenth quart or part of
every meal ; awd it was formerly held, that it was to be brought
to the house of the parson, Sec. in which particular this tithe
differs from all others, which must be fetched by the receiver.
But this is only where there is a special custom ; and it seems now
decided, that the tithe of milk is by setting out every tenth
morning and evening's meal, in clean vessels^ belonging to the
owner of the- milk, and leaving the same therein till the vessels
are again wanted by the owner; and if not fetched away by
the parson before that time, the owner is at liberty to throw it
on the ground ; and in the intermediate time the owner is not
answerable for any accidentthat may happen to it (o). In some
places they pay tithe cheese for milk, and in others some small
rate, according to custom (;)).
Mills: as there are several sorts of them, the tithes are dif-
ferent ; the tithes of corn mills driven by wind or water have
been paid in kind, every tenth toll dish of corn to the parson
of the parish wherein the mills are standing; but ancient corn-
niills are tythe-free, it being suggested, that they are very an-
cient, and never paid tithes, &c. And it is questioned whe-
ther tithe is due for any corn-mills, unless by custom, because
the corn has before paid tithe, and it seems rather a personal
titlie where due. The tithes of fulling mills, paper mills,
powder mills, are personal, charged in respect of the Inborn*
of the men, by custom only ; and these are regarded more as
engines of the several trades than as mills (q). It is now
settled, that tithes of all mills are personal tithes; and onlv a
(k) Wood's Inst. 167. (/) 3 Cro. 403. () 2 Inst. 651. () i R J.
Abr. 64*. (o) Bro. P. C. ( f j ^ Danv.Abr, $96 ( 2 ) , RoJ.
ADfi OjO.
tenth
Of Tithes.
tenth part of the clear profits, deducting all charges and ex .
is payable us titlic (;) Mines pay no tithes but by
custom, being of the substance cf ihe earth, and not annually
increasing (s).
Nurseries of trees shall pay tithes, if the owner
up and makes p relit of them b
Oak tree-; are pi i\ iUj.nl as timber from the payment of
tithes by the statute of Si/vn ( .
or above iwenty }ei;rs' growth; and if oaks are under that
it is the same when they are lit for timber ()
Orchards pay tithes, both for the fruit they produce, and
the grass or grain, if ;:ny bo sown or cut therein (r).
Parks are tunable by custom for the di-or and the her'
and when di>parked, >r converted into tilla;.
tithes in kind. The titlies of parks may be in part certain and
part casual (y).
Partridges and pheasants, S;c. as they are /era nut.
no tithes of eggs or young (:).
Peas, if gathered for sale, or to feed hogs, pay tithes ; but
aot green peas spent hi the house (a). Eatii. i m
the fields, and sown green for sale, are a small tithe.
Pigeons ou^ht to pay tithes when sold, ai:d this holds good
when lodged in holes about a house as well as in
house; and by custom, if spent in the house, they may be
lithable, though not of common right (6). i fithable
as calves (c). Pol la rd- trees, such as are usually lopped, ami
distinguished from timber trees, pay tithes (</).
Quarries of stone, &c. are not subject to tithes, because
they are part of the inheritance, and tithes ought to be colla-
. to the land, and distinct from it(c).
Rakings of corn are not tilhable, for they are left for the
foar(f). Saffron pays a predial and small tithe (g). Salt
is not tiihahlc, but by cu^.om only (It).
Sheep. A tithe is paid for lambs and wo-tl, and then
no tithe for tbek feeding. If a!u- ;> are in the parish
all the year they are to pay tit' ; ; but if
remold from one parish t n't hand) the pa;
of each parish is to ha\e ; !lu-\ n main
tbirt , , , and if they are fed in one parish, and
(r) a P. WOTS. 463. (i) i Inst. 651. (r) a Danv. Abr. 585.
(.) Mojr, 541. : In&t. 651. i Rol. Abr.
() Ibid. 636. ()lbid. (*) tDanv. Abr, 583. (<'
' >wd. 470. (0 i Rol. Abr. 644. (/5 Cro. t!ii. 660.
(f) Cro. Car. 467. (b t t liunb. 10.
brought
Of Tithes. 213
'brought into another to be shorn, the same manner of tithing
is to be observed (/). It seems now that the rule is, that tithe
of the wool shall bo paid where the sheep are shorn, and
agistmeiit tithe in other parishes were they have been depas-
tured (J). Stubble pays no tithe after aftermath (/;).
Tares, vetches, &c. are tithable ; but ir they are cut down
green, and given to the cattle of tin) plough, where there is'
not a sufficient pasture in the parish, no tithe shall be paid for
them (/).
Tiies, not being an yearly increase, are not tithable (ni).
Timber trees, such as oaks, ashes, and elms, and in some
places beech, &c. above the age of twenty years, were dis-
charged of tithes by the common law before the statute of 4.5'
Edw. 3, c. 3 ; and the reason of it is, because such trees are
employed to build houses, and houses when built are not
only fixed to, but part of, the freehold. Loppings of timber
trees above twenty years' growth pay no tithe, for the branch'
is privileged as well as the body of the tree ; and the roots of
such trees are exempted as parcel of the inheritance. Trees
cut for plough-bote, cart-bote, &c. shall not pay tithes, al-
though they are no timber; but all trees not fit for timber, and
not put to those uses, pay tithes (ri).
Turfs used for fuel are part of the soil, and tithe-free (o).
Turnips are reckoned among small predial tithes, and th6
tithes of them shall be paid as often as they are sown, though
thrice or more on th.e same land and in the same year. So if
eaten off the land by barren cattle (;;).
Underwood is tithable, though the tithe is not of annual
payment, and is set out while standing, by the tenth acre, pole,
or perch; or when cut down, by the tenth faggot or billet, as
custom directs ; and if he that fells the wood does not set out
the tithes he is liable to treble damages by statute 2 and 3
IW-ff. (3, c. 13. But if the underwood is used tor firing in
a house of husbandry, or to burn brick to repair the house or
for hedging or fencing the lands in the same parish, it may be
discharged from the tithe (q).
Waste ground whereon cattle feed is liable to the payment
-of tithes (?).
Woad growing in the nature of an herb is a predial and
.small tithe (s).
(i) i Rol. Abr. 642. (j) Shaw's Liw of Tithes; (*) ?, !
52. (/) Cro. Car. 139. (m) 2 Inst. 651.
Abr. 650. () 2 Inst. 651* (f) Banb. ic.
$42, (r) a Daav, Abr, (*) Cro. Car. 8.
H Of Tithes.
\V<>ocl is generally esteemed to be a great tithe. If wood-
grounds have likewise timber trees grown on them, and consist
for the most part of such trees, the timber trees shall privilege
the other wood; but if the wood is the greater part, then it must
pay tithes for the whole (0 If wood be cut to make hop-
poles, where the parson has tithe hops, no tithes shall be paid
for it ().
Wool is a mixed small tithe, paid when clipped ; one fleece
in ten, or in some places one in seven, is given to the parson,
If there be under ten pounds of wool at the shearing, a r-a-
sonable consideration shall be paid, because the tithes are due
of common right; and if less than ten fleeces, they shall be
divided into ten parts, or an allowance be otherwise made.
All sheep killed, and sheep which die, pay tithe wool; and
neck wool cut off for the benefit of the wool, but not it it is
to preserve the sheep from vermin, &c. Also the wool of lambs
shorn at Midsummer, though tithe was paid for the lambs at
JM ark -tide, is tithable (.r).
We no\v come to treat of the persons who may be dis-
charged, either wholly or in part, from payment of tithes.
Lands and their occupiers may be exempted or discharged
from the payu.ent of tithes, either in part or totally ; first, by
a real composition; or, secondly, by custom and prescrip-
tion.
1st. A real composition is when an agreement is mad* be-
tween the owner of the lands and the parson or vicar, with
the consent of the ordinary and the patron, that such lauds
shall for the future he discharged from the payment of titlus,
by reason of some land or other real recompence given to the
parson, in lieu and satisfaction thereof (y). This was per-
muted by law, because it was supposed that the clergy would
be no losers by such composition ; since the consent of the
ordinary, whose duty it is to take care of the chinch in geue-
ral, and of the patron, whose interest it is to protect that par,
ticulnr church, were both made necessary to render the com-
position effectual ; and hence have arisen all such com;
tions as exist at this day by force of the common law. But
experience showing that even this caution was ineffectual,
and the po of the church heiuj;, by this and other
jiu.ui-, every day diminished, the disabling >taute. 1.1 /
C. iO, was made, which prevents, among other spiritual per-
(t) 1 3 Co. i}, () Hughes'* Abr, 689. (*) I Rol, Abr. 646.
(j) 4 1*" 1 - 45
IOQI,
Of Tithes. 215
sons, parsons and vicars from making any conveyances of the
estates of their churches, other than for three lives, or for
one-and-twenty years. So that now, by virtue of this statute,
no real composition made since the 13 E/iz. is good for any
longer term than three lives, or one-and-t\venty years, though
made by the consent of the patron and ordinary; nor is it bind-
ing on the succeeding incumbent, though confirmed by a de-
cree in chancery (2). This has indeed effectually demolished
this kind of traffic, such compositions being now rarely hearci
of. unless by authority of parliament ().
With regard to compositions entered into between the tithe-
owner and any parishioner, for the latter to retain the tithe of
his own estate, it has been decided, that they are analogous to
leases from year to year between landlord and tenant; and if
they are paid without or beyond an agreement for a specific
time, they cannot be put an end to without six months' notice
before the time of payment; and the parishioner may avail
himself of the defect of notice, at the same time that he con-
troverts the right of the incumbent to receive tithe in kind ;
an objection not permitted to a tenant who denies the right
of his landlord (6).
2dly, A discharge by custom or prescription is where time
out of mind such persons or such lands have been, either par-
tially or totally, discharged from the payment of tithes. And
this immemorial usage is binding upon all parties, as it is iu
its nature an evidence of universal consent and acquiescence^
and with reason supposes a real compensation to have been
formerly made. This custom or prescription is either de modo
decimandi or de rion decimundo.
A modus decimandi, commonly called by the simple name
of a modus only, is where there is by custom a particular
manner of tithing allowed, different from the general law of
taking tithes in kind, which are the actual tenth part of the
annual increase. This is sometimes a pecuniary compensation,,
as tsvopence an acre for the tithe of land : sometimes it is -4
compensation in work and labour, as that the parson shall have
only the twelfth cock of hay, and not the tenth, in considera-
tion of the owner's making it for him ; sometimes in lieu of
a large quantity of crude and imperfect tithe, the .parson shall
have a less quantity, when arrived at greater maturity, as a
couple of fowls in lieu of tithe eggs, and the like. Any
means, in short, whereby the general law of tithing is altered,
C; z Woodd, iq;. (a) 2 BI. Coin. c. 3. (} a Bro. C. C. 161.
!$ Of Tithes,
and a new method of taking them is introduced, is called 3
jnodits dccimandi, or special manner of tith.
To make. a good and sufficient modus, the following rules
must be observed. 1 . It must be certain and invariable, tor
.7)ent of different sums will prove it to be no modus, that
}S no original composition; because that must have beta one-
ami the vau-.e, fi -t oiiginal to to the present time (c).
C. Thj thing given in lieu of tithes, must be beneficial to
riie parson, and m>t for the emolument of third persons only :
thus a modus, to repair the church in lieu of tithes, is not
good, because that is aa advantage to the parish only; but
to repair the chajictl is a good modus, for that is an advan-
tage to the parson (J). ;3. It must be something different
from the thing compounded for; one load of hay, in lieu of
all tithe-hay, is no good modus; for no parson would, buna
fide, make a composition to receive less than his due in the
same species of tithe; and therefore the law \\ill not sup-
pose it possible for such composition to have existed (e).
4. One cannot be discharged from payment of one sp-
of tilhe, by paying a qpodus for another. Thus a modus of
one penny for qyery milch cow will discharge the tithe of;
milch kine, but not of barren cattle: for tithe is, of conn
right, ch >''.h; and therefore a modus for one t\
never be a discharge of the other (/). 5. The recompence
must be in its nature as durable as the tithes discharged by
it ; that is, an inheritance certain : and therefore a modus that
every inhabitant of a house shall pay four-pence a year, in lieu
of the o\u:t-r's tithes, is no good uv;dus; for possibly the
house may not be inhabited, and then the recom pence will be,
lost (g). (j. The modus must not be too Ian;' , which is
called a rank modus; as if the real value of the tithes be 60/.
per ann. and a modus is suggested of 40/. this modus \ul
not be. established; though one of 40$. might have 1
valid (/<) Indeed, properly speaking, the doctrine of rank-
in a modus, is a mere rule of evidence, drawn from the
improbability of the tart, wi'l not a rule of law. Tor in this
ot prescriptive or customary jnodus's, it is snpposed that
-itioriwas andt-ntly made; \\hieh l><
lost by length <>i lin;t:, the imnu nional n- admitled
as evidence tiiat it air! -nd that from theiuv MM li
usa^c wa* derived. Now time of memory has been long
(.-; i Keb. 601. (J) i Rol. Abr. 649. (<) i Uv. 175. (/) Cro.
2 P. Wm>. 462. (ii) 1 1 Mo4. 60,
ascertained
Of Tithes. 217
ascertained by the law to commence from the beginning of
the reign of Richard the first; and any custom may be de-
stroyed by evidence of its non-existence in any part of the
Jong period from that time to the present ; wherefore, as this
real composition is supposed to have been an equitable con-
tract, or the full value of the tithes,, at the time of making
it, if the modus set up is so rank and large, as that it, beyond
dispute, exceeds the value of the tithes in the time of Richard
the first, this modus is (in point of evidence) j^/o de se, and
destroys itself. For, as it would be destroyed by any direct
evidence to prove its non-existence at any time since that era,
so also it is destroyed by carrying in itself this/ internal evidence
of a much later original.
To constitute a good modus, it seems necessary that it
should be such as would have been a certain, fair, and rea-
sonable equivalent or composition for the tithes -in kind, be-
fore the year 1189; and therefore no modus, for hops, tur-
keys, of other things introduced into England since that time,
can be good (/'). The question of rankness, or rather modus
or no modus, is a question of fa6ts wnich courts of equity
will send to a jury ; unless the grossness of the modus is so ob-
vious as to preclude the necessity of it ()
A prescription de non decimando, is a claim to be entirely
discharged of tithes, and to pay no compensation in lieu of
them. Thus the king by his prerogative is discharged from
all tithes (/). So a vicar shall pay no tilhes to the rector, nor
the rector to the vicar, for ecclcda decimas non salvit eccle-
jvV (m). But these personal privileges (not arising from or
being annexed to the land) are personally confined to both th
king and the clergy ; for their tenant or lessee shall pay tithes,
though in their own occupation 'their lands are not generally
titheable. And, generally speaking, it is an established rule, -
that in hay lands, modus de Jton decimando-non valet. But
it seems, that the king's tenant at will shall not pay
Spiritual persons or corporations, as monasteries, abbots,
bishops, and the like, were always capable of having their
lands totally .discharged of tithes> by various ways. As,
I. By real composition. 2. By the pope's bull of exemption.
3. By unity of possession ; as when a rectory ia a parish,
aud lands in the same parish, both belonged to a religious
#) Eunb. 307. (*) 2Ero. C. C. 163, (/) Cro. Eliz. 511. () Ibid.
479' (") ! Wood. 100.
house,
SI 8 Of Award.
hou?e, those lands were discharged of tithes by unity of po**
session. 4. By prescription; having mur been liable to
tithes, by being always in ,-piritual hands. 5. By vhtue of
their order; as the knight Temphn, Cistercians, and otl
whose lands weiv privileged by the poj>r \\il\\ a dischai;;e of
tithes (o). Though upon the dissolution of the greater abbeys
by Henry S, most of the.-e ext inptions hoin tithes \\ould have
fallen with them, and the lands hi come tithahle auam, had
they not In en supported and upheld by the statute :> I Hen. 8,
c. 13, which enacts, that all persons who should come to the
possession of the lands of any abbey then dissohed, .should
hold them free and discharged of tithes, in as hum- and ample
a manner as the ahbuys themselves formerly held them. Tins
provision is peculiar to this statute, and therefore all the
lands belonging to the lesser monasteries dissolved b\ statute
'27 Hen. 8, c. 28, are now liable to pay tithes. Anil from
this original have sprung all the lands, which, being in lay
hands, do at present claim to be tithe- free; for if a man can
shew his lands to have been such abbey lands, and also im-
memorially discharged of tithes by any of the means before
mentioned, this is now a good prescription de <ni dcd-
mando. But he nmst shew both these requisites ; for abbey
lands, without a special ground of discharge, an not dis-.
charged of course; neither will any prescription tic m>u tlc<-/-
mniido avail in total discharge of tithes, unless it relates tu
such abbey lands (;>).
CHAP. IV.
Of Award.
THAT act by which parties refer any matter in dispute
between them, to the private derision fit" another party (whe-
ther one person or more) is called a submission; the party
|O whom a reference is made, an arbitrator or arbitiators: \\htii
the reference is made to more than one person, and provi-
sion made, that in case the\ shall disi^nv, anolhtr .-hall
, that other is called an umpire. The jud-in: nt ^i'-tii, or
'i made by an arbitrator or arbin t>inied
an award ; that by an umpire, an umpira tlj an
award.
() Sclden. Tithe, c. 13. s. a. (f) ^ Bl. Com. c. 3.
Of Award.
Of the submission. The extent of tlie submission may be
various, according to the pleasure of the parties ; it may be of
one particular matter only, or of many, or of every subject^of
litigation between them.
Jt is proper to fix a time within which the arbitrators shall
pronounce their award : but when the .submission limits no
time for the making of the award, that shall be understood to
be within a convenient time; and if in such a case the party re-
quest the arbitrators to make an award, and they do not, a re-
vocation of the authority afterwards will be no breach of the
condition (<;).
Of the parties. Every one who is capable of making a dis-
position of his property, or a release of his right, may make
a submission to an award ; but no one can, who is either
under a natural incapacity of contracting. Therefore neither
a married woman nor an infant can be a party to a submission :
but in the former case, the husband must submit for his
wife ; and in the latter, the guardian for the infant (;).
An executor or administrator may submit a matter in dis-
pute between another and himself, in right of his testator and
intestate ; but it is at his own peril ; for if the arbitrator do
not give him the same measure of justice as he would be en-
titled to at law, he must account for the deficiency to those in-
terested in the effects (.$).
So the assignees of a bankrupt may submit to arbitration
any disputes between their bankrupts and others, provided
they pursue the directions of the stat. 5 Geo. 2, c. 30, s. i>4.
An award creates a duty which survives to executors or
administrators ; they shall therefore, on the one hand, be
compelled to the performance if made against their testator
or intestate ; and on the other hand, they may take advantage
of it, if made in his favour (t).
Of the subject.Though the courts have at all times ma-
pifested a general disposition to give efficacy to awards, yet
there are some cases in which they have refused them their
protection ; because the subjects on which they were made
were not the proper objects of reference.
The only motive which can influence a man to refer any
subject of dispute to the decision of an arbitrary judge, is to
have an amicable and easy settlement of something which in
its nature is uncertain. An award therefore is of no avail when
. (?) *Ke1>. 10. (r)Str. 351. Comb. 318. (j) i T. R. 691.' Com.
Big. tit. Admin. (I. i.) (r) z Vent. z^. i Ld. Raym, 248.^
made
30 Of Award.
made of debt on a bond for the payment of a sum certain,
vbether it be single or with a condition to be void on the
payment of a" less sum ; nor if made of debt tor arrears of
rent ascertained by a lease; nor of covenant to pay a certain
sum or' money (M); nor of debt on the arrears of an ac-
count (z); nor of damages recovered by a judgment (.y);
for in all these cases the demand is ascertained. But \vht n
certain demands are joined \\ ith other demands of an uncer-
tain nature, it seems, that those which are certain may also
be submitted ; even in the case of a verdict and judg-
ment (z).
But in general, where the party complaining could re-
cover by action only uncertain damages, the subject of com-
plaint may be the object of a reference to arbitration ; a*
any demand not ascertained by the agreement or contra< t of
the parties, though the claimant demand a sum certain (a).
So an action of account may be submitted; for till the account
be taken, the sum remains uncertain (If).
It is said, and it appears justly, that all kinds of personal
wong, the compensation ibr which is always uncertain,
depending on the verdict of a jury, may be submitted to ar-
bitration; where the injury done to the individual is not
considered by the policy of the state, as merged in the public
crime, \\hich latter can never be the subject of" arbitration.
In the case of deeds, when no cn'tain duty an m - by the
deed alone, but the demand arises from a wrong or default
subsequent, togetlier \Mth the deed, as in the case of a bond
to perform covenants, or covenant to repair a house, tl
the demand being for damnp-* t<>: a breach, ma\ be submitted
to awaid(<)- However, in n% eases \\l;e,re the demand
arises on a deed, the submission ought also to be by deed ;
because a specialty cannot be answered but by a
cialty (r/).
Much doubt and uncertainty serins anciently to have pre-
vailed on the question, " how fur a dispute concerning laud
.1 be referred to an arbitrator; and how far, on an actual
reference, the patties vure bom.d by his awaul." But it
appears, that tin* real difficulty was how to <ut<>ne an a
made on a leferetiee onceruiiiii land ; !>r \M
ever the submisv t>y bond, it was almost u.
lu] 6 Co. 45. (*) i Lev. 191. (y] Gouldsb. or. () i
(j t Cro. Eii*. 421. (*; Rot. ASr. uu Arb. 11. 4. (c, -
99. (d) KcU /Ibr. tic. Arbitr. B. 8.
Of Award.
held, that the party who did not perform the award forfeited
the bond (<?).
The present rule of law therefore is, that " where the
parties might by their own act have transferred real property,
or exefcised any act of ownership with respect to it, they oiay
refer any dispute concerning it to the decision of a third per-
son, who may order the same acts to be done, which the par-
ties themselves might do by their own agreement" (/).
As real property cannot be transferred by the parties them-
selves without deed, wherever that makes a part of the dis-
pute, the submission as well as the award, as also Mhatever
act is by the award, directed to be performed by the parties
as to real property, must also be by deed.
Of the -arbitrators and umpire. Every one whom the lavr
supposes free and capable ot judging, whatever may be his
character for integrity and wisdom, may be an arbitrator or
umpire.
But neither an infant, a married woman, nor a man at-
tainted of treason or felony, can be an arbitrator.
It is a general rule of law, founded on the first principle
of natural justice, that a man cannot take upon himself to be
judge in his own cause] but should he be nominated an ar-
bitrator, by or with the consent of the opposite party, the
objection is waived ; and the award shall be valid (g).
The nomination of the umpire is either made by the par-
ties themselves, at the time of their submission, or left to the
discretion of the arbitrators, where two arbitrators (as is most
frequently the case) have this power, the law provides that the
choice shall be fair and impartial, and that it shall not even be
left to chance, an election being the act of the will and under-
standing (/i).
There is no part of the law relative to awards in which so
much uncertaiiKy and confusion appear in the reported cases,
as on this respecting the umpire. The time when the power
of the arbitrators ceases, and that of the umpire begins; the;
time when the umpire may be nominated ; and the effect of
the nomination, have, each in its turn, proved questions of
sufficient magnitude to exercise and distract the genius of
lawyers. The time limited for the umpire to make his uni-
pirage, has sometimes been the same as that limited for the
arbitrators to make their award. It is now, however, most
(0 Keilw. 43. (/} 6 Mod. 331. (?) Comb. 218. (b) ^ Vern.
485.
usual,
232 Of Award.
usual, and certainly more correct, to prolong the time beyond
that period.
In this case of a prolongation of time, the authority of the
arbitrators is determined, and that of the umpire immediately
begins on the expiration of the time specified to be allowed to
the arbitrators (?').
The point on which, on all the forms of submission, the
greatest difficulty has been felt, has been to decide. whether
any conduct of the arbitrators can authorise the umpire to
make his umpirage before the expiration of the time limited
for their making their award.
On this head the following seems to be undeniably the
clearest and most accurate opinion. If the arbitrators do in
fact make an award within the time allowed them, that shall
be considered as the real award; if they make none, then
the umpirage shall take place ; and there is here no confusion
as to the concurrence of authority with respect to the time.
The umpire has no concurrence absolutely, but only condi-
tionally, if the arbitrators make no award within their time.
This applies equally to the case where the! umpire is confined
to the same time with the arbitrators, and to that where a
farther time is given to him (k).
It is now finally determined that the arbitrators mat no-
minate an umpire before they proceed to consider the sub-
ject referred to them ; and that this is so far from putting an
end to their authority, that it is the fairest way of ch-M-in;;
an umpire (I). And it is in fact not unusual for the p-mir*
to make it a condition in the submission, that the umpire shall
be chosen by the arbitrators, before they do any other art.
They may also, when a further day is given t>> the umpire, and
the choice left to them in general terms, choose him at any
time after the fxpiratinn of their own tiine, provided it be be-
loielhe ljme limited for \i'im(mj~.
From the opinion that the aibitratnrs having once t !
un umpire \\lio hud executed their authority, it lius Ixien thought
to follow as a nece>sn\ roii-eijuenee, that it' they clechtl
who refused to undertake the business, they could not elect
another. But this opiuion has been ovt -i ruled {/*)
AYhrii the person to \\hom the parties have agreed to refer
ihe matter in dispute between tin in has consented to un
(0 I Rl. Abr. tir. Arbitr. B. 8. (*) Sir T. Jones 168. i U.
Huym. 671. Cio. Cir. 6j. (/) 1 T. R. 645. () 3 Keb. 387.
(*) i U. Raym. aai.
take
1
Of Award. 223
take the office, he ought to appoint a time and place for ex-
amining the matter, and to give notice of such appointment to
the parties or to their attornies ; if the submission be by rule
of reference at nisi prius f the witnesses should be sworn at
the bar of the court, or afterwards (if neglected,) before a
judge.
The parties must attend the arbitrators, according to the
appointment, either in person or by attorney, with their wit-
nesses and documents. The arbitrators may also, if they
think proper, examine the parties themselves, and call for any
other information.
Where a time is limited for making the award, it cannot be
made after that time, unless it be prolonged. When the sub-
mission is by the mere act of the parties, the prolongation may
be made by the mutual consentj otherwise a rule of court is
necessary for that purpose.
The law has secured each of the parties against the volun-
tary procr; tination of the other, by permitting the arbitrator,
on due notice given, to proceed without his attendance (o) ;
or the willing party may press his opponent by rule of court
to attend the arbitrator, who, on failure, may award without
such attendance (//).
It has been formerly held, that an umpire cannot proceed
upon the^report of the arbitrators, but must hear the whole
matter anew ; but there seems to be no good reason why the
umpire, if he think proper, may not lake those points upon
which the arbitrators agree to be as they report them. Th
nature of his duty is only to make a final determination on the
whole subject of dispute, where the arbitrators cannot do it,
and by adopting their opinion as far as they do agree, and in-
corporating it with his ow'n on the other points, he effectually
makes that final determination. And in this manner umpires
do usually act : and they are justified iu so doing, unless re-
quested to re-examine the witnesses (q). /^fr***-***-*^*--^
Though the words in the submission which regulate the
appointment of an umpire, be not perfectly correct; but
might from the grammatical order seem to imply that the ar-
bitrators and the umpire should all join together to make ait
award, yet an award made by the arbitrators without the par-
ticipation of the umpire, will be considered as satisfying the
terms of the submission (r). And on the other hand, an
(o) 9 Mod. 63. Q-} Sfac. Mich, 1789. (?) 4 T. R, 589. jV) Rol.
Abr. Vt. Arbitr. p. &.
umpirage
Of Award.
umpirage made by the umpire jointly with the arbitrator*
is good; their approbation, shown by joining with him, being
mere surplusage, does not render the instrument purpor.
to be his umpirage in any degree loss the act of his judg-
ment (s).
Unless it be expressly provided in the submission, that a
less number than all the arbitrators named may make the
award, the concurrence of all is necessary; ami --ich
n proviso is made, all must be present, unless those who tlo
not attend had proper and sufficient notice, and are wilfully
absent (t).
As to the necessity imposed on the arbitrators or umpire of
giving notice of their award, the following are the clearest
determinations. If the award be made In-fore the day li-
mited in the submission, the Arties shall not be bound bv any
thing awarded to bo done before that day, unlc--. the\ have no-
tice; but they must take notice at their peril of any thing
ordered at the day ().
It has long been the practice to guard against the conse-
quences of the want of notice, by inserting a proviso in thr
condition of the arbitration- bond, not only that the award .-hall
be made, but that it shall be delivered to the parties 1
certain day ; and then the bond will not be forfeited bv non-
performance, unless the party not performing had notice: and
the award ought to be delivered to all the person* \\lio are
parties on either side
The object of every reference is a final and certain deter-
mination of the controversies referred. A . i of any
point for the folim- <;<riMon of the arbitrator, or of a power to
alter the award, is inconsistent with that object ; and tl
fore it is established as a general rule, that su.-h a MI ii
void; but the reservation of a mere ministcri. < mea-
suring land, the calculation of interest at a settled rate,
d.u-s not vitiate the award (
The submission to tin '.:. linl arises from
the confidence which the par h t _nt\ and
skill; and is m< : MII ; it is tin: ...re incon-
sistent that the arbitrators or inii]>:: >!:'>nld del<- pail
of their authority i. another: and such de! -LIIUHI is abso-
lutely void. But it \\ ! in the
Eade (z), that arbil.'a'.f.i -, \\l award the substance of
(i) i Bl Rep. 463. (/) F.irnej, 57. () Reilw. 175. S KJ. 4. -ft. i.
(ft) 5 Co. 103. (y) iz Mod. ijy. Cro. JK. 315. () aAtk. 501.
thing*
Of Award.
thing* to be done, may refer it to another to settle the marine?
in which it shall be put in execution.
Since the introduction of references at nisi prius, there
can be tio question,, but the arbitrator has a jurisdiction over
the costs of the action, as well as over the subject of the action
itself; unless some particular provision is made to the con-
trary by the form of the submission. Instead of ascertaining
the costs, the arbitrator may refer them to be taxed by the
proper officer of the court, but by no one else (ft). If the ar-
bitrator takes no notice of the costs, but awards mutual re-
leases, it shall be presumed to be meant that each party shajl
pay his own costs (6).
Of the award or utnpirage. 'Every award should be con-
sistent with the terms of the submission ; the whole authority
of tl)e arbitrators being derived from thence. Therefore, 1.
The award must not extend to any matter not comprehended
in the submission : thus, if the submission be confined to a
particular subject of dispute, while there are other things in
controversy between the parties, an award which extends to
any of these other things is void as far as it respects them (c).
If the reference be " of all matters in dispute in the cause
between the parties," the power of the arbitrator is confined
solely to the matters in dispute in that suit. If it be " of all
matters in difference between the parties in the suit," his
power is not confined to the subject of that particular cause,
but extends to every matter in dispute between theiu(c/).
'2. The award should not extend to any one who is a stranger
(that is, not a party) to the submission. Thus, if two submit
to arbitration concerning the title to certain lands, and the ar-
bitrators award that all controversies touching the lands shall
cease; and that one of the parties, his wife and son, or his heir
apparent, by his procurement, shall make to the other such
assurance of the land as the other shall require, this is void ;
because the wife and son are strangers to the submission (e).
:). The award ought not to be of part only of the things
submitted. This, however, must be understood with a con-
siderable degree of limitation ; for though the words of the
submission be more comprehensive than those of the award,
yet if it do not appear that any thing else was in dispute be-
tween the parties, besides what is comprehended in the award,
it will be good (f).
(<*) z Atk. 504. Oo-n. Rep. 350. (l>) Kyd, 143. () t Mod. 309.
(d) z BI. Rep. f nS. zT. R. 644, 3 Ibid. fr2fe. (<) go!. Abr. tiuAib.tr.
N, <j. (f) I Co, 9 8.
Q if
226 Of Aa
Tf a submission be l( of alf premises or of anv |mt of
them." in this ca<e the arbitrator may undoubtedly make au
award of pa-t only '(<r).
Win .' '! matters in differ-
ence" between the parlies, though there should h.ipMen to be
many subjects o'i controversy between them, if only one he
fcignified to the arbitrator j 1 .;;;! ..I that: he
i> k :'i tiie language of Lnd Coke, in the plnce of a judgi , and
office is to determine according to what is alleged and
It is ill.- Business .i the parties grieved, who know
.: own j:, . to H^nifv their causes of coir-
tro\ei-y t. I!R arbitrator; for he is a stranger, and cannot
know anv tiling of their dispiu- s but what is laid before
bim (A).
Jn 'li' a^<- of such a ixt-ncral siilnubsion, if an award con-
cerning one. thing only be made, it shall be presumed ftill the
contrary be shm, n by the parly objecting) that nothing Ni \va<
referred (/'). 15nt the arbitrators <tiht to decide on all matt. i a
laid before them, or they camu>t do com}lete jus! if- .
It is, hoxvever, no valid objection to an award, that the ar-
bitrator had notice of a certain demand, and that he made no
award of that, if in other respects the award he irood ; an,
though the sum in question mav not be mentioned in the
award, the atbitrator may have *ho\\n his opinion that the de-
mand wns unfounded (A)
4. If an award be to do any lli!n; which is against law, it
is void, and the paitirs arc not bound to perform it (/). So also
is an award of a thing which is not physically or morally pos-
sible, or in the power of the paity to perform, as that lie shall
deliver up a deed which is i:i t and custody of a per-
son over whom heli:; , oul (///). And an award, that
the defendant shall he homul \>5lh sureties such as the plaintiff
shall approve, is void; for it nuiy be iinpo>-il!i- t<> I'-nee the
approbation of the plaintiff (M). ^' l!l m thi-< c:ne the party
should enlir into a bon.!, and tender it to the plaintiff.
V\ here an award is, that < parties shall procure a
stranger to. do a ih'nu', th- :-iken !> tv.< en tin-
rase wh' B Stranger to ernnpel him,
and where he ha* power either by i ,-m law or by bill
in equity. In the for- ^j much
as concerns the stranger. lu the latter it i* good (o).
(j) Rol. Abr. tit ArVir (A) 8 Co. 9 S. f.. '-a. Jc. ico.
(fc) iSaund. 31. (/) lVe::t. 44^. S$. () j
Mod. a;i. () Rol.-Abr. tit. Ami. F. i.
Neither
Of Award. 227
Neither must an award be to do a thing unreasonable> nor
by the performance of which the party awarded to do the acts
may subject himself to an action from another (p).
5. The award must be certain and final. As the intention
of the parties in submitting their disputes to arbitration is to
have something ascertained which was uncertain before, it is a
positive rule, that the award ought to be plainly expressed,
that the parties may certainly know what it is they are ordered
to do (g).
On the construction of certainty and uncertainty the cases
are multifarious; and it may be observed, that they principally
depend x>n such circumstances as are peculiar to each case, and
very seldom form any general precedent. The rule, therefore,
serves better to regulate the conduct of arbitrators, than the
numerous exceptions : as it is the interest of the party against
whom the award is made to be ingenious in finding out ob-
jections, an award cannot be too particular or precise in laying
down what is to be done by the parties, and the manner, time,
and place of their doing it. For though the two latter have
been deemed immaterial, yet it is safer to specify them.
Awards are now so liberally construed, that trifling objec-
tions are not suffered to prevail against the manifest intent of
the parties. In favour of the equitable jurisdiction of the
arbitrators, if that to which the objection of uncertainty is
made can be ascertained, either by the context of the award,
or from the nature of, and circumstances attendant on, the
thing awarded, or by a manifest reference to something con-
nected with it, the objection shall not prevail (r) . Where
there is no date to be awarded, it shall be taken as from the
day of the delivery, which may be ascertained by averment,
and all other uncertainties may be helped by proper averments
in pleading (s).
As an award must be certain, so, in order to prevent any
future litigation on the subject of the submission, it must also
be final.
On this principle, an award that each party shall be non-
suited in the action which he has brought against the other is t
not good, because (amongst other reasons) a non-suit does not'
bar them from bringing a new action; but an award that a
party shall discontinue his action, or enter a rttraxit, is
good (0-
(p) Rol. Abr. tit. ArVt. E. 1, 3. Lev. 153. f?) 5 Co. 77. b. (r) Stf.
503. (j) i Ld. Raym. 246. (;) Rjl. Air. tit. Arbit. F. 7.
3 An
228 Of Award.
An fiward, n that all suit* shall cease," or " that a bill in
chancery shall be dismissed," or " that a party >h:ili not com-
mence or prosecute a Mm," is iiual; for it shall he taken to
mean that the debt and action shall cease for ever (u).
La.-tK, the a\var<l must be mutual, not <;ivin_: an advantage
to one party without an equi\alent to the other.
The principal requisite, however, to form that mutuality,
about which so much is said in all the cases usually clavM d under
this rule, is nothing more than that the tiling awarded to be
done should be a final di.-ehanjje and sa'i->laction of all dclH
4'nd claims by the partv in who>e favour the award is mad,
against the other, for the matters submitted ; and then I nr the
, present rule amounts to nothing more than a different form of
expression of that which requires that an award should be
final (r).
(). The rules that at present govern the construction of
awards are, that they shall be interpreted as deeds, according
to the intention of the arbitrators; that they shall not be taken
strictly, but literally, according to the intent of the p.-
submitting, and according to the pou.r gi\cn to the arbitra-
tors (y)\ that all actions mentioned in the award shall be con-
strued to mean, all actions over which the arbitrator.- ha\e
jxwer by the submission ; that if there be any contradiction in
the words of an award, so that the one point cannot stand con-
sistently with the other, the first part shall stand, and llie latter
be rejected; but that if the latte/ be only un -\planatmn of
the former, b<>th parts shall stand (c); and that where the
words of an award have any aiuhrjuit . in tin in, they rne al-
ways to be construed in Mich a manner a* to give ctYcct to lite
award (<;).
Much unnccr>.-ary difficulty occurs in all the old n }x>rt> on
the construction that ought to be put on the award of a re-
lra-e ; but it is now t leai U settled, that an a\\aid of rdea>es
up t the time i.f lining the award is ni \\\\<^ iher xmd, but
that it shall be construi >l ->.) a- to snppoit the award; and that
for twr- J>t. T 1 nined that no dif-
fri't . .UIMII vnii.'c tl.e tmsf of I!K ^ubmi-Mon, mde> it
hown that tin it lias. 'Jd. That a release to the
time of Ihe 'ubini^K-n > 1 pei formi.m ( <-t 'an awaid,
_ortliini^ :i n li-;ne to tin- luiir o! tfu- award; not becan.-e the
.n.ii.^ vi the aibilritor is so, but because their meaning
fi.) 6 Mod (*} Cora. Tfcp. 31?. (j) i Bur. 179.
- ^ McJ. J5-
must
Of Award. 229
must be controuled so far as it is void by construction of
law (/>).
Formerly if one part of an award was void, the whole was
considered so : now, however, it is the rule of the courts in
many cases lo enforce the performance of that, which, had it
stood bv itself, would have been siood, notwithstanding ano-
* - \ '
ther part might have been bad-(c); but if that part of the
award which is void be so connected with the rest as to affect
the justice of the case between the parties, the award is void
for the \\ hole {</).
When, from the tenor of the award, it appears that the ar-
bitrator intended that his award should be mutual, according
something in favour of one of the parties as an equivalent for
what ke has awarded in favour of the other ; if then that which
is awarded on one side be void, so that performance of it
cannot be enforced, the award is void for the whole, because
that mutuality which the arbitrator intended cannot be pre-
served (e).
If one entire act awarded to be done on one side compre-
hend several things, for some of which it would be good, and
for others bad, the award is bad for the whole, because the
act cannot be avoided (f).
When it appears clearly, that both parties have the full
effect of what was intended them by the arbitrator, though
something be awarded which was voidj yet the award shall
stand for the rest ( ?).
An award ought regularly to be made in writing, signed and
sealed by the arbitrator?, and the execution properly witnessed;
it may, however, be made by parol, if it is so expressly pro-
vided in the submission.
7. It is not in all cases absolutely necessary, that perform-
ance should be exactly according to the words of the award ;
if it be substantively and effectually the same it is sufficient (ft).
And if the party in whose favour the award is made accept of
n performance different in circumstances from the exact letter
of the award, that is sufficient; for consensus to/let erro-
ram (/).
Where the concurrence and presence of both parties is not
absolutely necessary to the performance, each ought to perform
his part without request from the other (/{),
(k) i Ld. Rayjn. 964. (c) 12 Mod. 534. (d } Cro. Jac. 584,.
B-ol. Abr. sit. Arbitr. K. 15. (/) Cro. Jae, 639. (g) i Ld.
114, (6) 3 Bulstr. 67, ;*} Ibid. (*) I Ld, Raym. ZJ3.
Aeon-
230 Of Commons.
A considerable number, of years having elapsed since the
making of the award, is no objection to the parties being called
upon to perform it (/); nor can the statute of limitations, ill
Jac- I, c. 16, s. 3, be pleaded in bar (/;?).
An award in writing, and under seal, need not have a deed
stamp, unle s delivered as a deed; but being only delivered as
an award, it is sufficient if it have the award stamp of lUa. (w).
CHAP. V.
Of -Comment.
COMMON is a right or privilege which one or more per-
sons claim to take or use in some part or portion of that \\ Inch
another man's lands, waters, woods, &C. do naturally produre,
without having an absolute property in such lands, \\atu-,
woods, &c.
. The property of the soil in the common is entirely in the
lord, and the use of it jointly in him and the commoners.
In land subject to a right of common, the right of the
owner or the lord of the soil ought to be so exercised as not to
injure the right of common. But the right of the comnio.
may be subservient to the right of the lord in the soil (u); k
that the lord may dig clay-pits there, or empower others to do
so, without leaving sufficient herbage for the commoners, if*
it can be proved Unit sr.ch a right has been constantly exert
b/the lord. So the lord may, with the consent of the homage,
grant part of the soil for building, if he has iimnemoiially
exercised such right. The immemorial exercise of Midi right
by tiie lord is evidence, that he reserved that right to hii;.
when he granted the right of common to the commoners (/;).
If a commoner having right of common tor one beast, put
on two, the lord can only distrain the one put on last, unless
they \\ere both put on together (g).
Lords of manors may depasture in commons where thtir
tenants put in cattle, and a prescription to exclude the lord is
against law (/)
The lord may agist the cattle of a stranger in the common
by prescription ; and he may license a stranger to put in hi*
(/) Fmch'tRtp. 384. (m) a Saund. 64. () 4 Ef* Rep. 584.
() sT.R.411. (f) Jbid.417. (fj Wille*, 368. (r) i Inst.
na.
cattle,
Of Commons.
cattle, if he leaves sufficient room for the commoners (s). Also
the lord may surcharge, &c. an overplus of the common; and
if, where there is not an overplus, the lord surcharges the
common, the commoners are not to distrain his beasts, but
must commence an action against the lord (/). But it is said,
that if the lord of the soil put cattle into a close, contrary to
the custom, when it ought to lie fresh, a commoner may take
the cattle damage- feasant ; otherwise it is a general rule, that
he cannot distrain the cattle of the lord (it).
The lord may distrain where the common is surcharged, and
bring an action of trespass for any trespass done in the com-
mon (z).
A lord may make a pond on the common, though he cannot
dig pits for gravel or coal, the statutes of approvement ex-
temhng only to inclosure (j/). If the lord makes a warren on
the common, the commoners may not kill the conies, but are
to bring their action (2).
By stat. 20 Hen. 3, c. 4, called the statute of Merton, lords
may approve against their tenants, viz. inclose part of the waste,
SLC. and thereby discharge it from being common, leaving
common sufficient; and neighbours as well as tenants claiming
common of pasture shall be bound by it. But if the lord en-
closes on the common, and leaves not common sufficient, the
commoners may not only break down the enclosures, but may
put in their cattle, although the lord ploughs and sows the
land (a).
If the lord make a feoff ment of the Waste, &c. the feoffee
may approve, leaving a sufficiency of common; and this rule
holds, although the lord continues seized of the manor
within which the waste lies ; for though in the statutes of
Merton and Westminster the lord only is mentioned, yet as in
those days statutes were not drawn with that fulness of ex-
pression with which they are at the present time, the term " lord
of the manor" must be considered as equivalent to te owner of
the soil," when they stand in the same predicament. It is not
necessary, therefore, that the person approving should be lord
of the manor ; a seisin in fee of the waste, &c. is sufficient (I)}.
Where the tenants of the manor have a right to dig gravel
on the wastes, or to take estovers, there the lord has no right
under the statute of Merton to enclose and approve -the wastes
(s"\ i Danv. 795. (t) F. N. B. 121;. () i Danv. 807. (*) 9
0.113. (y) 3 lust. 204. (s) iRol. Abr. 90. () a lasr.
X8. - i Rol. Abr. 406. () 3 T. R. 445,
of
232 Of Commons.
of the manor. Yet n custom in a manor, that any person,
being desirous of enclosing, may apply to the couit, &c. first
obtaining the consent of the lord, does not abridge, the lord's
common law right of enclosing without any such application,
provided he leave common sufficient tor the ft mints (c).
A commoner has only a special and limited interest in the
soil, but yet he shall have such remedies as are commensurate
to his right, and therefore may distrain beasts damage-feasant,
bring an action on the case, &c. but not being absolute owner
of the soil, he cannot briny a general action of tiespass for u
trespass done upon the, common (rf.)
A commoner cannot regularly do any thing on the soil which
tends to the melioration or improvement of the common, as
cutting down of bushes, fern, &e.. fe). Therefore if a com-
mon every year in a flood is surrounded with water, the com-
moner cannot make a trench in the soil to avoid the water, be-
cause he has nothing to do with the soil, but only to takp the
grass with the mouth of the cattle (f).
r.\t TV commoner may break the common if it be enclosed ;
and although he does not put his cattle in at the time, yet his
right of commonage will excuse him from being a trespasser f\
That is, supposing the enclosure made by the lord, and thnt
there is not sufficient common; or that the enclosure is in.vlv
by any other person than the lord.
If a tenant of the freehold ploughs it, and sows it with
corn, the commoner may put in his cattle, and therewith ent
the corn gr/nving npo.i the land. So if he lets his corn lie
in the field beyond the usual time, the other commoners mny,
notwithstanding, put in their beasts (h).
The commoner cannot use common but with his own proper
cattle; but if he has not any cattle to manure the land, he
may borrow other cattle to manure it, and use the common
with them (?').
A commoner may distrain beasts put into the common by
a stranger, or every conmiomi may bring action on the
caC, where damage is received (/c). Hut on- imrnoncr c;.n-
not distrain the cault: of another commoner, though i
o i ils Ins number (/).
The usual remedies for surcharging the common rue either
: imining so many of th- h< :MN as :IP: J>o\e the number
(e) T. R. 391. N :. Iron. 101. (c) i Sid. 3^1. i H'n. R,
c. i. 13 Hen. 8, C. IJ. If) i Hoi. Abr. 405. () I it. R
(/>) i Leon. 102. (I) i D*uv. 7<j8. (4; 9 C. u. (IJ z l.-.;tw.
all .
Of Commons. 233
allowed, or else by an action of trespass ; both which may be
had by the lord ; or lastly, by a special action on the case for
damages, in which any commoner may be plaintiff (nt). Bui
the ancient and most effectual method of proceeding is by writ
of admeasurement of pasture. This lies either where a com-
mon appurtenant or in gross is certain as to number, or where
a man lias common appendant, or appurtenant to his land, the
quantity of which common has never yet been ascertained.
In either of these cases, the lord, as well as any of the com-
moners, is entitled to this writ of admeasurement, which are
one of those writs that are called vicontiel, being directed
to the sheriff (vicecumiti), and not to be returned to any supe -
rior court till finally executed by him.
It recites a complaint that the defendant has surcharged the
common, and therefore commands the sheriff to admeasure
and apportion it, that the defendant mav not have more than
belongs to him, and that the plaintiff may have his rightful
share. And upon this suit all the commoners shall be admea-
sured, as well those who have not as those who have, sur-
charged the common 5 as well the plaintiff as the defen-
dant ().
The execution of this writ must be by a jury of twelve men,
who are under the superin tendance of the sheriff, upon their oaths
to ascertain, what and how many cattle each commoner is en-
titled to feed. And the rule for this admeasurement is gene-
rally understood to be, that the commoner shall not turn more
cattle upon the common than are sufficient to manure and stock
the land to which his right of common is annexed ; or, as our
ancient law expressed it, such cattle as only are lei-ant and
eouchaut upon his tenement (o).
If, after the admeasurement has thus ascertained the right,
the same defendant surcharges the common again, the plaintiff
may have a writ of second surcharge, which is given by the
statute of Westminster 2. 13 Edw. 1, c. 8; and thereby the
sheriff is directed to enquire by a jury, whether the defendant
has in fact again surcharged the common, contrary to the tenor
of the last admeasurement ; and if he has, he shall then forfeit
to the king for the supernumerary cattle put in, and shall also
pay damages to the plaintiff (p).
This injury, by surcharging, can, properly speaking, only
happen where the common is appcudant or appurtenant, and
(tn) FVeem.-ft73. (n) F. N. B. 125. (o) Bro. Abr. tit. Prescrip-
tion, a8, (f) a Inst. 370.
Of
231 Of Commons.
of course limited fcy law; or where, . tossj it
jwressly hunted ami certain; fi\ .t n>an lias coinmou in
gro-- . sliut, he cannot Le a M I I\\i-\ ; -r. e\en
mheie a man i* said to have common \vithu, 1 '
must be It-it snm'dent lor the lord's o\\i, >. i' ( >r iht>
law will not suppose, that, at the L ,u c .ua-
mon, the lord meant to exclude himself.
'!!:, t another d, 5 uirl>;: . \iie.rethe
owner ot the iuud, or other person. or othu \
obstructs H, i!:..t tin .:>!. mir-iK-.- is uivcii.Jor uoin enjoying the
benefit t<> \\lirh he is by law entitled. This may IK- i
either by t.'ix-rlinjr k-ncis, or by driving the cattle oli the land,
or by ploughing up the .toil ol the common (r). Or it may
be' done by eri-ctini: a \\anrn thin-on, and Mocking with rab-
bits in xuch quantiticb that they devour the \vlole herbage, and
thereby destroy the common. For in Mich cast-, though the
commoner na\ not tk'slro> tlu- rabbits, \-t the law looks upon
this as an injurious disturbance of his right, aivl has -JIM n liim
his remedy by a< lion against the owner (x). This kind of dis-
turbancedocs indet-d amount to a disseisin, and it the commoner
chooses to consider it in that light, the law gives him an a>si/c
of novel disseisin against the lord, to recover the possession of
his common (t). Or it has given a writ of quod permittas against
any stranger as well as the owner ot the land, in 01-1- <>i such a
disturbance to the plaintiff as amounts to a total deprivation
of his common, whereby the defendant shall be compelled to
permit the plaintiff to enjo\ liis common as lu: ought (u). But
if the commoner does not clmoM- to bring a real action to re-
ci'\t-r seisin, or to try the right, he may (which is the easier
hnd more usual wa\) brin-j; an action on the case for his da-
Duiires. instead of an assize, or a '/noil ptrntitfdt ( i>.
[i any commoner melons or builds upon the common,
every commoner inu\ have an action for the d'unairi-s. \\lurc
turf is taken away from the common, the lord only is to bring
t:un (y).
If a commoner uhu has a freehold i,i his common,
of, or hindered therein, that lit < .mnot h.i\e it so lu-neticially
as he u-id {> do: \\h. lli-i t!i- mteriuptioii b- l>\ the lord or
or a. 'i. he may have an t him : but if llu*
commoner has onlv an .-lat<- i ; \tai-, then \>\^ remedy is
(f) i Ro!. Abr. 399. (') Cro. Llii. 19^. (/) Cro. Jac. 195.
(r) J-.ii, r -.B. ijg, (*) Ibid. t j'31. Com. ijS. (>> i
Rol. ibr. 8<).
6 AC.
Of Commons. 235
action on the case. And if it be only a small trespass, that
occasions little or no loss to the commoner, and he has
common enough besides, the commoner may not bring au
action (2).
A commoner cannot dig clay on the common, for. he thereby
destroys the grass, and the other commoners cannot enjoy the
common in tarn amplo modo as they ought (a). Also a com-
moner may not cut bushes, dig trenches, 8cc. in the common
without a custom to do it (6). If. he makes any thing de tiovo
he is a trespasser ; he can uo nothing to impair the common ;
he may, however, reform a thing abused, fill up holes, &c. (c).
A commoner may abate hedges erected on a common; for
though the lord has an interest in the soil, the commoner does
not, by abating the hedges, meddle with it ((/).
A man may by prescription have common and feeding in
the king's highway, although the soil does belong to another.
But the occupation of common by usurpation will not give
title to him that does occupy it, unless he has had it within
time beyond memory.
Jnfine, whatever destroys the right of common is a nuisance,
and may be abated by the commoner, provided it can be done
without interfering with the lord's right to, or- interest in, the
soil (f ). But if the nuisance cannot be abated without such
interference, the commoner must resort to his action on the
case, and have satisfaction in damages. If the right of com-
mon be partially injured, the commoner ought not to abate the
cause of such injury, more especially if in so doing he must
necessarily interfere with the right to the soil. On this prin-
ciple, it was held in Cooper t>. Marshal (f), that a commoner
could not justify digging up the soil, and destroying the coney-
burrows erected in the common by the lord, who was entitled
to free-warren there. So where the lord had planted trees on
the common, and the commoner cut them down, it was held
that the lord might maintain the trespass, and that the com-
moner could not justify the abatement of the trees (g).
By statute 13 Geo. 3, c. 81, in every parish where there are
common fields, all the arable lands lying in such parish shall
be cultivated by the occupiers, under such rules as 3-4ths of
them in number and value (with the consent of the land and
tithe owners, the latter of whom by section 23d are not to re-
(*} 4 Co. 37. (a) Godb. 344. (> iNels. 46z. (0 I BrownL
208. ( d) % Mod. 65, (f) i Inst. 88. (f) i Hur. 16$.
(g) 6T.R >4 83.
236 Of Contracts for f/te
ceive any finrs, only rents,) shall appoint by writing under
their hands; the ex pence to be borne proportionally.
Persons having right of common, but not having lands in
5uch fields, and persons havmsi she p-walk?, mav compound
for such rigla by written agreement, or may, with their con-
sent, have parts allotted them to common upon (//). .And the
walks, slades, and meres may be ploughed up (/').
Lords of manors, with the consent of ,V<Hlis of the com-
moners on the wastes and ciftnmons within their manors, may
demise (for not more than four \ears) any part of such waste-.,
&c. not exceeding l-l'2th part; and the clear rents res. rvnl
for the same shall be applied in improving the residue of such
wastes (k).
In every manor where there are stinted commons, in lieu of
demising part thereof, assessments on the lords of such manors,
and the owners and occupier? of such commons, may be made,
and the money employed in the improvement of the com-
mons, under the direction of the majority; which (or in some
instances 2-')ds) may regulate the depasturing, opening, shut-
ting-tip, breaking and tmstocking the commons, and the kind
of cattle to he allowed the commoners (/).
Commons must br driven yearly at Michaelmas, or within
fifletn days utlrr. Infected horses, and stoue.-horses under
.size, Sec. are not to be put into commons, under forfeitures,
32 Hen. 8, c. 13. New-erected cottages, though they have
four acres of ground laid to them, ought not to have common
in the waste (//i).
CHAP. VI.
Of Contracts for the Sale and Purchase of Good*.
SECTION i.
Of the Sate of Goods in Possession.
HY the rnmmon law, upon all sales of goods the property
was iniin< diatt Iv \i-sted m tl.e vuiHee upon the making ot
the c<mtract, afthoagh the actual possession was bot obtained
by him until the fulfilment of the >uj ui itcd terms; but by the
i ) G- -. v c. Si. 3. S, 9 , 10. f ) Ibid. j. n, 14. (*) IbiJ.s. 14.
(/) Ibid. i. ifc t. (m< * Ins-
t itutO
Stik and Purchase of Goods. 237
statute of frauds; ^9 Car. 2, c. 3, 3. 17, it is enacted " That
no contract for thu sale of any goods, wares, and merchandize*
for the pi ioe of ten pounds and upwards, shall be good, ex*
cept the buyer shall accept part of the goods so sold, and
actually receive the same, or give something in earnest to bind
the bargain, or in part of payment ; or that some note or me-
morandum in writing, of the said bargain, be made and signed
by the parties to be charged by such contract, or their agent*
thereunto lawfully authorized."
in the exposition of this clause of the statute it has been
held, that executory contracts, that is, uhm the goods con-
tracted for are to be delivered at a future time, are \vithi the
statute, as well as such as are to be completed immediately,
and consequently if the requisites of the statute have not been
complied with, viz. neither earnest, delivery of a part of the
goods, nor agreement in writing, such contracts are void (n\
And by the fourth section of the same statute, all executory
contracts which are not to be performed within one year from
the making, whether for the .sale of goods, (without reference
to the value,) or the doing of any other act, must be in writ-
ing; it being enacted, " That no action shall be broaght
w hereby to charge any person upon any agreement that is not
to be performed within the space ' of one year from the
making thereof, unless the agreement upon which such action
shall be brought, or some memorandum or note thereof, shall
be in writing, and signed by the party to be charged therewith,
or some other person thereunto by him lawfully authorized."
Kut if the subject of the contract is not in tsse, and capable
ef an immediate delivery at the time of contracting; as where
the contract was for a chariot to be made(o); or for corn to
be threshed (p); or for a waggon to be made (//); or for a
.barge to be built (/); or for a crop of grass, which at the
time. of the bargain for the sale of it was unsevered (s)\ such
contracts are not within the statute, and therefore will be valid,
notwithstanding its requisites have not been complied with.
And in the.\e case* no property vests in the vendev until the thing
contracted for acquire the character in which it is to be deli-
vered, and that although the whole p: ice has been paid in ad-
vance (t~). But as soon as the thing contracted for is complete
and ready for delivery, the vendee is entitled, on tender of the
(} 2 Hen. Bl. 6-5. i Ibid. ao. 7 T. R. 14, () i Sir. 506. (/>) 4
Bur. 2101. ( ? > Pe^ke'j N. P. .41. (r} I Tanat. 318. (,) 6
Eaft's P.rp. Cpi. [i] 1 Tauijt. jiX.
238 Of Contracts for the
price, to the goods, and the vendor to the price on tender of
the goods (//).
The fourth clause of the statute is confined to those cases
where it clearly appears from the tenor of the agreement to
have been the understanding of the parties, that the contract
was not to be completed within a year from the time of making
it (r); but it dor* not extend to such contracts as depend upon
a contingency) and which hy possibility, and in the contem-
plation of the parties, may he performed \\ ithin a year, though
the contingency on whirh i!u>v (It |M n<i dm s not, in fact, hap-
pen \vilhin that time; for a-contingency is not within the intent
of the statute, nor any case which depends upon a contin-
gency. It does not extend to cases where the thing only may
be performed within the year (i/).
liut if it appears to have been the understanding of the
parties contracting, that the contract was not to be completed
within a year, though it might and was in fact part performed
within that time, it is within the statute, and if not in writing,
&c. cannot be enforced (:.).
.The next consideration in the construction of the seventeenth
clause is, what may be deemed a sufficient acceptance by the
buyer. Where the goods are ponderous and incapable of an
actual delivery, it may be done by something that is tanta-
mount ; a symbolical delivery, as of the key of the wan huu->
in w hifh the goods are lodged, or other indicia of the pro-
perty, will satisfy the statute ().
So also a constructive delivery may arise from words, as
when the vendte desires the vendor to kerp the goods bar-
gained for in his pos*es:>ion for an especial purpose, and the
vendor accepts the order, this is a sufficient delivery within the
statute i A).
A written order given by the seller of goods to the buyer,
directing the person, (viz. the wharfinger or warehouseman)
in whose custody the goods arc, to deliver them to tin- v< i,
is a sufficient delivery within the statute (r) ; and that whether
a tr::n- r is made into the name of the purchaser in tin:
wharln/4' r or warehouseman's books or not(f/).
So it seems, that if the goods bargained lor remain in the
hands of tin- vendor, the acceptance of uuixhonst- nut f->r
them after the period wjien they ought to have been ;..
Si) i Sr. 50*. Noy' Max. 64*. (x) n Ent, 142. (y) j Bur.
i. (*0 n East's R-p. 142. <*) i IbM. (Aj i Taunt.
4^8, (<) i ti?. N. P. C. 598. (d) ^ drop. N. P. C. 14$. '
away,
Sale and Purchase of Goods. 23<)
away, according: to the terms of the sale, amounts to a com-
plete transfer of them to the purchaser, and consequently a
tie) i very within the statute (e).
It has also been decided, that while the goods remain in
the custody of the vendor, if the purchaser, with the know-
ledge and approbation of the vendor, exercises any act of
ownership over them, as by a resale to a third person, it will
amount to a delivery and acceptance within the statute (f).
So if a purchaser \vrite his name or initials on the goods
bargained for, or the same be done by his order (g) ; or if he
accepts and actually receives a sample, which is absolutely
part of the commodity sold (/f) ; or if the goods be weighed
for the purpose of delivery, though put into another vessel
than that which the vendee desired (/') ; will be a sufficient de-
livery and acceptance to satisfy the statute.
But to constitute an acceptance within the statute, such
acceptance |must have been made in affirmance, and with a
view to the performance, of the contract ; and therefore, if on
examination, the goods being found to be inferior in quality
to those ordered, are returned to the vendor, it will not amount
to a sufficient acceptance by the vendee so as to render him.
liable for their value (A:-).
The. making goods up to be delivered, or otherwise sepa-
rating them from a larger quantity of which they formed a
part, with a view to the delivery (/) ; or the delivery of goods
to a carrier to be forwarded to the vendee (ni), and a fortiori
if delivered to a carrier named by the vendee (n) ; or the. de-
livery of goods to a wharfinger (o) ; have all been construed to
be evidence of a delivery ; and consequently to entitle the
vendee to' the price of the goods. So the shipment of goods
according to the order and on the account of the consignee,
will operate as a delivery (p).
But the mere act of packing sold in cloths, which have
been furnished by the vendee, is no delivery (q).
It has. been held, that where several articles are ordered
at the same time, at separate and distinct prices, but forming
one entire contract, the vendor cannot by a delivery of some
of the articles, entitle himself to the price of them separately,
(e) -i Camp. N. P. C. 4$*. (f) i East's Rep. 192. (g) Ibid. 435.
(b) 7 East's Rep. 558 5 Esp. N. P. C. 267. (ij I Bl. Rep. 600,
(i) 3 Bos. and Pul. 233. (/) Keilway, 77, pi. 2$. (m) 3 Bos. and
Pul. 582. (n) 8 T. R. 330. (o) 2 Bos. and Pul. 119. (/>) 2 Camp.
N. P.C.I9. Ibid. 36. (?) a Hen. Bl. 316.
as
240 Of Contracts for the
as in the case of a separate contract for each article ; miles*
the vendee accepts any one article so delivered (/).
As to what shall be deemed a sufficient earnest to bind the
bargain, Mr. Justice Blackstone says, " that if any part of
the price is paid, if it is but a penny, or any portion of the
goods delivered, the property is bound (*)." From the word-
ing of the statute, however, which speaks of a partial delivery
of the goods, or the giving of somt-thing in earnest, or in part
of payment, it does not appear absolutely that the earnest must
consist of money; the deposit of a mi-, a ^love, or auy
other article would, it should seem, equally satisfy the
statute.
The third requisite enjoined by the statute, in order to
render valid a contract for the sale of goods above the value
of ten pounds, and for \\hich immediate payment has not
IM i n made, is that a sufficient note or meinoiandum in writing
of the bargain must be signed by the pirty sought to be
charged by the contract, or by his agent thereunto lawfully
authorized.
But though the signature of the party to be charged, or of
his ageirt, is required by the statute, and that otherwise the
bargain will be void ; yet it has been held, that ihe signature
of the party seeking the benclit of such a contract, is uot
necessary (t).
11 ou ever, the names of both the contracting parties mu.it
appear (the name of the purchaser as well as that of the seller),
either on the face of the memorandum, or in something which
is thereby referred to, or connected with it by legal reference ;
and then-line, where a not* was made by the plaintiff's cleik
in a common memorandum book, specifying the quantity of
the commodity purchased, the puce, and time of delivery,
and in which note the commodity \\as stated to be boilgpt
of tin- vendor, without saying by whom; it was held, that
the vendee was not eiiMtled to the benefit of his con-
tract (it).
As to what is a sufh'ciejr. writing within the intent of the
statute, it seem*, that the writing on printing (a> the di lu
of a printed bill ol parcels) of the party'* name, on any pait
of the memorandum of the contract, will be coiiM<lu
signature (a), fco if an agreement is drawn up in the pa,
(r) i Gmp. N, P.C. 53. (i) J Bl. Com. 447. (t) 6 Eait'j Rep. 306.
() 5 E*p. N. P. C. 140. (x) a Bo*, and pui. 238.
own
,
Sale and %i()'chase 'of Croods.
own hand-writing, beginning I y. J5. agree, and a place is
left at the bottom for a signature, but which is never signed,
it may be considered as a note or memorandum within the
statute ( if). The initials of the party also is considered as a
sufficient signature to satisfy the statute (z).
We come now to enquire who is an agent of the partj to
be charged, for the purposes of this act.
With respect to the sales of goods by public auction, it has
been held, that the auctioneer is an agent for the buyer as
well as the seller, and that a memorandum made by him of
the bargain will bind both parties (). But in order to clothe
the auctioneer with this character, the catalogue must contain
a memorandum of the terms of the contract. And therefore,
where an auctioneer, having previously distributed printed ca-
talogues of sale, at the time of the sale read from a written
paper the conditions on which the goods enumerated in the
catalogue were to be sold, it was held, that the writing of the
purchaser's name in such catalogue by the auctioneer, against
the lot purchased, would not bind the purchaser, the two
papers being neither externally annexed* nor containing any in-
ternal reference to each other (6).
So where a broker is authorised by one man to sell goods,
and to buy such goods for another, an entry in his books
of a sale of these goods from one to the other, signed
by him, is a binding contract between the parties, without
any bought and sold note being sent to them ; for the sending
of such note is not for their approbation, but only to inform
them of the terms of the contract (c).
But a memorandum of the sale of goods cannot be signed
by one of the contracting parties, as the authorized agent of the
other ; the agent must be a third person (d).
With respect to the manner of appointing such agent,
it has been repeatedly decided, that a parol appointment is
sufficient (e) ; and that the authority need not be given for a
particular purpose ; a general authority is sufficient.
And such authority may be countermanded at any time
before a memorandum of the contract of sale is written and
signed by the broker ; although he has previously entered into
a verbal agreement to sell the goods (f).
(y) i Esp. N. P. C. 190. (*) i Camp. N. P. C. 513. (e) I Bl.Rrp. 599.
i Taunt. 38. (b) 7 East's Rep. 55?. n Ibid. 142. (c) i Camp.
N. P. C. 337. (rf) Ibid, ao* (<) 5 Esp. N.P. C. aj6. (f) 2 Cajnp.
N. P. C. 399. n.
R We
-242 Of Contracts for the
We have seen> that at common law, upon all" sales of goodV
the property ^aa immediately vested in the vendee upon the
making of the contract : where the requisitions of the con-
tract have been complied with, the effect is similar; the pro-
pV ty is changed, and absolutely \vsts in the vendee from the
time of the sale, and remains at his risk, although 110 actual
change of possession should have taken place. Ai>d therefore,
whatever damage may happen to (he good* while in the ven-
dor's possession, the loss will fall upon the purchaser (g).
But this is to be uuderstood only where no act reman
be done ou the part of the vendor; for where any act of the
seller, such as counting, xvcighing, tilling up, &.c. remains to
be d^ne for the purpose of asccriaining the exact quantity
sold, the property in the goods does not vest absolutely in the
th vci hcfor< the counting, weighing, &c. which was
to precede 'he delivery, and to ascertain the price; but till
auch act is done, remains at the risk of the vendor (//).
Put although some act remains to be done between the
vendor and the persons who retain the custody of the goods, for
the purpose of ascertaining either the quantity or the price;
yet if uo such act remains to be done between the vt-ndor and
\fiidec to perfect the sale, the sale is complete. Therefore
A. having forty tons of oil in a extern, sold ten tuns to 13.,
and icceived the price, and B. sold the same to C., and took
his acceptance tor the same at four months, and gave him u
written order on A. for delivery, who wrote and signed his
acceptance upon the said order; but no actual delivery \\a<
made of the ten tuns, which continued mixed with the rest in
A.'s cistern; it was held to be a complete sale aitd delivery in
law of the ten tuns by B. to C. ; nothing remaining to be dom:
on. the part of the scllt-r, though, as between him and A., it
remained to be measured off (/).
SKCTJON 11.
Of Contracts for the Sale of Goods not in Possession.
AMONG mercantile men iti.s usual to contract for the '
t>f good* which thty have reason to expect will be consigned
(f) I Camp. N. P. C. 513. (A) 6 Em's Rep. 614. It Ibid. no.
\ fcmp. N. P. C. 140. (ij l Em's Rep. 614.
to
Sale and Purchase of Goods. 243
to them by their correspondents" abroad. And in this case
the contract is complete., though the execution of it is super-
seded.
Thus, if a contract is entered into for the sale of goods by a
particular ship on arrival, it means on the arrival of the goods
which the ship is expected to bring ; and if the ship arrives
empty, without any default upon the part of the vendor, he
is not liable to the purchaser for the non-delivery of the
goods (k}.
So, if the vendor contract for the sale of all the goods
which his agents abroad may send by certain vessels, yet he
will not be answerable to the vendee for more than has been
actually shipped on his account. Thus, A. sold to B. all
the hemp that mighfc be shipped on board certain vessels at
Riga, not exceeding three hundred tuns, by C. the agent of the
concern. C. shipped on board these vessels only seventy-one
tons of hemp on account of A. ; but upwards of three hundred
tons on account of other persons. Held, that the contract
must be confined to such hemp as C. should ship as agent to
A. ; and that A. was not answerable to B. for more than se-
venty-one tons (/).
But in contracts of this kind, if the vendor absolutely
engages, that the goods agreed to be sold shall actually be
shipped, and the shipment is prevented by the seizure and
condemnation of them as enemy's property, he will be obliged
to make good the contract (ni).
SECTION in.
Of the Sale of Goods on Condition, or on Sale and Return,
IF goods are sold for such a price as A. shall name, when
A. shall have fixed the price, the contract is complete, and
if the vendor sells the goods between the time of the contract
and the ascertainment of the price, an action in the case lies
against him (n). But if the contract becomes impossible by
the act of God, or of the person who was to name the price,
as by his death, refusal, or the like, the contract is absolutely
void (o).
Where goods, are sold upon sale or return, no property in
such goods vests in the conditional vendee, until the comple-
(*) ^ Camp. N. P. C. 3a7 . (/) * Ibid. 56. () Ibid. 57. n.
{) Kit. 181. (o) Co. Lit. 206, b.
B 2 tion
244 Of Contracts for the
tion of the condition of the resale. But though whilst the
-goods remain unsold in the hands of such grnditional vendee,
no absolute property vests in him ; yet, umler the statute 21
Jac. 1, c. 19, s. 11, they will pass by assignment under a
commission of bankruptcy against him, as goods in his pos-
session, order, and disposition (p).
If goods be sold to a trader, with a proviso, that in case
of bankruptcy the vendor may retake them, such a condition
is void under the statute 21 Jac. \, c. 18, s. 1 1, if the goods
remain under the contronl and disposition of the bankrupt (q) ;
for the statute enacts, f< that if any person shall become
bankrupt, and at such time as they shall so become bankrupt,
shall, by the consent and permission of the true owner and
proprietors, have in their possession, order, and disposition,
any goods or chattels whereof they shall be reputed owners,
and tale upon themselves the sale, alteration, or disposition
as owners; that in any such case the commissk>ncrs, or tli*
greater part of them, shall have power to sell and dispose of
the same, to and for the benefit of the creditors who shall
seek relief by the commission, as fully as any other part of the
estate of the bankrupt."
SECTION IT.
Of the 11'arranty of Goods sold.
IN contracts for the sale of goods, it is constantly under-
stood, that the seller undertakes that the commodity he sells
is his own; and if it proves otherwise, and the \endee suffers
by UM; insufficiency of his (the vendor's) title, he may recover
a satisfaction from the vendor (/). Also, if upon (he sale of
any thing, the vendor warrant it to be i;ood, the law annexes
a tacit contract to this warranty, that it it be not so, he shall
make complication to the buyer (s). And therefore, if the
articles sold appear on delivery to be of a different quality
from that ordered by the vendee, or that he discovers some
latent imperfection which was visible to a man of ordinary
circumspection at the time of purchasing, he may, on the
immediate discovery of their not answering the order, returu
them, owl rescind the contract (/). But unless the vendor
(f) a Camp. N P. C. 83. (f) a Tiut. 176. (r) i Bl. Cam. 166.
(i~) IbiJ. (t) i Our;. N. P. C. 193.
C*]>
Sale and Purchase of Goods. 245
expressly warrants the article sold to be sound and good () ;
or that he knew it to be otherwise, and had used any art to
lo disguise the defect (x) ; or that it turns out to be different
from what the vendor represented it to be, upon the faith of
which representation it was bought by the vendee ( \j), the
vendee is without remedy ; for though it is a general rule of
law, that the vendor is bound to disclose to the buyer all latent
defects kno\vn to him ; yet the common law will not imply a
warranty, and the maxim of law is caveat emptor (r).
The warranty must be upon the sale ; if it be made after,
it must be reduced into writing, otherwise it will not be bind-
ing upon the vendor ().
In all cases of express warranty, if the warranty prove false;
or the goods are in any shape different from what the vendor
represents them to be to the buyer, the vendor is answerable
for their goodness. Thus if cloth is warranted to be of such
a length when it is not (6); that a horse is sound, and he
wants the sight of an eye (cj; or that wool is merchantable,
when full of moths (d); in these eases, . action lies to recover
damages for this imposition.
But a general warranty will not extend to guard against
defects that are plainly and obviously the object of one's
senses, or where the false representation of the vendor is
known to the vendee (e) ; as if a horse, with a visible de-
fect, be warranted perfect, or the like, the vendee has no
remedy (/).
The inserting of the name of an artist in a catalogue, as the
painter of a particular picture, has been held not to be such
a warranty as will subject the party selling to an action,
if it appears that he was mistaken, and only represented what
he himself believed, though such painting was not the work of
the artist, to whom it was attributed (g).
Neither does the law, upon a sale of goods by sample, with
a warranty that the bulk of the commodity answered the
sample, raise a implied warranty that the commodity should
be merchantable ; though a fair merchantable price were
given ; and therefore, if there be a latent defect then ex-
isting in them, unknown to the seller, and without fraud ou
(u] I Rol. Abr. p. go. tit. Action sur Cass, (PJ 4.. (*) Ibid. (P) 3.
(y) Ibid. 91. (P) 7. ' ^95) Noy's Max. c. 42. (a) z Bl. Com. 166.
JFitz. N,.B. 98. K.. (b) Finch. L. 189. (c) i Rol. Abr. 96 (Z. 1. 20).
(rf) Ihid-. -40.- (e] i Salk. 211. 10 Yes. juri. 507. (f) Kit. 174. b
(^ i Esp. N. P. C. 572.
* his
246 Of Contracts for the
his part, he is not answerable, though the goods may turn out
to be unmerchantable (A)
But a sale of goods by sample is such a warranty, that if
the bulk do not accord \vith the sample, the purchaser is not
bound to accept or pay for the goods on any terms ; although
no fraud was intended on die part of the vendor, a>
though there mav tM-u an usage in the particular trade lor
the vendor, on payment of the difference arising from the in-
feriority of the sample to the bulk, and which difference waa
estimated by sworn brokers, to compel the vendee to stand to
the bargain (/).
But if goods are delivered genetically of the sort ordered
according to the sample, and paid for, however bad their
quality may be, and although they are wholly unlit for use.
yet no action can be maintained to rccovt-r back the pi ice ;
but the vendee must sue upon the warranty, that tin- bulk \\as
equal to the sample (k). And if a party purchases an article
at a certain price, pursuant to a specimen e.\lnbiled, and, on
delivery, it is found to be of an inferior quality, in an action
for the price, he cannot set up the inferiority of it as a de-
fence; he should return it, and rescind the contract t:i
toto (/).
SECTION T.
Of the Stoppage of Goods in Trarifitu.
\VITEN goods have been consigned upon credit, and the
consignee has become a bankrupt or :\. ':. int !> :->re the dc-
of the goods, the law, iti order to prevent the loss- that
would happen to the corisigiior by the delivery cf thorn,
permits him, in many cases, to resume the -n, by
countermanding the del jury, and before or nt their arrival
at the place of destination, to cause them to be delivered to
himself, or to .some other for his use. Tin-
\\hich the consignor has, upon the y of tin
signce, and if the mil price if, !' r- <uming
the possession of his goods dm ing their transit to the place
of destination, is technically called .stoppage in transitu
(k) % SvtXR'p. 314. (i) i C*p. N. P. C. 113. (*) a Ibid. 416.
(/) 4E;p. N. I'. C. 95. (m) iSclw.N.P. 1171.
Sale and Purchase of Goods. 247
This practice, which is founded on principles of natural
justice and equity, was first sanctioned aiid established in the
court of chancery (#), ami has been subsequently recognized and
adopted by a variety of decisions in the courts of law. And
to entitle the consignor to this right, an actual possession of
them is not necessary to be obtained; a constructive possession
will be sufficient, such as a claim or the like by his agent (o).
The i ight of the vendor to stop goods in transit it, in ca.se of
the insolvency of the vendee, is, in the language of Lord
Kenyon, a kind of equitable lien adopted by the law for the
purposes of substantial justice, and docs not proceed on the
ground of rescinding the contract. Hence, the circumstance of
having paid in part for the goods will not defeat the vendor's
right of stopping them in transitu ; for the vendor has a right
to re take them, unless tle full price of the goods has been paid;
and the only operation of a partial payment is to diminish
the lieu, prq tttuto (p).
But notwithstanding the consignor may, while the goods
are in ttansitu, divest the property in them which has passed
jto another, by putting them in a course of conveyance, and thus
revest it again in himself; yet by the general law of England,
when goods have been delivered into the actual or construc-
tive possession of the buyer, they cannot be reclaimed by
the vendor; the property has completely passed from him,
and vested in the vendee, against whom the only remedy is an
action to recover the price.
The law of England however (though as between its own
subjects, the transfer of property is considered to be com-
plete by sale and delivery alone, even without payment pr
security for the price), will lend its aid to carry into effect the
more enlarged rule of equity, which exists in another country,
upon a transaction taking place there. Thus, where a ship
was chartered by the consignee, and a delivery was made on
board the same in Russia, and by a law of that country the
owner of goods, in case of the bankruptcy of the vendee,
may sue out process to retake his goods, and retain them till
payment; and the owner hearing of the insolvency of the
vendee, applied to the captain, on board whose ship the goods
"had been delivered, to sign ihe bills of lading to their order,
which he complied with ; it was held, that this was a substan-
tial compliance with such law ; and that the captain, on his ar-
(n) aVern. 203. I A*. *J. Ambl. J^. () zEsp.N.P.C. 613.
{/>) 7 T. R. 44-
rival
248 Of Contracts fir the
rival in England, -was bound to deliver tin- goods to the
of the vendors, and not to the assignees of the vendee, \\lio
had become a bankrupt (q).
We shall now proceed to enquire by \vhoin and under vlmt
circumstances this right way be exercised; ami lor this pur-
pose shall consider, 1st. Under what circumstances good-*
are deemed to be in trantitu. 2dly. 15y \\hoin this light
may be exercised. 3dly. When the transitus shall be on.si-
dered as determined. 4thly. By what acts the right of the
consignor may be defeated during the transit.
1st. then, Under what circumstances goods are deemed to
be in tramitu.
As under what circumstances the transitus shall be con-
sidered as continuing, it is a general rule that the transitus in
goods continues in all ca c es until il,t re hn hern an actual de-
livery to the vendee. .And therefore,' goods continue liable to
the vendor's right of stoppage in transitu, not only while
they remain in the possession of the carrier, whether by land
or water, but also in any place connected \\itli the transmis-
sion and delivery of them to the consignee (;).
So if goods consigned to the vendee arc delivered to a
wharfinger, and he receives them on the part of the vender to he
forwarded to him accordingly ; on the insolvency of the vendee,
they are subject to be stopped by the consignor in the hands
of the wharfinger (s) ; and the law is the .-aim- in ci
livery to a packer (t) ; even though the carrier, wharfinger,
or packer, should have been appointed liy tin- >cudce(r).
Before the case of Inglis and Underwood (H,, a di.xtinetinn
was taken between goods imported in a general ship, ami a >hi[>
chartered by the consignee for a particular \o\age, as to the
consignor's right to stop in trausitu; it being supposed that the
right of stopping I'M transit n did not apply to the case of i;oods
shipped on board a \e?sel vJiolly chattered by the consignee.
By the case, however, of Bohtlingkr. Inglis ( < \aiul \\1 :<. \\ I
out of the same transaction, it was held, that the delis 1 1 y < t tit
goods on board a ship, wholly chartered by the <. -;i v^m < ,
does not, in rase of the insolvency of the \em .mle
the right of the eon>igu<ir t<> stop the unoe.*, \\hile /// tnni-
titu, on board such ship, before actual diliv
(f) I EiifuRep. 51$. tr) jEiit'iRep. 397. (i) i Boi.and Tut. 457.
(0 ] T. R. 467. (t/) i Camp. N. P.C. 281, . 3 T. R,j6 3 . 7 IbiJ. 440.
(u) l Eau'iRep. 515. (*) 3 Eau'i Rep. j8|.'
tl-aii
Sale and Purchase of Goods. 34<)
thtm if they had been delivered on board a general ship for
the same purpose.
To deprive the consignor of his right to stop in transilu
the ship on board of which a cargo is consigned, must have
completed her voyage before the transitus can be completely
at an end : and therefore, where a ship which ought to have
performed quarantine, tame into port without doing so, and
the assignees of the consignee, who had received the bill of
lading, but had become bankrupt, went on board, and took
possession of the cargo as part of the bankrupt's estate, but
the ship being afterwards ordered out of port to perform qua-
rantine, an agent of the consignor, during the performance of
quarantine, claimed the goods on behalf of his principal;
it was held that the right of the consignor to stop the goods,
in transitu, existed when the claim was made on his be-
lialf, because the voyage was not at an end till the performance
of quarantine (</).
When goods consigned, but the duties not being payed,
are lodged in the king's stores, the consignor may stop them
in transitu, if he claims them before they are actually
sold for the payment of the duties ; or if sold, he is entitled to
'the proceeds (2).
2. When the transitus shall be considered as determined.
When the transitus shall be considered as complete, anel
the delivery of such a nature as to divest the vendor's right of
stopping in transitu, will appear from the following cases :
In a case of goods sent by a waggon, which on their arrival
in London at the inn, where the \\aggon usually put up,
were attached by a process of foreign attachment, at the suit
of a creditor of the vendee, and which, while remaining in
that situation at the iim, were claimed by the assignee of the
vendee, who had become a bankrupt before their arrival in
London, and marked by the assignee ; it was 1-eld that the
vendor could not afterwards countermand the delivery ; for,
from the impracticability of removing the goods on account of
the attachment, on their arrival at the inn, they had attained
their ulterior destination, and were no longer in transitu ;
and that the assignee, who was clothed with the rights of the
bankrupt, had, by putting h:s mark iipon them, done what
was'equivalent to taking actu;;l possession ().
Where a part of the gooii^ sold by an entire contract has
come to the actual possession, the vendor's right to coun-
p-) i Esp. N. P. C. 240. (*) a Ibid. 613. () 3 T.R. 464.
tennand
250 Of Contract* for the
termand is wholly at an end, and cannot be exercised over the
residue which may not have been delivered (b\
D livery of goods on board a ship wholly chartered by the
consignee, will not, as we have seen, divest the cou^ignoj 's right
to stop the goods while in the handj of the earner, But
where a ship had been hired by the consignee for a tern) of
years, who during that lime had the entire disposition and
controul over such ship, having fitted* victualled, and manned
her, -pods delivered on his account on board, on a mercantile
adventure, cannot be stopped in transit u; the con>ignee being
iit such case the owner of the ship pro temjwe, and the de-
livery of the goods on board thereof being equivalent to a
delivery into the consignee's warehouse (r).
From the cases of Mills v. Ball, and Hunt r. Ward(*c), \ve
have seen that where goods have been delivered to a packer
or \\harfingcr, to be forwarded to the consignee, and this
packer or wharfinger may be considered merely as a middle
man, the transit us is not at an end by such dtli\ CT\ , But when
the consignee uses tlie warehouse of the wharfinger, pucker, 8tc,
i< uv. u, and has the goods sent thither as the place of their
ulterior destination, the traiisttus vsill be considered as at an
end when the goods have arrived at such warehouse ; and
consequently the right of stoppage in tran&itu has ceased (d\
Whre goods have so far arrived at the end of their jounuy,
that they wait for fresh orders, from the purchaser to put them
again in motion; as where goods ordered for the purpose
of being sent abroad, have come to the hands of an agent
ol the vendee, in whose hands they were to remain until tin:
agents received orders as to their ulterior declination; the
Tight to stop in transitu is gone ou the ariival of the goods at
the hands of such agent. Thus,
Where A. and B. traders in London, were in the course of
ordering goods of the defendants, cotlon-manufaclurt is at
Manchester, to be sent to M. and Co. at Hull, for the pur-
pose of afterwards being sent to the corrc.sponde-nts of A. and
B. at Hamburgh ; it was held, that us between buyer and
filer the rip hi of the dde.,)iia:ii to >top while in trunsitu
wa-i at an end when the gwnN raine to the j , of M.
and Co. at Hull; for they weie for that purpose the appointed
Js of the veiide- >, and ie< i-ived order* fmni tin m as to
ulterior destination of the goods; and the goods alter their
(J) a Hen. Bl. 504. i Boi. and Pul. N. R. 69. (0 7 T. JR. 44*- i Et*i
.4, 3 Ibid. 38*. (0 2 Boi. Pul. 457. 3 T - IL 4^7-
B5. and Ful. 469. 3 Ibid. JJO.
/J) 3 B
'
arrival
Sale and Purchase of Goods. 25 1
arrival at Hull, were to receive a new direction from the
vendees (e).
Lord Ellenborough in giving judgment in this case, said,
(adverting to the case of Hunter and Beale before mentioned,)
I cannot but consider the transit as having been once com-
pletely at an end in the direct course of the goods to the vendee,
i. e. when they had arrived at the innkeeper's, and were after-
wards, under the immediate orders of the vendee, thence
actually launched again in a course of conveyance from him,
in their way to Boston ; being in a new direction prescribed
and communicated by himself. And if the transit be once
at an end, the delivery is complete, and the transitus for this
purpose cannot commence de tiovo, merely because the goods
are again sent upon their travels towards a new and ulterior
destination.
The facts of the case of Hunter and Beale were shortly these:
A bale of cloth was sent by Messrs. Steers, and Co. of Wake-
field to the defendant, who uas an innkeeper, directed to the
vendees, (Blanchard and Lewis) to whom the defendant's
book-keeper gave notice, that a bale of cloth had arrived for
them. Blanchard and Lewis gave orders to the defendant's
book-keeper to send the bale down to Galley Quay, in order
to ship it on board the Union, to be carried to Boston. The
defendant accordingly sent the bale to the quay; but it arriving
too late to be shipped, was sent back, and continued in the
defendant's custody ibr the purpose of being sent by another
ship, before which could take place the vendees were declared
bankrupts. It was held by lord Mansfield, that the vendor's
right of stoppage in transitu was not divested thereby; and
that to produce this effect, there must be an absolute and
actual possession by the vendee : a delivery to a third person
to convey to him not being sufficient.
To defeat the right of the vendor to stop in trarisitii, it is
not necessary that the goods should be delivered at the vendee's
place of abode; it is sufficient if they come into his possession,
and that he has .exercised any act of ownership over 'them,
(as by tasting and sampling them, and paying warehouse rent)
though at a place short of their original destination (f).
So, if after goods are sold, 'they remain in the warehouse of
the vend r, and he receives warehouse rent for them, this
amounts to .such a delivery of the goods to the vendee, so as
to put an end to the vendor's right to stop in tmnsitu (g).
(e) 5 East's Rip, 175, (/) 4 Esp. N. P. C. 82. (g} I Camp.
N. P. C. 4S i.
And
Of Contracts for the
And if the goods have been actually delivered to the cnn-
Mguee, the consignor cannot reclaim them, though the bill
of la i: \ is for delivery to the consignor, and wu:< uniu-
dorsed, and aie bill of exchange drawn for the price has been
dishonoured* Thus,
The consignor of goods abroad, upon a receipt of orders
from a correspondent in England, ships goods on account and
at the risk of (lie consignee, and takes bills of lading from
the captain, mukiirj the goods deliverable to the consignor's
m\u order, and transmits one of such bills unmdorsed \vith
the invoice inclosed in a letter to the consignee, informing him,
that he h:id drawn upon him for the amount, which he
doubted not would meet due honor and close the account, and
the consignor, by way of precaution, also sent another bill of
lading indorsed to his own agent. Held that upon tin- ship,
ment on account and at the risk of the consigner, the pro-
pi i ty in the goods vested in him, subject only to be divested
Ly the consignor's stopping them while in transitit ; and that
upon the arrival of the goods, the consignee having obtained
possession of them from the captain by the production of his
unindorscd bill of lading, the property became absolute in
the consignee, however wrongfully parted with by the captain
without a competent authority b\ the .shipper, and how vrr
answerable the captain might be to the shipper on that
account (//).
3. By \\hcm the right of stopping in transitu may be exer-
cised, and under what circumstances.
To entitle any one to exercise this right, he must stand hi
the relation of vendor to the bankrupt and therefor*' a mere
stnety for the price of the goods, is not such a vendor quoad
the consignee ;is to exercise the right of stopping /// tninaifn,
i ihou-h ho may be entitled to a commission on the amount
of the good< i';ir which he had lucii S( r;uity (/).
liut \\here a cone-pendent abroad, in pursuance of <
fium a merchant in this country, purchasrs goi.ds on his own
rnciit, and merely takes a eommis-ioi) on the price, incase >i
the m "I-ency of the c'niMunee, he is to be considered as the
ytnd', r i'jr tli'- purpose of stopping the goods /'// Irnmitit, for
th re v.us no privity bit\\in the original own-r ol" th-- -.-.oils
and the bankrupt (/V). . ,
So also is a person \\ho consigns goods to be sold on the
jo-int account of himself and the n.iM'j.iee (/).
.
<c) 4 Km*. Rf p. an. (!) 6 Ibid. 37*. (J) 3 Ibid. 93.
, Ibid. ij.
\\ !
Sale and Purchase of Goods. 253
Where goods are consigned in pursuance of an agreement
between the consignor and third persons, to be applied in the
execution of a certain trust, as to indemnify against accept-
ances, pr the like ; on the failure of the consignee in trust,
the consignor cannot countermand the delivery, while the
trust and object of the consignment remain unsatisfied (m).
Neither can the consignor repossess himself of goods during
their transit, which have been sent by order of the consignee,
on his account zlhd at his risk, and to be paid for at the ex-
piration of a limited credit, or by bills at a given date, the
consignee being willing to accept the bills and remaining
solvent ().
But in case of the failure of the consignee, a payment by
bills for the amount of the goods, and accepted before his
bankruptcy, will not defeat the consignor's right of repossessing
himself of the goods during their transit, although at the time
of such repossession the bills were not due ; for though such,
bills may be proved under the commission against the con-
signee, it will amount but to a partial payment (o).
So where the consignor has a right to stop goods in transitu,
such right is not affected where a part of the price of the goods
has been paid by the consignee ; for part payment only
diminishes the vendor's lien, pro tanto, on the goods de-
tained (p).
Nor is the right of the consignor to stop in tramitu affected
by any claim made upon the goods in their transit by a cre-
ditor of the consignee, as where the goods had been attached
by process of foreign attachment at the suit of such creditor;
for the vendor's right of intercepting the goods being the elder
and preferable lien, cannot be superseded by the attach-
ment (q).
This right of stoppage in transitu ran only be exercised
where the relation of vendor aud vendee subsists between the
consignor and consignee; it does not belong to a person who
has only a lien upon the goods without any property in them.
And therefore if a person, who by local custom has a lien for
his general balance, or is entitled to retain the particular goods
until his demand for rendering them merchantable is paid,
parts with the goods in pursuance of the orders of his em-t
ployer, he cannot countermand the delivery; for his lien and
right to retain the goods only continues while they are in his
() I Boi. and Pul. 563. (n) 3 East's Ep. 584, (o) 3 Ibid. 93.
(?) 7 T. R, 44* (?) * Camp. N. P. C. a3.
54 Of Contracts for the
possession, and the moment he parts with the possession, in pur-
suance of the order, and on the account of his employer, his
lien ceases, and consequently the right of stopping them in
t ran.fi tu (r).
Neither is this right of the consignee defeated by an usage
for carriers to retain goods as a security for the general balance
of account due to them by the consignee; but the consignee
will be entitled to reclaim them out of their hands, on pay.
ineut of the price of the carriage of the particular goods, and
a tender of indemnification to them (s).
Nor will a similar usage, when the carriage is to be paid by
the consignor, authorize the carrier to detain goods from the
consignee who has paid the price for them (t).
With' respect to the legality of the consignee's redclivery of
the goods consigned, in case of bankruptcy, to the consignor,
the cases on this point seem at variance. In order to divest
the property of goods in trantitu out of the consignee, the
act of repossession must be adverse on the part of the con-
signor against the coivM-ueo; an amicable agreement between
them will not have that effect in case of the failure- of the
latter. In the case of Sitlkcn and NVray (//), where a con-
signee, after an act of bankruptcy, delivered up the bills of
lading to his agent, upon his undertaking to apply the p
of the goods in discharge of bills of exchan lor the
piice; and h? accordingly took possession of the goods by the
consent of the vendee, who had become a bankrupt; it was
held that he could not retain them against the assignees of the
bankrupt, although the original consignor approved of the ar-
rangement, there being no adverse stopping in transit a. But
in the case of Mills v. Ball (x), where the consignee of goods
being insolvent, and having committed an act of bankruptcy,
informed the consignor of his circumstances, and refused to
receive the goods; in consequence of which the consignor
i. JH.-M --.-ed himself of the oods whilst in tramitu; it was
In M, that such repossession was valid, and that the information
n by the consignee was not an undu< \>\< _iven by
the bankrupt to the consignor over the irst of the creditors.
The distinction between these cases, Mr. Ro- . m
his Law of Vendors and Purchasers, p. 214, i e spue.
" In Siffken 0, \\ia-. , the possession of the coiiMjnior \
obtained A// r/u' act af the bankrupt, who drliven d up the
bill of lading, without which (for the agent had i>o duplie.-.
(r) 3 .. Rep. 4. (,) 3 Boi . and Pul 41. (i) a Ikid. N. R. 64.
(*) 6 Ean'i Rep. 37. ( x) z Boi. and Pl. 457.
the
Sale and Purchase of Goods. 255
&e goods could not have been stopped ; whereas, in the last
case the stoppage was only effected through the means of tht
bankrttpt, as by his giving notice." It is remarkable, that in
the .case of Mills v. Ball, Mr. Justice Rooke said, " In what
manner the information was obtained can make no dif-
ference."
Where the vendors hold possession of goods upon a claim
of right to stop them in transit u, though in point of fact at
the time of the seizure the transitus was at an end, it is com-
petent to the vendee, though insolvent, but who had not at the
time committed an act of bankruptcy, to give up such goods,
provided the delivery is bond jide, and not from any motive
of voluntary and undue preference; and the fairness of the
transaction may be evidenced by the vendees having called u
meeting of their creditors, by whose advice they were encou-
raged to deliver up the goods; for until an act of bankruptcy,
the jus disponendi over goods remains by la\v with the trader,
unless in contemplation of bankruptcy he exercise it by way
of a voluntary and fraudulent preference of a particular cre-
ditor ( j/) .
Lastly, we have to consider, by what acts the right of the
consignor may be defeated during the transit.
In the consideration of this division of our subject we shall
have to enquire how far the negotiation of the bill of lading
may tend to defeat the right of stopping in transitu. And for
this purpose we shall first advert to the different forms in com-
mon use.
Sometimes a bill of lading is made for delivery to the con-
signor by name, or assigns ; sometimes to order, or assigns, not
naming any person ; and at other times, to the consignee by
name, or assigns. Jn the two first cases, the consignor either
transmits it without any indorsement, or indorses his own name
generally upon it, without mentioning any other person ; or
indorses it specially for delivery to a person named by the in-
dorsement (z).
The mere possession of a bill of lading, made for delivery
to the consignor, and not indorsed by him, will not authori/e
the holder to dispose of the goods. But on the other hand.,
if the bill of lading be originally made for delivery to the
consignee, or being made for delivery to the consignor or
assigns, or to order or assigns, be indorsed by the consignor,
either to a third person by name, or generally without de-
(y) 5 East's Rep* 175. (*) Atbott on Merchant Shipping, 365.
signaling
25fJ Of Contracts for the
signaling any person, the consignee named in the bill of lading,
and holding it indorsed in blank, has authority to transfer his
property in the goods (a).
In commercial transactions it is usual for the consignee,
having received the bill of lading, to sell the goods, or to rai*e
money upon them, before their arrival, and indorse and deliver
over the bills of lading to the vendee; by which endorsement
and delivery the property in the goods is transferred to such
other person (6).
This practice of assigning bills of lading by the consignee
to a third person, who may be totally ignorant of the nature
and terms of the consignment, and may not know that the
consignee is not absolutely entitled to receive and dispose of
the goods, has given rise to a very important question of law,
as to the right of the consignor to countermand the delivery
as between him and the person to whom the assignment was
made, without any fraud or collusion (c).
The earliest mention of this subject in our law books (as is
observed by Mr. Abbott) is in the case of Evans r. Mar-
lett(J), in which Holt, C. J., said, " the consignee of a bill
of lading has such a property that he may assign it over.*'
But in this case, as well as in the subsequent ones (("), the
question upon the effect of such an assignment not being pro-
perly before the court, there appears no direct evidence of the
legality of the transfer until the case of Lickborrow and ano-
ther v. Mason and others, reported in 2 T. R. 63. In that
case it was decided, that a bill of lading is a negotiable and
transferable instrument, by the consignee's endorsing his name
on it, and delivering or transmitting the same to the person to
whom it is endorsed ; and that by an assignment made by the
consignee, for a valuable consideration, where the transaction
vas bona Jide, and the assignee has no notice that the goods
are not paid for, the property is absolutely transferred to the
assignee, and that the consignor is by such assignment deprived
of the riujit to stop in Iransitn, which as against the original
consignee he might have exercised.
So the mere circumstance of the indorsee's knowlt <:
the time the bill of lading \\as indorsed and delivered to him,
that the convenor had not received pavmenl in money for his
goods, but hud taken the consignee's acceptances, payable at 3
(<0 Abbott on Merchant Shipping, 366. (J) ViJ< j T. P. 6Sj, and
1 Boi. and Put. 563. (.-) Abbott on Merchant Shipping, 367. (4} I 14.
Rjym. a; i. (<) Abbott, 368. 4 Burr. 1046. i Bl. Rep. 6*8. i T. K.
205.
future
Sale and Purchase of Goods. 257
future day not then arrived, is not sufficient to invalidate the
title of the endorsee, if the transaction was bond fide, and
the assignment made for a valuable consideration (f).
The legal title, however, of the indorsee of a bill of lading
may be defeated on the ground of fraud as between him and
the consignor, who in such case may repossess himself of the
goods (g);
To enable a consignee to assign a bill of lading, an endorse-
ment and delivery must have been made to him. There may,
however, exist special circumstances which may be tantamount
to an endorsement and delivery, which may enable the con-
signee to do this. As where the consignors sent a bill of
lading not endorsed to their factors, but having the names of
the factors on the back, and being applied to by them for an
endorsement, answered by letter, that if the bill of lading was
not endorsed, it was a mistake, and they would send an en-
dorsement : held that a letter of this kind was a sufficient
transfer of property, and amounted to an endorsement, so as
to enable the factors to transfer the property in the goods (A).
But if there be no such facts, and the bill of lading be for
delivery to order or assigns, and transmitted unendorsed, the
consignee cannot, by a transfer of the property in the goods
to a third person, although such assignment be for a valuable
consideration and without fraud, divest the right of the con-
signor to stop the goods 'in transit u (i).
SECTION VI,
WHERE no time of payment is specified in the contract of
sale, the money is demandable immediately upon the delivery
of the goods () . But where the term of credit is specified,
as where acceptances are given by the vendee for the value of
the goods, or where a period is fixed for the payment, without
the vendee being required tt> give any negotiable security in
the mean time, the contract being executory on the part of the
veadee till the time of such acceptances becoming due, or till
the expiration of such period of credit, the vendor cannot
maintain an action for the value of his goods in the interim ;
(/) 9 East's Rep. 506. (g) 4 Bur. 2046. al'. R, 674. (b) Peake's
V. P. C. 189. (i) Abbott on Mrehant shipping, 377. (*) i Salk. tij,
S though
CJ8 Of Contracts for the
though \\here by the terms of the sale the vendee is to give his
jiccvpianct- for the value of tlie good* at any Driven time, and
omits or refuses 'fed to do> the vendor may sin: f(r the breach
of contract of non-acceptance. Thus, where goods were sold
upon a contract that the vendee was to p ty for tliem in three
months bv u bill at two months, it was held, that the contract
\vas for a credit of five months, and therefore that axsuiiipsit
for goods sold and delivered conld not be brought at the end
of three months upon the negla t of the vendee to give his
bill at two months; the remedy being by a special action on
the case for damages for the breach of contract in not giving
such bill (/)
But whore the goods had been sold at two months' credit,
to be paid for by a bill at twelve months, and more than
fourteen months had expired betuecu the delivery of the
goods and the commencement of the action, an action for
goods sold and delivered is maintainable (/)
I'ut though where credit has been given at the time of the
sale of goods, no action lies till the expiration of the time
given, yet if the credit ;:iven was a voluntary act of the vendor,
subsequent to, and making part of, the original contract, or that
the purchase was not bnna fide on the part of the vendee, it
may ;it any lime be revoked (//), unless in such case the vendor
take? a bill or note payable at a future day; and then he can-
not commence an action for the original debt until the time
the bill or note has to run', if the bill or note is a valid se-
curity (o).
In some branches of trade, custom has fixed one universal
standard as to the period of credit upon sales of goods;
and upon sales in the usual c< iir--e of sueh trades, where no
specific stipulation is made in the con'.ract, this customary
credit is as much a part of the contract as if expressly agreed
upon, the h\v implying that all pel n^ deal according to the
general u>:;v, unless the contrary appears.
Where I ; ins of the contra* a part of the money is
paid in hand, and a security for the remainder is taken at a
future day, but which securit) is gi\ n ,,i: a v re-ug stamp, the
wti !.)! cannot sue. til! .lc period >J p:t\iucnt to be gi\eii by
the security arrives (;>).
So where the vein i'M - >ds at a
certain price within a limited time, he cannot demand payment
(/) 4 E** Prp. 147. j I! $5)2, tm] t Bo. and Pul. N. R.
1^3. (*) Ibid 4jO. (o) ltJ. J. (t; ;'. C. 317.
Sale and Purchase of Goods*
till the whole of the goods are delivered ; for the contract i
entire, and cannot be split, and therefore no action lies until
ihe whole quantity is delivered, or until the time for delivering
the whole has arrived (q).
The permission of the vendor for the purchaser to carry
away part of the goods without payment is no waiver of the
vendor's right to be paid for goods on delivery; such permis-
sion is only a dispensation pro tanto, and the vendor is entitled
at any time to stand on his right to be paid according to the
contract (/').
Whether interest ought to be allowed upon a demand for
goods sold and delivered, some contrariety of opinion has sub-
sisted. The law respecting this matter may, however, be col-
lected from what fell from Lord Ellenborough in the case of
De Haviland v. Bowerbank (s). His lordship laid it down as
a general rule, " that interest ought to be allow r ed only in caset
where there is a contract for the payment of money on a cer-
tain day, as on bills of exchange, promissory notes, &c. or
where there lias been an express promise to pay interest ; or
where, from the course of dealing between the parties, it may
be inferred, that this was their intention ; or where it can be
proved that tfee money has been used, and interest has been
actually made. In the case of Gordon v. Swan (0> his lord-
ship observed, that what he suid as to payment to be made on
a certain day must be understood to refer to written contract*
only, .such as bills of exchange, promissory notes, &c.
By the abovementioned case of Gordon and Swan it ap-
pears, that interest is not allowable on a demand for goods
sold and delivered, unless a bill of exchange had been agreed
to be given for the payment of the goods, and then the vendor
will be entitled to interest for the price of his goods from the
time the bill would have become due ().
So where, from tlie usage of a particular trade, the intention
of the parties that a book debt shall bear interest can be col-
-Jected, interest will be allowed (JT)
(?) 2 Bos. and Pul. N. R. 6r. (r) i Camp. N. P. C. 427. (*) Bid. 51-
(t) 11 Bast's JUp. 4,19. \u] 1 3 Ibid. >8. (*) Doug. 376.
260 Of Contracts for the
SECTION VI!.
Of the Avoidance or Alteration of to Contract.
A CONTRACT of sale Cdnnot bo rescinded but by the mutual
consent of the contracting parties, or by the original terms of
the contract: it is not in the power of one alone to do it, un-
less both parties can be put in statu quo as before the con-
tact ( y).
And if one of the contracting parties assents to the contract
being rescinded, if the other party does any act which show*
his affirmance of the contract, the contract will be deemed
complete. Thus, where the vendee of goods, being appre-
hensive of his insolvency, sent word to the vendor to take back
his goods, but the vendor instituted an attachment to attach
the goods in the hands of a packer as the property of the
vendee, it was considered as an election by the vendor not to
rescind the contract ; and the vendee having since become a
bankrupt, it was held that the vendor could not recover the
goods from the packer in trover.
But though the renunciation of the contract by the vendee
\villnothavetheeftect of revesting the property in the vend >r,
if he has done any act by which he shows that he considered
the goods as the properly of the vendee, yet it has been de-
cided, that if goods are bought by an agent for the vcndi-e,
and delivered by him to the vendor's packer, in whose hundtf
they are attached by the vendee's creditors, the property re-
vests in the vendor s-> as to avoid the attachment by the ven.i
having countermanded the purchase by letter to his :sent, dale.d
before such delivery, though not received till at'irruanls, the
vendor assenting to take back tin: goods (:).
So where the goods were sent by the vendee to a third per-
son, and accepted by him to the use of the vendor before, the
bankruptcy, although notice was not sent to the vendor, f
auch a deliver}' to 11 after the bankruptcy, it was held
a sufficient countermand and reliiujuishrnent by the vendee, so
as to re\cst the property in the vendor (a).
I ] 'on a bargain for the sale of goods, if the vnnK-e doet
not come and pay for them, aud take them away in a reason*
(j) 5 T. R. 4<?z. i JbiJ. 13 j. 5 L;;'i Rep. 449. (*) 5 T. R. an.
(a) l Su. 165.
bie
Sale and Purchase of Goocls. 2(>1
able time after request, the vendor may elect to consider the
contract as rescinded, and resell the goods (b).
So where some act is to be done by each party under a
special agreement, and the vendor by his neglect prevents the
vendee from carrying the contract into execution, the vendee
may rescind the contract. Thus, where the defendant agreed,
on the 6th of June, 1791> to sell to the plaintiff all his cord
wood then growing at II* 1 . 6d. per cord, ready cut, which was
to be paid for by the plaintiff in March, 1792, and cut, corded,
and cleared off the premises by the defendant by Michaelmas
following. It also appeared that the custom was for the seller
to cut off' the boughs and trunks, and cord the wood, and for
the buyer to record it, after which it became his property.
The defendant cut sixty cords, ten of which he corded, and
the plaintiff's recorded half a cord, and measured the rest.
On the 8th of March, 1792, the plaintiff paid the defendant
twenty guineas ; but the defendant neglecting to cord the rest
of the wood, the plaintiffs brought this action to recover back
the twenty guineas, as having been paid on a contract that
had failed ; and it w as held that they were entitled to recor
ver (c).
A contract for the sale of goods may also be avoided by the
statute of limitations, 21 Jac. 1, c. 26, or the time limited by
act of parliament, beyond which no plaintiff can lay his cause
of action. The use of this statute was to prevent the setting
up of stale claims, when perhaps all vouchers and documents
relating to the transaction were either lost or destroyed ;. or,
as Sir William Blackstone says, for preserving the peace of
the kingdom, and to prevent those innumerable perjuries
which might ensue, if a man were allowed to bring an action
for an injury committed at any distance of time.
By the statute of 21 Jac. 1, c. 16, s. 3, it is enacted, " that
all actions of account and upon the case, other than such ac-
counts as concern the trade of merchandize between merchant
and merchant *, their factors and servants, shall be commenced
and sued within the time and limitation hereafter expressed,
viz. the said actions upon the case, and the said actions for
account, 8cc. within six years next after the cause of such ac-
tions or suits, and not after."
It has been a subject of 'much controversy, whether the ex-
ception relative to merchants' accounts extends to all actions
(b) iSalk. 113. (c} 7T. R.iSi.
* The exception in this statute as to merchants' accounts is not lonfined mereiy
to persons of that description. Peake, N, f, C. izo.
and
202 Of Contracts for the
and accounts relating to merchants and merchandize, or to
actions of account open and current only ; the words of tho
statute being, u all actions of account and upon the case, other
than such actions as concern the trade of merchants;" so that
by the words " other than such actions/' not being actions of ac-
count, it has been insisted, that all actions eonccrning men hauls
are excepted. But it is now settled, that accounts open and cur-
rent only are within the statute ; that therefore^ if an account be
stated and settled between merchant and merchant, and a sun)
certain be agreed to be due to one of them, if in such case he
to whom the money is due dots not bring his acticr. \\ithin the
limited time, he 'n barred by the statute (//) ; but if it be only
adjusted, and a following account is added, in such case the
plaintiff shall not he barred by the statute, because it is a run-
ning account (e), It is a pretty difficult construction, said
Lord Hard\\icke, in the case of VVelford v Liddel (f), how
to apply the exception in the statute relating to merchants'
accounts. It is not, that the defendant may not plead the
statute in all casts \\here the account is closed and concluded
betv.t en il: parties, and the dealing and transaction over. It
v as not the meanii.g to hinder that ; but it was to prevent diridhig
the account between merchants where it was a nttiniug account,
vhen perhaps putt might have been long before the time of
the statute, and the account never settled, and perhaps there
jn'tght have been dealings and transactions nithin the time of
the statute.
So if thtre be a mutual account of any sort between tb
j>lamtiO and defendant for any item of which credit has been
given within six years, thut is evidence of an acknowledgment
of there being such an open account between the parties, and
a promise to pay the balance, as to take the rase out of the
statute (#).
So \\lieie there is a mutual unsettled account and reciprocal
demand?, tin- statute of limitations does not attach (//).
But where nil the items are on one side, as in an account
M:ian and his customer, the last item \\lmh
h ippcm to be within -it \ears .shall not dravs after it those
v I.irh are of a larger standing, but the .statute will bar those
beyc'iid six years (').
To i'ie plea of the statute of limitations the courts li: ( \o
|ho\\n i'. h diS'-otmtenance tliat it has been held, that the sfitut*
-* -J '24, and the casrt cited in note 6. (/) a Mod. 311.
(f) 6T. R (b\ I' ' \. l'. c. no.
1,3 (<) Uul, N. T. 145, ut ufM. 6 I. K. jy.
Sale and Purchase of Goods. $63
does not extinguish the plaintiff's right of action, but sus-
pends the remedy only, and that this suspension is capable of
being removed by a subsequent promise on the part of the
defendant within the limited time. In Hyleingu. Hastings (A - ),
Lord Holt said, " Doubtless an express promise will revive the
debt, though it were twenty years after." And not only an express
promise, but any acknowledgment of the existence of the debt,
however slight, will take it out of the statute, and the limitation
will rim from that time. Thus, " Prove your debt, and I will
pay you(/); I am ready to account, but nothing is due;" " I
do not consider myself as owing Mr. B. a farthing, it being
more than six years since I contracted ;" " 1 have had the wheat
I acknowledge, and have paid for some of it, and 26 1 /. re-
main due" (m) : and much slighter acknowledgments than these
will take a debt out of the statute (w).
The statute makes an exception for all persons who shall be
under age, feme-coverts, non compos mentis, in prison, or
abroad, when the cause of action accrues, and the limitations
of the statute shall only commence from the time when their
respective impediments or disabilities are removed, sec.?. But
if one only of a number of partners lives abroad, they rmis,t
bring their action within six years after the cause of it ac-
crued (o).
A contract may also be avoided on the ground of fraud ;
for either suppressio veri or suggest io falsi is a good reason to
set aside any contract (y/). And therefore where a party has
been guilty of any fraud in his dealings or accounts the courts
of law and equity have determined, that he shall only protect
himself by the statute of limitations from the time his fraud
is discovered (q).
It seems proper to speak in this place of contracts for the
sale of goods entered into by a debtor with intent to defraud
his creditors.
All contracts entered into for the sale or assignment of
goods, where the vendor is suffered to remain in the possession
of them, are, by the statute 13 I^liz. c. o, void as against
creditors. The words of the statute are, " It is declared; or-
dained, and enacted, that all and every feoffment, gift, grant,
alienation, bargain, and conveyance of lands, tenements, here-
ditaments, goods and chattels, or any of them, or of any lease, Sic.
that then was, or at any time thereafter should be had or made,
(k) LA. Raym. 389. (/) I Salk. 29. (m) 4 East's Rep. 599.
() Cowp. 548. (o) 4T. R. 516, ($} i P. Wins. 240. (j) 3 P. Wi,
143. Doug. 630.
to
6*4 Of Contracts, $c.
to or for any intent or purpose before declared and expressed,
should be from henceforth deemed and taken (only as against
that person or persons, his or their heirs, successors, executors,
administrators, and assigns, and every of them, whose actions,
suits, debts, accounts, damages, penalties, forfeitures, luriots,
mortuaries, and reliefs, by such guileful covenants and fraudu-
lent devices and practices aforesaid, were, or should or might
be in any wise disturbed, hindered, delayed, or defrauded,) to
be clearly and utterly void, frustrate, and of no effect; ant
pretence, colour, feigned consideration, expressing of use, or
any other matter or thing to the contrary notwithstanding.''
In the construction of this statute it has been uniformly
held, that all transfers or assignments of property by \\ ay of
bill of sale will be fraudulent, and consequently void, as a-am-t
creditors, unless absolute possession * accompanies and fol-
lows the deed (r); and the case will not be varied if the cre-
ditor has suffered his debtor to continue in possession of the
goods, although hju had conditioned that the profits of the
trade should be accounted for to trustees from the date of
the assignment (s), or that he had reserved to himself the liberty
of taking possession of them within a stipulated time (t); or
that he had possessed himself of them, if he suffers the debtor
to exercise any act of ownership over them (M). So a bill
of sale to a particular creditor of all the effects of a trader,
in trust to satisfy his debt, and pay over the surplus (if any) to
the trader, is of no effect as a conveyance, though followed by
an immediate change of property (z).
But the not taking possession at the time of the con-
veyance, though it is in some measure -indicative of fraud,
is not conclusively so. For if a bill of sale be made, to take
effect at some future time, or upon condition, or if In
made under the authority of a court of equity, or by the
sheriff under an execution for a just debt, and so expn -- -tl
therein, the sale will not be rendered void by the \mdoi -'3
continuing in possession till the condition be performed (j/),
* When goods are either sold or mortgaged they ought to be delivered speti-
fically, or the key ef the warehouse where they are, &c. with the po- ,tmoa
thereof The delivery of the muniments, books, and writing* relating to rate*
in action is tantamount to a specific delivery. If a bond be assigotd, thr
limit be delivered, and notice mu*t be given to the debtor; but in an auigumeat
of boqk debt* notice alon- i> sufficient, because there can be no delivery, i
348. lAik. 165. i \Nilf. 260.
(r) 3 Co. 8ofi. Cow P . 4 84. (i) iT. R. j 94 . p. (i) Ibid. 587.
() i tip. N. I'. C. 105. (jr) 7 Ea*t' Rep. i j;. (). Cowp. 431.
3 T. R. 618. 2 Bos. and Pul. 59. 3T. 1U 6so. n. .
fj
Of Promises. 265
So a bill of sale of goods made for a valuable considera-
tion, though unaccompanied with possession, is valid as against
creditors (as well as against the vendor himself), if given with
their knowledge and assent (z).
The discussion of this point seems to superinduce the
mention of the effect of a judgment upon a contract previously
entered into for the sale of goods.
It is a general rule, that where a man has an absolute
property in goods and chattels, he has also an absolute and
indefeasible right of disposing of them, as he may think
proper. In cases, however, where a judgment has been ob-
tained for any debt or damages, all contracts entered into for
the sale or purchase of goods, though bond jide and for a
valuable consideration, are by the statute 29 Car. 2, c. 3,
s. J6, mill and void from the delivery of the writ to the
sheriff, and the person obtaining such judgment has a lien
upon the property of him against whom it is given, so as to
bind his property, and defeat any intermediate disposition of
it between the delivery of the writ and the execution of the
judgment.
A bond Jide sale of goods hi market overt, to an innocent
vendee, without notice of the execution, is not, however, sub-
ject to the lien of a third person under the judgment (a).
CHAP, VII.
Of Promises.
A PROMISE is in the nature of a verbal covenant, and
wants nothing but the solemnity of writing and sealing to
make it absolutely the same. If, therefore, it be to do any
implicit act, it is an express contract, as much as any cove-
venant, and the breach of it is an equal injury. The remedy
indeed is not exactly the same ; since, instead of an action of
covenant, there only lies an action upon the case ; for what
is called the assumpsit, or undertaking of the defendant, the
failure of performing \vhich is the wrong or injury done to the
plaintiff, the damages whereof a jury are to estimate and
settle (6).
(3) i Taunt. 18 1, (a) i 3, Cas. Abr. 381. (*) J. Bl. Cons. i$S.
But
t6'6 Of Promises.
But some agreements, though ever so expressly made, arc
deemed of so important a nature, that tiny ought not to r< -t
on verbal promise only, which cannot be proved but by the
memory of witnesses. To prevent which, the statute' of
frauds and perjuries, Cg Car. <_>, c. 3, enact?, that in the live
following cases, no verbal promise shall be sufficient to
ground an action upon, but at the least some note or memo-
randum of it shall be made in writing, and signet! by the party
to be charged therewith: 1. Where an executor or at-mini-
Itrator promises to answer damages out of his own estate.
G. Where a man undertakes to answer for the debt, default,
or miscarriage of another. S. Where an agreement is made,
upon consideration of marriage. 4. Where any contract or
sale is made of lands, tenements, or hereditaments, or any in-
terest therein. 5. And lastly, where there is an> ;i;_ivtinent
that is not to be performed within a year from the making
thereof. In all these cases a mere verbal asswnpsit is void.
These provisions in the statute have produced many deci-
sions both in the courts of law and equity.
It has been determined, that if two persons go to a shop,
ond one orders goods, and the other says, " if he does not
pay, I will, or I will see you paid,'* he is not bound, in.
his rngauement is n duced into writing ; and it is not material
uhelher the promise was made before or after the delivery of
the goods. In all such cases the question is, who is the
buyer, and to whom the credit is given, and who is the surety ;
and that question from all the circumstances, must be ascer-
tained by the jury : for if the person, for whose use the goods
are furnish* d, be liable at all, any pronn.se by a third |ui>:i
to discharge the debt must be in writing, otherwise it is
void(f). .And the court in ascertaining the fact, wlicther the
party promising intended only to come in aid of the liability
of the person on \\hoseaccounthe promised, or to become
iiiin>e!t immediately responsible, the court will not onl\
attention to the expressions used, but to the particular situa-
tion, circumstances, and general responsibility of the party
promising (d).
The piincinal point in cases of this kind is, whether or not
the party, who is to be bcmht. <1 by the \>i liable at
all ; if there is no liability, theie i-. nothing to which the pro-
mise can be collateral, or in relation to which it can I.
us an undertaking to answer for the debt, default, or
2 T. R. lo. i Hcjx. Bl. IH>. (/) i Do*, and PuL 158.
Of Promises. 267
miscarriage of another person. It must, therefore, without
such liability in a third person, be an original undertaking ir ;
the party promising, and will subject him to the* payment, the
case being out of the statute altogether ; and, of course, no
written evidence of the promise is necessary.
The distinction between the collateral and the original pro-
mise, is well exemplified in the nisi prius case of Watkins v.
Perkins (e), by Lord Chief Justice Holt. If, says his Lord-
ship, A. promines B., being a surgeon, that if he will cure D.
of a wound, he will see him paid 5 this is only a promise to
pay if D. does not, and therefore it ought to be in writing
to be within the statute of frauds. But if A. promises in
such a case, that he will be B.'s paymaster, whatever he shall
deserve, it is immediately the debt of A., and he is liable
without writing. In the case first put, it is clear, that B.
will have a double remedy; in the second case, the credit
would be considered wholly given to the express promiser.
And even, if by subsequent circumstances, D. should render
himself liable, such liability not having existed, or came into
existence at the time of the promise, would not have any effect
in varying the predicament of the first promiser, whose pro-
mise would still be good without writing. Again, if A. promise
B. (/), that in consideration of his doing a particular act, C;
would pay him such a sum ; or that if C. do not pay him such
a sum, he, A. will pay the same ; this is no collateral pro-
mise, unless C. w r as privy to the contract, and recognized
himself as a debtor also ; but otherwise A. is the sole debtor,
and the statute is out of the case.
In discussing this critical part of the statute, Mr. Roberts
observes (g), though much has of necessity been left to float
on the facts and circumstances of the particular cases, one
anchorage has at least been gained, viz. that the person un-
dertaken for, must be, or become liable at the time the pro-
mise by the third person is made. But whether the spirit
and language of the statute, and the analogy of the cases
will warrant us in saying, that to bring a case within it, the
liability of the person on whose account the promise is made,
ought to continue unchanged in its relation and subject matter,
until the performance of the collateral promise, is a point not
so clear upon the authorities.
(<?) Ld. Raym. 224. (/) Fitzgibbpn, 302. (f) Treatise on th
Suiuu of Frauds, in,
Mutual
C8 Of Bills of Exchange.
Mutual promises to marry need not be in \vrilir.g, for the
statute relates only to agreements made in consideration of the
marriage (// ).
If a promise depends upon a contingency, which may or
may not lall within the year, it is not within the statute ; as a
promise to pay a sum of money upon a death or marriage, or
upon the return of a ship, or to leave a legaey l>y \\ill, is
good by parol : fi>r such a pumny, may by possibility be per-
formed within the y.ir (/). But even a written undertaking to
pay the debt of 'another is void, unless a good consideration
appears in the writing ; and the consideration, if any, cannot
|e proved fey parol evidence (k).
CHAP. vui.
Of Bill* of Exchange and Promissory JVofc*.
1. Ol ; the nature of a bill of exchange.
A bill of exchange is defined by Mr. Justice Blacks- >
be an open letter of request from one man to another, desiring
him to pay a sum named therein to a third person on his
count (/), either at sight, or a certain number of days after
sight, or after date, or at single, double, or treble usance, or
on demand.
These bills are either foreign or inland ; foreign, when
drawn by a merchant residing abroad upon his correspondent
h> England, or -ci,-c i< ri ; and inland, where both the dra\\t i
and the drawee reside within the kingdom. Formerly, fo-
reign bills of exchange were much more re^anhd in the e\e of
the law than inland ones, as being thought of more public
concern than inland ones. But now by two statutes () and 10
// . 3, c. I?, and :} and 4 ./;///. c. cj, inland bills of exchange
stand nearly on the same footn, ( i-n ,ue>; \\hat \\;is
the law and c-u^toin of merchants \\ith regard to the one, and
taken notice of as such, is now In these statutes enacted with
regard to other (in).
The peculiar properties of a bill of exchange are. fn-f,
that it is asiignable to a thi:d person not named in the hill,
(i) 1> 65. i Ld. Rym. 386. i ST. 34. (.') 3 Bur. 1178. <
2$o. 3 llij. 89. . t v ..66. (m) Ji-iJ.
Of Bills of Exchange. 269
or party to the contract, so as to vest in the assignee a right
df action in his own name, which right of action no release
by the drawer to the acceptor, nor set off or cross demand
due from the former to the latter can affect. And, secondly,
that although a bill of exchange is not a specialty, but merely
a simple contract, yet it will be presumed to have been ori-
ginally given for a good and valuable consideration (it) .
Besides these privileges to which a bill of exchange is ea-
titFed, a release by the drawer to the acceptor, or a set off
or cross demand due from the former to the latter, cannot
affect the right of action of the payee or indorsee ; whereas
in most other choses in action, a release fnorn the obligee, or
a set off due from him to the obligor, may be an effectual
bar to the action (o).
Bills of exchange payable to order are assignable by en-
dorsement ; but if payable to bearer, they are transferable by
delivery without endorsement (p).
2. Of the capacity of the parties to a bill of exchange.
The person who makes or draws the bill is termed th
drawer, he to whom it is addressed is, before acceptance,
called the drawee, and" afterwards the acceptor. The person
in whose favour it is drawn, is termed the payee, and when
he indorses the bill, the indorser ; and the person to whom
he transfers it is called the indorsee ; and in all cases, the
person in possession of the bill is called the holder (q).
But besides these immediate parties, a person may become a
party to it in a collateral way ; as where the drawee refuses
to accept, any third party, after protest for non-acceptance,
may accept for the honour of the bill, generally, or of the
drawer, or of any particular indorser, in which case an ac-
ceptance is called an acceptance supra protest, and the per-
son making it is styled the acceptor for the honour of the
person on whose account he conies forward ; and he acquires
certain rights, and subjects himself to nearly the same ob-
ligations, as if the bill had been directed to him. A person
may also become party to the instrument by paying it supra
protest, either for the honour of the drawer or indorsers (r).
All persons, whether merchants or not, having capacity
and understanding to contract, may be parties to a bill of
exchange (s).
() iSelw. N. P. 317. (o) ;T. R. 663. (/>) 3 Bur. ip6.
(f ) Chitty's. Bills of txehang*, 2. (r) Ibid, $. (s) Vent. 295.
Carth. 8a.
Corporations^
6
70 Of Bills of R
Corporations, by the intervention of their agents, may be
parties to a bill of exchange. But by the statutes 6 Ann.
c. 22, s. 9> and 1 5 Geo.2, c, 13, s. 5, a restraint is imposed
by the legislature as to the mode in which corporations (ex-
cept the governor and company of the bank of England) may
draw bills ; it having been enacted, " that it shall not be law-
ful for any body politic or corporate whatsoever, or for any
other persons whatsoever, united, or to be united in covenants
or partnership exceeding the umnber of six persons, in Eng-
land, to borrow, owe, or take up any sum or sums of money,
on their bills, or notes payable on demand, or at any less
time than six months from the borrowing thereof, during the
continuance of the privilege of exclusive hanking granted to the
governor and company of the bank of England.
An infant cannot bind himself by a bill or note drawn in
the course of trade (?)> or can an action be supported again>t
him on a bill or note given by him for neo .\ But
as the contract of an infant is only voidable, and not a!
lutely void, an express promise of payment, after he attain*
his full age, will render him liable. A bare a< -knowledjn inent,
however, of the debt >vill not be a sufficient continuation :
neither will a promise to pay a part, or an actual puuneir
part, create any further liability (//).
A feme covert cannot bind herself by dr.iwing a bill of
exchange, though she be living apart from her husband, and
have a separate maintenance secured to her by deed (r).
Where her husband is in legal consideration dead, a>\\ Inn-
he is transported, banished, and the like, .->he may contract so
as to be liable in law (y).
But although no action can be supported on a bill drawn,
indorsed, or acepted by a person incapable of binding him-
self, against such incapacitated person, yet it is nevtrthi lc **
valid against all other competent parties thereto. Thus in an
action against the acceptor of a bill of exchange, by the in-
dorsee, it is no defence, that the iliav.er, who ind.iised the
bill, Vva? at that lime an infant, or a feme covert; for tl'
the holder is precluded from suing any an!, rior parly, he \\iil
till be at liberty, to sue any .subsequent | ... '\ t-> the bill
Hills of exchange may be drawn, accepted, or uni-
ty the party'* agent or attorney, \vho in::;, b- constituted 'by
(i) Canh. i6Q. (0 N.P. C. $$s. () 4 Ftp. \.1\C. if?. 2
481. (*) pT. R. 54 j. lj) t Bas.ind PJ|. Jj8. () Atk
18*. 4 Eip. K. I'. C. 187.
Of BilJs of Exchange. 27 1
parol (a). In such case the principal is said to draw, accept,
or indorse by procuration (6). And as this agency is a mere
ministerial office, many persons, though incapable of con-
tracting in their own right, may be agents for this purpose,
such as infants, femes covert, persons attainted, outlawed, ex-
communicated, aliens, &c. (c). But in such case, it is in-
cumbent on the agent, if required, to produce his authority to
the holder, and if he does not, the owner may treat that bill
' as dishonoured {d ).
When a person has authority, as agent, to draw, accept, or
indorse a bill for his principal, he must either write the name
of his principal, or stdte in writing, that he draws, Sec. as
agent; otherwise the act will not be binding on the prin-
cipal (e). Besides, if an agent should accept a bill in his
own name, which was directed to him personally, and not to
his principal, although such direction described him in his
official character, he will be personally responsible (f) ; un-
less in the case of an agent contracting ou the behalf of go-
vernment (g).
As to the extent of the agent's authority, see tit. " Principal
and Agent."
By the custom of merchants, where there are'joint traders,
and one of them accepts a bill drawn on them for himself
and partner, or in his own name only, such acceptance binds
the copartnership, if it concerns the trade (/?). But the ac-
ceptance of one of several partners, on behalf of himself
and copartners, will not bind the others, if it concerns the
acceptor only in a separate and distinct interest, and the holder
of the bill at the time he became so, was aware of that cir-
cumstance. If, however, the plaintiff be a bonajide holder,
for a sufficient consideration, and had no such knowledge at
the time he first became possessed of the bill, no subsequently
acquired knowledge-of the misconduct of the partner in giving
such security, can disaffirm the act, but he may recover on
such bill against all the partners (/).
But after the dissolution of partnership, if a bill is sent into
circulation, all the partners must join in the indorsement ;
for one of several copartners cannot, so as to bind th'e
firm, put the partnership name on any negotiable security,
(a] ii Mod. 564. 7 T. R, 10$, (1} Beawes, pi. 83. (c) I lost.
5*2- a. (d) Beawes, pi. 87. (e) a East's Rep. 141.. (f) Str. 95$.
(g) T. R. 172. (b) i Salk. 1*6. i Camp. N. P. C. 3*4, (i) 7 East's
Sep. aio. TtEsrp. N. P.C. 514. Ibid. 731.
evea
72 Of Eills of Exchange.
even though it existed prior to the dissolution, or \rore' for
the purpose of liquidating the partnership debts, notwithstand-
ing such partner may have had authority to settle the partner-
ship affairs ; it being a principle of law, that the moment the
partnership ceases, the partners become distinct persons, and
from that time they are tenants in common of the partnership
property undisposed of (A'). On thr same principle, alter a
secret act of bankruptcy by one of two partners, the other
cannot transfer the property in a bill, which belonged to the
firm before the bankruptcy ; and the property in the bill can
only be transferred by the respective indorsements of the
assignees of the bankrupt partner and of the solvent part-
ner (/)
If the members of a copartnership, each in his individual
capacity, employ one factor, and he draws on all of them,
and one accepts, the acceptance will not bind the rest (HI).
If a bill is drawn on two persons, not being partners,
and it is accepted by only one of them, it should be pro-
tested (n).
3. Of the requisites of a bill of exchange.
In order to constitute a bill of exchange or promissory note,
no particular form or precise words are necessary. An order
or promise to deliver money (o), or a promise that I. S. fchall
receive money (/>), or a promise to be accountable or re-
sponsible for h (q), will be a sufficient bill or note (r).
There are two principal qualities essential to the validity
of a bill or note : first, that it be payable at all events, not
dependent on any contingences, nor payable out of a particular
fund (s); and secondly, that it be for the payment of money
only, and not for the payment of money and performance of
some act, or in the alternative (/) And if the bill or note
be insufficient in its formation in either of these respects, it
will not become valid by any subsequent occurrence, rcudu ing
the payment no longer contingent ().
Tin- following cases will illustrate these positions.
Thus, an order or promise to pay money, " provided the
terms mentioned in certain letters .shall be complied \\ith (r);
to pay a certain sum out of \\ . S.'s money as soon as yu
receive it (y) ; or provided I. S. shall not pay the mom y
i Ep. N. P. C. 1 08. i Hrn. Bl. 155. (/) i Cwnp. N.P. C. w
(m) lieawet, pi. 118. () Mir. 64. () I.d. Rjy.-n. 1397. (f) g
MoJ. 364. (f) 2 Str. 706. (0 Chitty, 40. () Ld. Rayim. 1361.
(r) Bui. N. P. a;*. (*) * Boi. ad Pul. 413. (*) Mich. Terra.
*j Gco. 3, B. R. (jj 3 Wib. 107.
by
Of JB/7& of Exchange. 273
by a particular day (z) ; or an order or promise to pay out of
his growing subsistence () ; or to pay a sailor's wages,- if he
do his duty as au able seaman (b) ; or a request to J. S.
to pay a certain sum out of the monies in J S.'s hands, be-
longing to the proprietors of the Devonshire mines (c) ; or*
out of a named payment when due (d) ; and the like ; is, iu
neither case, no bill, or note, on account of the contingency
to which the payment is subject.
So an order from the owner of a ship to the freighter*
to pay money " on account of freight" is not valid, because
the quantity due on freight may be open to litigation (e).
Neither is a bill or note given for the delivery .of horses, and
a wharf, and payment of money on a particular day (f).
If, however, the event on which the payment is to depend,
must inevitably happen, it is of no importance how long the
payment maybe in suspcnce ( g). And therefore if a bill be
drawn payable six weeks after the death of the drawer's fa-
ther ($), or payable to an infant when he shall come of age,
specifying the day when that event shall happen (?'), it will ba
TaJid and negotiable.
The statement of a particular fund in a bill of exchange,
Mill not vitiate it, if it be inserted, merely as a direction to
the drawee, how to re-imburse himself. And therefore .
ivhere J. S. drew a bill on J. N. and directed him, one month
after date, to pay A. 13. or order, a certain sum of money
{r as his quarter's half pay from the 24th June to the 25tli
September next in advance ;" the bill was held to be valid,
because it was not payable upon a contingency, nor out of a
particular fund, and was made payable at all events ; the men-
tion of the half pay being only by way of direction to the
drawee, how he should re-imburse himself (/t).
A bill of exchange cannot be given in evidence, > ? . am ^
nor is it in any manner available, unless it be duly j
stamped, that is not only with a stamp of the proper value, but
also of the proper denomination.
For the stamp duties see Appendix.
Kegularly the date of every bill of exchange ought to i Daten
be clearly expressed at full length in words. .But a>
date is not, in general, essential to the validity of a bill ; for
when the date has been omitted, it will be intended to Lear
(x) Willes, 397. (a) 10' Mod. 294. (J) 7 T.R, 242. ( c )
1100.265. (d) 4 T. K. 343. (t) 2 Str. mi. (f) Ibid. 1271.
(g) i Bur. 226. (b) 2 Str. 1217. Q I ur. 116. (k) LJ. Rayn;.
7481. Str. 742*
T data
274- Of frills of Exchange.
date on the day \vlu'n it \vas made (/). By the statute 17 G(0
3, c. 20, however, all bills of exchange, or drafts in \\riting,
being negotiable or transferable, for the payment of twenty
shillings, or any sum less than five pounds, or on which twenty
shillings or less than five pounds shall remain unoiscbargi d,
shall bear date before or at the time of drawing or issuing
thereof, and not on any d;y subsequent thei<
... \ If a bill, &.c. after it has been drawM, accepted,
( or indorsed, be altered iu any material respect; as
for instance, in the date or sum, without the consent of the
parties privy thereto, it will discharge them from all liability
thereon, though the bill may afterwards come into the hands
of an indorsee not aware of the alt* ration ; and such altera-
tion will have the. same effect as to the drawer's liability on
the original conduit ration (m\ A material alteration, even by
a stranger, will equally vitiate a bill (n). But a mere cor-
rection of a mistake, as by inserting the words " or order,'*
in furtherance of the original intention of the parties, will
vill not vitiate the bill, or render a new stamp necessary, if
made before the bill was circulated (o). So if the alteration
be not in the time of payment, sum, Sec. or other material
part, the bill will not be affected by it. Hence the insertion in
the acceptance of the place where the bill was to be pn-.scnled
for payment, will not destroy the validity of the bill (/>).
In general, if n bill lias been altered before acceptance or
indorsement, the acceptor or indorsee cannot lake any ad-
vantage of the alteration f/y) ; and the consent of any one of
the parties to the alteration, will, in general, preclude him
from objecting to it (>).
Of the Pertonr A bill of exchange or promissory note must
t vhamt'ie M//J. regularly specify to \\hom it is t-> ! pud; but
M madt paijattU.f jf ^ | H> il niun | ): i\;il,],- to a fictitious person or
liis order, and indorsed in his name, b\
the drawer and acceptor, it is in effect a bill payable to
bearer, and may be declared on as such in an action by an in-
mx-ciit indoiMx; fora valuable consideration against all the par-
tic-, wjio knew that the pa;> i iiclilMus person (s).
But in the ca.se of Bonnet v. Farnell, (/) it uas held, that a
Ju ill ol exchange made payable to a tie-lit ion.* person or his
(!) % Ld. Rajm. 10?6. 3 Boi. nd Pul. i () a He. Bl. 141.
4 T. K. jo. () JM. () 3 Lsp. N.P.C. 746. (f) ; Ib!
( f ) Bcawe*, pi 149. (r) 4 T. R. 510. (ij i Ucn. Bl. 513. Ibid. 569.
N. r. r. 130.
order
Of Kits of Exchange*
6riter, is neither in effect payable to the order of the
drawer, nor to the bearer, but is completely void ; though,
if money paid by the holder of such a bill as the consideration
of its being indorsed, actually gets into the hands of the ac-
ceptor, it may be recovered back as money had and re-
ceived.
The negotiability of a bill of exchange depends 3 XegotimbiUt>/ t
on the insertion of sufficient operative words of)
transfer. The modes of maLing a bill transferable, are by
making it payable to A. or order, or A.'s order, or to A. or
bearer, or 'to bearer generally. A bill payable to A.'s
order is the same as if it were made payable to A. or
order (w).
[t is not essentially necessary to insert the
words " value received," they being implied in
jevefy bill and indorsement, as much as if they had been ex-
pressed in- totidem verbis (.r). But to entitle the holder of
an inland bill or note, for the payment of 20/. or upwards,
to recover interest and damages against the drawer and in-
dorser, in default of acceptance, or payment, these words
should be inserted; 9 and 10 W. 3, c. 17; 3 and 4 Ann.
c. 9, s. 4.
A bill of exchange is presumed to have been } of the Gon*
made upon a good and valuable consideration. But 5 sideration*
between the drawer and acceptor, the drawer and the payee
and his agent, and the indorsee and his immediate irt4orser ; .
the illegality or want of consideration (y], or the sufficiency
of the amount thereof (z) may be insisted on by way of de-
fence to an action on the bill; and where a bill is for acco-
modation, and the holder has given value only for a part of
the amount, he cannot recover upon the bill beyond that
sum (a).
Wherever the defendant is at liberty to insist on the want of
consideration as a defence, he may also insist that the consi-
deration was illegal. In those cases in which the legislature
has disclosed, that the illegality of the contract, or considera-
tion, shall make the bill or note void, (viz. where it was made
in consideration of signing a bankrupts certificate, 5 Geo. 2,
c. 3o, s. 1 1, or for money lost in gaming, &c. 9 Ann. c. 14,
s. 1, or for money lent on an usurious contract, 12 Ann,
(K) iz Mod. 3ro. (*) Bailey on Bill, 13. n. a. {y) Str. 674,.
c T. R. 71. 7 Ibid. 121. I Esp. N. P.C. 117, a6i. (*) fake's
N.P, C. 6f, zi6. (a) i Esp. N. P.C. a6ir
T 3 ft. 2
576 Of Bills of Exchange.
st. 2, c. 16, or for the random of a ship ( 2'2 Ceo. 3, c. *,
8. 'J, or made, indorsed, Sec. in France during the war,
S4 Gco. 3, c. 9> 4,) the holder, notwithstanding he took
the bill boniijide, and gave a valuable consideration for it,
can only resort to the party from whom he received the bill,
and from whom he cart recover only nn the original considera-
tion (b). In cases, however, where the illegality of conside-
ration is sneh as does not fall within the above mentioned sta-
tutory prohibitions, the holder cannot be affected \\itli the
transaction between the orijiinul parties, unless he eitlu-r had
notice, or took the bill after it became due, from a pcixm
who had notice of the illegal consideration for which the
bill was given (r). And in general, where the bill i> lair and
legal in its reception, a subsequent illegal contiact or consi-
deration taking place on the indorsement, &c. will not inva-
lidate it in the hands of a bonu fide holder (</). lint it a hill
is drawn upon an agreement between one of tin- oii^inal
parties to it, and a person not a party to it, that tin- latter
shall get it discounted by another person likewise not a party
to the bill, upon usurious terms, an innocent iu.doi.ste cannot
recover on the same (e\
\Vhere a new security is taken in lieu of another, void in
respect of usury, &c. it will be equally imahd in the haiuU nf
the party to the first illegal transaction, but not if in the hands
of a bonu fide holder (f).
4. Of the acceptance of a bill of exchange.
frctcHtmeiit /orC When a bill is drawn payable within a certain
Acceptance. { time after sight, it is necessary, in older to li\
the time when the bill is to be paid, t-> pi-nit it to tin-
drawee for acceptance (g). In oth ; 'ally
necessary for the holder to present the bill hi ton it i>due (h).
No particular time is fixed \\hen a billot' t -\< li.m.;.- i^ to
be presented for acceptance. The only nile \\hieh can he
applied in all cases of bills of exchange, is that due dili-
gence must be HM-d. and care lak- i:. that the liill be pir-
cented within a reasonable time* Due ciiliizuue i> the oi,l\-
thing to be considered, \\hether the bill be or inland,
or whether it In: pa} able at >o many d.i\ at'ii i ^i_i.;, i in any
other manner (/').
(*) Str. 1155. 4 Kp. N. P. C 55*. 4 Ibi4. 164. (c} Datj. 6ja.
|T.R.6i. :lbid.630. i Cmj.. N. P. C. 19. (/} i K p. N r. >
I Eut't JUp. c>i. () i i'amp. N. IV C.
1 Lp. N. IV C. 210. 4 Ibid. :6.f. ({) a Hen. 13i. j 1 j. () 7 ^
vp- 3<**- (') ' HMI Bl. >tv
> \u
Of Bills of Exchange. 277
Whether due diligence has been used, and the bill presented
within a reasonable time, is a question of law dependant
upon facts, viz, the situation of the parties, the distance at
which they live, and the facility of communication between
them (/;).
Presentment should be made during the usual hours of
business (/); but illness, or any other reasonable cause not
attributable to the misconduct of the holder, will excuse a
presentment within a reasonable time (in).
On the presentment of a bill the drawee is entitled to keep
it twenty four hours in his possession after the presentment,
for the purpose of examining whether he has any effects of
the drawer's in his hands (u). But if he should require farther
time, the holder should give immediate notice to the indorsers
and drawer of the circumstance (o).
In all cases of presentment for acceptance, or payment, of
a bill, it is incumbent on the holder to present it at the
house of the drawee (p). If he has removed, the holder
must use every reasonable endeavour to find out where he has
removed, and make presentment there (q). In case of his
decease, presentment must be made to his personal re-
presentative, if he lives within a reasonable distance (/). But
if, on enquiry, it appears that the drawee never lived at the place
where the bill states him to reside, or that he has absconded,
then the bill is to be considered as dishonoured (s).
An acceptance may be either absolute or quali- 5 .
c j i> A. i .1 11 > Acceptance*
lied. JLJut whether an acceptance be absolute or >
qualified is a question of law (t). An absolute acceptance is
an engagement to pay the bill according to its tenor. The
most usual and formal method of making such an acceptance,
is for the drawee to write on the bill the word <e accepted,"
and subscribe his name ; or to write the word " accepted"
only ; or merely to subscribe his name at the bottom or across
the bill. For the convenience, however, of mercantile affairs,
an acceptance, or a promise to accept, by collateral writing,
or even by parol, is equally binding with an acceptance ou
the face of the bill (u). Any act indeed of the drawee which
demonstrates a consent to comply with the request of the
(*) 6 East's Tlep. 3. 7 Ibid. 385. (/) Ibid. (m) Chitty, 139.
() 2 Smith's Rep 243. Mar. 62. (o) Molloy, bk. 2. c. 10. p!. 16.
(f) 2 Esp. N. P. C. 511. (?) Str. 1087. () Molloy, bk. 2.
<:. 10. s. 34. (s) Ld. Raym. 743. ' (t) i T. R. 182. () Str. 1000.
Rep. Temp. Hardw. 74. i Atk. 611. 5 East's Rep. 584. 4 Ibid, 57,
drawer,
278 Of Bills of Exchange.
drawer, will constitute an acceptance. A promise of this
nature " leave the bill, and I will accept it," will amount to
an acceptance, although the holder had no consideration for
the promise (.r). A direction to a third person to pay the
bill, ( i/) written thereon, or on any other paper relating to the
transaction, will amount to an acceptance (c) A verbal or
written promise to accept, at a future period, a bill already
drawn, or that a bill then drawn, shall meet due honor (a),
or shall be accepted, or certainly paid \\hen due (/>) amounts
to an absolute acceptance. And although, regularly, a bill
ought to be accepted before the day on which the money is
to be paid, jet an acceptance after the day will bind the
drawee (c) : the drawer and indorsers are however discharged,
unless due notice of non-acceptance or non-payment, at the
time the bill became due, were given (e/).
An acceptance may be implied a.s well as expressed ; and this
implied acceptance may be inferred from the drawee's keeping
the bill a great length of time, (e) or any other act, which in-
duces the holder not to protest it, or to consider it as ac-
cepted (/).
But a promise to accept a bill not in existence at the
time the promise to accept was given, but which was to be
drawn at a future time, has bet n held not to amount t> an
acceptance, unless it influences some person to take or to
fetain the bill ().
Neither will the expression " There is your bill, all is
right," amount to an acceptance, un!e>s intended to induce
the holder to conceive it as such (A). And if the drawn:
says he cannot accept without further direction from 1. S. and
1. S. afterwards desires him to accept and draw upon A. B.
for the amount, the mere drawing upon A. B. will not amount
to an acceptance before the bill on A. B. is paid (/').
A qualified acceptance is when the drauee. undertakes to
i>ay the bill in an} other manner than according to the i>
.uul effect thereof. This species of acceptance, if <mal:li( d
with a condition; is called a conditional acceptance. The
holder of the bill may consider a qualified acceptance
nullity, mid protest the bill for non-acceptance (&); but if In-
(x) Bui N. P. 170. Bur. 1663. (j) Bui. N. P. a;o. () Bur.
i66j. (*) 4 Eatt'i Rep. 70. (If) 5 Ibid. <; 1 4. (e) Carth.45g.
1x1. Rjym. 364, S.ilk. 117. {</) a Mod. 410. (/) I An
if) Baylry on Bilh, 48. n. a. (r) i at'i Rfp. 98. (b) i 1 p,
N. P. C- J?. (; i T. K, 169, (*; Sclw. N. P. 3 jO.
Of 'Bills of Exchange. 2/9
docs receive it, lie should in order to bind the other parties to
the bill, give immediate notice to them, of the nature of the
acceptance offered (/).
Any act which evinces an intention not to be bound, unless
upon a certain event, is a conditional acceptance. Thus, an
acceptance by the drawee of a bill, to pay, " when goods con-
signed to him were sold," (/); or " upon account of the ship
Thetis, when in cash for the said vessel's cargo (w) ; or " as
remitted for" (o), or an answer that the bill would not be ac-
cepted till a money bill was paid (p), have been held to be a
conditional acceptance, and not to render the acceptor liable
to the payment of the bill until the contingency has taken place ;
when such conditional acceptance will become as binding as an
absolute one (q}.
An acceptance may also be partial ; as when the drawee
undertakes to pay part of the sum for which the bill is drawn,
or to pay at a different time, or place (?) But in all cases of
a conditional or partial acceptance, the holder should, if he
means to resort to the other parties to the bill in default of
payment, give notice to them of such conditional or partial
acceptance (s). And in the like circumstances, the acceptor
should be careful to express in the acceptance the condition
he may think proper to annex; for if the condition is not ex-
pressed in a written acceptance, he will not be entitled to
avail himself of it, against any subsequent party between him
and the person to whom the acceptance was given, who took
the bill without notice of the condition, and gave a valuable
consideration for it. But if the agreement to accept is con-
ditional, and a third person takes the bill, knowing of the
conditions annexed to the agreement, he takes it subject to
those conditions (/).
If a bill be accepted, payable at the house of the acceptor's
banker, the party taking such special acceptance, must present
it for payment within the usual banking hours (which in
London do not extend beyond 5 o'clock), at the place where
it is made payable : if he presents it after such hours, with-
out effect, it is no evidence of the dishonour of the bill, so
as to charge the drawer ().
In case of the failure of the drawer, the drawee ought not
(/) Chitty, 155. (;) a Str. 1152. () 2. \Yils, 9. (e) 2 Str. (2i v
C'owp. 571. (5.) i T. R. 182. Str. I2ia. (r) Mar. 68,84.
283. (i) Ibid, (i) jBoug. 299. () 7 T. R. 385.
30 Of Bills of Exchange.
to accept bills after be is aware of tbat circumstance (.r). But
if the drawee, not having notice of the bankruptcy of the drawer,
accept a bill drawn on him, after such bankruptcy, lie- will bj
justified hi paying his acceptance, although he has afterwards
heard of the bankruptcy ( //).
Liability of thti The acceptor of a bill of exchange, by reason
I
Acceptor. I O f j,j s acceptance, is, in case of its not
duly honoured, considered as primarily liable to all thr
to the bill; and an express agreement only will discharge him.
It was formerly doubted, whether the drawer could maintain
an action against thr acceptor, if he had been obliged to pa\
the bill. But in Parminster, r. Symous (z), it v as solemnly
determined, that the drawer of a bill of exchange miuht main-
tain, in his own name, and \\itliout an a->i^iinunt from the
payee, a special action on the case against the acceptor, and
recover the money so paid, he having paid the bill, and the
clrauee having effects of his in his. hands.
This obligation of the acceptor is in gcunal irrevocable ;
.for if the drawee of a bill puts his name on it as acceptor,
he camjot afterwards, even before it has been delivered to the
payee, discharge his acceptance by tracing his name, unlt>s
such acceptance has U en made by mistake (</).
Neither can the liability of the acceptor be released or dis-
charged, otherwise than by payment, or express release, or by
the statute of limitations. Thus, the holder of a bill of exchange,
having been informed that the acceptor had not received any <
sidcration for it, for several years after it became due, received
interest upon the bill from the drawer; but at length having
commenced an action against the acceptor, it was held, that
the action was maintainable, and that nothing but an express
agreement would discharge the acceptor, and that no indul-
gence to him or the drawer, would have that operation (/;).
A parol release of the acceptor's responsibility will be suf-
ficient (<). But to render this rfticirnf, tin- words nnisf
amount t an absolute renunciation <! all claim upon him in
ri sj>t ( t of the bill (//).
. "< \ If a bill is presented, and an aco-ptamv rc-
<"*u - !, or a qualified acceptance only ulii r. <1, or
' ( a. iv other default made, after prote.-r, due dili-
gence must be u.-cd in uivinn notice thereof to all the parties
lo whom the holder nit am to resort for payment (c).
() a Ifrr.ni-334. (OrT.R.yu. () 4 Bro. P. C. 604.
Lip. N. I'.C. 170. 6 East'i P.cn. 199. CA) Doug. 247. (.; i
Cwup, N. r. C. 35. (4) Ibid. (t) Eait'i R<-p- j.
T\ bat
Of Ellis of Exchange. 081
What is due diligence, as was said before, is a question
of law dependant on facts, viz. the situation of the parties,
the place of their abode, and the facility of communication
between them. In case of a foreign bill, notice should be
given on the day of the refusal to accept, if any post or or-
dinary conveyance sets out that day (f}\ a *id if uor j by the
next early ordinary conveyance.
Thus, in Muilman v. D'Eqnino (), which was the case
of a foreign bill of exchange drawn payable in the East Indies,
a certain time after sight ; it was held that it was not necessary
to send notice of the dishonour by an accidental foreign ship,
which sailed thence, not direct for England; but that it was
sufficient to have sent notice by the first regular English ship
which sailed for England.
With respect to inland bills, not protested for non-accept-
ance, notice of the refusal to accept should, in all cases, be
given at least within the course of the following day (A).
.And when an inland bill is protested for non-acceptance, or
non-payment, if the protest or notice thereof is not sent within
fourteen days after it is made, the drawer or indorser will not
be liable to damages, Sec. under the 3 and 4 Ann. c. Q. s. 5.
The rule which requires notice to be given within a rea-
sonable time by the holder of a bill of exchange, to the
drawer, of the drawee's refusal to accept, is calculated for
the benefit of the drawer, to enable him to withdraw his
effects out of the hands of the drawee. On this rule, how-
ever, an exception has been engrafted, viz. that, where the
drawer has not any effects in the hands of the drawee at the
time when the bill is drawn, it is not necessary' to give such
notice to him, because, in this case, he cannot sustain any
injury from the want of such notice (/). But if the drawer
has effects in the hands of the drawee, at the time of drawing
(he bill, though it does not appear to what amount, and
though such effects are withdrawn before the bill can be
presented, the circumstances of there not being effects iu.
the hands of the drawee at the time when the bill is presented
for acceptance and refused, will not supersede the necessity of
notice; for it would be very dangerous and inconvenient
merely on account of the shifting of a balance to hold notice
not to be necessary (). In Wahvyn v. St. Quintin (/).
(/) 4 T. R. 174. Qj) 2 Hen. Bl. 565. (ft) 4 T. R. 170.
() 3 Bos. aadPud. -.39, (4) 7 EastVKep. 3*9. (/) i Be..,, aad
i'ul. 652.
Eyre,
82 Of bills of Exchange.
Eyre, C. J., said " perhaps, indeed, notice ought never to
be dispensed with, since it is a part of the same custom of
merchants which creates the duty ; especially as. the grounds
for dispensing with it are such as cannot influence the con-
duct of the holder of the bill at the time when he is to de-
termine whether he will or will not give notice; for ninety-
nine times in a hundred, he cannot know whether the drawer
have or have not effects in the hands of the acceptor, or of
him for whose accommodation the bill was drawn, It has, how-
ever, been resolved in many cases, that where the drawer has
had no effects in the hands of the acceptor, notice might be
dispensed \\ith. But it may be proper to caution bill-
holders not to rely on" it as a general rule, that if the
drawer have no effects in the acceptor's hands, notice is not
necessary ; the cases of acceptances on the faith of consign-
ments from the drawer not come to hand, and the case of
acceptances on the ground of fair mercantile agreements may
be stated as exceptions; and there may possibly be many
others.
Immediately on the receipt of the notice, each party should
give a fresh notice to such of those parties who are liable o\er
to him, and against whom he must prove notice (>//)
\Vith respect to the drawer, it has been obserud, that want
of effects in the hands of the drawee, at the time of drawing
the bill, will supersede the necessity of notice; but with re-
spect to the indorsers, as they have not any thing to do with
the account between the drawer and drawee, notice of non-
acceptance must be given to them by the holder of the bill,
although the drawer has not any effects in the hands of the
drawee (//). It is observable, however, that the rule requiring
notice to be given evrn to the tinloi.Mi, is applicable only to
fair transactions, where the bill has been given for value in the
ordinary course of trade (o).
Hut though the neglect on the part of the holder to give
immediate notice of non-acceptance, disc IKII-CS the parties
entitled to insist on the wnnt of it from their res|urti\e lia.
bilities; yet the consequences of such 'a neglect may be done
a\\ay by other ( ii< um.U;mces. The absconding or absence
of the diav.er or indorser may excuse the neglect to ad.
him (;*); and the suddui illness, or death of the holder or
his agent, or other accident, (<y), will be an excuse for the
() Cfcitty, 187. () i T. R. 71*. r*e'i N. P. C. o. () a Hen.
B . 33*. ti ) lip. N. P. .516. (j) 6 tail'* Rep. 16.
Of Ellis of J%&knrg& 283
of a regular notice to any of the parties, provided it has
been given as soon as possible after the impediment is removed.
So want of notice may be excused by some act of the person
entitled to insist on the want of it, which amounts to a waiver
of the advantage which the law has given him; or in case of
a conditional acceptance, by the completion of those con-
ditions before the bill becomes payable. Thus it has been
held, that a payment even of part, or a. promise to pay the
whole, or to see it paid, or an acknowledgement that it must
be paid, made by the person insisting on the want of notice,
amounts to a waiver of the consequence of the laches of the
holder, and admits his right of action (r). But the death,
bankruptcy, insolvency of the acceptor, or his being in prison,
although within the knowledge of the drawer, will not super-
sede the necessity of notice of the dishonour of the bill (5) ;
neither will the circumstance of the drawee's having informed
the drawer before the bill was presented for acceptance or
became due, that he could not honor it, be a sufficient excuse
for not giving due notice ().
A subsequent promise by the indorser, as we have just seen, is
a waiver of the want of notice, but a subsequent proposal by
the indorser to pay the bill by instalments, made without
knowledge of all circumstances relative to the bill having been
dishonored, has been held not to be a waiver of the want of
notice (<)
With respect to money paid under a misapprehension of
legal liability, from the case of Bilbie v. Lumley and others,
it appears, that money paid by one having knowledge, or the
means of such knowledge in his power of all the circum-
stances, cannot unless there has been deceit or fraud on the
part of the holder, be recovered back again on the account
of such payment having been made under an ignorance of
the law, although the party paying expressly declared that he
paid without prejudice (jr.). However, payment made under
a misapprehension of facts, and which there was no obligation
to discharge, as where the holder had been guilty of laches,
will not be binding (</); and may, if the party making
it were prejudiced by the conduct of the holder, be reco-
vered back (z).
Jf the party entitled to notice be a bankrupt, notice of the
(r) Chittj, 192. (j) ii Ves. Jun. 412. 2 Bos. and Pul. 279. 3 Ibid.
601. (t) 2 Hen. Bl. 61.2. () i T. R. 712. (*) a Esp. N. P.
547- (?) l Bos. and Pul - 3- 6 (*) Chitty, 194. a.
default
JS4 Of Bills of Exchange.
default of the drawee should be given to him or his assignees;
if dead, to his executor or administrator (>/). When the party
entitled to notice is abroad at the time of the dishonour, it
will ln> sufficient to leave notice of non-acceptance at his place
of residence :u Ki. hind, if he has any here; and a demand of
acceptance or payment from his wife or servant, would in such
case he regular (b).
\Vith respect to the mode of Bending notice it seems, that
in the case of either a foreign or inland bill, Bending notice by
the post (c), even though the letter containing Mich notice
should miscarry, \vill be .sufficient. But \\here it is necc^aiy
or more convenient for the indorsee to send notice by any other
Conveyance than the post, he may do so, and charge for the
same ('/). Arid in all cases \\here notice is sent from London
by the general post, the letter containing the notice should be
delivered at the General Post-office in Lombard-street, or at
least at a receiving-house appointed by that office; for a deli-
vi-w to the bellman in the street will be insufficient (c).
In all cases of notice, notice to one of several parties is
held t> be notice to all; and if one of several drawers !
the acceptor, it is not necessary to give notice to the other
drawers ( /').
On refusal of acceptance, either wholly or partially, the
holder may insist on immediate, payment by all the parties
vliosc names appear upon the bill (if). And on this principle
it was decided, that where the defendant, ha\ing been an
gave the plaintiff a draft for part of the money due, on \\hich
he was discharged out of custody, but the draft having been
dishonoured, he \vas retaken upon the .sum- writ, and the pro-
ceedings were held lobe regular. In l\\\* case Lord Km;.- n
said, that in cases of this kind, if the bill which is given in
jKument do not turn out to be productive, it i-. not that which
it purported be, and that which the party receiving it ex-
jxcied, and therefore he may eo'i>ider it as a nnilily, and act
as if no such bill had been given (//>.
As to the parly bv whom the notice should be given, it np-
, tl.a 1 . in general the notice of non-acceptance or non-pay-
ment should <oiiir fi<in the hoM^r. And therefore where the
indorscr of a proii: ie hud, \\ithin a reasonable tune
(t) Cooke'sB. L. 178. (A1 2 EV \ ]'. C. ;Tt . (c) 5 Ibid. i;~.
(^) a Smith's Rep. 404. . ' . N. 1'. r. 186. (f) i
N. 1'. C. 2*. ( f ) 3 Et's Kcp.48 t . 7 IbiJ^js. (4) 6T. 11. 51.
Av
Of Bills of Exchange. 28$
after default of payment of the note, received notice thereof from
the maker, but the plaintiff, the holder, had not given the defend-
ant, the indorser, notice until two days after the bill became due ;
it was held, that the plaintiff could not recover, and that due
notice ought be given by the holder himself to the indorser
within a reasonable time after default of payment; Mr. Justice
Buller observing, that the purpose of giving notice to the in-
dorser is not merely that the indorser should know that the
note is not paid, for he is chargeable only in a secondary de-
gree ; but to render him liable, you must show that the holder
looked to him for payment, and gave him notice that he did
so. The notice by another person to an indorser can never
be sufficient ; but it must proceed from the holder himself (/).
If the drawee refuse to accept or to pay thec ,. .
. ... f , 4 i i i i -rii. -11 t 9f tlie Protest.
bill when due, the holder, or, it he be ill or( '
absent, some other person for him, should protest it. Foreign
bills of exchange ought to be presented to the drawee by a
notary public, (to whom credit is given because he is a public
officer,) and acceptance demanded (). If the drawee refuses
to accept the bill, then the notary ought, within the usual hours
of business (/), on the day when acceptance is refused (/?/), to
draw a protest for non-acceptance (//) I 11 case, however,
there be. not any public notary ut the place where the bill is
dishonoured, it may be protested by any substantial person of
that place, in the presence of two or more witnesses. If a
conditional or partial acceptance be offered, the protest should
not be general, as otherwise it will release the acceptor from
the effect of such acceptance (o).
At common law, no inland bill could be protested for non-
acceptance; but by the statute 3 and 4 Ann, c. Q, s. 4, it is
enacted, " that upon presenting such bills drawn for the pay-
ment of five pounds or upwards, in case the drawee should refuse
to accept them by underwriting the same, the payee, his agent,
.&c. shall cause the same to be protested for non-acceptance^
as in the case of foreign bills of exchange." By the sixth
section, this protest is directed to be made by such persons as
are appointed by the statute 9 and 10 IV t 3, c. 17, to protest
inland bills for non-payment, viz. by a notary public, and iu
default of him, by any substantial person of the place, 'in the
presence of two or more credible witnesses. And by the fifth
section, when an inland bill is protested for non acceptance,
() i T. R. 167. (fc) 4T. R. 175. (/) Mar. 112. () ^T.R.
*7S' (."} ^ ar - '6 1) Chitty, 179.
if
286 Of Bills of Exchange.
if the protest or notice thereof is not sent within fourteen!
days after it is made, the holder will not be entitled to the ac-
cumulative advantage of interest, damages, and costs.
The protest for non-acceptance in case of an inland bill is
by no means necessary, and the want of it does not affect the
holder's right to the principal sum, as it would in the case of
a foreign bill of exchange (/;). In practice it is seldom made;
an inland bill is in general only noted for non-acceptance ; but
this, it has been said, is unknown in the law, as distinguished
from the protest, and is merely a preliminary step to the pro-
test, which it will not in any case supply the want of (q).
If a bill has been noted for non-acceptance on the day of
refusal, the protest may be drawn any day after by the notary,
and be dated of the day the noting was made (/)
If after the acceptance the drawee absconds, or becomes a
bankrupt before the bill is due, it is said to be the custom of
merchants, for the holder to protest it, in order to have better
security for the payment (). But though the holder is entitled
to make this protest, the drawer or indorscr sare not compellable
to give this security, in which case the holder before he can
ue them must wait until the bill becomes due (/)
Of Acceptance, ) \Vheti a foreign bill is protested for non-nc-
tupra Promt. Jceptance, or for belter security, the drawee may,
if he des not choose to accept on the account of him in
whose favour the bill is drawn, accept it supra protest, which
is called an acceptance for the honour of the person on whose
behalf it is made, and it enures to the benefit of all who be-
come parties subsequently to that person (M).
If the drawee refuses to accept the bill, or absconds, or is
incapable of making a contract, any other person may, with-
out the consent of the drawer or iiulorsers, accept it for tho
honour of the bill, or of the drawer, or of any particular in-
dorser(ar); and even a bill previously accepted supra protest
may be accepted by another person mq)ru protest, in honour
of some particular person ( i/).
5. Of the indorsement and tran^f. i of bills ef exchange.
"Bills payable to order or to bearer are equally negotiable
from hand to hand ad iii/inittim, and the trunslVr of tin in tor
a good and valuable consideration vests, in favour of com-
(f) U. Rtrm.ooj. Rirdwicke, 77, . ( f ) 4 T. R. 1-5. (
1*. I'. C.4*. 7 Ea.t't Rep. 361. (i) Ky4 on Bills, 13*. (0 Bwwe.
pi. , 16. (; 'ibiJ. 34. Chittj, 197. (x) Mir. 1:5. Beawri,
(/) Ib.d. 4.
mctxial
Of Bills of Exchange.
mercial intercourse, a right of action in the assignee, sustain-
able in his own name.
But in general, unless the operative words of transfer, viz.
" or order," or " bearer," or some other words authorising
the payee of a bill to asign it, be inserted therein, it cannot
be transferred so as to give the assignee a right of action
against any of the parties except the indorser himself (2),
unless the negotiable words were omitted by mistake (a). It
is, however, not essential to the validity of a bill that it should
contain negotiable words so as to render it transferable (6).
Any words or extraneous facts in a bill payable to a ficti-
tious payee, from which an inference can be drawn that the
drawer, or any other party to the bill, intended it to be
negotiable, will give it a transferrable quality against that per-
son (c). And in all cases, though no operative words of trans-
fer are inserted in the bill, yet it will always have the same
operation against the party making the transfer as if he had
had power to assign (of); for a transfer of a bill of exchange
by indorsement is an act similar in effect to making a new bill,
the obligation which it imposes on the indorser to the indorsee,
and the mode in which that obligation may be extinguished by
the holder's laches or otherwise, is in all respects exactly simi-
lar to that which the drawer of a bill is under to the payee (e).
As to the capacity of transferring a bill of exchange, it may
be said in general, that a valid transfer can only be made by
the payee ; for if a bill payable only to bearer or order, and in-
dorsed in blank, is transferred, if the assignee, at the time of
his becoming the holder, kue\Y ( that the person making the
transfer liad no right to it, such transfer is inoperative, unless
such assignee had no knowledge of such circumstance, and
$ook the bill bond fide(f}.
An infant payee cannot by indorsement raise any interest in
the bill against himself, though a subsequent indorser may be
liable (g). And where a bill has been made to a feme covert,
or to a feme sole who afterwards marries, the right of transfer
vests in her husband, and the endorsement must be in his
name (A).
So in case of bankruptcy, the right of transfer is in ge-
Geral vested in the assignees from the time of the act of bank-
<) i Salk. ijz. ( tf ) 3 Esp. N. P. C. 246. (*) 6 T. R. j,
(0 3 Ibi< i.4Si. (d) iSaik. 125. () Holt's Rep. 117. 3 East's
Rep. 482. (/) i Bos. and Pul. 546. Ibid. 468. 6 East's Rep. aj.
{%) 4. Esp. N. P. C. 187, (h) 3 Wils. 5. I East's Rep. 432.
ruptcyj
88 Of 'Bills of Exchange.
ruptcy (/). But it has been held, that if a trader deliver a hill
lor a valuable consideration to another previously to an ait of
bankruptcy, \vithout indorsing it, lie may indorse it after In*
bankruptcy ()
In case of the bankruptcy of a factor or banker, bills re-
mitted to them and entered short while unpaid, being consi-
sidered in the nature of a deposit, must be returned bv the
une.es to the owner, subject to such lien a- the factor or
banker may have on them (J). And if paunent be received
upon such bills by the assignees, they must refund it to the
owner.
\\ here a bill is transferred to several persons in partnership,
the right of transfer is in all collectively, and not in any indi-
vidually; the right, however, may be put in force by the in-
dorsement of one partner (ni).
A\\ indorsement of a bill of exchange may be made nt any
time., cither before it is complete, or after the lime appointed
for the payment of it. If it is indorsed before it is complete,
ys if a man indorse his name on a 'blank stamped piei
paper, it will have the effect of binding the indorser to the amount
of any sum which may be inserted consistent with the stamp,
and made payable at any date (n). If the indorsement takes
place after the time of the bill's becoming due, in order to
make the transfer valid the bill must remain unpaid by an -
the parties (o).
Bills draun for a less sum than five pounds cannot be in-
dorsed alter the time of their becoming due. 17 Gco.
*. 1.
With respect to a transfer made before a bill is duo, and
one made when it is over due, there is a material distinction.
In the former case, the n- not bound to inquire into
any circumstances existing between the a.-ii;nor and an\ of thn
previous parties to the bill, a^ he will not be all'eeted by
them (/). But in the latter, whether the transfer has be.-n
made by endorsement or men; deh\rrv, it is incumbent on tl
indoiM-i- to sitisfy hiniM if that the note i> a -oml one, and if
lie omits to do so, he t.ii.c- it on the credit of the indoi -
and must stand in the situation <-t the pei>on \\l.o was ho
at the time of its In comiii'_ r due (fj).
li. i in nil an indorsi ment c:uu;ot be modi' after pay;
O us to affect am of the panic -s except l!*c person making
fi) tHm. 81.3-5 j. ' ' r.C.jo. Bl. Rep. ii;i-
?Eaiff Ilcp. 11. (>*< ili, V. b. (n) -
t) ibhow, 1*4. o; JT. K:.
ucfa
Of Bills of Exchange. 289
fcuch indorsement (r). But a person not originally & party to
the bill, by paying it for the honour of the parties to it, ac-
quires a right of action against all those parties (s).
By the statute 44 Geo. 3, c. QS, s. 20, certain notes not
v ceding 20/. and payable to bearer on demand, are re-issuable
* er payment, at any time within three years from the date.
After payment of a part, a bill may be indorsed over for the
residue ().
Indorsements are of two kinds, in blank or in full. An
indorsement in blank, which is the most common, is made by
writing the indorser's name upon the back of the bill, without
iany mention of the name of the person in whose favour the
indorsement is made (?/). A bill payable to a certain person
or bearer, or to bearer generally, or originally payable to order,
and indorsed in blank, is transferable by the indorsee either
by indorsement or mere delivery (r).
If A., the payee of a bill of exchange, endorses it in blank,
and delivers it to B., and B. writes above A.'s indorsement,
<( Pay the contents to C.," without subscribing his own name>
B. is not liable to C. as an indorser of the bill; for in order to
make a party liable as an indorser his name must appear
written with an intent to indorse (j/).
A full or special indorsement mentions the name of the
indorsee in whose favour the indorsement is made, as thus,
** Pay the contents to A. B. or order," and is subscribed with
the name of the indorser. By this indorsement the interest
in the bill is transferable in the first instance by indorsement,
though afterwards it is transferrable also by delivery, provided
the first indorsement was in blank (z). But to give the bill
a subsequent negotiable quality it is not necessary that in a
full indorsement the words " or order" should be subjoined to
the name of the indorsee ; for if a bill be drawn payable to
order, the negotiability of the bill will not be restrained by the
omission of the words " or order" in the indorsement (a).
A bill payable to the order of A. is payable to A if he
does not order it to be paid to any other person ; and where
no such order appears^ it will be presumed that none was
made (^).
(r)4T.R.47o. lEsp. N. P. C 463. (s) Ibid. 112. f^zWils.
262. (} 6 East's Rep. 21. (x) Doug. 633. (y) i Camp,
N. P. C. 442. (a) i Hen. Bl. 606. 4 T. R, z8. " (a) i Com. Rep.
311. Su, 557. a Bur. iai6. i B!. Rep. 2)5. (4) 5 East's Rp. 476.
V The
90 Of Bills of Exchange.
The negotiability of a bill originally ti ansfcrrable may be
restrained by express restrictive words; for the payee or the
indorsee having the absolute property in the bill, he may by
express words restrict the currency of the bill, by indorsing it
" payable to J. S. only," or " to J. S. for his use," or any
other words clearly demonstrating his intention to make a re-
strictive and limited indorsement (c)-
A transfer by indorsement for a good and valuable considera-
tion, and without any knowledge of defect of title, \vsis in the
indorsee a right of action against all the precedent parties \\ hose
names are on the bill ; but unless the payee, or tin- e!ra\\< r,
when the bill was payable to his order, ha< fii^t iml-u
the holder can only sue the party from whom he obtained
it (el).
A transfer by delivery, without any indorsement, when made
en account of a pre-existing debt, or for goods sold at the
time of the assignment, imposes an obligation on ti
in favour of the assignee, similar to that of a transfer \>\ in-
dorsement, and in di fault of payment by the drawn-, the
assignee may maintain an action against the assignor on the
consideration of the transfer (c); unites it \\as r\j>n
at the time of the transfer, that the assignee .should take the
instrument assigned as payment, and run the risk of its being
paid (J') f or that he has been guilty of laches. JSut, as on a
transfer by delivery, the assignor's name is not on the in>tni-
ment, there is no privity of contract between him and any
person becoming assignee to the bill after the assignment l>y
himself, and consequently no person but his immcdiau a-_
can maintain an action against him, and that only on
the original consideration, and not on the bill itself (g).
In case of the loss of a bill, &c. tr.: l-\ n\< i- d li-
very, any prr.-ion who has previously to its becoming due given
a bonu fid& consideration for it may enforce |
the acceptor or other parties, notwithstanding h- d< lived his
intt ist in the bill from the per.-i>n \\lio found T stole it (//).
And if a lo^ or .stolen bill, Iransferrable b;. men- d<-li\fi\. and
for which no consideration has been gi\rn, l>i pit -cntt-d to the
drawee at the time of its becoming due, and IK pa\ it i
he has notice of the loss or robbery, he will not be liable to
Eur. 1216. (d) IMd.45i. 1516. (e) i Sir 415.
1 T. R- 65. (/; Ibid. (i) U. Kaym. 92!. (A) 4 t>p. ^. P. R.
56. Bur. 1516.
9 pay
Of feills of Kvchcttige*
J>ay it over again to the real owner, who by his neglect to give
due notice of his loss has forfeited all right of action (i).
But when a bill transferable only by indorsement, and not
indorsed; is lost by the person entitled to indorse, no person
getting possession of it by a forged indorsement will acquire
any interest in it, although he gave a sufficient consideration
for it, and was not aware of the forgery, but will be liable to
repay the bill to the original holder when he has regained pos-
session of it (&). And in such a case, if payment has beer*
obtained by a bondjide holder from the drawee, such payment
will not be protected.
In case of the loss of a bill, to entitle the holder to recover,
he should immediately give notice thereof to the acceptor and
all the antecedent parties ; and when the bill is transferable
by mere delivery, should a!so give public notice of the loss (/) ;
but this will not be available unless the notice of the loss be
brought home to the knowledge of the party taking the bill (ni)*
By the statute 9 and 10 W. 3, c. 17, s. 3, it is enacted,
that in case any inland bill, expressed to be for value received,
and payable after date, shall happen to be lost or miscarried with-
in the time before limited for payment of the same, the drawer
must give another bill of the same tenor w ith that first given ;
the person to whom it is delivered giving security, if demanded,
to the drawer, to indemnify him against all persons whatso-
ever, in case the said bill, so alleged to be lost or miscarried.,
shall be found again. And Marius says, that if the acceptor
refuse, on sufficient security an indemnification offered, to pay
a bill which he has accepted, he will be liable to make good
all loss, re-exchange, and charges, p. 77-
In all cases of the loss of a bill of exchange, a court of
equity will, on sufficient indemnity being given, enforce pay-
ment (H).
6. Of presentment for payment of a bill of exchange.
In all cases, when a time of payment is specified in a
bill of exchange, the holder must present it to the drawee
for payment at tho time when due; and when no time of
payment is expressed, within a reasonable period after receipt
of the bill (o); or otherwise the drawer and indorsers will be
exonerated from their liability (p). And it has been held,
that even the bankruptcy, insolvency, or death of the ac-
(I ) Bur. 1516. (*) 3T. R. a8. Ibid. (1) Beawes. (m) 4Esp.
N P. C. 56. () i Ves. Sen. 338. 6 Ves. Jun. 8ia. () j T. R,
?i. ff} Ibid,
v 3 ceptar
202 Of Bills of Exchange.
eptor will not excuse a neglect to make presentment. In
the tirst case, presentment should be made to the bankrupt
or his assignees ; and in the latter, to the personal repro-
entative of the deceased, or, in case there be no personal
representative, at the house of the deceased (r). Neither
tVill the insufficiency of a bill in any respect constitute an excuse
for the non-presentment (s).
But all bills of exchange drawn payable at usance, or at ft
<?rtain time after date or sight, or after demand, ought not to
be presented for payment at the expiration of the time men-
tioned in the bills, but at the expiration of what are termed
days of grace (/). .And on bills payable to the excise,
days beyond the three days of grace an* allowed, if required
by the acceptor (//). But in the case of bills payable on de-
mand, or when no time of pavi-peut is e\ pressed, no days of
grace are allowed, but they arr payable instantly on present-
mrnt (i). On bank post-bills also, no days of grace are
claimed ( y).
Whether days of grace are allowable on bills of exchange
pnynble at sight, is riot clearly decided; it is observable, 1;
ever, that the weight of authority is in favour of such an al-
lowance (t).
In case of foreign bills of exchange, the custom is, that
three da\s, exclusive of the day on which the bill 1
due, are allowed for payment of them, and if they are not
paid on the last of the said days, the holder nuizht im-
mediately to protest the bill, and return it, orotlun\i-e the
drawer will be di>charged. Hut if it happens that the la-t
of the three days is a Sunday, 1'hrislinas-day, or Good
Friday, the holder ought to demand payment on tin rond
day, and if it be not then paid, treat the bill as di --ho-
noured (a) A presentment before the day would be a meie
nullity (6).
With respect to inland bills, payable after date or i
#>r on a particular event, it doee not :|>p :ir t> be settled
whether the acu-pt-T has not the \\hole day for payment
without reference to hours (r). At all events, if
the holder make a ?< "Mil j-.- - iitnunl on the lat clay of grace,
the acceptor may insist on paying it \\hensmh presentment
(r) 8 Eau'i Rf. 4j. Mar. 154. (i) i Ep. N. P. R. 317. a Wil.
(i) S!w. > (; i Esp. N. P. C. 59. I*) <*rny,
:il. Cjr^ Ibid.aif. (a) loiJ. ill. _C*) Ld. Rajrm.
[I *oJ 40 (IPO. j, c. 41. Mjf. 95
K. . . : aua i'ul. kcz.
19 arvl 40 (iro. J, C. 41. M.r. 95. ^) I Lp. N. P. C. aft*. () 4
Of Bills of Exchange. 293
is made, without paying the fees of noting or protesting,
notwithstanding such presentment be made after banking hours,
and express!} 1 for the purpose of noting and protesting (d ) .
But a tender after the day of payment, and before action
brought, of all money then due, is insufficient (e).
The days of grace which are allowed on a bill of ex-*
.change must always be computed according to the law of the
place where it is due (/'). The number of these days varies
according to the custom of different countries.
In the dominions of Great Britain, Bergamo, and Vi-
es 1 ;t, three days are allowed ; at Frankfort, out of the fair
time, four; at Leipsick, Naumberg, and Augsburgh, five;
at Venice, Amsterdam, Rotterdam, Middleberg, Antwerp,
Cologn, Breslau, Nuremburg, Lisbon, and Portugal, six ;
at Naples, eight; at Dantzic, Koningsburg, and Fiance, ten.;
at Hamburgh and Stockholm, twelve ; in Spain, fourteen ;
at Rome, fifteen ; at Genoa, thirty. At Leghorn, Milan,
and some other places in Italy, there is no fixed time. Sun-
days and holidays are always included in these days of grace
in Great Britain, Ireland, France, Naples, Amsterdam,
Rotterdam, Antwerp, Midclleburg, Dantzick, and Konings-
burgh ; but not so at Venice, Culogn, Biesiau, and Nurem-
burg. At Hamburg, and in France, the day on which
the bill falls due, makes one of the days of grace ; but no
where else (g).
The causes by which a neglect to present for payment
being the same as those which do away a neglect to present
for acceptance, it would be repetition to mention them here. :
we therefore refer the reader to that head.
If the political state of the country where the the bill is
due, renders a presentment for payment in due time impos-
sible, presentment as soon as is practicable will entitle the holder
to recover (//).
The contract of the acceptor being absolute, he is pri-
marily liable, and cauuot in general resist an action on ac-
count of the neglect to present the bill at the precise time
when due (i); but if he undertook, by his acceptance, to pay
within a certain period after demand, he may insist on the
want of presentment (#).
(<*} 4 T. R. 170. (e] 8 East's Rep. 168. (/) Kyd, 8.
.(g) Beawes, 474. [k] a Smith's Rep. 223* (i) Doug. 247.
\k} z Show. 235.
If
294- Of Ellis of Exchange.
If a bill is made, or accepted payable at a banker's, or at
any particular place, or by a particular person not party to
the instrument, the presentment for payment should in such
case be complied with, or the drawer and indorsers \\ill bo
discharged from their obligations ; as will also the acceptor, if
he has been really prejudiced (/).
A presentment for payment of a bill should in all cases
be made within a reasonable time before the expiration of
the day on which it becomes due; and if by the known cus-
tom of any particular place, bills are pa\able only ui'hin
limited hours, a presentment out of those hours would be
improper, and would not entitle the notary to present it (/;;).
Payment should be made only to the holder of the bill, or
gome person properly authorised by him. In case of the death
of the holder, payment should not be made to his person.il re-
presentative, unless he has power to administer to hi.s cf-
feets {//). But payment of a bill to a person having obtained
probate of a forged will, will be valid (o). So payment to a
minor will be valid, if the bill be beneficial to him (p). But
payment to a married woman, after knowledge of that fact,
will not be valid (q).
Payment of a bill to a person, or his order, without know.
ledge of his having committed an act of bankruptcy, i s t-
:ual, and discharges the person making it, 1 Jac. 1, c. 1?,
8. 14, provided such payment be made more than two cu-
l'-ndar 'months be. fore the issuing of the commission, 4() Geq.
S, f. I.'.), s. 11 '2. And payment of an acceptance made
without notice of a secret act of bankruptcy, is, provided the
bill is honoured when due, valid, although between the time
of acceptance and of payment, notice of the bankruptcy eame
to the creditor's knowledge (;).
(lit of a bill by a bankrupt to a bonn jiclc cre-
ditor, without notice of the bankruptcy, is protected by the
statute If) < ..'}; provided such pnvmt nt be made
ini -re than two calendar months before the issuing of the <
mission, 4(> r. 1.S5, s. 112. And if, \\hen the bill
becomes Hue, the a- ptor be a bankrupt, the holder will be
entitled to claim tinder the commission, without dischai
the other parties whose names appear upon the bill from tbeir
(/) t He*. BI. 509. (w) 4!. R. 70. 7 East's Rp. 385. (*} Pothier,
. 166. - () 3 T. R. 12$. (/>) Poth. pi. 166. (t) i Eaii't
I7- (0 7 T.R. 7.
r< -pecti'.c
Of Bills of Exchange. 95
respective liabilities, provided He has given them regular no-
tice of non-payment (s). If a promissory note of twenty
years date be unaccounted for, it affords a presumption of pay-
ment unless the contrary appears ().
When a creditor directs his debtor, to remit him, by post,
the money due to him by a bill of exchange, 8cc. or where it
is the usual way of paying a debt, if the bill be lost, the
debtor will be discharged (r) ; but where the defendant in dis-
charge of a debt which he owed to the plaintiff, delivered a
letter containing the bills which were lost to a bellman in
the street, it was decided that he was not discharged from
liability to pay the debt, because it was incumbent on him to
have delivered the letter at the general post office, or at least
at a receiving house appointed by that office (M).
If, when a bill becomes due, the holder gives time to the
drawer, or releases him when he has taken him into custody,
or takes a fresh security from him, without the concurrence of
the other parties to the bill, they will thereby be discharged
in general from all liability, although the holder may have
given due notice of the non-acceptance (.r). Similar indul-
gence to a drawer or a prior indorser would also discharge all
subsequent parties (y). But in the instances before stated,
where the laches of the holder, in not giving notice of the
non-acceptance of the bill, will be excused by the circum-
stance of the drawer, indorser, Sic. not having effects in the
hands of the drawee, such parties would also not be dis-
charged by the holder's giving time to, or taking a fresh se-
curity from the acceptor.
The holder of a bill of exchange may receive part payment
from the acceptor, or indorser, and sue the other parties for
the residue, provided he does not give time to such acceptor or
indorser to pay the residue (z).
If the holder of a bill of exchange compounds with the ac-
ceptor or any other party to the bill, without the assent of the
drawer or other subsequent parties, he thereby releases them
from their responsibilities, if they had effects in the hands of
the acceptor or prior indorser (a).
The holder may sue a prior indorser, although he has
taken iu execution a subsequent indorser, and afterwards let
(i) ii Ves. Jun. 4I 2. (0 5 Esp. N.P. C. 52. (t>) Peake's N. P. C.
67. (u) Ibid. 186. (*) 3 Bos. and Pul. 365. 3 IJro. C. C. I.
8 EJst'sRep. 576. (y) Ibid. (*) 8 East's Rep. 580. () u
Ves. Jun. 410.
him
Of Bills of Exchange.
him go at large on a letter of licence without having paid tbp
debt (/>).
In all cases of the payment of a bill or note, a receipt
should be written upon the back of the bill, 43 Gco.3, c. ICO,
s. o, and as a general receipt on the back of a bill of exchange
is prima facie evidence of its having been paid by the ac-
ceptor, when pa} nunl is made by the drawer or indoixr,
the holder should Mate in the receipt by whom it was paid (c).
Where a part is paid, the same should be acknowledged upon
tin- bill, or the party paying may be liable to pay the amount
again to a bomtjide indorsee (rf).
.If on presentment of a bill, the drawee refuses to pay the
amount or makes default of payment, in case the bill is fo-
reign, it is incumbent on the holder to protest it, and whe-
ther foreign or inland, to give due notice of the dishonour to
those parties to whom he means to resort for pa)ment, or lluy
\\ill be discharged from their respective obligations (c).
In regard to the precise lime within \\hich the notice of
non-pa) meut must be given there is no settled rule. The ge-
neral rule, as it may be collected from Tindal v. Brown (f) t
seems to be with respect to persons living in the same town,
that the notice shall be given by the next day; and, \\iih i< -
1 to such as live at different places, that ii should l>r suit
by the next post. But if, in any particular place, the ]
should go out so early after the receipt of the intelligence^ as
that it \\ould be inconvenient to require a strict adherence
to the general rule, then with respect to a case so circum-
stanced, it would not be reasonable to require the notice to
be sent till the second post (g).
la Ha>nes v. Bhks (A), uhere the bill, vhich %\as put
by the plaintiff* in the hand;} of his banker to present for )
nunt, having been dishonoured in London about t\u> o'clock
on Saturday, and pn - n: ci :,jain at nine in the ru'iim-, by
a notary, and notice <>ivcn of the dishonour to the plaintiff on
ndav at Kim . e, \\lio gave notice to the imhi--. r
qf it by letter on Mcmiay at noon, which letter the
iro-ived on Tu xiay at noon m Tottenham-court road; it
was held that this notice \\assufficicnt to entitle the !;ld<r
to racovtr against tin
So uhc-ie the ii.i 1 .1 I. ill of exchange, placed it in
the hands of his bankers, who n tinned it the day after ii>
(A) aBI.Rep. u 3 5. :.itty, 144. fj) i Eip.N. P.C. 463.
(0 5 T. R. 139. (f) i Ibid. 167. (f) 6 Eajfi Rep. 10. (kj 3 Bo.
ariPul. 599.
being
Of Bills of Exchange. 297
being dishonoured to the indorsee ; it was held, that notice
given to the drawer (the defendant) by the indorsee (the plain-
tiff), on the day after his receipt of the dishonour, was suf-
ficient; for a banker is not obliged to give notice of the dis-
honour to any one but his customer (z).
Where there are several indorsements, and the holder gives
notice of dishonour to his indorser, each saccessive indorser
will be considered as having used due diligence, if he trans-
mit the notice of dishonour on the day after it is received;
but if he neglects giving the notice on that day and the day
after, it will be too late ().
The notice of dishonour must proceed from the person
who can give the drawer or indorser his immediate remedy
on the bill. And therefore, in an action against the de-
fendant as indorser of a bill, to prove notice of non-
payment, A. was called, who swore that he had been em-
ployed by the original parties to the bill to get it discounted ;
that when it became due it was in the hands of one Abbott,
to whom the plaintiff had endorsed it ; that the day after the
witness met the defendant, and told him that it had not been
paid; that the defendant asked who held it; and that the
witness answered, " It lays at Messrs. Bonds', Abbott**
bankers :" Lord Ellenborough said, " If you could make A.
the agent of the holder of the bill, the notice would be suf-
ficient; but in reality he was a mere stranger. The bill, when
dishonoured, lay at the bankers of Abbot, with whom A. had
no sort of connection. But the notice must come from the
person who can give the drawer or iudorser his immediate
remedy upon the bill ; otherwise* it is merely an historical
fact. In this case, A. was, not possessed of the bill, and had
no controul over it. The defendant, therefore, is not proved
to have had any legal notice of the dishonour of the bill, and
is discharged from the liability by indorsing it" (/).
In addition to notice of dishonour, it is necessary for the
holder, in the case of a foreign bill, to protest it for non-pay-
ment ; which protest, or at least a minute of it, should be made
on the last day of grace (tri). But when the bill has been
already protested for non-acceptance, and due notice thereof
has been given, though usual, it is not necessary to protest for
non-payment, or to give notice thereof.
Payment of a bill, whether foreign or inland, being re-
fused, any third person, not party to the bill, may pay it for
(0 9. East's Rep. 347. (*) 6 Ibid, I*. (/) i Camp. N. P. C,
() 4 T. R. 174.
the
298 Of Bills of Exchange.
the honour of the drawer, or any of the indorsers, and ac-
quires thereby all the .same rights that the holder of the hill
had, although no regular transfer of the bill Mas made to
Trim () 1 ms payment, as it is always made after protest,
and in prudence should not be made before (o), is called pay-
ment supra protest. But the acceptor, if he has previously
made a simple acceptance, cannot pay in honour of an in-
dorser, unless he has made such acceptance without having
effects of the drawer in his hands; because, as acceptor, he
is already bound in that capacity (p}. If the acceptor sufira
protest, for the honour of the drawer or indorser, receives his
approbation of the acceptance, he may pay the bill \\ithout
any protest for non-payment (<y).
7. Of promissory notes, bank notes, bankers' notes and
cheques on bankers.
A promissory note is a direct engagement in writing, to pay
a sum specified, at a time therein limited, or on demand, tu a
j.i i ~ on tin I- in named, or his order, or to the bearer (r).
The validity of these instmmenls having been much qm>-
ti. ;ied by Lord Holt, in (Jleike r. Martin (s), that the ]>.\
and in Buller r. Crips (I), that the indorsee of a promis-
sory note, could not maintain an action against tlu- maker
thereof, such note not being within the custom of mer-
chants, but that it was to be considered only as evidence of
a dibt; it was for the purpose of encouraging tr.idr and
commerce, enacted by the statute ?> and 4 Jim. c. y, .s 1,
" That all notes in writing, made and >5;.:ned liy any pcr-n
or persons, body politic or corporate, or by the servant or
agent of any corporation, banker, goldsmith, incrcliant, or
trader, usually entrusted by them to sign such notes for
them, whereby such person, ike. or tl .it H- agent,
promise to pay to any Other person or persons, body politic
and corpoiate, or order, or bearer, the money mentioned in
such note, shall be construed to be, by virtue thereof, due
and payable to such prison, \c. to whom the same is made
payable; and also such note, pavuble to :uiy per-on, ^.e.
order, shall be assignable Or indoi \er in thr s;nu-
manner as inland bills of exchange are, or may lie, by ilu,
of men-hunt::.: and the j>eiM>n, &c. to whom the
money is payable, may maintain an action for the sume iu
<) i Eip. N. P. C. ua. (o) BC.IWM, 436. Mr. TiS. (f>) Beawes.
436. (j) Ibid. (r} i lil.Com. 46^ () lLd.Raya. 75!.
(I) 6 Mod. 25,.
such
Of Eills of Exchange.
such manner as be might upon any inland bill of exchange,
made according to the custom of merchants ; and the person,
8cc. to whom such note is indorsed or assigned, may maintain
an action, either against the person, cc. who or whose ser-
vant or agent signed such note, or against any of the persons
\vho indorsed the same, as in cases of inland bills of exchange,
and the plaintiff shall recover damages and costs of suit ; and
in case of nonsuit or verdict against the plaintiff, the defendant
shall recover costs."
This statute places promissory notes on the same footing
as bills of exchange, and consequently the decisions aud
rules relating to the one are hi general applicable to the
other.
No formal set of words is essential to the validity of this
kind of instrument (2). Neither is it necessary it should con-
tain any words rendering it negotiable (*/). A note merely
promising to account with another, or his order for a certain
sum, value received, is a valid promissory note, though it
contains no formal promise to pay (r). To render such a
note valid, however, it must be made payable at all events,
and not out of a particular fund; and it must be for the pay-
ment of money only, and not for the performance of any
Other act. A written promise to pay 300/. to 13. or order,
<f in three good East India bonds," was held not to be a pro-
missory note ; and that an undertaking to pay money and
deliver up horses and a wharf on a particular day ; or an en-
gagement to pay money on demand, or surrender the body of
A. B. will not operate as a note within the statute of
Anne.
A note beginning, " I promise to pay," and signed by two
or more persons, is several as well as joint, and the parties
may be sued jointly as well as severally; but when a pro-
missory note is made by several, arid expresses, " we promise
to pay," it is a joint note only (if).
Bank Notes. These notes are payable on demand, and,
by general consent of mankind, are treated as money in the
ordinary course and transactions of business (2). But a tender
of them is not sufficient, if objected to at the time of the
offer (); though after such a tender, a creditor cannot ar-
rest his debtor, 38 Geo. 3, c. 1, s. 8; 43 Gc.o.3, c. 13, s. 9.
They cannot be recovered by the legal owners from a boua.
{) Willes, 396. (a) 6 T. R. 23. (*) Ld. Rajrm. 139$.
(y] Feake's N. P. C. 130. (*) Bur. 457. (4) 3 T.R. 554.
300 Of Bills of Exchange.
fide holder, for a valuable consideration, and \vithout notice
of the tine owners (b). For the holder of a hank note is,
prima fncic, entitled to prompt payment of it, ami can-
not he affected by the previous fraud of any former holder
hi obtaining it, unless evidence be given to bring it hom
his privity. And as possession is pri nut facie evidence of pro-
perty in negotiable instruments; in trover for the recovery
of a lost note, the defendant will not be called upon to show
his title to the note, without evidence from tin- other side
that he got possession of it mala Jide, or without COIIM-
dcration ( c ).
Sttnken A'otwC Bankers' cash-notes, or goldsmiths' notes, as
end Checks o< they were formerly called, are promissory n<
Banker*. payable to order or bearer, on demand, and
are transferrable by delivery. They may. lim\ t \. r. be u
tiated by indorsement, in which case the act of indoi
will operate as the making of a bill Of .exchange. On account
of their being payable on demand, they are considered as
cash, whether payable to order or bearer; but if pn sented in
due time, and dishonoured, they will not amount to pay-
ment (d). At present cash notes are seldom made, except
by country bankers, their use having been superseded by the
introduction of checks.
A check or draft is as negotiable as a hill of exchange (e).
In case of default of payment by the drawee, the .
may maintain an action against the assignor, on the consi~
deration of the tiansfer; unless it was expressly agreed at the
lime of the transfer, that the assignee should take the in-
strument assigned as payment, and run the risk of its being-
paid, or that he has not used due diligence; in which c.
jt will amount to pay mint; and in the event of the failure of
the banker, the assignor, and every other party to the check
will be discharged (f).
As to the precise time, when a check should be
sented for payment, there is some degree of uncertainty. It
may, however, be collected from the cases, that a c!
a banker, or a ca>h note, vS.e. payable on demand, oirhi.
given in the place where it is payable, to be piesnted
payment the same day it is received, or at farthest, early in
the next morning, unless prevented by distant- tm:
inevitable cause or accident, which in all cases, will excuse
(i) 11 East's Rep. 130. () Camp. N. P. C. <. (d) 7 T. R.
64. (r) Ibid. 4:3. (/j 7 T. U. 65. 2 Ld. R-ym. 930.
the
Of Bankruptcy. 301
the neglect to make a presentment so soon as would other-
wise be necessary (g). But in point of law, there is no
other settled rule than that the presentment must be made
within a reasonable time, which as observed by Lord Ellen-
borough, must be accommodated to other business and affairs
of life, and the party is not bound to neglect every other
transaction in order to present the check on the same day he
receives it (A).
When the check, &c. is due on demand, and not payable
at the place where received, it is said, that it should be
forwarded for payment by the next post after it was re-
ceived (TL).
Payment of a check or draft before it is due is contrary to
the usual course of business; and therefore when a banker
paid a check the day before it bore date, which had been
lost by the payee, he was liable to % repay the amount to the
loser (/c).
When payment is made by the drawee giving a draft on a
banker, it is not adviseable to give up the bill until the draft
is paid (/).
If the holder of a draft on a banker receives payment there-*
ef in the banker's notes instead of cash, and the banker fails,
the drawer of the check will be discharged (>ri).
CHAP. IX.
Of Bankruptcy.
SECTION I.
whom a Commission of Bankruptcy may be limed.
ALL persons, whether natural born subjects, aliens, or
denizens, being in trade, and capable of making binding con-
tracts, may be made bankrupts. 13 Eliz. c. 7. s. 1. 1 Jac. 1.
c. 15. s. 2. 21 Jac. 1. c. 19- s. 15. Persons having pri-
vilege of parliament, whether peers or commoners (re). Clergy-
men (o), are .subject to the operation of the bankrupt laws.
(g) Kyd. 46. Bayley, 6j. n. c. (Z>) 6 East's Rep. 3. (i) Bayley, 64.
Chitty, 127. (/) Mar. 21. ('J 2 Show, 296. () I Aik. 200.
745.
Bit
302 Of Bankruptcy.
But infants (/>), and married women cannot be made bank-*
rupt>. And if a feme sole, being a trader marries, a com-
mission issued alter the marriage cannot be supported (y).
There are however, exceptions ; for a feme covert, .sole trader
according to the custom of London, may be made a bank-
rupt with respect to her separate effects in trade (;). So
where the husband has abjured the realm, become an *-.\iU>
been transported, is divorced u. vincm'o or the like, and the
vile lias become liable on her contracts so as to be sued at
law and charged in execution, is liable to a commission of
bankruptcy (s). An infant who had held himself forth to tin;
world as an adult, and ftii juris, and had traded in that cha-
racter lor two years, was held liable to the bankrupt laws.
SECTION II.
JTliat Trading is rcithin the Bankrupt Laics.
ANY merchant r other person using the trade of mer*
chandi/e, by way of bargaining, exchange> bartering, chevi-
sance, or otherwise, in gross or by retail, or seeking his trade
of living by Inning and selling, may be liable to be a bank-
rupt. 1 Jnc. 1. c. If), s. 2. Also bankers, brokers, factors.
(5 Gco. 2. c. 30. s. 3y.) dealers in coals, scriveners (0, vint-
ners, brickmakcrs (r). butchers (it), manufacturers of every
description who purchase commodities, and manufacture them
into articles for sale, as clothiers (i), goldsmiths (^), lock,
smiths (z), plumbers (a), smiths (h), shoe-makers (<), nai-
lors (eO, tanners (c), bakers (J') } brewers (g ), uiilleners (h),
and dyers (i).
Pawnbrokers (A:), smugglers (/), and a carpenter who buys
matci ials for the use of his IruJe (:), are liable to a com-
miion of bankrupt.
But contractors for victualling the royal navy (;/); il;
of cattle, farmers, ^r;i/.i(i>, (.'> dfn. 'J. c. :'<;. .un-
keepers (o), aleh . or victuallers ( ;
(/-) i Atk. 146. 14 Ves. J.m. 602. () ; Fro. C. C. 266. (r) I Atl.
(i) 16 Vrs. Jun. 165. (t) I Ail.. 141. (v) i I:
' (H) 4 Bur. 2I4S. (r) Ld. Raym. 610. Stone no.
4) I Ld. Raym. 611 (.;) Hut. 46. (t) a Bl. Com. 476.' (r
< 51. (,/) Coodhingf, 11. (t) 3 MnJ. 3^0. ' I rx.
MT. 488. (?) i Ld. Raym. 610. (*)* Will. 169. '() tbid.
(*) i Ad. 06. (/) Ibid. 196. (m) 3 M V J. 155. () Ycnu
<;o. () 3 Lev. jto. (f) 4 Bu;.
gfi. I
Of Bankruptcy-. 303
general of the parliamentary taxes, (5 Gco. C, .c. 30, S..40,)
and the holders of stock in the Bank of England, in the
East India*, South Sea, Guinea, London Assurance, Royal Ex-
change, and English Linen Companies, and adventurers in
the Royal Fishing Trade, in respect of such stock, are not
liable to bankruptcy.
Neither is an owner of a mine who buys candles and sells
them to his workmen ((), nor a schoolmaster who buys books
and shoes and sells them at a profit to his scholars (r). A
maker of alum cannot be a bankrupt (s). nor can an under-
writer merely as such (f).^
Though an innkeeper or a victualler are not subject to the
bankrupt laws while he confines himself to supplying his
guests with necessaries, or selling liquors out of his house in
small retail quantities, yet if he deals in liquors as a distinct
business, and sells them to all persons who apply for them, he
may be made a bankrupt (r).
So if a farmer buys horses, for the express purpose of selling
again at a profit (u), or buys potatoes, and sells them with
others raised upon his own land (re), he may be a bankrupt
upon such trading.
But in Stewart v. Ball ( r), it was held that a farmer \vho
occasionally bought hay, corn, horses, pigs, &c. w r ith a view
to sell again for profit, which were incident to the occupation
of a farmer, did not thereby make himself a trader within the
bankrupt laws.
A farmer and grazier exercising also the business of a drover,
by buying and selling cattle from time to time beyond the occa-
sions of his farm, is exempted from the operation of the bank-
rupt laws by stat. 5 Ceo. 2, c. 30, s. 40. And the purchase of
hay for the support of his cattle, and the sale of part of it
again because it was more than was required for their con-
sumption, will not make him a trader (j/).
And though a brick-maker is within the statute, yet a dis-
tinction subsists where the business is carried on only as a
mode of enjoying the profits of a real estate, and when it is
carried on substantially, and' independently as a trade. Thus,
where a devisee for life of an estate, part of which consisted of
brick ground, made bricks for sale there generally, with a view
to profit, he was held not to be a trader within the meaning of
(?) Cooke, B. L. 58. (r) Peate, N. P- C. 76. (s) Cooks, B.
L. 60. (t) 15 Ves. Jan. 235. (v) I T. R. 572. I Selw. N. P. 199.
(u) I T. R. 57j. ( W ) \ Str. 513. (x) 2. New R?P. 78. (j-) n
Eaft's Rep, 274,
the
504 Of ^Bankruptcy.
the bankrupt laws, though he purchased the coals and some
of the woi.-J user! in burning the bricks, and had occupied the
same ground us> a brickmaker for general sale, befoie the
estate came t<> him by devise; for that it was but a more
beneficial mode of enjoying his own estate, by earning the
soil to market in au ameliorated state (:).
It a man bu>s a coal-mine, works it, and sells the coals, he
i- not a trader within the meaning of the bankrupt la\\s (a).
Birt if he sells the coal from the mine, together \\ith others
uhieh he bought at market, then he becomes a trader \\ithiu
the statute (/>).
A builder \\ho buys timber which he works into the
bouses which he builds, and sells the houses when built, is
not a trader \\ ilhin the statutes (c).
Neither is the building of a theatre to be held in shares,
and to be paid for by measure and value, and of which the
builder held nine shares, a trading within the bankrupt
la\\s (c/).
Being part owner in a ship, unless he freights it, or in a
barge, waggon, or hackneycoach, \vill not make a man a trader (r).
Drawing ami redrawing bills of exchange, and a continu-
ation of it, with a view to gain a profit upon the exchange,
is a trading within the bankrupt laws (f) Hut merely draw-
ing bills on a person's own account, for the purpose of
raising money to improve his estate, and paying for their being
discounted, besides interest, and borrowing accommodation
notes in exchange for his own to the same amount, will not
make a man an object of the bankrupt la\\> (c).
A trader, having retired from business, may become a bank-
rupt in respect of debts contracted during the period of hit
trading (A).
One single act of buying and selling will not make a man
a trader, nor will buying only or selling only ; but it must be
a repeated practice both of buying and M-lling, in order to
pet a li\elihood (/). And upon this principle it has 1
decided, that if a pcison imports goods without selling them
(/,), or sells off goods bought for his piivate use, or
special purpose (/), it is uot a trading within the meaning ol
the statute.
(*) 7 Ea'Rep. 442. (a) a We Is. 169. (I) Ibid. 170. (e) $ V.-f
C. 147. C</) Camp, N. P. C. 300. (e) 4 \ct. ]un-
163. i Venl.a9. i Alk. 118. (g) Cowp. 745- (*> *
Vent. . (,) z Bl. Com. 476. * Taunt, i (*j * Kel. 48 7
CO ivt.* 9 .
It
Of Bankruptcy. 305
It is both' a buying and selling to obtain a livelmocxl, which
brings a person within the statutes ; a buying or a selling alone
*ill not produce thrs effect (//*)'. And therefore a mere artisan
or handicraftsman, who obtains his living by his personal
labour only is not subject to the bankrupt laws (//).
If the executor of a person who was a trader, dispose of
his testator's stock in trade, it will not be such a trading as to
make him liable to be a bankrupt; even if the executor ftnwrd
it necessary to purchase articles to mix with and make the
stock of the testator more fit for sale (y). But if the execu-
tor buy the same articles as the testator dealt in, and sell
them intire, he will be a trader, and subject to a commission
of bankrupt (/?).
SECTION III.
Of the Place of Trading
1 F the trading should be by buying only in England, and
selling beyond the sea (</), or buying beyond sea, and selling
only in England, or if the party should only trade to England,
and not reside here, it is a trading within the bankrupt laws (/').
.And if a party residing abroad conies to England, and commits
an act of bankruptcy, he may be made a bankrupt.
If one of two partners of a house in Dublin purchase goods
in England in tfie- jpin't name of himself and partner, it ha*
been held that the debt so created made the partner resident
in Dubliii a trader in England- subject to the bankrupt laws (&).
SECTION IV.
What are sufficient Acts of Bankruptcy.
THE better to obtain a clear and comprehensive view of
the decisions upon the subject of this section, we shall consider
.separately each act of bankruptcy, upon which any question
appears to have been raised ; premising that the statutes of
bankruptcy are, as to the act of bankruptcy and trading, con-
lined to England, and do not extend to acts done in other do-
minions of Great Britain, or in foreign countries (t).
(*) i Com. Dig. 522. () 3 Mod. 155. (o) Cooke, B. L. 44.
\f] i Atk. rcz. ( ? ) Raym. Rep. 375. (r) Cowp. 398; 6 T. R. 350.
(f) Taunt. 270, (<) Cowp. 398.
X By
306 Of Bankruptcy.
BY star. 13 Efc. e. 7, 8. 1. J JW. I, <J. 15. 3. T, 2. it IT
enacted, that any person u>ii:u the trail*.- of merchandize, &c.
MI.-) .-lull do thu following act*, .-hall be liable to be a
bankrupt.
1. " Depart the realm."
This niiwt be tlone w, ith ;>n intention to defraud or (May credi-
tors; for delay without such intention will not be an act of bank-
ruptcy (i').
Au intention to delay creditors, although no delay takes plac*
13 an act of bankruptcy (w).
2. ' Or heyiii to keep house."
To constitute an act of bankruptcy, the l> uiu>iinj t> keep
inn 4 be done with an intent to defraud or delay credi-
tors; which intent to defraud or delay is evidenced by In -ini;
actual!} denied to a creditor (.1)- lint an order to be denied
i* nofc sufficient \\ithout an actual denial ( ;/). And the d nial
most be to a crcilitor \\lio l,as a debt due to demand : a denial
therefore to the holder of a security payable sit a future day will
not be Hifiic.ient, although the security be nch as may by >ta-
tute 7 O'cu. 1, c. 31. . 1, '2. be proved under the ronnui^-
,1 (rX lint denial to the holder trf a bill on the morning of
the day on \\hieh it become? due is .sufficient (</).
A denial by order of a trader to a creditor i^ not of itself :m
act of bankruptcy, but only evidence of it, ami thetetWe "|.u
to e\planation. ]ieing denied when sick, :u roin-
pany, particular business, or o\\iug to the lateness of the liour,
aic >iot act* of bankruptcy (//).
t);i tl.e oilier liand, it is not nccessjiry, in order to coielUute
a denial an, act of baukaiptcy, that the bankrupt ^lu.uJd
}jave uueii onleis to ileny any particular civd.t i ge-
;1 crder of iltHJalj followed by an actual denial is ?uf-
liciei:t (r).
It is not a})olntely nfcessan I hat the denial should b to
the creditor pei M.nnily ((//: a dm::d to hn clevk ,< i, T to his
: fivrilil / / . II'.
i-u :i ..-: it appeared ilia', tin- ereditur, to uhoin
the d'ni;d \\a< .Mjppns-d tn have been '.MM u b\ (In |
clcik, had only demanded pa\iiM-ut >< ihe drhl, Imt \i*,.
a-keii lo -e Hie plaintitf |i. i ..i.;ili ., and tliat the elerk *up-
<l to sive the. lUiw.d, ta\l uo specific linetU.'iw j^>r
(v) 7 T. K. 509. ; (u) 9 Ea.t'iRcp. 487. (*) 5
K ( ) Cockc, H. (a) 7 Via. Abr. 6. t. 14-
; (*; I \'k .101. I Bur. 4*4. Kul. S.P. jS.
; i THum. 479- K>Bul. N.l'.jy. (J *T.
v
Of 'Bankruptcy. 307
giving it, it was held that such denial did not amount to an
act of bankruptcy (g).
A d-euial to nvoid an attachment for lion-delivery of goods,
as it is only to evade doing a duty, dues not amount to an act
of bankruptcy (//); but a denial to a creditor to avoid service/
out of chancery, upon a decree for payment of debt; is other-
vise (/).
A concerted act of bankruptcy will not support a com-
'mission. And therefore if a creditor calls upon the bankrupt,
by agreement, that he may deny himself, or otherwise c'onr.urt*
an act of bankruptcy with the bankrupt, die commission
cannot be supported upon such concerted act (). If how-
ever, a creditor not privy to the agreement, calls upon the
bankrupt, and he is denied, the denial will be good evidence
of an act of bankruptcy (/).
3. " Or absent himself/'
This if done \viih a view to delay creditors, is an jict of
bankruptcy, although no creditor has been thereby delayed' (//z).
But it ts not an act of bankruptcy if he absent himself for
any other purpose than to defraud or delay his creditors : as
if to avoid au arrest upon an eiromniiuticato capiendo^(>t)~,
or the service of process io enforce a decree in chancery; or
zn attachment on an award for non-delivery of goods pursuant
to the award (); for it is not a debt L'ut a duty only.
4. " Or wiliingly and fraudulently procure himself to be
arrested, or yield himself to prison."
This if done for a fictitious debt is deemed art attempt to
defraud creditors, and consequently an act of bankruptcy.
And if a man yields himself to prison for a just debt, if dune
with an intent to delay or defraud creditors, and the party
lies in prison two months, is an act of bankruptcy (p}.
b. *' Or willingly, or fraudulently procure his goods, money,-
or chattels, to be attached or sequestered."
The attachment meant by the legislature, is that by which
suits am/ commenced in London, Bristol, and other towns,
where that species of process is made use of. .Hence whera
a person executes a bond and v. arrant of attorney to confess
judgment, either, for a bonnjide debt (</), or for a larger sura
than is really due (/), and judgment is entered upon it accord-
(g) i Camp. N. P. C. 271. (b] i A tic. 196. (!) 2 Com. ftif. 5.
(J) Bui. N. l>. 39. 16 Ves. Jun. 145. (i) 7 Ibid. 503. 16 Ibid. 145^
(m) i Isp. N. P..C. 651. i Nt:\v R.'p. 234. (n) i Com. Pi*, jaj.
(o) Davh's B. I- 45. (/>) 7 Via. A-.;. 6r, -i:,. p!. :'c. ( ? ) Cceke,
B. J.. )OO. (r) Cowp. 427.
f'
x 2 ingly,
O/' Bankruptcy.
'., and the debtor's -jjooils taken in CM vntion, such ex
lion is not an attachment, and consequently is not an act of
bankruptcy, \vitliiu tlu % meaning of this clause.
An adverse attachment or sequestration is not \vithin thr
hieaaing of the statute, but it must be by the party's procur-
hig, with an intent to delay creditors (s).
(i. " Or depart from liis duelling house."
To constitute this an art of bankruptcy, the intention to
delay his en tlitor, by departing from his dwelling house, H
sufficient (t). But die motive of the party may he explaiiud
l>y circumstances which will negative ihe apparent intent (r).
A compulsory absence, as in the case of bi inn arrested, \\ilf
not be an act of bankruptcy (it}. Nor an absence to avoid ai-
taehnicnt lor not performing air award for the <l< i
goods (.1); but it is otherwise if for the payment of n sum of
mom\.
7. u Or suffer himself to be outlawed."
An outlawry suffered must be with an intent to defraud
creditois, otherwise it is not an act of bankruptcy (i/).
S. " Or make, or cause to be made, any fiandnlent grant
or convr-.aiice of his Ian;!-, tenements, i;oods or chattr.
If a trader in contemplalion of bankruptcy, in imlir tn
pay even a just anil honii /id 1 ' creditor, or one \\ho by j>.
bility may become a creditor (viz. a Miieh) a>.si;jrnj by deed
all, or even a part of his i-rVeels to Mich creditor, the tVi d i-
fraudulent, and consequently an act of bankruptcy, whether
possession \\as delivered to the creditor or not (r). And the
same rule holds if the -assignment be to some creditors, but
in total exclusion of others: or if the deed is executed in
concert with several creditors, upon trust to pay all, and i-
aftcrwards abandoned by the Creditor* (a). An :i -Lnnnenf
of all a tra > ts for the benefit of all his crcd:i
unless every creditor had concurred, i> .in act of bankruptcy (A).
Bat those who execute the deed cannot set it up as an
of bauljnptcy (t).
Aijd an assignment of part of a trader's erftafo Bud eflfi
if made in contemplation of bankrupt! y. \\ill be fraudnl- .
and of course* , an act of bankruptcy (d). lint if a tradn
utes an assignment by deed >f part of his <llc'-, and
delivers n, or a nominal pOfwettioOj and it doeu
<>) i Com. Dig. 6. (0 5 F..J . N*. P. C. 139. () 7 T. R. $09.
() (irrcn. 53. fr) I Atk. 196. (y ) a Sid. 69. <n) I I'ur. 467.
a Ibi>). ?i-. Doug. 8S.n. (4) 4 Eau' U-p i-,u (4j Bul.N
(\) T. it. 594. (d) J WiU. 47. Doug. 86.
not
Of Bankruptcy. 309
ot appear that he had his bankruptcy in contemplation, the
assignment will be good, and not an act of bankruptcy (<;).
Jn the conveyance of the whole or part of the bankrupt's
cstace, the circumstance of his being at the time of the con-
veyance under arrest at the suit of the creditor to whom the con-
veyance is made, will not give validity to the transaction (f).
A conveyance of the whole or part of a trader's effects must
be by deed, to be valid. Therefore a fraudulent conveyance
ot by deed, is not an act of bankruptcy () But such con-
veyance though it does not amount to .an act of bankruptcy,
Mill be void by reason of the -fraud (A).
Having stated the decisions which have been made
the several acte of bankruptcy enumerated in the 13
c. 7. and 1 Jar. I, c. 15. wo shall proceed to the considera-
tion .of -.such acts as are mentioned jn the %\ Juc. \, .c. 1&
s. 2
9- " Procuring or -obtaining any protection, not he iug law-
fully protected by privilege of parliament."
By statute 7 Ann. c. J2, s, 5., traders are declared not to
be entitled to the protection given by that act to anibassudo^s
and their servants.
10. " Or being arrested for debt, shall, after -his arrest, lie
ia prison two months or more, upon that or .any other arrest
-or detention in prison for debt."
In the construction of the act it -has been determined, that
lying in prison t\vo lunar months, will make the party a bank-
rupt from the first arrest: and in computing the time, the
day of the arrest is to be included (?). lint k' there is riot a
continuing imprisonment from the time of the arrest, thfn
the intention of the legislature appears to have been that the
two months should run only from the time of the party's going
to prison, and not from the arrest (A) And where bail is
jeaily put in, the bankruptcy only relates to the time of the
surrender (/).
11." Or being arrested for 100/. or more of just debts,
shall, at any tune after such arrest, escape out of prison."
This must be an escape against the will of the sheriff; ajid
the escape must also be such as shows that he intends, to run
away (/).
1'J. By the slat. 5 Geo. 2, c. 30, s. 24. " If any bank-
rupt after issuing of any commission, pay to the person who sued
(f) i Bur. 478. yT. R. 67. (/) 7 East's Rep. 138. feO 4-B'jr.
2477. Cowp. 629. (b) Ibid. (i) 3 East's Rep. 407. (<t) i Camp.
]N.1VC. 509. (/) Bui. N. P. 39. Wilies, 464. () i Bur. 437.
310 Of Bankruptcy.
ont of the samp, or other- or deliver to such person
.;? or other satisfaction or st-cnriiy for his dt bf, \\ lu itby
#uch ..u-ly have and on- ;n iht pound
in respect of his debt than the other cr ^.:ch payment
of money, delivery of goods, <-. ^i eater or other secu-
rity or satisfaction, shall bt- deenud tu be ai net of bankruptcy,
fby ; on t').'i proof thereof, Mich commission shall he
6ii}"' /;)
-* Gi'O. 3. c. 3^, it is rnartrd, " 'I'hat the crrditv^rs
t<>- alut 1 , via. one creditor, or two b mi, jaiin-is. to
the amount of 1()0/. ; two creditor.^ ti ih- a.iuMint of 150/.;
and ih ce t>> tht- amount of 2(rt)/., of aiu trader within the de-
scription of the bankrupt la\< s. having privilege uf p^rliatnent,
jnav (upon aftidavit of the (;tbt, and trading of ihe debtor,
$lcd <>t :<coid in any of tht court- at V> t >tmin>tt r,") sue out
a >nuimou>, or on_!i!al bill and suunnons, u^ainst such trader,
and MTve biin vith a copy; and if he shall not, \\ithin two
month, alter pt-v ire, or c th<
del t, or enUT info -i bond in such ?nin, and with two such
e court shall approve of, to pay such sum as sh:.ll
.^.M'.d in such action, witli rov;.^ h -hall be adjudged
a bankrupt frosn tl)>- time of the ? -rvice of MU h -
This provisii*n of the Jepslatu <i b\ Mr. Sl-
w\n ^ : ilary; bill having on - liert
1 icndcrcd uu-
gatoiy li ih- (hfrictilty. an(i .ornetimes by the i:nj)ossibility, of
enforcing iru entering of appearance* in il'rartions, for the pay-
ment of ;he .suii;s to ((\. in whidi vurh bonds had
;t vas rnacted l>-- *. 1,
th:i' ' '..-.st, b:>:iM r, broker. I;;
tr.i'! r, ii.ixi: g privil sh;ill bt-
d a bankrupt, tl'.iu luo iuintiis after
bi : h the prt e iu
the c urt in \\h:< .itli merchant
an ordtir
>i ; lei to pa\ inv)iu\_,
such on 1 -
if b:mknij l.-v v.hich I
nee of ..
.
(/; .
Of Banff nip fey. 311
Iu the case of partnership, and a joint commission, each of
the partners must commit an act of hankropu
A* to the etiect of yn act of batik ruptev, a plain direct act
of bankruptcy, once committed, cannot 1/e purged or ex-
plained away, as a dubious equivocal act may, <'\vn though
the patty contiimcs to carry on a great trade (/)> IJut \vheru
tiie act is in itself -doubtful, it may fce explained (*;.
SECTION V,
.Of the petitiwiittg Creditor a Ddlt.
THE petitioning creditor must have a legal demand to the
amount of 100/. ; and if twy creditors join in petitioning for
a commission, their debts must be 150'. ; if three or more
join, they must be creditors for '200 1. 5 Ceo. 2, c. 30, s. L 2:'j,
But a debt in equity will in no circumstances support a .com-
mission; as in the case of an assignee of a bond, the assignee
cannot be a petitioning creditor (f).
-Before the statute 5 Gco. '2, c. .00, it was considered that it
did not alter the case, whether the petitioning creditor's debt
was contracted before or after the act of bankruptcy, but since
that statute it has been decided, that it must be contracted be-
fore the act of bankruptcy (M). But as it often happened, that
after # commission had been .taken upon a clear act of bank-
ruptcy, and a good petitioning creditor's debt, that a secret act
of bankruptcy was proved to have been committed prior to the
petitiouing creditor's debt being contracted, whereby consi-
derable confusion and inconvenience arose in the administra-
tion of the bankrupt's affairs, it was provided by the statute
46 Geo. 3, ,c. Io5, s. 5, that no commission of bankrupt,
thereafter issued should be avoided or defeated by reason of
auy act of bankruptcy having been committed by the bankrupt
.prior to the petitioning creditor's debt being contracted, if
such peulionmg creditor had not anv notice of such act of
bankruptcy at the time when the debt uas to him contracted.
So -much .of this act as made the issuing of a commission
<>r the strikiug of a docket .notice of a prior act of bankruptcy
is repealed by the stutute 49 Gto. 3, c. 121.
,(f) i Atk. 97. (r) iJ5ur. 484. Sj!k. no. (j) 2 T. R. jg.
(} I Atk. 146, 2. Ves. 427. (u) Cookx, li- L. 23.
Of Bankrupt oil.
By tbe statute i Cm>. 3, c. .SO, creditors by bills, -'bonds,
promissory notes, and oilier personal securities, payable at *
u day, are enabled to sue out a conunjssiou ot Bankrupt
bet', 'it- they actually become due and payable. Hut goods sold
and dehveied upon an agreement, to be paid for by a present
bill, payable at a future day, does not create a present debt on
which to found a commission of bankrupt, although no MJCJJ
bill be actually given; f<T the intention of the legislature
plainly confines the power of petitioning to such a editor-,
where the debts are di'.e at it day to rine, as have written
cinities payable at a future day ; and while the contract is ^
cutory on the, part of tiu: vendee, no action for goods sold and
delivered can be maintained by tW vendor before the tin
tfce bill agreed to be uivrn would ha*-
If, however, a creditor far goddu . nt a
bill of exchange, pavabie nt a future day, and he negotiate it"
before the bankruptcy of the debtor, and i* ?::l.e i'
up upon its behi'4 dishonoured alter his bankruptcy
sue out a commission upon his debt (y.
A crt dih'r fr a debt after the party quitted tr-
out a commission; but a creditor before lit entered into trade,
whose debt subsisted during tiir trartincr, mav
And if the debt is contracted belou- leaving oO' :
the act of bankruptcy is coirrmitted after leavin; olf tiaile, the
'itor may take (tut a commission (f).
A petitioning creditor cannot proceed at l:i\v a^r;mst tlie
bankrupt; for by suin^ out the commission !i- has ij, u.-nniued
his electi(.n, and is precluded from proceeding at law,
M debt distinct from the one he proved (/). And b;-
(!ro. ;3, c. 121, s. M, it is enacted, that proving or claim
!>t under a poflrthtssion of bankrtipt slinll 1..
1< ction by such creditor to taie tl" <>f <u( h conn
MOII with respect to the debt >o proved rui(l cluirin d by him.
A debt i't law, rot\\it!ist:indin2 \ i.'initutl't:.
Kimrri'd, \'il! siipport tlir statute doi - mt
xtir.'^'.ii-h li.e debt, il the reme'ly by
t ({), A;id theiffore. if the bankrupt submit* to thr com-
, a third person cannot take ndvnntage of ll.'.i'
\uiejit of a ju.st (! bf to tin
:t" the bai'.krupt himself :u
t\tc > i, thv cae in iy i ' i. /'i.
, i'ntft K^p. 49*. (j ) 4'Mont. B. T~ App. 7. (-0 ''
(.>} ; (i) \ Atk.
(.-j a Su. r^f. -j. BMUp. 703. (J) Coo'-:-, li. L. ij.
)il.
Of Bankruptcy. 318
A commission sued out upon a debt due jointly to a person
presiding in England, and others residing abroad in an enemy'*
country for the purposes of trade, although British subjects (e),
.or it sueit out upon 'the petition of only one of two partners
to v. horn a joint debt is due (f), cannot be supported.
SECTION VI.
Of the Commission.
\. OF issuing the commission.
B) the statutes concerning bankrupts, the power of issuing
commissions being vested in the lord chancellor, lord keeper,
or lords commissioners of the great seal, when a creditor, finds
Jiimself under the necessity of obtaining such a commission,
if he resides in town, he must make an affidavit of his debt be-
fore a master in chancery; if in the country, before a master
extraordinary ; and must execute a bond to the great seal, accord-
jug to the statute ; and upon such affidavit and bond being pre-
pentod to and answered by the lord chancellor, the creditor is said
to have struck a docket. But unless the party striking the docket
seals the commission in four days exclusive of the day of striking
jthe docket, or orders the commission to be sealed at the next
public seal, in case there shall be a public seal within seven days
next after such docket shall be struck, or by a private seal
within eight days after the striking of such docket, then any
other creditor may strike a new docket, and sue out a com-
mission (g).
After the commission is sealed, .the creditor is allowed four-
teen days if it is to be executed in London, and twenty-eight
days if the bankrupt resides forty miles from London,,
to prosecute such commission ; and at the expiration of such
limited time the commission is supersedable it not prose-
cuted (//).
'.2. Of the effect of the commission.
A commission of bankrupt has the effect of immediately
vesting all the rights and possibilities of the bankrupt under
the administration of the Lord Chancellor in bankruptcy ; and
it has issued, and the party is declared a bankrupt, his
(<0 i Taunt. 477. . (/) 3 Bos. and Pul. nj. (#) Genera!
Orders, izih Fb. 1774; agth Dec. i8c6. (&) (janeral Order, 26thjunc,
1793-
death
314 Of Bankruptcy.
death will not prevent the further execution of it/i). So if
there is a joint commission against two or more parti
though one of them should die {he commission may still ,
ct-ed. But if one of the joint trader* be dead at the tin.
taking out the commission, it abates, and is ab>olntcly void,
because they must each be found bankrupt (/). Ami \\lrre a
joint commission is prosecuted, all the ostensible partners must
be included ; for a joint commission against t\vo or more
of several partners cannot be sustained (/:). But it is not ue-
ry to include a secret partner (/).
However, it must appear, that a partner omitted was really
a secret and dormant partner; for if there \\ere any means or"
knowing his connection with the partnership, his omis>ion will
be fatal: and it has been held, that when the tille <.f a linn
i.:i- tru- genera! word " Company," the creditor ought to d-
c<Ttain the members who constitute this partnership (>').
To support a joint commission. each of the paitnrrs inn<-t
ha\e committed an act of bankruptcy, and must be fmmd
a bankrupt (//).
It was formerly the practice, where there \rci'
IK rs, to take out a joint commission a^ain^t all, .cute
commissions against c:vh at the satin time ; but thi pru-
:ad to be attended with double a: id to
sior. :i with respect to the effects, it In* bern viur-
bOQTftetiHnced ; it bein^ ttie common rf>iirs- of tin- court,
petition, to make an order for the M-parate credito: i iu
and jirove their dei)ts under the joint commi
uiil keep distinct accounts <>f thr
. it al-<> uppr-.irs t > h.iv been an opinion, that joint crt--
.il.l not provt llicjr'l -bts under ;. coinims-.
'>r tlu }jurpose of ;;-n, tim: to, or Assenting from, tin.
c; but tlsat they must pmcer-l to I a joint
13;it now by a ^rncral order, Mh M.irr!i, !
> ;oint coi: !, the coimi.
.listiuct accounts to In- kept of the joint and
raft- <--t.iti -, and any to b>' provid n:xK i
joint commi" ;phcable
;l ot tilt :
now to be st ttlid, that a joint an-!
oried ut the same tnur, lor ull
i Vern. T^3. 15 Vn Ju.i. 494. (j
ktk.'ej-}. (t) Wu.ci, 474 "- -4- ( m )
(*) Co i Uvw, f. ()'* AJt 158.
the
Of Bankruptcy.
th effects of the bankrupt are vested iu his assignees under the
tirst commission ; and in general the second will be super-
seded (p). However, it is certain, that in practice, joint com-
missions are taken out after the parties have been declared
bankrupts under separate commissions, by which means great
ex pence is saved, and the joint effects disposed to better ad-
vantage. And therefore, in a fair case, and where it can be
made appear, that the bankrupts estate will benefit by pro-
secuting a joint commission, the lord chancellor, to make it
valid, will supersede the prior one.
If an uncertificated bankrupt carries on trade, either by him-
self or in partnership, the creditors under the first commission
will be entitled to all the property he acquires until the obten-
tion of his certificate; for an. uncertiticated bankrupt is inca-
pable of trading or contracting for his own benefit (q). ' And
therefore where an uncertiticated bankrupt entered into trade
in partnership with another person, and a joint commission
issued against them, it was decreed the creditors of the part-
nership had no equity against the assignees under the first
commission, for an account mid application of their debts, of
the property used or acquired in that partnership (;)
Where one partner iu a mercantile firm is an infant (s), or
a lunatic (t), a joint commission cannot be supported : sepa-
rate commissions must be issued.
3. Of the costs of suing out a commission.
By the statute 5 Geo. 2, c. 30, s. 25, the petitioning cre-
ditor is directed, at his own costs, to prosecute the commis-
sion till assignees shall be chosen; and the commissioners, at
the meeting appointed for the choice of assignees, are to ascer-
tain such costs, and, by writing under their hands, to order the
assignees to repay the same out of the first money or effects
received or collected by them under the commission. But the
direction of the statute, that the commissioners shall settle the
bill is not heM to be so conclusive as to prevent the chancellor,
upon petition, referring it to the master in chancery to tax, if
upon the hearing there should appear to be reasonable objec-
tions against the allowances made by the commissioners (v) .
4. Of the remedy for maliciously suing out a commission.
If the commission appears to have been fraudulently or
maliciously taken out, the lord chancellor is, upon petition of
(p] Cowp. 824. aVes.Jun.67. ' (jO i Atk. 251. Cooke, 33. L. 9. 16
Ves. .Tun. 236. (r) xo Ibid. 94. (t) 4 Ibid. 163. (t) 6 Ibid, 449.
.(v) Cooke, B. L. 1Z.
31(5 Of Bankrupt fy.
he party grieved, empowered by the statute 6 C*rr>. C, c. 30,
*. '2">, t<> < \amine into the same, and assign to such person
lite whole or part of the penalty conditioned in the lx>nd of
I he petitioning creditor, who may sue for the vatnc in his nume.
Or-if the bankruptcy is a doubtful case, and the commission
superseded, the lord chancellor may either direct an enquiry
belbre a master, of the damages sustained by the bankrupt, or
a quantum indcnnruficatus upon an issue at law ; ami after the
damages are settled the court may, for the better recovering
thereof, order the bond to be assigned (*). liul wliere a case
attended with any flagrant circumstances, the l>owl will bo
Aligned without further enquiry. And it is competent to the
lord chancellor to order the petitioning creditor to j:iy the costs
of suing out .the commission, with the costs of the applica-
tion (r).
But -notwithstanding a remedy is provided against maliciously
Wing out a commission, by enabling the lord chancellor to
assign the bond, or to award a specific smu-hy uuy of damage*,
it has been held, that the bankrupt is not deprived of hi
wedy at common law by an action for damage*, i hut mav ;
ceed at common law to obtain such redu-ss tor the mnirv IK
JwtTaOgtwned aa a jury may think him entitled
.- evidence tOUppr<;t tin; -..Hiim-ii'n.
'Hie bankrupt cannot be a witiu < 10 -tipport the <ommis-
i, either by proving the petitioning creditor '* debt, the
trading, or the ar.t of bankruptcy (a).
JSo release can IIKIM tin- bankrupt a witiK*^ 1 * to provt- hi-
t : art ojt bankruptcy (r).
A baukf upt cannot be evidence to prove property in himself,
r a debt due to his estate, unless h> j '! his certiti-
ate, and jUiven a release to the assimu - ^'1 In- sh.ire m the
irplu aud the Utvidfiid<. lint he ma\ l><
tbc a*sigows. to prove proprrl\ m or a drbl dur to anullu i ; 1-ir
i-t lii^ iim-ie --t to.jlinuiii^ii (l;c t -t:it.
I ; a bankrupt had obtained h- r. itilirnte, and r*-
'! allow aiuc, tlu -utfrrod I
- s not bound t'> n-tund
A imnkrupt having obtain* ;\l<- uud .
< r >mnjis.si'n, rvrn with - : m>t a conaj-
-:id; fur in the event of lii- mi j-'Mii^ !*
144- (') 3 Eait'iR'-p. 12. 7 T. R. -,c
: i I'. 43. (v; i Sir. ?i). (y . I .
. "O. . j<9-
Of Ban A- nipt a/. $1 ?
hi the pound under the second 'commission; h future effect-?
are liable (tf ).
Declaration* made by the bankrupt at the time, in explana-
tion of his own act,-may be received in evidence. An ad-
mission by him, before his bankruptcy, of a debt dne to ano-
ther, is sufficient to charge his estate. If he has been? 'afesent
from home, an admission by him, that be had been abroad to
ovoid his creditors is good evidence. Whatever he says before
his bankruptcy is evidence explanatory of the act done 'by
him (6).
1 Creditors being obviously interested in the increase of tire
bankrupt's property, cannot, during the continuance of that
interest, be admitted witnesses to support the commission, or
to enlarge the divisible fund (c) k They cannot, therefore, provo
the act of bankruptcy (d), unless they release their debt to the
assignees (e). But if a creditor has sold his- chance of reco-
vering a debt (f), he is a competent witness to prove the com-
mission.
(5. Of a renewed commission.
If by the death of more than two of the commissioners,
or any other cause, there are not a sufficient number to exe-
cute the commission, it must be renewed, upon which renewal
only half the fees usually paid for granting a commission are
payable, 5 Geo. ( 2, c. 30, s. 44; and the commissioners uiv
der a renewed commission proceed from the stage which was
left incomplete by the former (g 1 ).
SECTION VTl.
i
Of the Modes of proceeding on the Commission:
1. OF opening the commission, and declaring the party
bankrupt.
When a commission has been sealed, one of the messengers
in bankruptcy is to summon three of the commissioners to
aU'jnd a private meeting, for the purpose of opening the corn-
illusion; who, after haviug qualified themselves by personally
administering to each other the oath directed by the statute,
(a) Peake, N. P. C. 3. (l>) 5 T. R- 512. BuU N. P. 40. i Esp,
N. P. R. 334. Cas. Temp. Hardvyicke, 267. (c ) a Vent, it." (d) Peaks'*
N. V, C. 80. (s) Cis. Temp. Hardwicke, 267. (/I 2 Bl. Rep. 1273.
<> Cooke, B. L. 13.
318 Of Bankruptcy.
proceed to receive proof of the petitioning creditor's debt, the
trading, and the act of bankruptcy. By a general order, CO
Nov. 1708, the petitioning creditor or creditors must a|p;n
be five the commissioners for the purpose of proving; his IT
their debts. And this order is to ht* MO strictly :tdher* d to,
that the commissioners ought not to depart from it without
the special order of the lord chancellor, even in cases where
it is impossible for the creditor to attend. V\ itnes.-es must
also be produced and examined before the commissioners, to
prove the trading and the act of bankruptcy (//). And it st ems
from a late decision, that a creditor is a competent \yitnes9 to
prove the trading and the act of bankruptcy (/).
2. Of the power of the commissioners to sei2e the bank-
rupt'* property.
Upon the part\'s being declared bankrupt the commis-
sioners are, by statutes '2\ .lac. 1, c. ]<), s. 8, and ,0 (*ro. 'J,
c. :30, s. 14, empowered to issue a warrant under their hands
and seals for the seizure of the bankrupt's effects, books,
papers, or writings in his custody or possession, and to break
optu the hous.es or places belonging to the bankrupt, in ra^e
of resistance or not bating the key of any door or lock \\1.
any of his goods, &.c. are, or are sn.specti d to be.
J3ut they cannot break open any but the bankrupt's house to
search for his goods, &c. (A').
\N hen goods have In . n sent by the bankrupt oti board a ship
to bu convened to his correspondent abroad, the commi-Mont is
cannot seize and take them away without paying the fi eight,
and indemnifying the ma*t-r of the veM-'el against a bill of
bufing sent to the cousignef (/). But should the nu ;<ro--
ceed to make a sci/uiv, eun thougtl such sei/ure ma\ he ille-
gal, the forcibly tuiuinu mt oi . ai cannot be jiiititii d,
but may be the ground of an attachment a^aiiibt tlic p.uty i;
such force (m).
3. Of the power of the COimnissioiMn over the bankrupt.
Th .'commission* rs, if tliev l:a . to appiehend that
the bankrupt is making away vith and conecalin* h;
fee ts, or preparing to depart the kin^drm, to avoid Minender-
iii'/, may summon him to a)peai before them to he examined
immediately <n}\ and in < a>e lie ih-oli v^ their summ
,eted by the statute j (n'o. '2, c. 30, s. 14, that upon ccr-
() Coojtr, C. L. IOJ. (, } -i Can.p. N. P. C. JO I. (
(/) Molloy, 153. ;: 9 S.. () I Atk. 136. ^
(n} I Aik. 240.
till
Of- Benfoupfty* 3 1 9
tificate under their hands and seals, that a comoiis?iou is issued,
and the person proved before them to be a bankrupt, any
judge or justice pf the peace in England or Wales is em-
powered to grant a warrant, under hig hand and seal, to ap-
prehend and commit him to the common gaol of the county
where he is taken; there to remain till he is removed by order
of the commissioners, or the major part of them, by warrant
under their hands and seals.
But if a bankrupt taken under such certificate, and tire war-
rant thereon, shall, within the time allowed by the statute,
submit to be examined, and in all things conform as if he had
surrendered, such bankrupt shall have the benefit of the sta-
tute as if he had voluutaril v surrendered. Stut. 5 Geo. 1, c. 30,
s. 1.3.
If a bankrupt does not answer the questions put to him by
the commissioners to their satisfaction, they may commit him
until he does comply (o).
Formerly, if the bankrupt was in execution, the commis-
sioners were obliged to attend him in prison to take his exa-
mination; but by the statute 49 Gear. 3, c. 12J, s. 13, the
gaoler or keeper of 4he prison must, upon the warrant of the
commissioners, bring up a prisoner charged in execution, to
be examined by them, in the same manner as is practised with
respect to bankrupts in custody on mesne process.
4. Of the power of the commissioners over other persons.
By the old statutes of bankrupt of 34 and 35 Hen. 8, and
13 .Etiz. c. ?, the commissioners had no power to commit,
but they had power to call before them all persons " known,
supposed, or suspected to have, or detain" any of the bank-
rupt's estate or effects ; and if such persons, upon examina-
tion, did not disclose the whole truth of such things concern-
ing which they should be examined, or if they defied to swear,
tken such persons were to forfeit double the value of the
goods and debts by them concealed.
But the deficiency of t|ie above statute as to the power of
commitment was remedied by the statute 1 Jac. 1, c. J5,
which gives the commissioners power to commit persons re-
fusing to be sworn and make answer touching the bankrupt's
estate aud effects; and this power is adopted Uy the statute
o Gco. 2, c. 30, which further requires the party so-examined
to sign his examination taken before the commissioners.
() li Ves.}un. 511.
But
But there does not appear to be anv power to commit in
case a \vtness refuses to obey the coniTOissiouers' summons to
prove the act of bankruptcy or llie trading (/>). The defect,
therefore, must be remedied by au application to the great
If a witness is prevented fro-.n attending the commissioner
according to their hiinuuoiis, lit.- must make it known to them,
and obtain their allowance for the excuse, and must atf nd the
next meeting of which he has notice. 1 J,:c. 1, c. 1.0, s. 1O.
c of J|\vr 7. Missing (r) it was held, that the
rommi-.-iinuTS had no powrr <>r anthoiity to commit one sus-
pected of detaining the bankrupt's effects for not attending to
be examined the tir.st summons ; but thi case l:s been since.
-ruled in the court of kin^V bench in the ca.se of Haiti-
-\( -y and others : in \\hich it was held, that a warrant for
the arrest of the witness, MI order to examine him, n.iy i
after his disobedience to the liist summons (s).
No action will lie against commissioners for a commitment
had in consequence only of a formal defect in the warrant (t).
But an action of trespass will lie against them for committing
a person for not answering improper questions, or for not ac-
nui'^scing in a proper answer u 1 ).
The wife of the bankrupt cannot be examined against her
husband touching his bankruptcy, or whether he had com-
mitted any act of bankruptcy, or how or when he bt can
tankrupt (/i). J Jut the statute 21 Jac. 1, authorises (01111111^-
sioners to examine the wife touching any concealments of ih<*
goods, effects, or estate of the bankrupt.
The commissioners of bankrupt may is.^He process of con-
tempt, not to punish, but to compel au answer; they have m
power of committing for punishment, and they are not ju.i
and therefore the' cause of their commitment is travervible.
They are, however, a court of justice sufficient fur the
purpose of having their witnesses protected during their at-
tendance eundo ft redenndo (r. ). And it appears, ihat it
t material whether the witnesses be .summoned in writing
or vei bally by the messenger; provided the commissioners after
adopt the verbal .summons ot "the messenger ( r). The pri-
vilege also extends to persons who attend voluntarily (i/).
(p) Cooke, B. L. () 11 Vc. Jun. 8. (') a HI. 1055.
(i; 8 Ea' Rep. 318. (r) Omb. 391. (v) * lil.Rep. 1141.
m) i 1'. Wmt.6iu. (w) 4 J31. Rep. 1 14.. (x) 8 T. R. 534.
(j) lbld -
5 And
Of Bankruptcy. 52 1
And Lord Eldon said be should pause long before he de-
termined, that a creditor attending merely to prove his debt>
and not upon a summons, should not be privileged (z).
Witnesses attending commissions of bankrupt are entitled
to such costs and charges out of the bankrupt's estate as the
commissioners, in their discretion, shall think lit, 1 Jac. 1,
c. 1.5, s. 1 1. But a witness is bound to attend the summons
of the commissioners, although he has not been tendered the
expences of the journey, unless he can prove that he was
unable to bear the expences of the journey (a).
A witness is bound to give an account of what he knew of
the bankrupt's effects, as well before as after the bank-
ruptcy (/>) But a person examined before commissioners is
not bound to answer any thing which tends to criminate him-
self (c).
SECTION Till.
Of the Assignees.
1. OF a provisional assignee.
The statute, 5 Gco. 2, c. 30, s. 30, authorises the com*
missioners immediately upon declaring the party a bankrupt,
to appoint an assignee or assignees, and to make a provisional
assignment to such assignee or assignees of the whole or part
of the bankrupt's estate or effects ; but as this practice is
attended with expence, it has not been much used of late
years. And if such provisional assignee or assignees refuse or
neglect, for the space of ten days next after notice given of
the choice of assignees at a meeting of the creditors, and of
their consent to accept the assignment of the bankrupt's
estate and effects, signified to him or them by such assignees,
by writing under their hands, to make such assignment and
delivery as aforesaid, such provisional assignee or assignees
shall respectively forfeit the sum of 200/.
2. Of the choice of assignees.
The commissioners, after declaring a party a bankrupt,
are to appoint a time and place for the choice of assignees j
(*) ? Ves. Jun. 315. 4T. R. 377. (-) J East's Rep. 31$, (i) i L&
Raym. 99. (c} Comb, 391.
Y which
3'j"2 Of Bankruptcy.
\\hich usually takes place at the second meeting under the
commission, .') Geo. <2, c. 1>0, s. '2(>.
To be appointed assignee, it is not necessary to be a credi-
tor of the bankrupt (d). And alihough a cn\iitor could not
be a petitioning creditor in consequence of being a partv to a
deed of assignment of the bankrupt 1 ?; effects, which was the
act of bankruptcy committed, it has been held that he might
In- :in a.s>inee under the commission sued out upon it by a
third person (f).
No creditor is to vote in the choice of assignees, unless his
debt amounts to ten pounds or upwards, :> ( t), s. '27.
And the commissioners are to permit any puson duly au-
thori/ed by a letter of attorney from a creditor, on oath <>r
affirmation being made of the due execution thru of, to \ote
in the choice of assignees, instead of such creditor; and the
election is decided by the major part in value of such creditors
who have proved their debts Q/").
The statute having directed, that the choice of asM.
shall be by the major part in value of the creditors, one cre-
ditor, if his debt be sufficiently large, may elect himself au
nee.
And where the assignee of a bankrupt died, and left the
bankrupt his sole representative, and the debt In- ing suf-
ficiently large, the election by the bankrupt of himself, as as-
signee of his own estate, was held valid ( ;).
By statute 49 Gco. S, c. 1'21, s. J4, no creditor who has
brought an action, or instituted a suit against a bankrupt, for
any demand which arose prior to the bankruptcy, or which
might have been proved under the commission, can prove
for any purpose whatever, without relinquishing such action
or suit.
If a creditor make oath of a certain sum being due to
him, l.c ought to be admitted to prove to that amount, lor
the purpose of during as>ium c-, unless llan- a|>]<.u t
*he commissioners doubt of the fait ness of the debt ; and tin n
he must be sum-red to make a claim only, till he mai.c-. out
his demand to their satisfaction (A).
Anew choice of a.-i-nccs \\lll not be onl-ir-l. \><
creditors were abroad, and prevented by accident from voting
in the choice (/'). Hut it may be otherwise, if creditors are
kept back by fraud (If).
(d) lAtk. fo. (r) a Camp. 48. (f) Ifcid. S. 6. ([) Green, 160.
(6) f Atk. 70. (i) Ibid. 99. (0 l% Ves.Jum. to.
9 S. Of
Of Bankruptcy. 323
3. Of the nature and duties of their trust.
As assignees are in the nature of trustees, if they employ
an agent to receive or pay money on account of the estate of
the bankrupt, and he misapplies or embezzles it, the assignee
will be liable to make it good to the creditors (/) ; unless he
has consulted the body of the creditors in the appointment of
such person, or that he has employed him from necessity or
conformable to the common usage of trade (in).
Assignees are each separately answerable only for what
they receive, and the misconduct of one assignee will not
operate against his co-assignee, where he is not at all privy to
the act (n).
Assignees have not a general power to prosecute suits or
submit matters to arbitration ; but they must have a meeting
of creditors, upon notice given for that purpose in the London
Gazette to consider of etrCh particular case for arbitration be-
fore they can proceed therein (o). And if the majority of the
creditors in value at the meeting are against bringing the suit,
&.c. the assignees cannot do it; but any creditor may at the
peril of his costs (/>).
Assignees are not, however, restricted from bringing actions
at, law, without the consent of the creditors ; x and therefore
the whole of the bankrupt's estate being vested in the as-
signees by the assignment, as it was in the bankrupt himself,
they have the same remedies to recover it, as they in their
discretion may think proper (q).
And notwithstanding the decision in Cann v. Read (/), it
has been held, that a bonajide payment to one assignee is
good, and will bind the estate, provided the co-assignee did
not express his dissent (s).
Though the acts of parliament relating to bankrupts only
direct the assignees to advertise a meeting of creditors, in
relation to commencing suits, and for particular purposes;
yet the assignees are very much to be commended for adver-
tising meetings upon any other very extraordinary occasion that
concerns the creditors (t).
Assignees must keep books of account of the bankrupt's
estate, which every creditor has a right .to inspect at all sea-
sonable times, 5 Geo. %, c. 30, s. 25'. And by a general
(/) I Atk 86. () Ambl. 218. (n) 1 Atk. 88. () Ibid. 91.
(/') Ibid. 107. Earnardiston's Rep. 30. (?) zBl. Com. 485. (r) 3 ibid.
95. (i) i Esp. N. P.O. 114. Ibid. i?a. (0 * Atk, Z53
Y 2 order,
524 Of Bankruptcy.
order, 8th March 1794, assignees, under a joint commission,
are to keep distinct accounts of the joint and separate e->lates.
The assignees of a bankrupt stand in the same .situation,
and are subject to the same equities as the bankrupt ; and
are bound by all acts fairly done by him(r); for, although
the court will favour creditors as much as it can, it must be
where they have a superior right to < tl,< r |> raotaa ). Nei-
ther actions at law, nor suits in equity, abate by tin; bankruptcy
of the plaintiff or defendant (x).
If the statute of limitations is plendable against a bankrupt,
his assignees mav be bound by it : and the time i> in lie
computed from the date of the original cause of action,
aud not from the date of the commissioners' assignment ( i^>
It is the duty of the : to collect in the bankrupt's
property, with as much expedition as the nature of it will ad-
mit. But the assignees are not bound to take all the \
perty which belonged to the bankrupt ( :) ; they may make an
election ; but when they have elected, they cannot afterwards
renounce the property (a).
It is the duty of the assignees to sell all the bankrupt's pro-
perty as soon as it can be done with advantage; ami if thev
neglect to dispose of it, the chancellor, upon a petition f"
a creditor, will order a sale (b). And if the assignees, with
the approbation of a considerable number of the creditors,
defer Hie sale in the expectation of benefiting the e>tate, and
any individual creditor call upon them to sell the same ; it is
at their peril of answering for any difference in price, if they
delay selling it (c).
Assignees are incapable of purchasing the bankrupt's pro-
p. iiv on their own account, \\ithout the. consent of all the
creditors. But such a purchase made |>\ ;I--ILM:< < - will only
be =et aside conditionally, in case the future ft le produce
more than t 1 for it, llan hould have resold
the estate, and made ;i profit by it, he must account for such
profit to the creditors (</).
4. \Vhcii liable to iut>
By the. '> (rco.l, c. 30, ''ore the n,diors pro-
ceed to the choice of assignees, the major pail in value of
(/) i Vei. 331. i Ves. Jun.xfj. () i Atk. 187. (x) Wii$. 372.
T. R. 4-,7- t Anitr. 458. (y) I Sir. 555. () i ! p. N. I'. C. 1^3.
t) 7 Eait'i Rep. 335. (A) i Ve. |un. 168. (t) Ibid. 6 Ibid. 617.
') j Vet. Jua. 740. 5 Ibid. 707. it Ibid. 6.
the
Of Bankruptcy. 325
the creditors present may, if they think fit, direct in what
manner, how, and with whom, and where the monies arising
by, and to be received from time to time out of the bankrupt's
estate, shall be paid and remain, until the same shall be di-
vided amongst the creditors; and the assignees are to conform
as often as 100/. shall be got in.
But as it frequently happened, that no directions were
given, and that bankrupts' estates were often improperly re-
tained in the hands of assignees, who made use of the monies
in trade, and considerable losses were sustained by the cre-
ditors, it was enacted by the stat. 49 Oreo. 3, c. 121, s. 3,
that where the creditors omit such direction, the .commis-
sioners shall, immediately after the choice of assignees, at the
same meeting direct the same. And by section the 4th, if
the assignees wilfully retain or otherwise employ for their
own benefit any monies belonging to the bankrupt's estate,
the commissioners are directed to charge such assignees, in
their accounts, interest upon such monies, at the rate of 2(>/.
per cent, per ami. for the time they have retained or em
ployed the monies. By section 6th, if an assignee become
bankrupt, being indebted to the estate of the bankrupt, of
which he was assignee, in JOO/. and upwards in respect of
monies received by him as assignee, and wilfully retained or
employed by him for his own benefit, the certificate shall
only discharge his person, and his future effects shall remain
liable for so much of such debt as shall not be paid by divi-
dends, without lawful interest.
5. Of the removal of assignees.
By statute 5 Geo. <2, c. 30, s. 31, tlje holder of the great
seal is empowered, if necessary, to vacate assignments of
bankrupts' estates, and order new assignments to be made of
the debts, effects, and estate un received, and not disposed of
by the then assignees to other persons to be chosen by the
creditors ; and such new assignees are empowered to sue for
the same in their own names, and to give discharges, &c.
in the same manner as the old. And the commissioners are
to give notice in the two London Gazettes that shall imme-
diately follow, of the removal and new appointment, &c.
The causes of removal are the death, or bankruptcy of the
assignee (e) ; making use of the bankrupt's property (f) ;
permitting improper expences by the commissioners (g) ;
(*) General Order, 8th Marck 1724. I Atk. 96, (/) 7 Vin. Abr.
77. (g) ibid.
purchasing,
326 Of Bankruptcy.
purchasing, or a co-assignee permitting the same, an
belonging to the bankrupt at a sale by auction (//I; or residing
in Scotland, so that the court has HO power over him (i).
SECTION IX.
Of the Assignment.
1. OF the effect of the assignment upon the bankrupt's
real and personal propci t \ .
By stat. 13 Eliz. c. 17, the commissioners, \\hen a mnn is
declared bankrupt, are empowered to dispose of all his hinds
and tenements, \vhich he had in his o\vn right when he be-
came bankrupt, or which shall de.-rend or come to him at
any time afterwards, before his debts are satisfied or ajin < d
for; and all lands and tenements which weie j.uivii:i--l by
him jointly with his wife or children to his own use, (or
such interest therein as he may lawfully part with) or pur-
chased \\ith any other pel son upon secret trust for his o\vn
use; and to cause them to be appraised to their full \alne,
and to sell the same by cited indented and inrolled, or di-
vide them proportionally among the creditors. This
tute expressly included not only free, but customary and
copyhold, lands, but did not extend to estates tail, farther
than for the bankrupt's life; nor to equities of redemption
on a mortgaged estate, wherein the bankrupt has no It pal
interest, but an equitable reversion. Whereupon the statute
21 Jac. 1, c. 19, enacts, that the commissioners shall be em-
powered to sell or convey, by deed indented or enrolled,
any lands or tenements of the bankrupt, wherein he shall he
seized of an estate tail in posssession, remainder, or u-
version, unless the remainder or reversion thereof shall be
in the crown; and that such sale shall be good against all Mich
issues in tail, remainder-men, and ieM i>i<>n ( i>, \\hom the
bankrupt himself might have barred by a common reco
or other means; and that all equities <>t redemption upon
mortgag- d estates, shall be at the disposal of the .
sioners; for they uhall have pouer to ndeem the SIMM, a*
the bankrupt himself might have done, am! '< mption
to sell. And also, by this and a former act, 1 .Inc. I.. I,.,
all fraudulent or voluntary commanccs t the intent ot
(*) 5 Ve$. Jun. 707. (i) jj Vc5. Jm. 274.
Of Bankruptcy. 327
these statutes, are declared void; but that no purchaser,
bona fide, for a good and valuable consideration, shall be
affected by the bankrupt laws, unless the commission be sued
forth within five years alter the act of bankruptcy com-
mitted ; or that such voluntary conveyance shall have been
made upon the marriage of any of the bankrupt's children,
both the parties being of the years of consent (A).
In the construction of the stat. 13 KHz. c. 7, as to the
effect of the assignment upon a purchaser to the bankrupt,
his wife, and children, it hath been determined, that where
a man not a trader, and not indebted, purchased lands, and
settled them to himself, and to his wife and son, and two
years afterwards entered into trade and became a bankrupt,
that the settlement was good against creditors (/). But if a
purchase is made by a trader in the joint names of himself
and wife, and he afterwards becomes a bankrupt; it is void
as against the creditors within the statute 1 Jac. 1, c. 1.5,
s. 5 (iri). And so, if the purchase is made with the wife's
money, if it was previously received, and disposeabfe by him
as his own, and the receipt not connected with the purchaser,
nor bound by any agreement with the trustee (n).
Having shewn the method whereby the real estate of a
bankrupt, in lands, tenements, and hereditaments, may be
transferred by bankruptcy, it remains to consider the transfer
of things personal by this operation of law.
By \irtue of the statutes 34 and 35 Hen. S, c. 4 ; 13 Eliz.
c. 7 ; 1 Jac. 1, c. 15 ; 21 Jac. I, c. K) ; 5 Geo. 2, c. 30,
all the personal estates and effects of the bankrupt are con-
sidered as vested, by the act of bankruptcy, in the future
assignees of his commissioners, whether they be goods in
actual possession, or debts, contracts, and other choses in
action ; and that whether they be in England or elsewhere,
unless there be some positive law of the country where such
property may happen to prevent it (o).
A right of action to recover real property (p\ a legacy
given to the bankrupt, either before his bankruptcy, or the
signing of his certificate by the lord chancellor (q\ are as-
signable by the commissioners. So if a trader, before his
bankruptcy, lose money at hazard, the assignees may recover
it against the winner (r). And where a bankrupt entered
om. aSj. (/) Cro. Car. 584. 3 P. Wms. 298. (m} 9 Ves. Jun. 12.
() 8 Ibid. 195. (o) Good. 114. (/>} 2 Hen. Bl. 444. (?) a Vern.
432. * Bur. 716. (r) z Hen. Bl. 308.
into
S28 Of Bankruptcy.
into an agreement, that in case of his bankruptcy or insol-
vency, tl at the vendor should retake the goods, it was held,
that if the bankrupt has tke order and disposition of them,
they would pass by the commissioners' assignment (a). But
if a person contracts \\ilh another for a chattel, which is not
in existence at the time of the contract, though he pays him
the whole value in advance, anil the other proceeds to execute
the order; but before the chattel is delivered, it is taken
under an execution ; the assignees of the buyer cannot re-
cover "it in trover against the sheriff; for a buyer acquires
no property in a chattel till it is finished and delivered (/).
If after assignment of a bankrupt's estate, a creditor know-
ing it, and residing in England, attach the money of the
bankrupt abroad, the assignees may recover it in an action
for money received to their use (v). But where the at-
tachment is complete before the act of bankruptcy, the cre-
ditor attaching is entitled to hold the property attached against
the assignees in diminution of his debt, and to prove for the
residue under the commission ().
2. Effect of the assignment upon property in possession
of the bankrupt, but belonging by conveyance, &,c. to third
persons.
Jn the construction of the act 'i\ Jac. 1, c. 19, s. 11, it
has been repeatedly decided, that unless possession accom-
panies and follows an absolute conveyance of personal chattels,
surh conveyance is fraudulent and void (JT). The statute en;.<
that wherever any trader makes a conveyance of his goods upon
good consideration to another, and yet is left in the possession,
order, and disposition of them by the consent and permission
of such other person, in the event of the insolvency of such
trader, the goods so conveyed, but left in the possession, order,
awl disposition of the bankrupt, are assignable by the comi,.
sioners for the benefit of the creditors.
But a distinction exists between mortgages of re:
and chattel interests or lands, and goods and other
chattels. The |> and power of di>po- 111-4 >!
and personal chattels, are the only evidences of o\\ unship
to which I 1 ' iling with traders look; ami ii
the statute is particularly directed to remedy the mis< i
arising from a trader's holding out a delusive responsibility to
(*) a Ttunt. 176. (0 i Ibid- 3 >*. M i T. R. 694. 4 Wi.
Iz. () 8 Ve. Jua. la. (*) a T. R. 587. Ibid. 594. a. aCtmju
4-
the
Of Bankruptcy. 320
the world ; but \vith respect to real estates, possession is
not such an evidence, as to induce creditors to rely (y).
And where the property could not be absolutely delivered
at the time of the contract, but the best delivery had been
given that the circumstances and nature of the property
would admit ; it has been held, that the bankrupt had not
such a possession of the goods as would enable his assignees to
take them within the statute (z).
So if a trader, who afterwards becomes a bankrupt, ad-
versely retains possession of goods, so that the party entitled
to them is obliged to sue him in a court of justice to obtain
the possession, or to restrain him from disposing of the goods ;
such possession is not within the meaning of the statute,
as it is clearly not with the consent and permission of the
owner (a).
In the case of ships at sea and their cargoes, of which an
absolute delivery cannot be made, it will be sufficient if the
proper documents and muniments are delivered, that the pur-
chaser may be enabled to reduce the property into possession
upon the arrival of the ship in port (/;).
When the bankrupt is in possession of the goods of another
man at the time of his bankruptcy, it is not sufficient to make
it a possession within the statute, as the possession must be
accompanied with a power to sell, or dispose of the same, as
owner ; or the owner of the goods must be guilty of a laches
in letting them remain in the bankrupt's power, so as to gain
him a false credit (c).
With respect to property left in a bankrupt's hands as
factor, as a factor stands in the situation of a trustee- with his
principal, whatever property he has in his possession at the
time of his bankruptcy, and which can be distinguished fiora
his own, belongs to his principal, and does not pass by the
assignment, as it is not a possession within the meaning of the
statute 21 Jac. 1, c. 19. -And the law is the same if the
factor acts under a del credere commission (d). Lor4
Kenyou said, that if goods be sold, and reduced to ready
jnoney, provided the money be in separate bags, and dis-
jinguishable from the factor's other property, the law is the
fame (c).
(y) i Atk. 168. 7 T. R. 2*8. () 7 T.R. 67. (a) i Ves. 245.
() i Atk. 160. (r) i Ves. 243. (d) 3 P. Wins. 185. () 5 T. R.
JI S-
So
330 Of Bankruptcy.
So if the factor sells his principal's goods, and buys other
goods for him with the proceeds, the principal is entitled to
the goods (/').
If a factor has soli! the goods of his principal, and they are
not paid for at the time of the factor's bankruptcy, tlie prin-
cipal is entitled to payment of the money ((*}. But the prin-
cipal must give notice to the purchaser b-. i'.ie actual pay-
ment, not to pay the factor ; and if lie should, notwithstand-
ing, pay the factor, he will be liable to repay it to the prin-
cipal (A).
But if a factor, who sells under a del credere com mi.-', ion,
sells goods as his own, and the buyer kn<ms nothin<: of any
principal, the buyer may set off any demand he may have mi
the factor against the demand for the -_ouds made by the
principal ; for the buyer dealt wiih the factor as his prin-
cipal (/).
So where a trader is a trustee (/;), executor (/), or admi-
nistrator (in), and becomes bankrupt, and at the time of his
bankruptcy has any property belonging to his ceslni f/n<' trust,
or testator in his possession, which can he distinguished ii-un
the general mass of his property, it will not pass to the
assignees; who, if they have ]>os-, .-,-1 d thnr.v.-Urs of such
property, upon an application of ihe creditors of the testator,
the court will appoint a receiver for recovery and M cuiin^ the
testator's effects (//).
3. Ktfect of the assignment upon property fraudulently
delivered by the bankrupt in contemplation of bankruptcy.
ry disposition of property made by a bankrupt in con-
templation of bankruptcy, to prefer a particular creditor, is
fraudulent and void. Kach case, however, must be di ter-
mini d upon its own circumstances. But all questions of
preference turn upon the act being complete bri'oie an ait
of bankruptcy committed ; for then the property is trans-
tcnetl: otherwise an act of bankruptcy intervening, vests the
property in the hands and disposal of the law (o).
Jiut where a trader under a lineal or apprehension of
-S or from the pressure and importunity of his
i.,i, i!il;\iis propnty to him, or gives him a pouerto
receive it, t' (: :i i- \alid; even though the liader
,v himself to be insolvent (p).
(f), Slk. 160. (j) Bui. N.P. 41. (t) 7 T. K. w () IWJ.
(*) i I'.Wmi. 314. (/) I Atk. M9- (*) Cooke, R.I
() I Atk. 101. () Cowp. iv Ibid. 619. 4 Bur. 2477. Ibid. 2x35.
Tul. 183. (f) i i.K. 156. a Camp. N.P.C. 166.
But
Of Bankruptcy. 331
But to render such a transaction valid, the act must have
redeemed the trader from some present difficulty. ^For when
a trader being pressed for payment or security gave his credi-
tor a bill of sale of apparently the whole of his stock, and im-
mediately absented himself; . it was held to be a preference of
a particular creditor in contemplation of bankruptcy (q).
4. Effect of the assignment upon the estate of the wife.
. The assignees of a bankrupt are entitled to the same in-
terest in the property of the wife as the bankrupt; and what-
ever property vested in the bankrupt, which he could himself
assign or release, the assignees become entitled to by the coni-
jjiis.sioneis' assignment.
Debts due to the wife dum sola (;), or stock in the public
funds (s). or a chose in action (t), or a mortgage to which the
wife was entitled before her marriage (v), are assignable by
the commissioners under the commission.
But the necessary apparel of the wife and her children,
5 Geo. 2, c. 30, s. 1, or a vested legacy not reduced into
possession by the husband in his life time (u), or the property
of a feme covert sole trader according to the custom of Lon-
don (a), or property given to the wife for her sole and sepa-
rate use ( if), or if the wife be entitled to dower (z), or if the
bankrupt is considered as trustee of an estate settled to the
separate use of the wife during life (a), will not pass by the
commissioners' assignment.
And if the property cannot be possessed by the assignees,
without the intervention of a court of equity, the court will
compel them to make a competent settlement upon her, be-
fore it will permit them to get possession of the property
unless the wife be previously properly provided for out of
it (b\
And when a settlement has been made previous to the
marriage of part of a wife's property to her separate use ; it
does not bar her claim to a further settlement out of newly
acquired properly (c).
If a trader previous to his marriage, covenant to settle
specific lands upon his wife, and he becomes a bankrupt, and
dies without peforming the covenant, the court will compel
the assignees of the husband to carry the settlement into exe-
cution (d).
(y.) 7 East's Rep. 544. (r? I P. Wms. 248. (s} 3 Ves. 617.
(/) 2 Vern. 270. (v) 2 P. Wms, 458. (u) z Dick. 491.
(x) 5 Bur 1776. (jr) 2 Vern. 96. (K) 2 Stone, 193. (a) z
Atk. 557. 2 P. Wms. 316. z Str. 946. () i P. Wins. 382. 5 Ves.
Jun. 517, (c) Ibid. 607. (d) 2 E^. Ca. Abr. 103.
SECTION
33S Of Bankruptcy.
SECTION X.
Of Relation to the Act of Bankruptcy.
BY the act of bankruptcy, all the real and personal estate
of the bankrupt is vested in the assignee, by relation from the
time of the act committed ; so that the transactions of the
bankrupt from that time are excepted in the cases provided
for in the following statutes,
Bystat. 1 Jac. \, c. 15, s. 14, it is provided, that no debtor
of the bankrupt shall be endangered for the payment of his
debt truly and bond jide made to any such bankrupt, before
such time as he shall understand and know he has become a
bankrupt.
By stat. 19 Geo. 2, c. 3S, it is provided that no creditor of
a bankrupt for goods sold, or upon bills of exchange, shall be
liable to refund to the assignees any money received by him
of the bankrupt upon such account, in the usual and ordinary
course of trade and dealing, before such creditor knew, under-
stood, or had notice, that he was become a bankrupt or in
insolvent circumstances.
Bystat. 21 .Inc. 1, c. 1$, s. 14, it is provided,, that no pur-
chaser for a valuable consideration shall be affected by the bankrupt
laws, unless the commission is sued out within live years after
he shall have become a bankrupt.
By the 21 Jac. 1, c. 1Q, s. 14, no purchaser for a good
and valuable consideration can be affected by the bankruptcy
of the vendor, unless the commission be sued forth within live
years after he becomes bankrupt.
.And by stat. 46 Geo. 3, c. 135, s. 1, it is enacted, that all
conveyances by, all payments by and to, and all contracts and
dealings by and with any bankrupt, bom't litlc made and entered
into more than two calendar months before the date of the
commission, shall be valid, notwithstanding any prior ad
bimktuptcy, provided the person so dealing with the bankrupt
had not at the time of Mich conveyance, &c. any not he of any
prior act of bankruptcy, or that the bankrupt was insolvent
or had .-topped payment, liy section 3. it is provided, that
the issuing of a commission, or the striking of a docket lor
that purpose, whether any commission shall ha\- actually
issued thereupon <>r not, shall !>e dc mcd notice of a prio;
*>f bankruptcy for the purposes of this act, if it ahull app-
(hut
Of Bankruptcy. 333
tli at an act of bankruptcy had been actually committed at the
time of issuing such commission or striking such docket.
But by stat. 49 Geo. 3, c. 121, s. 2, so much of the 46
Geo. 3, as makes the striking of a docket notice of a prior
act of bankruptcy is repealed.
Payments made by the bankrupt to come within the pro-
tection of the statute, must be in the ordinary course of trade,
without notice of an act of bankruptcy, and before the issuing
of a commission (e],
It is also necessary, that such payments should be made in
respect of jlgoods sold to the bankrupt, or of bills drawn, &c.
by him in the ordinary course of trade. And therefore in the
construction of this act, it has been held, that wheie money
had been paid by a trader, after a secret act of bankruptcy,
to a carrier, for die carriage of the trader's goods, that the
payment was not within the statute, which was confined to
payments made for goods, and payments of bills of ex-
change (/).
So if the holder of a bill of exchange give time to the ac-
ceptor upon condition that he should allow interest, and after
committing a secret act of bankruptcy, he pays the bill, this
has been decided not to be sach a payment in the ordinary
course of business as to come within the meaning of the
statute (g).
If a banker pays the draft of a trader keeping cash with him,
or pays over any money to the bankrupt himself, after notice
of an act of bankruptcy, the assignees may recover the
money (A). Nor can they set off the payments made, or be
allowed to come in as creditors under the commission, in the
place of the creditors whose debts they so paid (i).
And when bankers having accepted bills for the accom-
modation of a trader, who after committing an act of bank-
ruptcy, but before a commission w aa sued but, lodged money
with them to take up the bills, which did not become due till
after a commission was sued out, and then regularly paid by
the acceptors ; it was held they were bound to refund the money
which the bankrupt had lodged with them, and that they nei-
ther had a right of set off under, .5 Geo. 2, c. 30, nor could
they protect themselves under 19 Geo. 2. c. 32, as having
received the money in payment of bills of exchange in the
ordinary course of trade (k).
(<) Vern. 165. (/) 5 T. R. 197. (g) i Ibid. 648. (
Ibid. 113. 3 Bra, C- C. 313, ' (i) 3 Ye?. Jan, -5-', (*) j Ca
N.P.C. i,
So
334 Of Bankruptcy.
So where A. recovered a verdict tor a sum of money agairst
B. who afterwards committed an act of bankruptcy; A- in-
stead of entering up judgment and taking out execution, con-
sented to take a bill for the amount drawn by 13. on C. hi*
debtor, which bill when it became due \\ as duly paid by C. ;
but it was held that this payment \\as not protected by the
statute (/).
But if a payment is made by a trader under an arrest, it has
been held to be a payment in the usual' and ordinal
of trade and dealing, and consequently vi ithin the protection
of the statute, although such payment was made after he had
committed a secret act of bankruptcy (m).
And so will payment made immediately to a creditor, who
brings an officer with a writ into the trader's shop (it).
And it appears that the act only extends to payments made
by the bankrupt himself, or his authori/ui ;r.:.nt ; and not pay-
Hunts made to a third person upon compulsory piocess, or
for the accommodation of the bankrupt. And thciefoiv pay-
ment by a garnishec of money attached in his hands, is not
protected by the statute, for the statute extends only, to pay-
ments by the bankrupt himself (o).
So where a policy broker, at the bankrupt's request, paid a
creditor of the bankrupt the amount of his debt, in order to
induce him to give up his lien upon some policies of insurance
vhich the bankrupt had deposited with him a> a collateral
security; it was held that the assignees of the bankrupt could
liot recover from the creditor the amount of the broker's pay-
ment, as it was the money of the broker and not of the bank-
rupt, though in settling his account \\ith the ;I^I.M t - the
broker set oft' the money which he had so paid (}>).
As to payments made to a bankrupt it has been decided,
that if a trader after a HI ret act of bankrupt* "d-
to a factor, \\lio agrees to advance money thereon and accoid-
ingly accepts and pays bills draua on him by the trader for
their amount; the assignees of the bankrupt may !.
from the factor the value of the goods; lucan-c tin accr|>ting
and payment of the bills is not a payment of goods sold wilhni
the meaning of the statute (q).
But if a debtor of a bankrupt in consequence f a Mi:t \-
a judgment at law, is compelled to p.iy his tUbt before the <
cution of an assignment under a commission of bankruptcy,
although he had notice of au act of bankruptcy committed,
(/) a Hen. Bl. 334. (*) a Boi. and Pu!. 398. () Ibid,
() 7 EMI'I Kep. 154. (/) Ibid. (j) 8 T. R. 199.
DM
Of Bankruptcy. 335
the assignees cannot recover the money a second time from
the debtor, unless they can prove fraud and collusion betweeu
him and the oankrupt (r).
If a broker, having goods of a trader under arrest in his posses-
sion for the purpose of sale, receives notice from the attorney of
the future assignees not to sell them, as a commission would
shortly be issued against the trader, and that the act of bank-
ruptcy would relate to the day when it was committed which
was some time past; and the broker notwithstanding sold
the goods, and paid the money over to the trader before the
expiration of the two months from the time of the arrest:
the broker was held liable to repay the proceeds to the as-
signees (s).
If a trader commits an act of by bankruptcy lying in prison
two months, it relates to the first day of his surrender, sa as
to over-reach all intermediate transactions ().
Where bail is really put in, the bankruptcy only relates to
the time of the surrender (u). But in case of mere formal
bail, the bankruptcy relates to the time of the first arrest (a 1 ).
As to judgments, statutes, and executions, it is provided by
stat. 21 Jac. 1, c. 19, s. 9, that all judgments, statutes, re-
cognizances, whether affecting lands or goods, attachments by
the customs of London or any other place, whereof there is
no execution or extent served and executed upon any of the
real or personal estate of the bankrupt, before the time he be-
came bankrupt, are void as against the assignees.
]Jut by stat. 49 Geo. 3, c. 121, s. 2, it is enacted, that all
executions and attachments against the lands or goods of a
bankrupt, bond fide executed and levied more than two calen-
dar months before the date and issuing of the commission, are
to be valid, unless the creditor had notice of a prior act of
bankruptcy, or that the bankrupt was insolvent or kad stopped
payment.
SECTION XI.
Of the Proof of Debts under the Commission.
1. OF debts in general.
By stat. 46 Geo, 3, c. J35, s. 2, it is enacted, that all per-
sons with whom the bankrupt shall have bond fide contracted
any debt before the date and suing forth of the commission,
\r) 2T. R.479. (i) Ibid. 141. (0 Ibid. (u) i Bur. 437.
{*) Ibid.
which,
336 Of Banfattptcy.
vrhich, if contracted before any act of bankruptcy committed,
nii'Jit have been proved under the commission, shall, notwith-
standing any prior act of bankruptcy, be admitted to prove
such debt, and to be a creditor under such commission, in like
manner as if no such prior act of bankruptcy had been com-
mitted, provided such creditor had not, at the time such debt
was contracted, any notice of am pii< r act of bankruptcy.
And by stat. 7 Geo. 1, debts upon bills, bonds, notes, or
other personal securities, but payable upon a future day, are
also proveable under a commission.
But as this statute was held to be confined to cases ol
curities in writing, and to extend to those where goods i
been sold upon credit merely, it was'pi ovided by stat. 49 (.* .
S, c. 121, s. 0, that all JKTSOHS who shall ;ji\e credit upon
good and valuable consideration bona fide, for any money
whatsoever not due or payable at or before the bankruptcy
of the person credited, may prove their debts under the com-
mission, deducting a rebate of interest for what they receive,
to be computed from the actual payment thereof, to the tinn*
such debts would become payable according to the terms
upon which they were contracted.
So contingent debts, provided the contingency has taken
place at the time the bankruptcy . may be proved (//).
But debts made void by statute, as being upon an IIM
contract (t), or for stock-jobbing transactions (a}, or for goods
sent to India contrary to the charter of the company cannot
be proved (/;).
'2. Where debts may be proved.
By stat. 1 Jac. \, c. 15, s. 4, the commissioners are em-
powered to distribute the bankrupt's effects "which may !.
been collected in ; and within four months after the commis-
sion any of the creditors of the bankrupt may then make proof
of their debts, and will be entitled to partake of the distribution
with the rest of the creditors. And should such creditors
rot have proved their debts before distribution has been made
of part of the bankrupt's estate, they will be admitted to prove
at any time, as long as any thing remains, unless there has
been gross laches on their part (c).
5. Of the manner of proof.
By stat. 21 Jac. 1, c. 19, s. 9> the commissioners are em-
powered to examine upon oath, or by any otlu i mcaiui as to
fjr) P. Wmi. 395. 3 Str. 867. i Atk. 114- 3 Will. *7 () 9
Vei. Jun. 84. (a) ij Ibid. 313. (1} Ceokc, 13. L. 287. (') *
Atk. Ml.
them
Of Bankruptcy. 337
them shall seem neet, any person, for the discovery of the
truth and certainty of the several debts, due to the creditors
seeking relief under the commission.
If the commissioners have just grounds to doubt the fair-
ness of a debt, although the creditor has made a positive oath,
they may reject it or admit it only as a claim (d). And the
party's remedy is by petition to the lord chancellor (e).
By stat. 5 Geo. 2, c. 30, s. 26, the commissioners are to
admit the proof of any creditor's debt, who shall live remote
from the place of meeting of the commissioners, by affidavit ;
or if the party be a quaker, by solemn affirmation. But to
prove a petitioning creditor's debt, the creditor must be present
before the commissioners (f).
By sect. 29, of the same statute, if any creditor perjure
himself in swearing to or affirming a debt, he is guilty of
perjury, and liable to pay double the sum so sworn or affirmed
to be due or owing ; which double sum is to be equally di-
vided among all the creditors under the commission.
- 4. Of claiming a debt.
If a creditor cannot sufficiently ascertain or substantiate his
debt, as where the agent of a creditor cannot produce his
authority, it is usual for the commissioners to suffer a claim-
to be entered ; which entitles the party to have a dividend re-
served upon his claim, and of being entitled to it as soon as
his debt is ascertained, and his proof admitted (g).
But if the claim is not substantiated in a reasonable time,
it is the general practice for the commissioners to strike it out
before a dividend is declared, unless sufficient reason is offered
to them for prolonging the time. The creditor however, iST
afterwards at liberty to prove his debt and receive his share
upon any future dividends, on satisfactorily substantiating his
claim (h).
By stat. 19 Geo. 2, c. 32, s. 2, the obligee in any bot-
tomree or respondentia bond, and the assured in any policy
of assurance, Lonu fide made and entered into before the bank-
ruptcy upon a good and valuable consideration shall, be ad-
mitted to claim under the commission, and to prove his demand,,
after the loss and contingency shall have happened.
o. Of the creditor's election.
By the statute 49 Geo. 3, c. 121, s. 14. the law as to a
creditor's election has been materially altered; it is enacted,
(d) I Atk. 70. (<?) 2 Ves. Jun. 666. (/) General Order, 261'..
Nov. 1798. () Cookt, 13. L. 255. Cull.B. L. 160. (h) Cookr, B. L
*55-
Z
338 Of Bankruptcy.
that " from and after the passing of this act, it shall and may
be lawful for any creditor, who has or shall have brought .ny
action or instituted any suit against any bankrupt, in icspiet ot
any demand which arose prior to the bankruptcy of Mich bank-
rupt, or which mi^ht have been proved :is a d--bt under the
commission of bankrupt issued against such bankrupt, to p ove
a debt under such commission for any purpose whatever, or to
have the claim of a debt entered upon the pr.,. edings under
such commission, without relinquishing such action or suit, and
all benefit from the same; and tin- prosing or so claiming a
debt under a commission of bankrupt by any creditor shall be
deemed an election by such creditor to take the benefit of such
commission with respect to the debt so proved or claimed by
him : provided always, that MU h creditor shall not be liable to
the payment to the bankrupt or his assignees, of the c<>
such action or suit which shall be so relinquished by him: and
profided also, that where any such creditor shall have brought
any action or suit against any such bankrupt jointly with any
other person or persons, his relinquishing such action or suif
against such bankrupt or bankrupts shall not in any manner
affect such action or suit against other person or persons."
If a creditor has the bankrupt in execution at the time :i
commission issues against him, he may prove his debt under the
commission, upon condition of discharging llie bankrupt out
of execution ; but such creditor cannot sue out a commis-
sion (').
But if after a commission has issued, a creditor takes tlm
bankrupt's body in execution it is a conclusive election ; and
although he afterwards discharge the bankrupt out of custody,
lie \\ill not be entitled to a dividend of the bankrupt's estate (j).
The. being chosen assignee will not prevent the creditor
from suing the bankrupt at law if he has not proved his
di .1)1 (A-).
It has been held, that a landlord cannot distrain for rent and*
come in under the commission at the s.nne time; but he must
make his election either to waive his proof or his distress (/).
Neither can a creditor split a demand, and prove part under
the commission, and sue the bankrupt at the same time (/;/):
not even upon separate notes givui by the bankrupt for di-tim t
parcels of goods (n).
(i) r lco,B.L. 131. (j) 13 V Jon. i$t. (*) I Atk. 151.
(/) lb4. 1^4. (*) Ibid. 109. () 14 Vci.Jun. 587.
But
Of Bankrupt^* 339
But if the creditor has distinct demands, he may prove one
under the commission, and proceed at law upon the other. As
where a creditor has a bond debt, and another debt for rent (o)*f
Or if he has a demand in right of his wife, and another due
to himself (p). Or if one demand be a joint debt, and the
other a separate debt (5).
6. Of creditors having a mortgage or other security.
By stat. 21 Jac. 1, e. 19> s. 9, no creditor having a security
by judgment, statute, or recognizance, 8Cc. or having made
attachments in London or elsewhere, by virtue of any custom
there used, whereof no execution or extent is served and exe-
cuted before the bankruptcy, shall be relieved for more than a
rateable proportion with the other creditors, without respect
to any penalty contained in the security.
If a creditor has a security (/), or if a creditor abroad has
obtained a priority of payment out of the bankrupt's effects
there, by attachment or other process (s), before he can be
^admitted to prove, in the first case he must deliver up his se-
curity, and in the second, abandon the priority of payment he
has obtained.
But if a creditor has a joint security from the bankrupt and
another person, he is not obliged to deliver up the security,
but is entitled to receive dividends under the commission for
such part as he may not have recovered from the co-security,
provided that he does not receive more than 20s. in the pound
upon the whole debt().
A creditor who has a mortgage or a pledge, if he is ap-
prehensive that the security is not equal to the payment of hi*
debt, may have the pledge sold. But the commissioners can-
not order the property mortgaged or pledged to be sold but
upon an application of the creditor; for they have no power
to dispose of a creditor's security without his consent.
If a security is deposited by a debtor generally to indemnify
his creditor for a balance then due, arid for such sums of
money as shall be advanced to him, and at the time of the
bankruptcy of the debtor, the creditor has two demands, the
one proveable under the commission, and the other not ; he
may apply his security, in the first place, to reduce that de-
mand which is not proveable under the commission (it).
(o) I Atk. 109. . : (p) 3 Ibid, 816. (7) Ceeke, B.I,. $.
(r) i Atk. 104. (i ) 8 Ves. Jun. 82. (t) ^ Atk. 527. () 6 Ves.
Jun 94..
z 2 7. Of
340 Of Bankruptcy.
7- Of creditors by annuities.
By the stat. 49 Geo. 3, c. 121, s. 17, it is enacted, that
* it shall be competent to any annuity creditor of any person
against whom a commission of bankrupt ."hall issue after the
passing of this act, whether the same shall be secured by bond
or covenant, or bond and covenant, or by whatever assurance
or assurances the same shall be secured, or whether there shall
or shall not be or have been any arrears of such annuity at or
before the time of the bankruptcy, to prove under Mich com-
mission as a creditor for the value of such annuity, which value
the commissioners shall have power, and are herein- required
to ascertain, "and the certificate of every bankrupt under whose
ronnnifsion such proof shall be or might have been made,
shall be a discharge of such bankrupt against all demands
whatever in respect of such annuity, and the arrears and future
payments thereof, in the same manner as Mich certificate would
discharge the bankrupt with respect to any other debt proved
or which might have been proved under the commission."
S. Of apprentices and children.
An apprentice is only entitled to come in as a creditor under
tlu- commi.^ion lor the residue of the premium paid to his
masU-r, after deducting a proportionate part lor the time he
lived with the bankrupt (.r).
If a child lives with her father, ami earns money which the
father receives, upon the bankruptcy of the father it seems she
will be entitled to prove the amount of her gains (i/).
Q. Of award*, bonds, and bills of exchange, and promissory
notes.
If an award be made before the bankruptcy, it creates a
at law, which may be proved under the commission (:).
A creditor by bond is entitled to prove his demand against
dividends upon the whole Mini upon each eMatr, until lit n -
crive.H JOs. in the pound. lint if he has received any part of
the debt before he proves under the commission, he can onlv
claim and receive dividend* un the residue due tohim(</).
By stat. 7 (ifo. 1, c. .l, *. I, bills ot" t.\chan;je and pro-
mi^oiy iioti">, although not due at the time of iiuug a com-
mission, are proveabta under a commission, ledu-tnn; only
thereout a rebate <>t" hit< r -t, and di--counting such bill.'., ivc.
after the rate of 5 per cent, pa ami. for what the creditor
hall receive, to be computed fiom the actual payment to the
(x) i Atk. 149. iy) i V.6 7 > () a Sir. njz.
{*} \ Alk. 109.
time
Of Bankruptcy. 311
time such bills, 8cc. should or would have become due and
payable.
The holder of a bill of exchange or promissory note is
entitled to prove the amount against all the parties to it
under their respective commissions, and to receive dividends
under each commission upon the whole amount, until he has
received 20s. in the pound (Z). And if he has proved the
whole amount of the bill, and then receives a part of the
amount from any one of the parties to it, he is nevertheless
entitled to receive dividends upon the whole bill from the
estates of the other parties, provided such dividends do not
exceed 20s. in the pound upon the remainder of the bill (c).
But if the holder of the bill has received any part of it be-
fore the time of -proving, he can only prove for so much as re-
mains due upon the bill.
Costs incurred by protesting bills before an act of bank-
ruptcy, may be proved under a commission ; but those incurred
after cannot (d ).
10. Of cross demands.
Where cross paper has passed between two houses for
mutual accommodation, and both become bankrupt, and the
assignees of one house petitioned to prove against the estate of
the other, bills that were outstanding and capable of proof
against both astates, it was held, that as between the two
estates no proof could be made in respect of the unsatisfied
bills in the hands of either party, but that they must be ex-
cluded from the account, and the proof stand for the balance
only due on the cash account (c).
1 1. Of creditors by composition.
If a creditor agrees with his debtor to take a composition,
to be paid by instalments, and after payment of the first in-
stalment the debtor becomes bankrupt, the creditor may prove
the whole amount of his original debt, after deducting the in-
stalment so paid (fj,
12. Of contingent debts.
Debts depending upon a contingency which has not taken
place at the time of the bankruptcy cannot be proved undir a
commission of bankrupt (g).
13. Of debts payable at a future day.
Bystat. 7 Geo. 1, c. 31, creditors by bills, bonds, notes, or
other securities not due and payable at the time of the bank-
(J) i Atk. 109. (c) Ibid. 106. (</} a Bro, C. C. 597.
(e) 4Ves. Jan. J7j. 5 Ibid. 833. ujbid. 404. (/) * Atk. 517.
(%) iP. Was. 396.
7 ruptcy,
342 Of Bankruptcy.
nipt cy, art enabled to prove their debts and receive dividends;
deducting thereout a rebate of interest, from the payment of
the dividend to the time such debts would have become pay-
able in and by such securities.
But as this statute was held to be confined to extend to the
case of debt for goods sold upon credit merely. and to be
confined to cases of securities in writing, it was enacted by
the statute 49 Geo. 3, c. 121, s. 9, that all persons who shall
give credit upon good and valuable consideration, hunu fide,
for any money whatsoever not due or payable at or before the
bankruptcy of the person credited, may prove their debts under
the commission, deducting a rebate of interest tor what they
receive, to be computed from the actual payment thereof to
the time such debts would become payable, according to the
terms upon which the same were contracted.
As the preamble of the stat. 7 Geo. 1, recites only " secu-
rities for the fale of goods and merchandize," a question arose,
whether securities given upon any other account were within
within the meaning of the act? And it was decided, that the
statute is hot merely confined to securities for goods sold and
delivered in the course of tradu, but that it extends generally
to all personal securities for a valuable consideration, where
the time of payment is certain, though postponed to a future
14. Of creditors of a bankrupt executor or trustee.
The bankruptcy of an executor, as he acts in outer droit,
not take away the right of executor-hip (/). And what-
ever property the bankrupt may possess a> exi cutor or trustee,
whether in effects or money, which can be distinguished from
.his own, is not affected by the commissioners' assignment (/.).
But if the bankrupt is beneficially entitled to any part of the
testator's property, his interest passes to his assignees (/).
If the testators property ctmnot be distinguished fiom tlie
bankrupt's, proof must be made for the amount due to the
testator's estate (/)
15. Of creditors of A feme covert.
If a woman be indt l>te<l, and she marries, her debts by the
marriage become the debts of her hnshand, and may be proved
under a commission of bankrupt against him ().
i ". Of insurance.
By rtat. 19 Geo. 1, c. 32, s, 2, the obligee in any bot-
(*) aStr.iii. iT. R. 189. (I) 1 Atk. 101. (*)iP.Wmi.
318. (/) An.bl. 74. (} I Atk, 158. () I Set*. & Lef. Rep.
7J-
toninr
Of Bankruptcy. 343
tomree or respondentia bond, and the assured in any policy of
insurance, made and entered into before the bankruptcy upon
a good and valuable consideration, bona fide, shall be admitted
to claim under a commission; and after the loss or contingency
shall have happened, to prove his demand and entire divi-
dends, in like manner as if it had happened before the bank-
ruptcy.
And by slat. 4Q Ceo. 3, c. 121, s. 16, persons effecting a
policy of insurance upon ships, goods, wares, merchandizes,
and other effects, with any person as a subscriber or under-
writer, who is or sliall become bankrupt, may prove any loss
under the commission to which the bankrupt shall be liable,
notwithstanding the person effecting such policy is not the per-
son beneficially interested in such ships, &c. provided the
person really interested is not in that part of the united king-
dom where the commission issued.
17. Of joint debts.
It is an established rule, that the joint estate shall, in the
first instance, be applied in payment of the joint debts, and
the separate estate in payment of the separate debts ; and in
the event of there being a surplus of the joint estate after
paying the joint creditors, that the surplus shall be proportion-
ably allotted to the separate estate of each partner, and applied
in payment of his separate creditors. And in the event of
there being a surplus of the separate estate after paying the
separate creditors, such surplus shall be appropriated to the
payment of the joint creditors (o).
If a creditor has a joint and several security, he may come
in either against the joint or separate estate; but he must make
an election, for he cannot prove against both estates to receive
dividends at the same time; but when he has made his elec-
tion, if the other estate should have a surplus after paying its
own debts, he may come in upon the surplus of the other (/>).
And he is entitled to sufficient time to examine the accounts
of the two estates (q), and he may defer his election until a
dividend is declared (/ ) ; and even if he has received a divi-
dend, the court will permit him to change his proof upon re-
funding the dividend received (s). But if a dividend has been
made upon the other estate, the court will not permit the di-
vidend to be disturbed (i).
(o) 3 Bro. C. C. 457. 16 Ves. Jun. 193. (/>) 3 P. Wms. 405. 15 Ves.
Jun, 4. (q) Ibid. (r) 2 Bio. C. 8.595. (*) 3 P. Wms. 405.
(t) 13 VeSi Jun. 70.
18. Of
344 Of Bankruptcy.
18. Of creditors by marriage articles.
In questions whether the wife of a bankrupt, or her trusd
'shall be admitted to prove money settled by marriage articles,
under a commission against the husband, the courts have con-
sidered whether the debt \vas in its ualnre contingent at the
time of the bankruptcy. If the debt vvaa from its nature contin-
gent and uncertain, und the contingency hud not taken place
at the time of the bankruptcy, the courts have held, that it
could not be proved under the commission. Therefore, where
a husband, by articles previous to marriage, covenanted, in con-
sideration of marriage and a portion, to leave his wile a sum
of money in case sht survived him, and he became a bankrupt,
such debt could not be proved under the commission (r).
And in ca.-e.-s where the contingency, as the death of the
husband, has taken place before the bankruptcy, but before
any distribution made of his estate, the wife or her trustees are
not entitled to a dividend ; but the court has generally, from
the hardship of the case, recommended the creditors to make
some provision for the wife, which has been in general at-
tended to (u).
If). Of rent.
While the goods remain upon the premises, a landlord is
entitled, notwithstanding a tenant becomes a bankrupt, to dis-
train for the whole arrears of the rent due to him. And if a
commission is taken out, and the messenger in possession, and
no assignment is n;;ide(i); or if the assignment is made, and
the assignees arc in possession, the landlord's right to distrain
still exists ( i/). And even after assignment ;md sale by the
assignees it ihe coods are not removed, the laudloard may
distrain for his whole rent(z).
But if the goods art sold by the assignees, nnd tukrn oft il-
premises, the landlord loses his remedy by distress, and ran
only com* in UIUUT the commission, pro rutu uilh the lest ul
the creditors (a).
If a landlord distrain! for arrears of rent, and also prows
his debt undrr the commission, he must be put to his tl tiun,
"to t\aivr Ins proff or distri-ss (//). iiiil vxhether a landlord's
right to distrain for arrears of rent is barred by proving the
debt under a coinmisbion lias not b**en deu IIIIIIH il, although
flic \\oid- of the Mat. 49 G'co. 3, c. 1'Jl, seem suilicu-ntly
fomprhi-nsi\e lor that purpose.
() i Atk. 114. () Ibid. 113. () IW*. 104. (/) ibid.
I*, ibid. 103. () Ibid. 103. (*} Ibid. 105.
80. Of
Of Bankruptcy. 345
SO. Of Sureties.
In cases where* a surety has become a bankrupt, and the
creditor has claimed to prove under his commission, his right
to do so has been held to depend upon the surety's engage-
ment to the creditor being absolute at the time of the bank-
ruptcy (r).
But if the engagement is colkteral, and depending upon a
contingency, the debt cannot be proved under a commission
against the surety (d).
As to the right of the surety against the debtor, it is provided
by the stat. 4$Geo. 3, c. 1 21, s. 8, that " in all cases of commis-
sions of bankrupt already issued, under which no dividend has
yet been made.or under which the creditors, who have not proved,
can receive a dividend equally in proportion to their respective
debts without disturbing any dividend already made, and in all
cases of commissions of bankrupts hereafter to be issued,
where at the time of issuing the commission any person shall be
surety for or be liable for any debt of the bankrupt, it shall be
lawful for such surety or person liable, if he shall have paid the
debt, or any part thereof in discharge of the whole debt, al-
though he may have paid the same after the commission shall
have issued, and the creditor shall have proved his debt under
the commission, to stand in the place of the creditor as to the
dividends upon such proof, and when the creditor shall not
have proved under the commission, it shall be lawful for such
surety, or person liable, to prove his demand in respect of such
payment as a debt under the commission, not disturbing the
former dividends, and to receive a dividend or dividends pro-
portionably with the other creditors taking the benefit of such
commission, notwithstanding such person may have become
surety or liable for the debt of the bankrupt after an act of
bankruptcy had been committed by such bankrupt, provided
that such person had not at the time when he became such
surety, or when he so became liable for the debt of such
bankrupt, notice of any act of bankruptcy by such bankrupt
committed, or that he was insolvent, or had stopped payment ;
provided always, that the issuing a commission of bankrupt,
although such commission shall afterwards be superseded, shall
be deemed such notice ; and every person against whom any
such commission of bankrupt has been or shall be awarded,
and who has obtained or shall obtain his certificate, shall be
(c) iT. R, 17. {</) Doug. 160. Cowp. 460.
discharged
Of Bankruptcy.
discharged of all demands at the suit of every such person
Laving so paid, or being hereby enabled to prove as aforesaid,
or to stand in the place of such creditor as aforesaid, with re-
gard to his debt in resptct of such suretyship or liability, in
,like manner to all intents and purposes as if such person had
been a creditor before the bankruptcy of the bankrupt for the
whole of the debt in respect of which he was surety or \\u-
so liable as aforesaid."
But this equity of the surety to stand in the place of the
principal creditor will not be permitted to operate to such cre-
ditor's prejudice; for where such creditor has any other dis-
tinct demand upon suclj bankrupt's estate it has been held, that
any diminution of hi> dividends upon such debt, occasioned by
the surety's standing in his place, and receiving dividends upon
the other, shall be made good to him by the surety out of
such dividends (e).
121. Of interest.
It is a rule for the commissioners not to compute interest
upon debts lower than the date of the commission (J ). Aud
note creditors have no right to prove interest upon them uu
it is expressed in the body of the notes (<r)*
In case of a surplus coming to the bankrupt, creditors have
a right to interest wherever there is a contract for it, appearing
either on the face of the security or by evidence (//).
S<>, where by the course of trading and settling account-,
interest was allotted after a certain credit (*)
'2'1. ( )f costs and damages.
1'rom the cases on this head it appears, that if a verdict has
been obtained before a commission is issued, though judgment
is not Digued till after, the costs incurred in such action are
proveable under the commission.
If a demand in the nature of damages be capable of being
liquidate! and ascertained at the time of the bankruptcy taking
place, so that a creditor can swear to the amount, he may prove
it as a debt under the commission (A').
Hut if the dun a Lies be contingent and uncertain, as in cases
of torts, and in many cases of demands founded upon con-
ti;- Is, \\hich are uncertain both as to their amount, ami \\hetln r
jury \\ill give any damages, they cannot be proved under a
( minissiou (/).
(<> iz V.Jun. 435. (/) 2 Atk. 517. (g) 3 Bio- C. C. 4 *
^34. (0 ISid.436 (*) Doug. 167. (/)
171. Doug. 561. 6 T. R. 695. Ibid. 489. I H. HJ. 19.
23. <>j
Of Bankruptcy. 347
'5. Of the friendly society act.
By stat. 33 Geo. 3, c. 54, s. 10, for the encouragement
and relief of friendly societies, it is provided, that if any
person appointed to any office by any society regulated ac-
cording to the provisions of this act, or being entrusted with,
or having in his hands or possession, any monies or effects be-
longing to such society, or any securities relating to the same,
shall die or become a bankrupt, or insolvent, his exeutors or
administrators, assignee or assignees, shall within forty days,
after demand made by the order of any such society, or the
major part of them assembled at any meeting thereof, deliver
over all things belonging to such society, to such person or
persons as such society shall appoint, aud shall pay out of the
assets or effects of such person all such sums of money re-
maining due, which such person received by virtue of his said
office, before any of his other debts are paid or satisfied ; and
all such assets or effects shall be bound to the payment and
discharge thereof accordingly.
^4. Of expunging and the reduction of proofs.
\Y here the indorser of a bill of exchange became bankrupt,
and the holder proved the amount under the commission, and
afterwards received a composition from the acceptor in dis-
charge of the debt, without the consent of the assignees of
the indorser ; it was held, that the holder of the bill had
thereby discharged the estate of the indorser, and that the proof
of his debt should be expunged (/).
But the discharge of a mere surety by the creditor, has not
the effect of the discharge of the principal without reserve; aud
therefore a co-surety will not be discharged ().
SECTION XII.
Of Set-off,
BY the stat. 5 Geo. 2, c. 30, s. 28, it is enacted, that
where it shall appear to the commissioners, that there has
been mutual credit given by the bankrupt and any other per-
son, and mutual debts between the bankrupt and any other
person, at any time before such person became bankrupt, the
commissioners, or the major part of them, or the as-
(m) 3 Bro. C. C. j. () 6 Ves. Jun. 805.
skneea
34S Of Bankruptcy.
signeei of such bankrupt's estate, shall state the account be-
t\veen them, and one debt may be set against another; and
what shall appear to be due on either side on the balance of
such account, and on setting such debts against one another,
and no more, shall be claimed or paid on either side respec-
tively.
And by stat. 46 Geo. 3, c. 135, s. 3, it is enacted, that in
all cases where there has been mutual credit given by the
bankrupt and any other person, or mutual debts between the
bankrupt and any other person, one debt on demand ina\ he
set off against another, notwithstanding any prior act of bank-
ruptcy committed by such bankrupt before the credit \\as
given to, or the debt was contracted by such bankrupt, in like
manner as if no such prior act of bankruptcy had been com-
mitted ; provided such credit was given to the bankrupt two
calendar months before the date and suing forth of such com-
mission, and providing the person claiming the benefit of such
set-off had not, at the time of giving such credit, any notice of
any prior act of bankruptcy by such bankrupt committed ; or
that he was insolvent or had stopped payment.
The stat. 5 Geo. 2, c. 30, s. 28, relates not only to mutual
debts, but to mutual credits. And in the construction oi
this act it has been held as a general rule, that no debt ur
credit can be set against each other by way of set-off, unless
each debt or credit accrued or was given before the bank-
ruptcy (o).
SECTION X11I.
Of Partners.
ALL the partners in a firm may become bankrupt t<-
gcther; or one only may become bankrupt, while the others
remain solvent.
If upon a fair and open dissolution of partnership, the re-
tiring partner, bouu fide, transfers Im interest in the paituu-
ship effects to the continuing partner, who carries on the
trudo. and against whom a rommi.vsion afteruaid- I>MK
N i i-, of the old partnership found in specie amongst the
. ;, -, \2, t\ under the commission, \'-t ah-i.lntdy in the
.es ; and that though there be outstanding debts of the
() i Atk. no.
former
Of Banlrupfcy. 349
former firm unsatisfied, these effects so found in specie will
not be considered as the joint estate of the former firm, either
for the benefit of joint creditors, or the partner who has with-
drawn (p).
And in ex parte Fell (q), where a partner had retired,
upon a bond for the balance due to hirn, with a covenant of
indemnity, and upon the bankruptcy of the remaining part-
ners had been arrested by the joint creditors ; his petition for
the application of the specific stock and debts of the old part-
nership to the creditors of that partnership in preference to the
creditors of the new firm was dismissed.
If, in the case of a partnership, one of the partners em-
bezzles part of the partnership effects and becomes a bank-
rupt, the assignees are entitled only to the balance of the ac-
count after the partnership debts are paid and the amount of
the embezzlement has been deducted (r).
And the assignees of a bankrupt partner take by the as-
signment the same interest as the bankrupt himself was en-
titled to at the time he became bankrupt. As where one
partner advanced part of his share of the ex pence of an ad-
venture, and gave his notes for the remainder, which did not
become due till after he had become bankrupt; it was held,
that the assignees were entitled to his full share of the profits
of the adventure, although the note creditors received only a
dividend under the commission, and that it was uncertain at
the time of the bankruptcy whether lire adventure would be at-
tended with profit or Iot*(s).
The assignees of the bankrupt partner are tenants in com-
mon with the solvent partner in all the partnership effects ;
subject to all the rights of the solvent partner.
Where therefore one of two partners became bankrupt, and
the solvent partner, for a valuable consideration and without
fraud, disposes of some of the partnership effects, after the
act of bankruptcy committed by his partner without his
knowledge : the act of the solvent partner was held to be good ;
for each partner has a power to dispose of the partnership
effects (f).
Where one of three partners became a bankrupt, and the
partnership consequently dissolved, and the solvent partners
continued to carry oa the trade with the capital as consti-
(p] 6 Vcs. Jun. 119, (?) 10 Ibitt. 347. (r) D^vies, 371.
(t) Cowp. 469. (f) Ibid. 448.
tuted
350 Of Bankruptcy.
tuted at the time of the bankruptcy; the assignees of the*
bankrupt \vere held entitled, bevoud an account and distribu-
tion of the stock, &c. to a participation of suijes< <juent pro-
fits made by the solvent partners carrying on the trade wilh such
capital (r).
There seems to be no doubt but that in their individual ca-
pacities, one partner continuing solvent, may be a creditor of
nnother, and prove his debt under a separate commission airainst
liis partner (u). But if the solvent partner is called upon after
the bankruptcy of his partner, to pay more than his moiety "1"
the partnership debts, he cannot prove such debt under the
commission (j).
If money is paid by a solvent partner to another, who af-
terwards becomes a bankrupt, for the purpose of being paid-
over to creditors as his liquidated share of the joint debts ;
and the bankrupt partner does not apply the same lor that pur-
pose, the solvent partner may prove the amount under the
commission against his bankrupt partner; and that although
the solvent partner did not pay the debts to the joint creditors
until after the bankruptcy ( jy).
And if a partner be a creditor upon the partnership fund, he
can have no satisfaction but out of the surplus which shall re-
main after the joint creditors are paid (:).
So where one partner has either with or without the privity
of his copartner taken more than his share out of the partner-
ship funds, the joint creditors cannot be admitted to prove
against the separate estate of the partner who drew out the
;noney, until his separate creditors are satisfied ; unless it
can be shewn, that such partner took the joint property with a
fraudulent intent to augment his sepajate (state (n)
Where there aie Hvn:d partners constituting >ne firm.
some of them carry on a di>tim t trade, ami in MK h rhai.i
deal with and become creditors of the other linn, and :t joint
commission issues, proof may be made of such debt as il they
dealt with strangers (6).
1'ut if the concern carried on by one partii'.r is merely
a branch of the joint concern, proof will not be pu-
inilled (c).
(v) 15 Vc. Jun. 218. () a Chan. Rrp. 116. (*) i East'* R<
.$ Ves. Jun. 592. ( v) Ibid. (z) I Atk. 217. (a) Cooke Bpi.
534. Ibid. 535. (t) Ibid. 538. (r) 11 Yes. Jun. 413.
SECTION
Of Bankruptcy, 351?
SECTION X1Y.
Of the Dividend.
THE stat. 1 Jac. 1, c. 15, s. 4, allows any of the creditors
of a bankrupt, within four months after the commission is is-
sued, and until distribution is made, &c. to join with the
other creditors in partaking of the benefits of the commission ;
and if the creditors do not come in within four months, then
the commissioners to have power to distribute, 8tc.
The stat. 5 Geo. 2, c. 30, s. 33, orders, that the assignees
bhall at some time after the expiration of four months, and
within twelve months, make a dividend.
It appears then, that the assignees cannot be compelled to
make a dividend of the bankrupt's estate before the expira-
tion of four months. But if the assignees, after the four
months are elapsed, refuse to make a dividend, the chancellor
will, upon petition, order them to attend the commissioners
at a meeting appointed for that purpose, and direct them to
declare a dividend, if, upon examining the accounts and the
assignees upon oath, they find there is a sufficient fund; or
the commissioners may themselves without any order of the
court, summons the assignees to produce their accounts, and
show cause why a dividend should not be declared ; which
gammons and meeting for the assignees' attendance may be
had without any expence, upon the application of a creditor,
who has proved his debt (d).
After the expiration of four months, and within twelve
months from the time of issuing the commission, the assig-
wees must cause at least twenty-one days notice to be given in
the London Gazette, of the time and place of meeting, for
the commissioners to make a dividend. And the meeting for
the city of London, and all places within the bills of morta-
lity, must be at Guildhall, 6 Geo. 2, c. SO, s. 33.
By stat. 49 Geo. 3, c. lijl, s. 5, f( for the purpose of
ascertaining in what manner the money which shall from time
to time come to the hands of such assignee or assignees has
been employed, the commissioners shall in no case declare a
dividend upon admission only of a certain sum in the hands
of the assignees, but shall require such assignee or assignees
(</) i Atk. 91. Cooke Bpt, Laws. 521.
' J t*
352 Of Bankruptcy.
to deliver upon Oath, a true statement, iu writing of all the
sums of money received by such assignee or assignees, and
when received by him or them respectively, and on what ac-
count, and how employed, and shall examine such statement,
and compare the receipts with the payments, and ascertain
what balances have been from time to time in the hands <>f
tuch assignee or assignees re^pcctm ly, and shall enquire for
what reason any sum appearing to be in the. hand* >f sinh
assignee or assignees ought to be retained, and thereupon
shall declare a dividend on the remaining sum, specifying in
iheir order the sum so allowed to be retained, and the ground*
in which they may conceive it proper tlr.it th; same should
be retained, and not divided amongst the creditors.
The assignees in pursuance of such order, and without any
deeds of distribution for that purpose, must forthwith make
such a dividend accordingly, and take reo ipt* in a bank to
be kept for that purpose ; and such order and receipt shall be
full discharge to the assignee*, for so much as they shall
fairly pay, pursuant to such order, 5 Geo. 2, c. 30, s. S3.
By the fourth section of the statute, 4!) I !<'. :>, t 1JJ,
asMiinees wilfully retaining in their hands or employing for
their own benefit, any money, part of the estate of the bank-
nipt, shall be charged by the commissioners in their account?
with interest, at the rate of 20/. per cent. /)( r tinnum, on all
monies so retained, during the time they so wilfully retained
and employed the same.
If assignees neglect to make a dividend in proper time,
they may be charged with interest, although the money hns
lain at a banker's, ami they have not !>< u paid interest for it (<).
By stat. 5 Gt\>. , c. 30, s. .'37, within eighteen months
next after the issuing the commission, the : must
make a second dividend ; and shall cause a notice to !>e in-
serted in the. London (Ja/.ette, of the time and place th
commissioners intend to meet to mak. t, and
for the creditors \\h-> shall not before have proved their debts,
to omit and pro\e tin same ; and at siu ii meeting the as-
- -h:dl produce upi.n oath < affirmation tin ir account*
of the bankrupt'* estat : and \\hut upon the balance l!
sli:ill appear to be in tlieir hands, shall, by the like oid> r of
the commissioners, be forthwith divided amongst MM h of the
bankrupt*! creditors \\lio shall have made due pii.ol <-t tin Tr
debts, m propoftkm to their several debts; vhuh j-ec.md di-
(i) i Dro. C. C. ;f4.
Of Bankruptcy*
shall be final, unless any suit at law or in equity be
depending, or any part of the estate standing out, that cannot
be disposed of, or that the major part of the creditors shall
not have agreed to be duly sold ; or unless some other or fu-
ture estate or effects of the bankrupt shall afterwards come to
or vest in the assignees; in which case the assignees shall,
as soon as may be, convert such future or other estate and
other effects into money, and shall, within two months next
after the same shall be converted into money, by the like-
order of the commissioners, divide the same amongst such
bankrupt's creditors who shall have made due proof of their
debts under the commission.
If creditors have not been able to prove their debts in time
to receive a first dividend, if they can reasonably account for
rthe delay, such as by making an affidavit that they have not
read the Gazette ; the chancellor will make an order that they
be admitted so as not to disturb the former dividend, and must
in the first place, be brought up equal to the creditors under
the former dividend, before the commissioners can proceed to
make a second (f).
And it is the practice, without an order, to permit creditors
to prove at a meeting to declare a dividend, and in the first
|)lace to direct them to be paid equal to those who had proved
before, and then to direct a general distribution of the re-
eidue (g).
SECTION XT.
Of the Bankrupt.
1 . OF his conduct.
When he has been declared a bankrupt, and notice thereof
has been left at his usual place of abode, or personally
served in case he is in prison, and notice has been pub-
lished in the Gazette of the issuing of the commission, and of
the time and place of meeting of the commissioners, he must,
under the penalty of death, surrender within forty-two days
to, and submit to be examined, by the commissioners named
in the commission, or the major part of them ; provided that
(f) I Atk, soi. (f) Cooks Bp*-. Laws, 521.
A a tbe
554 Of Bankruptcy.
the commissioners appoint not less than three several meet-
ings \\ithin the said foity-two days; and that the last meeting
is on the forty-second day ; 5 (jto. 2, c. 30, s. 1.
And by the same statute, tho lord chancpllor, or the person
holding the great seal, may enlarge the time tor .the Mint u-
der, Sic- for any term not exceeding fifty days from the ex-
piialion of the said forty l\\o chiys, by an order made at least
six days before the time on which the bankrupt was to sur-
render.
But afthough tlie bankrupt is not bound to surrender until
the last meeting, tin- coimnk-iontis have authority in the in-
termediate time to summon and examine him touching his
estate and effects.
The omission to surrender must be wilful to male it
felony (A). .Awl then-fore if the bankrupt is prcu-utcd siu-
reoderiog by illness (/), or makes ;m attempt to sm render (/),
it would he a good defence if he should he tried for felony.
Where there does not appear any intention in the bankrupt
of defrauding his creditors by not appearing within the time
appointed, and where his absence proceeds rather from an
ignorance of the cons* quence, or from accident, tin- lord
chancelloi will supersede a commission to preu-nt a prosccu-
tion for felony in not surrcndeiing (/)..
Jt is the duty of the bankrupt to attend the commissioners
at all limes till lib affairs are finished, to IK- examined tonchhu;
all matters relating; to his 1 1 ade, dealings, estate, and effects;
and in case of contumacy they may commit him (///).
And after his surrender In- is required to attend the assignees
upon every reasonable notice in writing for that purpose given
by such assignee?, or left for him at his house, or place <>i
ibocbj in on lor to assist such assignees in making up, adjust-
ing, or settling, any account or accounts b< t\\eui >wh hank-
rupt, and any debtor to or creditor ot his estati-, <-i \* attend
any court of record in order to be examined tow hing the
amr, or for such other IHMUI.^S which in-h B hall
adjn ^arv for gfttinir in the bankrupt's estate for the
I ' iH.-frt of hw creditors; and in case the bankrupt IK ul< cts or
refuse* to att n<!, or on such attendance sl'all re.-tiist- t.. assist
in surh di-t->\ei\ without goo<l and sufliricnt caiiic to lie
s! K -\\n I- .Tiiissi(,iiers Icr such neglect -j i< hi vi I, i
'hf-m a!'- .tent; the coninu^M nn , aie em-
'/} Ambl. ' 6 Vc. Jun. 445. (t] i ILiJ. 1^5. n 1V-U. 496.
131. Kep. uSU. 5 (Jeo. s. c. i s. 16.
pvwcntd
Of Bankruptcy. 355
pbwered to commit the bankrupt until he shall conform to
their satisfaction 5 Geo. C 2, c. 30, s. 4, 36.
After the time allowed to the bankrupt for .the discovery of
his property is expired, any .person who shall voluntarily dis-
cover any part of the bankrupt's estate not before known to
the assignees, either to the assignees or to the commissioners,
shall be allowed 5/. per cent upon the property discovered,
and such further reward as the assignee and major part of the
creditors at the next meeting shall think fit.
And any trustee, wilfully concealing the real or personal
estate of the bankrupt, and who does not within iorty two
days after the issuing of the commission, and notice given in
the gazette, disclose his trust and estate in writing to one of
the commissioners or assignees, shall forfeit IOO/. and double
the value of the property concealed, to be recovered by action
of debt in the name of the Assignee, 5 Geo. 2, c. 30,
s. 20, 21.
2. Privilege of the bankrupt from arrest.
A bankrupt is free from all arrests, restraint or imprison-
ment of any of his creditors in coming to surrender; and
from his actual surrender to the commissioners, for and during
the forty two days, or the further time for finishing his exa-
mination, provided he was not already in custody at the time
of his surrender and submission to be examined. And if he
is arrested for debt or on any escape warrant coming to sur-
render, or if after his surrender he is so arrested -within the
time before mentioned, then on producing the notice or sum-
mons under the hands of the commissioners or assignees, and
making it appear to the officer that such notice is signed
by the commissioners or assignees, and giving him a copy
thereof, he shall be immediately discharged. And in case
the officer shall, after such production and notification, detain
the bankrupt, he is liable to a penalty of ol. for every day's
detention, 5 Geo. 2, c. 30, s. 5.
And if after the bankrupt has passed his final examination,
he is summoned by the commissioners to attend them upon
declaring a dividend, he is entitled to the privilege (//)
But he is not privileged from arrest by virtue of an extent,
even whilst under examination, for the crowu is not bound
by the bankrupt laws (o).
Neither is he entitled to the privilege, if taken by bis bail
while under examination ; for the stat. 5 Geo. 2, c. 30, s. 5,
8 T.R, 534. Q>) t B! R. 1141,
A a 2 expressly
356 Of Bankruptcy.
expressly exccpts the case w here a bankrupt w in custody at
the time of his surrender and submission (^>).
.\ bankrupt is entitled to the privilege, although the di-bt
upon which he is arrested is not proviable under the commis-
sion (y). And every mode by which a en ditor c; ; ii an.
bankrupt for a debt, whether in law or equity, comes w itliiu
the protection of the bankrupt laws (/).
3. Of the examination of the bankrupt.
By the slat, o (icn. <2, c. .SO, s. l!>, the rommi- sinners may
examine the bankrupt as will by word of mouth, as on intei-
roiifs in writing. And the examination is to be (upon
oath, or if a quakcr upon affirmation, ( 1 Jtic. 1, c. !.">,
7, 9- 5 Geo. C, c. SO, s. 1.) touching all matter* ulutii _
the trade, dealings, estate and < f the bankrupt. The
commissioners may t:ikc- down or reduce into writing tin-
\ibal examination of the bankrupt, wliieh examination ><
taken down or reduced Into writing, the bankrupt nn^t
under pain o| being committed until he does MUH it, unless h*
lias a reasonable objection to the wording of it, or olher\\i.-e,
to be allowed by the commissioners.
The commissioners in-c empowered I>\ the stat. 1 Jnc. 1.
c. 15, ?. 7. t> examine the bankrupt touching Ins lands. [<
ment.s, goods, chattels, d< lt>, lulls, bum!-. ;inr.
and such other tilings as m;iv tend to disclose Ins estate, 01 his
ecret grants, coiueyiuct s, ai..I eloining of his lan<.
men! money, anil dbt>, as tht y .shall think lit.
And by the 6 (ico. '2, c. -So. s. 1, the bankrupt is retjuii
to disclose and di><. ovtr all his eft cts and estate real yiul
riixl b<",\ ;ind in what manner, to \>liom anil u]>on
Avhr .ition, and v\liat time or tui'-s he has di>posed
of, assigned or transferred any of hi \\arcs, men lian-
ol!u r ( -tate and effects, and all books,
paper>,and \vrit iii'_'s relative, thereto, of \\hich he wa> p
or in or to which he was any ways interested <>i entitled,
or which any other prison bad in tinst for him or his i
at am (in;.- I - 'lie issuing of the coQunissiou ; or
\vher bv he or ins fa:iui\ have or may txpi-ct any profit, pi --i-
bility of ; n't, ..i ad\antage whatsoever ; except only
Mich part of : anil clVects as shall have been ic.dly
and / i or disposed of in the way of bis trade and
- > I rail lu\e been laid
out in the ordinary - of his family The bankrupt ia
(f) i Alk. >3. (j) 5 T. R. 409. (r) i Swh. ailJ Uef. Rfp. 169.
requited
Of Bankruptcy. 357
required upon his examination, to deliver up to the com-
missioners, all such part of his goods, wares, merchandizes,
money, estate, and effects, and all hooks, papers, and writings
relating thereto, as at the time of his examination, shall be
in his possession, custody, or power, the necessary wearing
apparel of himself, his wife and children, only excepted.
And if he conceal any part of his property to the amount of
twenty pounds, with intent to defraud his creditors, he is
guilty of felony without benefit of clergy.
To enable the bankrupt to make a full discovery of his
estate and effects, by sect. 5. of the same act, he may at all
reasonable times before the expiration of the forty-two days,
or the enlarged time, inspect his books, papers, and writ-
ings, in the presence of his assignees, or some person ap-
pointed by them; and to take with him for his assistance such
persons as he shall think fir, not exceeding two at any one
time, and to make such extracts and copies as he shall think
lit.
If the bankrupt is in prison the assignees are required to
appoint one or more persons to attend him from time to time,
and to produce to him his books, Sec. in order to prepare his
last examination ; a copy of which he must upon their appli-
cation for it, deliver to the assignees or their order, ten days
at least before such last examination (s).
By sect. If), of the same statute, in case the bankrupt re-
fuses to answer or does not fully answer to the satisfaction of
the commissioners, or the major part of them, all lawful
/questions pat to him by them, or the major part of them,
iis well by word of mouth as by interrogatories in writing,
the commissioners, by warrant under their hands and seals,
may commit him to such prison as they may think fit, there
.to remain without bail or mainprize until such time as he
submits to the commissioners, and makes full answer to their
satisfaction, to all such questions as shall be put to him as
aforesaid.
4. Of the bankrupt's rights under the commission.
It seems to be a general custom where a bankrupt duly
conforms, that the common expences of maintaining himself
and family until he has passed his examination, are to be
allowed in his accounts. But a third person will not be al-
lowed to take any of his effects and appropriate it for that
purpose (0-
() Ibid, s, 6. (f) I T. R. 157.
By
3,5 5 Of Bankruptcy.
By stat. 5 Gen. g, c. 30, s. 7, it" a bankrupt Mtrruulers
within the time limited by tin said act, and in all things con-
forms as therein directed, he is to be allovml the sum of *">/ .
per cent, out of the neat produce of all the estate that shall
be recoveied in and receivedj to be paid to him by the as-
signees, in case the neat produce of the estate after such
allowance made shall be sufficient to pi} the creditors \\h<>
have proved their debts under the commission ten shillings in
the pound, so as the .)/. pci ct nt. shall not amount to above
2OO/. And in case the neat produce of the csl:tte shall over
and r.bove the allowance thereafter mentioned be sufficient to
pay the creditors twelve shillings and si\j: n< c in tin pound
for their respective debts, the bankrupt so conforming shall
be allowed ?/. 10s. per cent, out of such produce, so as ll .
amc shall not amount in the ttltole to aln>\e the sum of J.'iO/.
And in case the produce of the estate shall, over and above
the allowance thereafter mentioned, be sufficient to pay the
creditors fifteen shillings in the pound for their lespective
debts, the bankrupt so conforming shall be allowed 10/. per
cent, oat of such neat produce, to be paid by the assignees,
so as the same shall not amount in the whole to above JOO/.
By sect. 8. of the same act, if the neat produce of the
bankrupt's estate shall not amount to so luuch as shall pa\ all
his creditors who shall have proved their debts under the com-
mission ten shillings in the pound for their respective debts,
after all charges first had and deducted, then such bankiupt
shall not be allowed 6/. per cent, out of such estate as shall
be recovered in, but so much money as the assignees shall
think fit to allpw him, not exceeding :;/. per cent.
I'ntil a iinal dividend is inude (n), and the bankrupt
has obtained h:> urtilicate (.1), he is not entitled to his allow-
ance.
A bankrupt js not entitled to an allowance umUr a second
commission unle,ss he pays lii'teen shillings in tho pound (y).
Fanners under a joint commission an- not entitled to a
double allowance., C4M in re-jn-ct to the joint, and the oiliei oi
the separate estate; but one allowance in re^|Mit of their
joint and stiniraty effects is to be di\ided between them,
cordmi; to 1 .li- jiropoitions \\liich the surplus of rach of their
after pa\nn-nt of th ir ri-|'.-cti-.e - p:.:
dibts, and the rc.^j'<cti\e inoitiis of their joint estate ha\e
contiibutcd to the payment of their joint debts (:).
() i Aik. ao8. (*) Ibid. 107. (j) 6 V. Jun. aj. (} i Bro.
*
Of Bankruptcy. 359
If the bankrupt's estate and effects are equal to .the pay-
ment of twenty shillings in the pound on his debts, he is
entitled to the surplus after the expences of the commission
have been discharged; and if the residue and remainder
of his debts after full satisfaction of his creditors have not
been collected in, he may recover and receive the same, 13
Etiz. c. 7, s. 4. 1 Jac. \f, c. lo, s. 15.
But he is not entitled to any surplus until interest upon all
bonds, contracts, or notes carrying interest, or interest allowed
by the course of dealing, is iirst paid out of the estate (a).
An nncertiticated bankrupt may maintain an action of as-
<umipsit against a third person for work and labour (/>); and
for work and labour, and materials furnished necessary to his
tabour (V).
And where no claim is made by the assignees of a bank-
nipt he may maintain trover; for goods acquired alter his
bankruptcy (</)
And assumpsit for money lent and advanced by him after
his bankruptcy (e).
And if an nncertificated bankrupt assign after acquired
property in trust for a valuable consideration, and a creditor of
the bankrupt seize it in execution, the trustee may maintain
tioVer against him (/').
SECTION XVI.
Of the Certificate.
1. OF the signature.
By the stat. 49 Geo. 3, c. 121, s. 18, it is enacted, that
(< in all cases of commissions of bankrupt heretofore issued,
and in which the bankrupts have not obtained their certificates,
and in all cases in which commissions of bankrupt shall here-
after be sued forth, the signature and consent of three parts
in five in number and value of the creditors of the bankrupt
of bankrupts who shall be creditors lor not less than 201. re-
spectively, and who shall have duly proved their debts under
the commission, or so-me other person by them duly authorized
thereto, to the allowance, and certificate, and discharge of
(a} i Atk. 75. (4) Cookc, Bpt. Laws, 431. (c) i Esp. N. P. C 140
(d) i Bos. and i>ul. 44. (e) i Esp. N. P. C. 170. (/) Peakc's N. P. C.
H'
the
360 Of Bankruptcy.
the bauktupt or bankrupts, shall be, to all intents ami pur-
p.i-r .1 liable tor the benefit of the bankrupt or bank-
iupt". ;i- 1 t-t ore the pa-sin^ of this net, the signature and con-
suit of four part** in live iii number and value of Mich pci
would hiivr U.n available; and aitch signature and consent of
three parts in five in number and value of Mich per- on*, shall
be sntiieiei.t to authorize all acts to be done by the lord chan-
cellor, lord keeper, and loids commissioners of the great seal,
and the ci nmn-sioners in such commissions of bankruptcy
and all others, for the benefit of the bankrupt or bankrupts,
which under any act or acts of parliament would have been
aiithori/.cd by the signature and consent of four parts in
in number and value ol "such per-
CYeililoi., wire formerly entitled to proceed at hnv for their
debts, and to prove under the commission for tin- purpose .f
Mting to or dissenting from the certificate, lint by the
Mat. 49 Ceo. 3, c. 1J1, s. 14. a creditor proving a (It -bl under
a commission for any purpose whatever, or having a claim
c.fdclit. entered upon the proceedings, is to be deemed an
election by the creditor to take the benefit of the coinini-
with respect to the debt so proved or elanned by him.
ISv slat. (i(0. 2, c. 00, s. 7, if the. plaintiff in an action
against the bankrupt, can prove, the ceitilicate was obtained
unfairly and by fraud, or that any concealment has been made
by the bankrupt to the value of !()/. the certificate will be of
no avail to the bankrupt in such action; anil by >ect. 11. <
b i!id, bill, note, contract agreement, or other security, \\hat-
>oevrr made 01 ^iveii by any bankrupt, or by any oilier person,
unto or to th use of or in trust for any ci editor or cieiii.
or for the stcmity of the payment of any debt or sum of
money due from Mich bankrupt a! ihe time of his becoming
bankrupt, oranypait thereof, bit\vi'en tlu^ time of his lie-
coining bankrupt and su. ii '.-.nkrupts <lisch:;r^e, as a c.
.:'ion or to the intent to pciMiade hi.n. !. i , or them to
cons nt to or si;;n ::ny ;,ilo\> ;ii.- 01 (.il:!i "id; and
the monies thcieby sei UK d to 'be paid
reco'
( [-on thi^ act it 1 .!-(!, lliaT tli nf made
;- ud f,f tin: hunkmpt, ' ^ his
certificate, without his pri\ity, is \.'<idr_-,'. And m-
tnallv p; !) to imi; litor to sigll the
bankiupU <-ert it":i lack ni an actinJ"i
j had am! ('//).
( g ) i Boi. and PuL 9$. <f ) Uottg. 696.
Of Bankruptcy. S6l
By the 10th section of 5 Geo. 2, a bankrupt is not entitled*
to the benefit of the certificate, unless before its allowance he
make oath, or, if a quaker, solemn affirmation in writing, that
such certificate and consent of the creditors thereto were fairly
obtained, and \vithout fraud.
Uy stat. 114 Geo. 3, c. 57, s. 9> " If any persons shall
fraudulently swear or depose, or being of the people called
qnakers, affirm, before the major part of the commissioners
named in any commission of bankruptcy, or by affidavit or
affirmation exhibited to them, that a sum of money is due to
to him or her from any bankrupt or bankrupts, which shall in
fact not be really and truly so due or owing ; and shall in re-
spect of such fictitious or pretended debts sign his or her con-
sent to the certificate for such bankrupt's discharge from his
debts ; in every such case, unless such bankrupt shall, before
such time as the major part of the said commissioners' shall
have signed such certificate, by writing by him to be signed and
delivered to one or more of the said commissioners, or to one
or more of the assignees of his estate and effects under such
commissioners, disclose the .said fraud, and object to the reality
of such debt, such certificate shall be null and void to all in-
tents and purposes, and such bankrupt shall not in that case be
entitled to be discharged from his debts, or to have or receive
any of the benefits or allowances given or allowed to bank-
rupts."
If any or all of the bankrupt's creditors are inducted by
money, or notes for monev given by a third person to sign his
certificate, though the bankrupt does not know of it at the
time of the signing, nor when he makes the affidavit required
by the act in order to obtain the allowance of the certificate
by the chancellor, yet if he knows it before the actual allow-
ance, the certificate is void (/').
G. Of the effect of the certificate.
The certificate of a bankrupt discharges him from all debts
proved or proveable under the commission. 5 Geo. 2, c. 30,
s. 7 ; 46 Geo. 3, c. 135, s. 4; 49 Geo. 3, c. 121, s. 8, 17.
But a bankrupt's certificate docs not discharge him from a
debt due from the crown (/:); nor from an express collateral
covenant, which does not run with the land (/); nor from a
covenant or agreement for non-payment of rent (in) ; nor from
(0 Bous;. 216. Ibid. 683. 10 \ r es. Jnn. 359. ' (k] I Atk. 261.
(/) 4 Bur. 2446. () 4 T! R. 94. 8 East's Rep. 311.
the
363 Of Bankruptcy.
the arrears accrued since the bankruptcy on an agreement to
the support of an illegitimate child (n).
If a bankrupt obtains his certificate before the bail are fixed,
the certificate will discharge them ; but if they sue fixed be-
fore the certificate is allowed, they will not be discharged ; for
the certificate has no operation till it is allowed, and has no
relation back (o).
But bail in error are not entitled to relief, although the
bankrupt obtains his certificate pending the writ of error; for
they cannot surrender the principal (p).
The certificate of a bankrupt partner will not discharge his
copartner; but such copartner stands chargeable \\ith, and
liable to pay the partnership debts, and to perform the joint
contracts as if the bankrupt had not been discharged from
them. 10 Ann, c. 15, s. 3.
The certificate of a bankrupt discharges him from all debt*,
whether joint or separate (q).
If any commission shall issue against any person who has
been before discharged by virtue of the act, or comjxmuded
with his creditors, or delivered to them his estate or effect-,
and been released by them, or been discharged by any act for
relief of insolvent debtors, then, in either of these cases, the
person only of the bankrupt shall be free from anot, but his
future estate and effects shall remain liable to hi* creditors as
before the making of the act, (his tools of trade, necessary
houshold goods and furniture, and necessary vunnuu apparel
of himself, his wife, and children, only excepted,) luiless the
estate of such person against whom such commission shall In
awarded, shall pay every creditor under the .said commission
fifteen shillings in the pound. 5 Geo. 2, c. SO, s. .
It has been decided, that a certificate under a second com-
mission will not protect a bankrupt's future effects, unless fif-
teen shillings in the pound are paid under the second commis-
sion, although the first commission has been superseded (r\
But though the future estate of a bankrupt remain* liable to
the claims of his individual creditors under a secqnd commi>-
sion, not having received fifteen shillings in the point.!.
that will not prevent the vesting of the bankrupt's estate in tin:
assignees under the third commission, for the benefit of all the
creditors ().
) i Camp. N. P. C. 418. () i D.ir. 144. (p) i T. R. 614.
3 T. Won. 15, (j) Douj. 46. (; 7 Eitt'j Rep. 159.
Of Bankruptcy. 363
By stat. 5 Geo. 2, c. 30,9. 7, if any bankrupt, after the
allowance of his certificate, shall be arrested for any debt be-
fore he became bankrupt, he shall be discharged upon com-
mon bail.
3. Of invalidating the certificate.
By stat. a Geo. 2, c. 30, s. 12, " if the bankrupt, for or
upon marriage of any of his children, give, advance, or pay
above the value of 100/. unless he prove, by his books fairly
kept, or otherwise upon his oath, or if a quaker, upon affirma-
tion, before the major part of the commissioners, that he had,
at the time thereof, over and above the value so given, advanced,
or paid, remaining in goods, wares, debts, ready money, or other
estate real or personal, sufficient to pay or satisfy unto each
and every person to whom he was any ways indebted, their
full and entire debts ; or if he has lost in any one day the sum
or value of five pounds, or in the whole the sum or value of
100/. within the space of twelve months next preceding Iris
becoming bankrupt, in playing at or with cards, dice, tables,
tennis, bowls, billiards, shovel-board, or in or by cock-fighting,
horse-races, dog-matches, or foot-races, or other pastimes,
game or games whatsoever, or in or by bearing a share or part
of the stakes, wagers, or adventures, or in or by betting ou the
sides or hands of such as do or shall play, act, ride, or run
as aforesaid; or if within one year before he became bankrupt
he has lost the sum of 100/. by one or more contracts for the
purchase, sale, refusal, or delivery of any stock of any com-
pany or corporation, or any parts or shares of any government
or public funds or securities, where every such contract was
not to be performed within one week from the time of the
making such contract, or where the stock or other thing so
bought or sold was not actually transferred or delivered iu pur-
suance of such contract, the certificate is void."
Where a bankrupt had given JOOO/. to his niece upon her
iinrriage, Lord JIard\vicke held, that the clause in the act
not beiog penal, it ought to be construed strictly, and confined
to the children of a bankrupt ( and no farther ().
Neither insuring in the lottery (*), uor keeping a lottery-
office (?/), is within the statute.
4. Of the liability of the bankrupt on a new promise.
Though a bankrupt is discharged by his certificate from all
debts due at the time of the commission; yet he may make
himself liable on a new promise, and assumpsit will lie on such
.) i Atk. 86. (x) i Hen, Bl. 29. (y) Coqke, Bpt. Laws, 463.
new
Of Bankrupt
new promise or undertaking. If lie could not, the pr
in the stat. :> (ico. 1, c. HO. s. 11, by which i-very security for
the payment of any debt due hcfnn the part;. bank-
rupt, as a consideration to a creditor to si^n his ceiiificale,
js made void, would be totally nugatory (c).
But n promise made by the bankrupt subsequent lr obtain-
ing his certificate will not revive the old debt, if the o-.nsulera-
i the debt is fraudulent, as \\here the bankrupt promises
to pay the creditor a certain sum in consideration that 1
not come under the commission (a) ; or where the bankrupt,
to induce his creditor to sign a composition deed, gave him u
promissory note for the residue of the demand
SECTION XVII.
Of superseding a Commission.
BY stat. 5 Ceo. <2, c. 30, s. C!, if any bankrupt, after tin
i.>uing of any commission against him, pay to the person \vho
toed out the same, or otherwise give or deliver to such per-mi
goods, or any Other Satisfaction or security for his debt, whereby
surh person .suing out such commission shall privately )
and receive more in the pound, in respect of his d bt, than tlit
"other creditors, the commission may be superseded.
There arc many grounds on which a comiui^ion may be
superseded. It may be superseded, it' taken out at the in-
stance of the bankrupt (<); or if there is not a -rood petition-
ing creditor's debt (d) ; or if the petitioning creditor is an in-
fant^); or if there is not a sufficient act of bankruptcy
or if the bankrupt is an infant (g); or that all the tradini: took
place during infancy (//); or if taken out against a feme >-caf
upon a trading prior to her mar! or it" no*
until u considerable time after it has lx en i-Mied(A')-
A commission may IN.- snpi-i-M-dcd if all the creditors of a
"bankrupt who have proved tli ir debts eoiismt (/).
A bankrupt will not be permitted to pi tition to sup-
a commission until lie lias surrendtivd, e\ui with the consent
.vp. 544. i Atk. ii;6. Doug. 182. i T. R. 715. (a} Esp.
..185. ^)aT. R.76J. M i4\"ej. 6oz. (J) i Ail
(,) 3Vc*. Jun. 554. (/) 4 Ibid. 168. if) i At-
*A) 14 Ve. jun. 633. (i) aBro. C. C. 165. (*) ^ V. Wins. 545.
</) lAJt. 134,
Of Wills and Testaments, 36$
f all his creditors. He must first petition for leave to sur-
render, and then apply to supersede the commission (m).
If a commission of bankrupt is taken out fraudulently or
maliciously, riie lord'cliancellor may either order a specific sum
by way of damages to be paid by the petitioning creditor to
the bankrupt, or assign the bond given by the former, and
enable the bankrupt to recover the whole penalty of die
bond (?/).
CHAP. X.
Of Wills and Testaments.
1. OIF the nature of wills and testaments.
A will or testament is defined '" the legal declaration of a
imn's intentions of what he Kills to be performed after his
death;" for a \vill or testament cannot take place till after tke
death of the testator (o).
A will and testament, strictly speaking, are not words of
the same import: a will is properly limited to land, and a
testament to personal estate only ; and the latter requires exe-
cutors, W!K> are named, to take care and see it performed (p}.
The person who makes a will is called a testator; lie who
dies without a will is termed in law an intestate.
A gift of lands or tenements by will is called a devise; and
die person to whom they are given a devisee. '
There are two sorts of wills or testaments; first written,
and secondly verbal. The latter is called a nuncupative will.
A nuncupative or verbal will, which has now almost fallen
into disuse, extends only to the personal property of the tes-
tator, and is his intention declared in his last moments, before
a sufficient number of witnesses, and afterwards reduced into
writing.
But as this method of bequeathing property was subject to
great impositions, nuncupative wills became the object of le-
gislative interference by the statute of frauds and perjuries,
(29 Car. 2, c. 3,) which enacts, " That no nuncupative will
shall be good where the estate thereby bequeathed shall ex-
ceed the value of SO/, that is not proved by the oaths of three
witnesses at the least, who were present at the time of pro-
(m] 8 Ves. Jun. 328. n Ibid. 409. (n) 1 Atk. 144. (o) Swiiib.
p. I. s. 5. (f) i Inst. ill.
3 nouncuig
366 Of mils attd Testaments.
g the same, and bid by the testator to bear witness
that such was Itis will, or to that effect."
The same statute further provides, that the testamentary
tennis by \\hi.-h the devise is made must be spoken with intent
to bequeath, not any loose idle words in the sick person's ill-
ness; for he must require the bystanders to bear \\itntss of
such liis intention : that the will must be made at home,
among his tamily or fi : nils, unless by unavoidable accident, to
prevent unpoattOM upon strangers; that it must be in his
last sickness, for it he recovers he may alter his disposition;
that it must not be proved after six months from the inakiir.-,
unless it were put in writing within six days from that time ;
nor jet too hastily, as not till fourteen days after the. death of
the testator, nor till legal notice has been given to the. widow
or the next of kin, that they may contest the same if they
should be so inclined.
But by the twenty-third section, soldiers and sailors in actual
service may dispose of their moveables, \\ ugea, and personal
estate, as before the making of this act.
The twenty-second section provides, that no written will
shall be revoked or altered by a subsequent nuncupative one,
except such nuncupative will be, in the life-time of the tes-
tator, reduced to writing, and by him read over and approved,
and proved to have been so done by three witnesses at the
least; who, by statute 4 and 5 dun, e. lG, s. 14, must be.
such as are admissible upon trials at law.
However, though no nuncupative disposition can revoke a
written will, yet if a legacy given by a wiitien will is lapsed,
or become void for some legal objection, it may be the sub-
ject of a nuncupative disposition ; for the will, as to its opera-
tion, is determined (y).
It is properly remarked by Sir William Rlackslone, that the
legislature has provided against any fraud* in >ettni up nuncu-
pative wills, by so numerous- a train of requisites, that the
thing itself is fallen into disuse, and is hardly ever heard ol ;
but in the only instance \\here fa\otn ou^ht to be shown i,
where the testator is smpri/ed by sudden and violent sickn<
'I lie law also t;,kes notice of a particular -j'.l'l. in the nature
of a will, made by one in contemplation of immediate d.-ath,
Mtiich is called doiHitio anifu mortis, a gift in prospect of
death, a term borrowed from the civil law. This .specii s
wt donation ib where a man lying in extremis, (that i., in hi
(f) SirTh. Rrym. 334.
Of Wills and Testaments. 3(57
last moments, when his mental faculties may be deranged or
impaired,) or being surprized with sickness, and having no op-
portunity of making his will, gives with his own hand some-
thing to another, or to some other person for his use, a legacy,
to be his in case the giver dies : but it is accompanied with au
implicit trust, that if the doncr recovers it shall be revokable,
and revert to him again (r).
A will may be written on any material, and in any language,
so that, if it concern property in England, it be framed with
the solemnities required by the English law (s); and as to
the form of the testament itself, the ecclesiastical courts are
not scrupulous. A memorandum or scrap of paper, written
by a person in contemplation of death, and with a design to
make it operative after the event, is valid as a will, as to the
disposition of personal property ()
2. Of the execution and attestation of wills.
In wills which dispose of goods and personal property only,
no ceremonies are required on the publication thereof; for if
the will is written in the testator's own hand, though it has
neither his name nor seal to it, and though there are no wit-
nesses at its publication, it is good, if sufficient proof can be
obtained of the hand-writing. And even if it is in anotlter
person's hand-writing, though not signed by the testator, it
will be effectual to pass the personal estate, if proof can be
produced thai it was made according to his instructions, and
received his approbation. But as many mistakes and errors,
not to say misfortunes, must often arise from so irregular a
way of proceeding, it is a safer and more prudent way, and
leaves less in the breast of the ecclesiastical judge, for the
testator, at the time he executes his will, to sign and seal it
in the presence of two witnesses, who are also to affix their
signatures (v).
In the disposition of lands and tenements by will, the for-
malities required by the statute of frauds and perjuries, 2Q
Car. Q, c. 3, are, " that all devises and bequests of any
lands, and devisable, either by common law or by force of the
statute of. \vills, or by that statute, or by force of the custom
of Kent, or the custom of any borough, or any particular bo-
rough, shall be in writing ; and signed by the party so de-
vising the same, or by some other person in his presence and
CO -Williams'? Law of Wills, p. 4- (-') SwinV. pM, s- rt- (0 c <"'
R e P'4 a - v ^ a Bl. Cm. c, 32,
368 Of JHlls and Testaments.
by his express direction ; and shall he attested and subscribed
in the prc-ence of the devisor, by three or more credible \\it-
esses ; 01 else such devises or bequests shall be entirely void
uiid of nour effect." And in such case- the land will descend
to tire heir at law.
This statute does not extend to lands, &c. within any of
our colonies or plantations; and then-lore a de\i>e of red
estates in Bermuda \\ill pass by a will not executed according
to the formalities of the statute
But if the lands be situated in Knuland, the will, thouh it
be made abroad, must be published conformably to the re-
misites of the statute (i).
If the testator di \;M- leaseholds and heehol,!s by the same
will, and the will is inoperative for the freehold estate for \\ant
of the execution pi i scribed by the statute, it is nevertheless good
to pass the leasehold property ( //).
In the. construction of this statute, it has been adjudged,
that provider! the will be written all with the testator's own
hand, and acknowledged in the presence of three credible
witnesses, it is immaterial whether the testator's name be
i ted at the top, bottom, or in the margin of the will;
for the statute does not appoint where it shall in- signed. But
to render the signature of the testator in the introduction of
the will "nod, it seems, that the \\hole actor intended in-
strument should be in the contemplation of the testator at
the time of his writing such formal introduction, and executed
at one time, and not on separate papers (2).
P>ut tli.- *afe>t way is to sign the name not only at the bot-
tom or end of the will, but at the bottom of iaeh \y.<-i<- or
sheet of paper, if the will consists of more than one; and th.-
witnesses to the will seeing the testator .si>_n all the sheets, and
put liis seal (though that is not absolutely n< < s-ary) a* well
ns h.-, inine to the last sheet, must write their names under
the alie-Uition in the la*t sheet only (ft).
In general, however, the intention of the teslatoi is so en-
titily regarded, that any kind of disposition, i; ssly
iiv to the rules of law, will constitute a \alid will.
\".y the casts of Harrison r. Harrison and . \dily r. (irixC^j,
it had been decided, that \\here the patty is unable [<> \\nte,
a mark is a sufficient higuinj or subscribing within the
() * V<i..Tun. 481. (x) Ibid. 291. (y) i Vet. 171.
Lev. i. (?) \\ illumi' Law of Wilh, p. 7. (*) 8 Ve. Jun. 185. 504.
tute,
Of Wills and Testaments. 369
tute. But; notwithstanding the decision in the case of Warne*
ford v. Warneford (c), it lids been held, that sealing alone is
an insufficient subscription within the statute (d).
\\ith regard to the time and manner of the attestation, it is
required by the statuto 29 Car. 2, c. 3, that all the witnesses
must subscribe the will in the testator's presence; and their
business is not barely to witness the manual act of signing,
but also to bear testimony of the sanity of the testator (<?).
But though the statute requires, that the witnesses to the
will shall subscribe their names in the testator's presence, yet it
is sufficient if the tostator might see them, it not being ab-
solutely requisite that he should actually see them signing;
for then, if a man should but turn his back, or look off, it
xvould vitiate the will. Therefore, where the testator desired
the witnesses to go into another room, seven yards distant,
to attest his will> in which room there was a broken window,
through which he might see them, it was held to be a signing
within the statute. So though the curtains of the bed be drawn,
if the testator be in a situation in which it was possible for him
to see the witnesses subscribe, it will be sufficient, though there
is no positive proof that he did see them subscribe their
names (f), A similar doctrine was held, xvhere the carriage
of the testatrix was drawn opposite the windows in an at-
torney's office, in which the witnesses attested the will : this
was clearly held to be in the presence of the testatrix, and
consequently well executed (g). But if the attesting wit-
nesses subscribe the will in such a situation with respect to
the testator, that it was impossible for him to have seen the
act done by them, as if it be done in the corner of the room in
a clandestine or fraudulent manner, such subscription will not
satisfy the statute (h). Neither will the corporeal presence
of the testator satisfy the statute, if his mind and faculties are
suspended (z).
Though the statute requires all the witnesses to subscribe
in the testator's presence, yet it is not necessary that they shall
be all present at the same time ; for the publication of a will
before three witnesses, though at three several times, is a
sufficient compliance with the statute (k). But in this case,
to render it a sufficient attestation and execution within the
statute, it seems to be the better opinion, that the testator
(f)aStr. 764. (d) i Wils, 313. z A'tk. iSz. () 3 P. Wms. 93.
(f) 3 Salk. 395. (g) i Bro. C. C. 99. (b) rK Wms. 740.
{i} Doug. 241. (fc) a Atk. 176.
B b must
370 Of Jl 'ills and Testaments.
must acknowledge the signature. to be his hand-writing in the
presence of each of the witnesses (/).
It is immaterial in what form, and on what part of tlit
r ill, the attestation is made : it w ill be good though each
witness write his name on separate sheets of the will, and that
although the sheets be not tacked togetfier (in).
Jt has hi en said, that the signing of tin- testator must be
accompanied with a publication, that i>, a declaration ihut
the instrument i-- his will ; but from th- : Stunehous*
V. Evelyn (//), and Trimmer r. Jackson (n), the formality of
publication, or declaration by the testator, that tUe will at-
d is his last will, dori not -*i; to the execution
of a will, as authenticating and announcing it beyond the ce-
remonies and solemnities <f e\ cution anil attestation, but is
only a mere matter of form prescribed b\ the legislature.
Indeed, so little importanee is attributed to the publication,
that where the witnesses were so far removed from a knowledge
of the nature and purpose of the instrument, which the?
nere led to believe from the words used by the testator at the
time of the execution, to be a deed and not a will; from
the inconveniences that might arise in families, from having it
known that a person had made his \\ill, it was deemed b?
tJie court unnecessary that the testator should have announced,
or declared to the witm -ses, the nature of the instrument they
were to sign. Howes rr, though this formality is not re-
t|uired by the statute of frauds, yet as it was essential to the
Talidity of a will at common law, and as there is nothing de-
rogatory from it in the statute, it seems the safer and more
prudent way to comply with the custom; which may be done
by tlie testator's addressing himself to the witnesses, and .say-
ing, " I publish and declare this as my last will and testament,
and desire \.m to witness it," or words to the like effect (}>).
In the publication of a will, it is not necessary that the
Witnesses Should be made acquainted with its contents (9).
It is necessary to be careful who are made \\itr.rssts to a
will. And here the .-.if< st method is to call in three indif-
feieut p-i-.oiis (if there is any de\ise of lauds in the will,
otheiwi.se, if the whole will respects onl\ personal estate, two
will be sufficient), who have no legacy yiven them by the will
(0 t Vei. 455. 1 Vern. 419. (m) Bur. 177$. (*) jP.Wmi. It.
() 4 Hum. ELC. Law. 130. (,/) Wiiiumi'* LAW *i Will*, p. it.
) Sw.uV. t.
Qf Wills and Testaments. 371
or codicil of which they are required to witness the execution,
and not being creditors, at least not considerable ones, to the
person making the will ; particularly if, as is often the case,
the land is made subject: by the will to the payment of debts.
For, by the statute <25 peo. <2, c. <B6, if any person, who has a
legacy left him by a will, is a witness to that will, he loses the
legacy, it being absolutely made void. And though the tes-
timony of creditors, who are witnesses to the execution of a
will, must be admitted, yet it may effect their credit with a
jury, should the will be disputed.
There is, however, no doubt, but that a legatee may be wit-
ness against a will (;).
3. Of the testamentary capacity.
It may be said in general, that every person has full power
and liberty to make a will or testament, unless restrained by
some special prohibition by law, or by custom ; which prohi-
bitions are principally on three accounts: 1st. for want of suf-
ficient discretion in the person making the will ; 2dly, for
want of sufficient liberty and free will ; and 3dly, on account
of their criminal conduct (.).
As to the age at which the testamentary capacity as to per-
sonal estate takes place, it is held, that male infants are of
sufficient discretion to dispose by will at fourteen, and females
at twelve. But of lands, no person can (34 and 35 Hen. 8,
c. 5, s. 14) make a will until the age of one and twenty, un-
less by special custom of particular places; and thus the lavr
has, in compassion to the inferiority of the judgment of mi-
nors, and to prevent their being seduced by designing persons
to dispose of their estates contrary to their interests, utterly
disabled them from alienating their inheritance, till they have
arrived at an age in which their understanding may be presumed
to be more ripe and mature. Neither can any custom be good
to enable persons under the respective ages of fourteen and
twelve (0-
No person who is not of a reasonable and sane memory
can make any disposition by will : therefore an ideot (vj, or
person deprived of his faculties by extreme age (u), or by in-
toxication, during the continuance of such incapacity (_t), i*
disabled from making a will. And on the same principle, a
lunatic is incapable of disposing of his property, except in his
lucid intervals. However, if a will by a lunatic be rationally
(r) Salt. 691. (*) 2 BI. Com. c. 32. (f) Burn. Ecc. Law. (v) IVd.
44- (u) Swiab. p. u, s. i. (*) Ibid.
B b 2
372 Of Hills and Testaments.
cfrawn Tip, and the nature of the disorder be such as to afford
any reasonable ground to suppose that a lucid interval may
have prevailed, there appeals sufficient evidence ot' Mich a
sound and disposing mind as is necessary to its validity ; for it
is a principle in law, that in making of wills, intepitv, Miund-
n ^s and pnfectness of mind are absolutely required, th-
bealth of the body inertly not being regarded (//).
Persons born blind, deaf, and dumb, are also incapable ot'
making a will, as they want the common inlets ot' under-
standing; unless it manifestly appears, by strong and con-
vincing proof, that such persons understand \\hat a v. ill means,
and that tKey have a desire to make a will; for if they are pos-
sessed of :>uch understanding and desire, then they may, by si^ns
and tokens, declare their intention (:).
And it is a clear rule, that the party must be free, and
under no compulsion from threat, violence, or duress or other
cause which is, prima facie, a foundation to presume, that the
testator wanted that freedom of mind which is inn ,n\ -to
the validity of a will: and therefore where it ap|uaivd_, that the
testator made a will in his last sickness to procure quiet from
the importunity of his wife, it was held to have been made by
restraint, and therefore void (a). But if when the 1'car i-
past, or the restraint removed, the testator confirms the \\ill,
it is made good (b). So likewise, wills procured to be made
by artful representations and fraudulent contrivances, are
void (c). It is to be observed, however, that the wills of pri-
sons made in such situations are not necessarily anil jiivu-
riably void, but that their validity and invalidity must be Kit
to the discretion of the court, to determine on the particular
circumstances of the case, whether or no the testator may rea-
sonably be pr Mimed to have had a free and independent \\ill
or not in the disposition of his property (tJ).
A bjind person n:a\ make a nuncupative \\ill, by declaring
his intentions before a sufficient number of witnesses; and he
may also make a will in writinj:, piovided the will be n-ad <>
him before witnesses, and in tln-ir JM seiice acknov, ledvid by
him for his last will; but if a writiug should be d h\< n d to
n blind man, and he not hearing the same read, ackiiou ledge
the j>aine for his will, this will not be suffieie.nl. Tin- -
:e, iu cases of blind and illiterate
(j) 4 B-.II ,44 (u) i PI. Com. 479. 4 Burn. Ecc. Law,
) Si. ' i. Rep. 66. (*) 4 Bum. tkt. Lw, 3> (t) I
) II
thai
Of Wills and Testaments. 373
that the will be read over to the testator, and approved of by
him in the presence of all the subscribing witnesses (e).
A married woman (or as the law expresses it, a feme covert)
is restrained and prevented from making any testamentary
disposition of her real estate, being particularly excepted out
of the statute 34 and 35 Hen. 8, c. 5 ; and it is a general
rule, that she cannot make any will, even of her goods or
personal estate, or even her paraphernalia, without the li-
cence and consent of her husband ; because by the law, as
soon as a man and woman are married, all the goods and
personal estate of what nature soever, which the vv:fe had at
the time of the marriage, or which she may acquire after,
belong to the husband by force of the marriage, which em-
powers him to make such part of them his own as are not
absolutely vested in him immediately by the marriage (f).
But by the licence and consent of the husband, a wife may
make a testament of her own, and, it is said, even of her
husband's goods ; but he may revoke the same, not only
during her life, but according to Swinburne, after her death,
before the will is proved. If, however, he confirm it after
her death, he can never afterwards depart from it.
In equity, however, eifect is frequently given to the tes-
tamentary dispositions of a wife ; as where the husband sti-
pulates, that certain personal property shall be enjoyed by the
wife separately, it shall be enjoyed by her with all its inci-
dents, whereof the jus disponendi is one (g). And where she
has this power over the principal, she must necessarily also
have it over its produce and accretions (A). And to give
effect to such dispositions, it is usual for the intended hus-
band to enter into marriage articles, or a bond before mar-
riage, conditioned in a sufficient penalty', to permit his wife
to make a will, and to dispose of money or legacies to a
certain value : and in this case, if after marriage, or during
it, she makes any \vritiug, importing to be her will, and dis-
poses ot" legacies to the value agreed on, though in strictness
of law she cannot make a will without her husband's positive
assent to the specitic will, the husband is bound by his
bond, agreement, or covenant, to allow the execution of
it(0.
As the inception of every will must be good, and the party
qualified at the time the will is made ; the disabilities of in-
(t) 4 Burn, Eqc, law, 55. (f) 3 Atk. 393. 4 Co. 51. (g) 3 Bro.
C. C. 8. (b) a Vern. 535. (t) a Bi. Com. c. 33.
fancy,
3?i Of mils and Testaments.
fancy, insanity, idiocy, coverture, or duress, existing at the
inct ption of the will, remit r it absolutely \uid, though the
:y should before his decease be relieved from Mich disa-
bility and confirm such will (&). But if no disability sub-
s at the lime the \\ill is made, no subsequent infirmity or
loss of intellect \\ill revoke or affect it (/).
Another kind of disability arises from the criminal conduct
of the parties.
Traitors are not only deprived of the privilege of making
any kind of last will, from the time of being convicted and
found guilty; but any will made before does, by reason of
such conviction, become void, in respect both of lands and
goods. From the commission of the offence, the lands and
goods of traitors, and the goods and chattels from the time
of conviction, are forfeited t< the king; and therefore they have
no longer any properly therein (///).
Hut bet\\et n the loi 1( itnrc of lands or real estate, and the
forfeiture of goods and chattels, there >eb-i-i^ ilii- dif-
fuencc: the former has relation back to the time of the com-
mission of the offence, so es to avoid all intermediate
charges ; the latter has no relation backward from the time of
the conviction; so that that personal prop* il\ only \\hich a man
"has at the lime of the conviction shall be forfeited. llfollo\\s,
., if the party dies, befoie the attainder in tin-
case, and conviction in the other, the forfeiture ; and
his will of land or goods, is effectual : or that if the traitor or
fell in sells any of his cl'.: ;! or personal, before the
factor convietion, Mich sale is It al ; unless they are < ollu-
sively parted with, men ly to defiand the crown, and then the
law, and particulaily the .statute 13 .' , \\ill reach
them. Hut if the conviction or attainder takes place, the will
of the traitor or felon is rendered void b\ the conviction, :
bis goods, and by the attainder a> to hi> n al ( -tale ; and that
although such will was made before eitlur the cuiuiction or
attainder (it).
The king's paid. MI restores the disposing capacity, and the
party n. .nils make his will, as if \\n eom.ction had
taken place, and it set ins that by such pardon, any \\ill made
Ixloir ei'inirtioii, i .ts lonncr foice and ell
Though it may be doubted whether a will or testament made
(*) n Md. 157. (/)4fo. 61. (m) 4 Burn. Eec. Law, 54. Swinb. 88,
(; 4 BI. Com. 381. 3 J8. 4 Burn.Ecc. Lw, 18.
aftff
Of Wills and Testaments. 375
after conviction would be rendered operative; as not having a
legal and valid inception (o).
A felon, lawfully convicted, cannot make a will or other
disposition of his lands or goods ; for by the attainder, he forfeits
the fruits of his lands for a year and a day to the king ; after
which they escheat to the lord of the fee (p).
A pardon, however, has the like effect as in the case of a
traitor, of restoring him to his former estate of making a
will (<?).
Gavelkind lands, even though the ancestor be attainted and
hanged, are never forfeited for felony; but the heir shall suc-
ceed to his estate without any escheat to the lord (r).
The will of a felo de se, (i. e. a person who wilfully de-
stroys himself,) may, it seems, be effectual as to his lands, be-
because these are not forfeited but by attainder, which cannot
be in this case, a suicide not being attainted as a felon : but
as to his goods and chattels, his will is of no effect, for they
are forfeited to king (s).
A person outlawed in a personal action, forfeits his goods,
and is therefore incapable of disposing of them by will, as
long as the outlawry subsists ; but he may devise his lands by
will, as they are not forfeited by the outlawry. And even if
the action on which he was outlawed were not just, yet his
goods and chattels are forfeited, because of kis contempt in
not appearing ().
Obstinately standing mute on arraignment, ' where a person
is indicted for felony, amounts to a. confession, and will have
the same effect as if the prisoner had been convicted by ver-
dict or confession of his crime. Before the statute 12 Geo.
3, c. 20, standing mute incurred the strange and cruel kind
of punishment of peine forte et (Jure (v).
Papists were, till lately, under many disabilities in respect
to taking lands either by purchase or desent. But now, by
their complying with the statute 18 Geo. 3, c. 60, and taking
the oath therein prescribed, those disabilities are removed;
and by the statute 5 1 Geo. 3, c. 32, various other disabilities,
to which they were subject, are likewise removed, by their
complying with this statute, and taking the oath therein pre-
scribed,
(o) 48!. Com. 381. 3?8. 4 Burn. Ecc. Law, 88. (/>) Plow. 2$S.
Williams' Law of Wills. (r) Rob. Gavel. 75. (i) 4 J31. Com.
Plow. 261. (r) a Bl. Com. 495. (v) 4 Ibid. 429,
Am
376 Of Wills and Testaments.
An alien, while living under the English government, may
obtain personal property, and make a will, and dispose of
such personal property HS he pleases. But between alien
friends and alien enemies, a distinction is made in some of
the law books. In the case, howtver, >f an alien, the subject
of a state at war with England, if lit- lives and trades here, and
is not guilty of any unfriendly act, he is permitted to dis-
pose of his goods and money as freely as any subject. So an
alien, dining a temporary residence here, may demise his
property in the funds, unless he is positively restrained by the
established laws of his own country, or by his own pre-
contract (u) But an alien (friend or enemy) not beiiiij ca-
pable of acquiring any right in land for his own benefit, con-
sequently can never have any to dispose of. Yet it seems un-
disputed, that an alien may be a devisee even of lands, what-
ever the further effect of his taking such lands may be (JT).
Respecting the wills of traitors, felons, aliens, and out-
laws, it seems necessary to observe, that though they are void
as to the king or the lord of the fee, yet the will is good
against the testator himself and his representatives, and all
other persons whatsoever ; so that iu case of pardon, the will
is suffered to take effect (y).
4. Of the subjects of a disposition by will.
Personal property. Personal property of every description
may be bequeathed by will, and a devise will operate not only
on whatever a man lias at the time of making his will, but on
whatever he has at the time of his death, whether in pos-
session, as goods and chattels; or in action, as debts and
other monies-, &c. (z). And by the statutes 33 Gco. 3, c.
a. 14 ; and 35 Geo. 3, c. 14, s. 16, it is provided, that all
persons possessed of any share or interest in the funds, or any
estate therein, may devise the same by will in writing, attested
by two or more credible witnesses.
freehold buds. By the common law, from the time of the
ni-j.-.-t till the 3'2d vear of Henry the eighth, no e
greater than for a term ol nld be disposed ol !
lament, except in Kent, :u. :!iici nt Ijiuuhs, and a few
particular manors, where the Saxon immunities ly -pr< i.il
indulgence subsisted. But by the statute 3'2 Hen. 8, c. I ,
() Willumr Law of Wills, p. 19. (x) i Bl. Com. 372. Powel on
Deviwi. ( y ) Swmb. 107. () 10 Co. 78. *. i P. Ws. 575.
Perk. 511.
.lied
Of Wills and Testaments. 377
(called the statute of wills) explained by the 34 and 35 Hen.
8, c. 5, all persons who had the fee simple or absolute pro-
perty in any lands or tenements (except femes coverts, infants,
ideots, and persons of non-sane memory), might by will and
testament in writing, dispose of two-thirds of their lands,
tenements, and hereditaments, held in chivalry, and the whole
of those held in socage; and now, by the statute 12 Car. 2,
c. 12, (by means of which the former restrictions are re-
moved by altering the tenures of estates), every person is
enabled to dispose of the whole of his landed property, ex-
cept his copyhold tenements, to whomsoever he thinks fit,
unless it be to bodies corporate ; and that even to the total
disinheritance of the heir at law, notwithstanding the erroneous
opinion which some entei lain of the necessity of leaving the
heir a shilling, or some other express legacy, in order to disin-
herit him effectually ().
Things affixed to the freehold. Unless an actual severance
has taken place in the lifetime of the testator, he is incapable
by his will unattested, of devising the appendages of the free-
hold, in separation from the subject to which they ought to
adhere : and therefore a devise of trees, grass, and herbage,
not separated from the ground at the time of the testator's
death, is void (b).
Estates purchased or acquired after the making of the will.
The devise of land by will being considered as merely a spe-
cies of conveyance, the following distinction subsists between
such devises and dispositions of personal estate : that a devise
of a man's goods and personal property will operate upon
all such personal estate as the maker of the will dies possessed
of, at whatever distance of time he may die after making the
will ; but a devise of freehold lands or real estate, will only
operate on such estates as were his at the time of executing
and publishing his will; therefore freehold lands purchased
after the making of the will, cannot pass under any devise in
that will, even though the testator, by express words in his
will, gives to another all the lands w hich he shall have at the
time of his death, unless such w ill shall have legally and for-
mally been republished subsequently to the purchase or con-
tract, or that a new will is made after the same (c).
Wifs's property. Although the personal estate of the wife
becomes the property of the husband immediately on mar-
(a) a Bl. Com. 374. 376. (b) 4 Co. 64. (0 2 Bl. Com. 378.
2 Bos. and Pul. 500. 8 Ves. Jun. aSj,
riage >
378 Of Wills and Testaments.
riagc, a> he is thereby enabled to make all debts due to her,
and bonds for money given her before marriage, his own : \^,
unless he recovers such debts during the marriage, and renew*
the boiuls and takes them in his own name, he has not such
an absolute interest in them as to be able to devise them by
his will, but they will, after his death, again become the pro-
perty of his wife(rf). It' he survives his wife, and has not
taken these necessary steps to make this part of her personal
estate his own, he may take out administration to her, and will
by that means become absolutely entitled to and possessed of
them. But if a woman's fortune, or any part of it, consisted
in bonds given her before marriage, and toe husband, on the
marriage, makes a settlement on her in consideration of such
fortune, notwithstanding the bonds are not renewed during
the marriage, yet the husband will be entitled to them, being
in this case considered as a purchaser for a valuable con^idera-
tion, and lie may devise them, or they shall go to his executor,
even though the wife should survive him (e).
Copyholds. As copyhold estates, or estates held by copy
of court-roll, being excepted out of the statute of frauds,
('2'.) Car. '2, c. '24}, are not devisable; and as a devise of copy-
hold lands can have no specific operation under the statute of
wills, but as a mere declaration of an use, it is necessary first
to pass the estate by a surrender thereof, according to tin- cn>-
tom of the manor of which it is held, to such uses as tin sur-
rcii(iercr -shall by his last will appoint ; and on this surrender,
or indirect exercise of a testamentary power, the will operates
as nn appointment or declaration of the use, and not as a devise
of the land itself (f). The want of such surrender, box-
is often supplied by the courts of equity, particularly in fa\nir
of purchasers or creditors, or in favour of administrators,
where the freehold estate of the testator is insurlicicnt, or in
favour of a wife and younger children (g).
Leases. A lease for any number of years determinate
up.. 11 :i lite or lives, that i>, if Mich persons live so long, or a
li :ic I'm fi\c hundred or a thousand \:u>, or any other term
a!)M,lute, may be di-posi d of by will, and as it is personal pro-
pert}, will pass byxi will nnattestcd (//).
B. If any one has money owing to him on moit-
be max devise it to be paid \\hen it be OIIM - due; and an
Miiattt>tcd \\ill by a mortgagee is capable of passing the bcne-
(d) i In it. 3 5 1. () Talb. 108. (/) Wmi.'* Law f Wills, p. a*
<;) a Bro. C. C. 325. (A) Burn. Ecc. Law.
lit ul
Of Wills and Testaments. ' 379
ficial right to the land (z). But as in equitable contemplation
the estate in the land remains in the mortgagor, it is clear that
his equity of redemption will not pass by a will unattested (&).
Charitable Uses. In order to prevent any imposition in
respect to the disposal of lands to charitable uses, which might
arise in a testator's last hours', as also to restrain devisees in
mortmain, or the too great accumulation of lands in hands
where it lies dead, and not subject to change possessors, it is
provided by the statute 9 Gco. 2, c. 36, (called the Statute of
.Mortmain,) that no lands or tenements whatsoever, rents, ad-
vowsons, or other hereditaments, corporeal, or incorporeal, nor
any sum or sums of money, goods, chattels, stocks in the
funds, securities for money, or any other personal estate what-
soever, directed to be laid out in the purchase of any lands,
tenements, or hereditaments, shall be given or settled upon any
person or persons, bodies politic, corporate, or otherwise, in
trust, or for the benefit of, or charged with any charitable
uses ; unless such gift is made by deed indented and executed
in the presence of two or more credible witnesses twelve ca-
lendar months at least before the death of the giver of such
land or money, (including the days of the execution or death,)
except it consists of stocks in the public funds to be laid out
in lands, in which case the stock must be transferred six
months at least before the death of the donor, (including the
days of the transfer and death ;) and which deed must be en-
rolled in the high court of chancery within six calendar months*
after the execution; and the gift must be made to take effect
in possession for the charitable use intended immediately from
the making thereof, and be without any power of limitation
or revocation whatever. And by the third section, all gifts and
transfers made in any other manner or form than is directed
by the statute are declared to be void. But the two univer-
sities, their colleges, and the scholars on the foundation of
of Eton, Westminster, and Winchester, are excepted out of
this act ; but with this proviso, that no college shall be at
liberty to purchase more advowstons than are equal in number
to one moiety of the fellows or students ou the respective
foundations.
Advowsous. An advowson having been held to be included
under the word tenement, mentioned in the statute of wills,
the right of presenting to the next avoidance, or the inheritance
of an advowsou of a benefice, may therefore be devised (/).
(0 i Insf. zog. (k) i Atk, 605. a. i. (/) Cr. Jac. 37, aBl. Rep. 1240.
Estates
350 Of H'ills and Testaments.
Estates pour auter vie, or for another's life. As to free.,
hold estates held by one person during the life of aiiot
styled estates pour auter rir, or for the term of another's life,
they are devisable by the 12th section of the statute of frauds.
Joint tenants, and tenants in common. If two or more
persons obtain an estate by purchase, and hold by one ami the
same title, they are called joint tenants, and posx--* tlu- land
jointly. When one of such tenants dies, he that outlives the
other shall have the whole of the land; and if out: of them
during his life devises his share of the land, and die-, this <K -
\ise will not be good, because the devise does not take efiect
till after the death of the joint tenant, and then the survivor
takes the whole land by a prior title, that is to say, by the dcut
of purchase (in).
A tenant in common may dispose of his share to whomso-
ever he pleases by will ; but if the same be not devised it will
descend or go to his issue or next of kin ().
Reversions, contingent interests, and remainders are de-
visable (o).
A donative (p), rents, (34 Hen. 8,) titles (<y), manors [r\
annuities in fee (s), and franchises, if valuable and not restrained
to the person of the grantee, are devisable (, ; ).
Estates iu fee-simple. Estates in fee-simple are said to be
either in possession or in expectancy; they are in possession
where no intermediate estate subsists between the right to
possess and the actual enjoyment itself; they are said to be in
expectancy when the actual interest and possession is deferred
till the accomplishment of some other act. The first of these
estates are devisable, but the second cannot be devised.
Estates-tail. The usuiil words for creating an estate-tail,
either by deed or will, are the " heirs of the body of the
grantee, or devisee ;" as suppose it to be created by will, " I
give and devise to J. S. and the heirs of his body;" but in a
will an estate-tail may be created by a dcvi-e to a man and his
children, er to a man and his seed, though the word of (
tion, viz. body, be omitted. And under a devise to " A.
life, and after his decease to and amongst his issue, and in de-
fault of issue," then over to others named in the will, A. t.
an estate tail (v).
Estates for life. An estate for life may be, :s \\h-iv
the state was limited " to A. for life, remainder to hi* fust and
(*) t Bl. Com. 399. () a Ibid. i8j. loCo. 78. i Bl. R. p.
33. 3!'. R.88. {/>; iVcrn. 748. (?) bty.i6i. (r) 3 Co.
52, k. () Co. Lit 144. (i) 3 Co. 3*. (v) * Bl. Com. 115-
oilier.
Of frills and Testaments. 38 1
other sons in tail male, remainder to the use of all and every
the daughters, &c. as tenants in common, and in default of such
issue, to the use of the right heirs of the devisor." After
the death of A. without any son, an only daughter was held to
take only an estate for life. And where a devise was of real and
personal estate to the wife for life, remainder to the testators
R. R. " and his issue lawfully begotten, to be divided as he
shall think ; and if he should die without issue, remainder
over," it was held that R. R. took only an estate for life ; that
he had a power to divide ; but if he did not so, there was an
interest in his children that would entitle them to an equal
division (it).
5. Of the revocation of wills.
A will or testament may be revoked or annulled, either by-
some positive act of the testator, unequivocally showing it to
be his intention that his will shall no longer stand, which is an
express revocation, or by some act of a doubtful and equivo-
cal import, furnishing only grounds to presume, that the tes-
tator had such intention, which is an implied revocation, or a
revocation in law(,r).
By statute 29 Car. 2, c. 3, it is enacted, that no devise in
writing, of lands, tenements, or hereditaments, or any clause
thereof, shall be revocable otherwise than by some other will
or codicil in writing, or other writing declaring the same, or
by burning, cancelling, tearing, or obliterating the same by the
testator himself, or in his presence, and by his directions and
consent ; but that all devises and bequests of lands and tene-
ments shall remain and continue in force until the same be
burnt, cancelled, torn, or obliterated by the testator or by his
directions, in the manner aforesaid; or unless the same be al-
tered by some other will or codicil in writing, or other writing
of the devisor, signed in the presence of three or four wit-
nesses, declaring the same.
As to personal estate, it is provided by the 21st section of
the same statute, that no will in writing concerning any goods
chattels, or personal estate, shall be repealed, nor shall any
clause, devise, or bequest therein be changed by any words or
will by word of mouth only, except the same be in the life-
time of the testator committed to writing, and after the writing
thereof read to the testator and allowed by him, and proved to
be so done by three witnesses at the least. But it is not ne-
cessary that such revocation by parpl, when committed to
() 3 T. R. 83. ^ (*) Wms/s Lavr of Wills, p. 31.
writing,
582 Of Wills and Testaments.
writing, should be signed or attested. And therefore, where A
man by will, in writing, devised the residue of his personal
estate to his wife, and on her death, which happened in hisr
life-time, made another disposition of the residue by a nun-
cupative codicil, this was held to be good; for by the death of
the wife the devise of the residue was totally void, and the
odicil was no alteration of the former will, but a new \vill for
the residue (j/).
To make a subsequent will operate as a revocation of a
preceding will, the disposition of the properly in su-h sul
quent will must be incapable of standing with that ol
preceding will ; and where there is any such inconsistency, the
revocation produced thereby is coufmcd in its extent to the
subjects of the inconsistent dispositions (:).
An alteration in the circumstances of the testator may be a
revocation of a will, notwithstanding the statute, which docs
not extend to implied revocations. And therefore the sn
qucnt marriage and birth of a child is an implied revocation
of a will, as well of real as personal estate, as efioctiiiL
total a change in the situation of the testator as inevitably to
have produced a change in his mind relative to the 'imposition
of his property (<')- So a subsequent marriage and the br' l *
of a posthumous child operate as a revocation of a \\ill mane
in a state of celibacy; for there i* no distinction in law be-
tween a child in -centre sa mere and one naturally born f l> ).
But to make a subsequent marriage andt he birth of a child u
revocation of a preceding will, both the marriage and the
birth of the child must concur to produce such a consequence,
and both events must take place alter the making of the will.
Though marriage and the having of children have been
deemed a revocation of a will, yet it is only a presumptive
revocation; for, as has heui aln-.uK ob-eived, if it appeal
be the intent of the devisor that his \\ill should continue in
force, the marriage will be no revocation of it (< >.
Although marriage and the birth of a child mn-t both con-
cur to revoke the will of a man, yet marriage alone will I
.sufficient revocation of the will of a woman, if -h- dies in her
husband's life-time; for a woman' mania. without
any qualification, is a revocation of her will (r/). And it has
i held, that a will made bv a woman before mam
' 9
( jO
a V.
i F^. Ca. Akr. AoS. (*) i Hiiw. 517. () a HI. Com. OJ.
Jun. 656. (*) 5 T. K. 49. (f) \ U. Rajm. 44*-
4 Co.6i.a.
f totally
Of Wills and Testaments. 383
totally revoked by her marriage, that it cannot revive on the
-death of her husband without a republication (e).
It is a primary rule of law, that any alteration of the estate,
or a new estate taken, is in law a revocation, whether such al-
teration was made either for a partial or general purpose.
.And on this ground it has been held, that not only an absolute
sale, by the testator, of his estate, or articles entered into fof
the sale of it, for a valuable consideration, subsequent to the
devising of it, will be a complete revocation of the devise fA;
but where the legal estate only is transferred, it is a revocation,
although the beneficial interest of the testator remains the
same (g\
A will may also be revoked on the ground of mistake in the
intention of the testator. But where a testator revokes a legacy
under an obvious misapprehension of the facts, as, for instance,
that the legatee is dead, who in truth is alive, the revocation
fails (A).
Accidents and surprize, when coupled with other particulars,
indicating the probability of an intended revocation, will ope-
rate as a revocation of an antecedent will (/').
A will is not revoked by alteration or erasure, but to the ex-
tent of the particular object of such alteration or erasure ; and
therefore the erasure of part of a will does not necessarily
operate as a revocation of the whole will. A distinction, how-
ever, is to be observed between alteration and mere erasure.
For if the alteration consists in making a new gift or disposi-
tion, it is to the extent of such gift or disposition another de-
vise, and requires the will to be re-executed according to the
statute of frauds (/c).
For farther information on the subject of revocation of
Hills, see. Williams s Laid of Wills, from p. 31 to p. 40.
6. Of the republication of wills.
A will, as to 'the disposition of land, and in some other cir-
cumstances, takes effect, or is hindered from doing so, ac-
cording to its date ; it is therefore necessary on certain occa-
sions to renew it, as it were, or in fact to make a new will.
And such a republication, if executed according to the requi-
$itions of the statute, will supply any defect -arising from want
of capacity in the testator at the time of making the will, as
well as from any inability for want of a subject matter whereon
the will may attach. And therefore, if an infant having made
(e) 2 T. R. 684. "</) J Bro - c C - 4 01 - ( g) * Atk - ?2 5-
(A) 3 Ves. Jun. 351. (i) j Rol. Abr. 6^4. (k) J Boi. ^nd Pul. 16
a will
384 Of mils and Testaments.
a will of land, duly executed according to the statute, vrhirljf
is void by reason of his infancy, rr-e\ecute it after lie comes
of a;rc, with the formalities required by tlie statute, the. will
is rendered as valid and effectual as if made \\lun he was ol"
of sufficient ability (/).
If the testator is exactly of the same mind as to the method
of the disposal 1 of his property, and circumstances onlv require
that it should hear date at any particular time, it will be suf-
ficient for him to call in three proper witnesses, and before
them to declare the signature to be his hand-writ in, and use
the same ceremonies as in the original execution (///). Afier
which tl.e three witnesses must .sign their names to such new
will or ^publication, mcnlionin the date thereof (//).
The effect "I a rerjnblication upon a will is to*i\v the words
used therein the s;ime <-p< -union as they would have had if the
will had been made at the time of n publication, and coi
quently to extend its operation to -all property purchased sub-
sequent to the will that is conveyed by such words ().
fu case of republication, therefore, the question to be con-
sidered is, not what the testator had in contemplation at the
time of making his will, but to \\h;tt ihe words of the will
-iid at the time ot publication. On this principle it was
', that if a man by will devils all his l:mds, and after m;u
the will purchases other laud.--, and then republishes his wjll,
this new publication has made it a new will, and consequently
by the devise of all his lands the new-purchased lands \\ill pas;
for then- is 1:0 iu" i ^ity to mnke any alt* ration in this ease in
ili<- will, the words heing sufficient on the new publication to
convey all the lands he had at the time of such publica-
tion (/>).
Hut this tule, a c to the new publication of a will, should be
undcibtood uith the following restriction, viz. that the wi
of the. will at the time of the new publication are such a-
are proper to convey th(. land.i, :n,i also sufficiently to denote
the pei son to \\hom they are devised; for it" there is any
chanije with respect to the pu on v. ho is to take the lam!.- by
the \\iil, b twin tho time of the \\\<[ making <M the will,
and the ii"\\ publication of it, in such c. if tli" m\v pnblica-
cation will not alter the intention of the \\ill illy
made, nor change, the import of the \\v.
to make the persons named in the will take in a differ; nt
(/) i Sid. 161. i Keb. 5?9- (m) i Ws. 440. 9 Mod. 78.
Lw t \\i.:, p. 41. () Powtli. IX-v. 683. (f) Cro. Eliz. 493.
3 mam er
Of Wills and Testament*. 385-
wanner than was intended at the time of such original making
of the same. If therefore an estate be devised to B. and his
heirs, and B. dies in the testator's life-time, the devise lapses;
and a republicatiert of the will does not give to the heir of
B. a claim by purchase ; for though the original devise was
to B. and his heirs, yet because the heirs were named in the
will to take by descent, as heirs only, and not as persons
designed to take the land immediately, the devise to them
Mas rendered void by the death of B. in the testator's life-
time, and the new publication of the will could not make it
good {?).
Though a codicil executed and attested according to the
statute, is a republication of a previous will, and brings down
the will with regard to the property of the testator, and the
objects of his dispositions, just as they stand circumstanced
at its own date, and makes it speak as if it were made at that
time; yet it must have words clearly applicable to the inter-
mediate acquisitions, or it cannot have the effect of passing
them. And if a will has a specific reference to a thing sub-
sisting when it was first published, but subsequently withdrawn,
the republication of it by a codicil will not make it operate
on another thing, which has come by substitution in the place
of the thing so withdrawn, though similar in amount and
quality (;)
If a will has not been executed and attested according to
the direction of the statute, the codicil will not supply
the defect, although it have the requisites prescribed by the
statute; for what was bad in its creation, cannot be made
good by any thing tx post facto ; and the operation of a
codicil, where it is a republication, is only to set up the will
in its original state and efficacy, making it as far as it is
efficient in itself by the solemnities of its execution and legal
compass of its expression, reach to the date of the codicil,
and embrace intermediate acquisitions (s).
With respect to the republication of wills affecting personal
property," very slender evidence will serve; for the statute of frauds
affects only, estates of inheritance. And it has been held by
Lord Hardwicke, that words declarative of an intention to
republish, are effectual as a republication. In short any act
or words of the testator, sufficient to authorize a fair pre-
sumption that he desired his will should remain, was at the
() Plow. 345. (r) 7 Ves. Jun, 499. (s) 2 Vern. 597.
C c commoa
386 Of n'ills and Testaments.
common law, and still is, in respect of property not within
the statute of frauds, a good rcpublication (/).
6. Of the construction of wills.
In the construction of wills, the most favourable and com-
prehensive rule is, that a devise be most favourably expounded,
to pursue, if possible, the will of the devisor ; who, for want
of advice and learning, may have omitted the legal or proper
phrases; and, therefore, many times, the law dispenses with
the want of words in devises, uhich are absolutely requisite
in all other instruments. Thus a fee may be conveyed with-
out words of inheritance; and an estate-tail without words
of procreation. By a will also an estate may pass by mere
implication, without any express words to direct its cour- ;
as where a man devises lands to his heir at law, after the
death of his wife: here, though no estate is given to the wife
in express terms, yet she shall have an estate for life by im-
plication; for the intent of the testator is clearly to postpone
the heir till after her death (?<). And, ip general, where any
implications are allowed, they must be such as are necessarv,
(or at least highly probable;) and not merely possible impli-
cations. And hence, where the title depends on the words
of a will, any dispute relative to it, is as properly determinable
in equity, as in a court of law, there being no distinction be-
tween the rules of law. and equity herein; for the will is con-
strued in each court with equal favour and benignity, and
expounded rather on its own particular circumstances, than by
any general rules of positive law (.1).
But if a testator uses technical phrases, he must be supposed
tO understand them, unless by other parts of the will the con-
trary manifestly appears (y). And it is an universal rule, that
words having an obvious construction, are not to be rejected
on a suspicion that the testator did not know their mean-
ing (r). But if words admit of a two-fold construction, the
rule is to adopt MU h as make good the instrument.
7. Of intestacy.
Intestacy may happen in a variety of methods. In all case*
where a will is revoked, and no other made, a person is said
to die intestate, at least as lai as concerns the devises tlius re-
voked. In all cases also of void devises, an ititt >tacy shall
take place as to those, unless there is a particular devise con-
(f) i Atk. 599. i Ve. 497. () i Vent. 37*. C*) BL
c. 13. ' (/) 3 Bro. C. C. 60. 134. (; 5 Yw. Jun v
7 tallied
Of Wills and Testaments. 38?
tained in the will of the residue of the testator's estate to
some person ; in which case the legacies sink into and become
part of such residue, and go to the residuary legatee. And if
the will is informal in its execution, with respect to the dis-
position of land, as if it has but two witnesses to it, or if it
is not signed by the witnesses in the presence of the testator,
the law will determine the maker of it to die intestate, such
will being in fact no will at all So if a man by his will dis-
poses both of real and personal property, and such \vill is
attested by only two witnesses, it will be good as to the dis-
posal of his personal estate, as he shall have thereby directed ;
but for want of the solemnities prescribed by the statute of
frauds, he will die intestate as to his real estate, which will
descend to his heir. In like manner, if a person, by a will
duly executed, and properly and legally witnessed, disposes
only of part of his landed estate or personal property, making
no mention of the rest, and not devising the residue of
his estate to any one, he is said to die intestate as to such
part of his landed and personal property as is not mentioned
in the will; and the same shall descend or be distributed as
in the case of a perfect intestacy) or dying without any will
at all (a).
As to the manner in which the law disposes of the estate,
as well real as personal, -of a person dying intestate, the follow-
ing rules are to be attended to:
On the death of any person possessed of the whole pro-
perty (or as the law calls it, seized in -fee) of land which he
had himself purchased, without making any disposal thereof
t>y will, it is the general rule, that the eldest son, if aHve, shall
inherit. If such eldest son is dead, his eldest son, or other
issue, succeed to the land. If the eldest son is dead without
leaving any issue, then the land descends to the second, third,
and all other sons of the intestate respectively, in order of
birth, or to their issue, in like order. If a man has no sons,
nor any issue of them, living at his death, his daughter js to
inherit; or if he has more than one, they take the land alto-
gether, how many soever there may be ; it being the rule of
law that where there are two or more males in equal degree,
the eldest only shall inherit the land ; but the females inherit
altogether ; and in this case the daughters are called co-
partners, as being joint partners in the land. If the daughters
are dead, leaving issue^ such issue shall inherit the land ; the
(a) Williams'* Law of Vfjlls, p. 48.
c c 2 eldest
Of If 'ills and Testaments.
of each taking his mother's share; or if no son,
their daughters equally. As for example, it a man ha* three
daughters, all of whom die in his life-time, the first leaving
two sons, the second leaving two daughteis, and the third a
daughter and a son, the son being the youngest, his land shall
be divided thus: one third part to the eldest son of the first
daughter, one other third part between the two daughters of
the second daughter, as co-partners, and the remaining out-
third to the son of the third daughter, it being another rule of
law relative to descents, that males are al\\ay> to be preferred
to females (b).
If a man dies without issue, the lands descend to his eldest
brother of the whole blood, or his issue, in the order aho\e
prescribed with respect to the issue of the owner of the
land; or in case of the death of his- eldest brother without
issue, then to his second, tliiid, or other \\hole brothers, re-
spectively, in order of birth, or to their issue. If he lias no
brothers, then to his sisters of the whole blood altogether, or
to their issue, subject to the same rules as uhovc-mcnti' iu-d
vith respect to his daughters. If he has neither son nor
daughter, brother nor sister, the land then goes to his elde>t
uncle; being the brother of his father, or his u.Mie; and for
want of such, to hi.s other uncles by the father's side, or to
their issue. In defect of all these, to his aunt* on the fail
side, equally among them all, in like manner as to his daugh-
ters or sisters (<).
But though land can ascend collaterally, as to uncles ami
aunts, yet it can never lineally ascend; that is, it can never go
to the father or mother, gaandfather or grandmother of the
person dying, but shall rather escheat and become the pro-
perty of the king, or the lord of the fee, for default of h< ir.
But it is to be remarked, that in case the person thing was not
the purchaser of the land, but that the estate in I'M \ de-
scended to him from his father or mother, or any other an-
cestor, tlial the blood of that line of ancestors from \\hoin
it did not descend, shall never inherit (d). Thus, if the
land descended from the father, the mother's relation*, as
such, can never inherit it; and in like manner, the father's
relation* ean never iuheiit land descended from the ino-
th.r(O.
In tke descent of lands, relations of the half blood on!
niver mlii-iit, but arc entirely deprived of any title \\hatM <
(*) Halc't Hut. of tlie COL Law. M$. a Bl. Com. 113. (<') i BI.
. To. i (4) Lit J j. a Bl. Com; ai*.
to
Of Wills and Testaments. 539
to the land by descent. Thus, if a man has two. sons by diftereat
wives, and dies, and his first sou takes the land as heir to .him,
and dies without issue, the son by the other mother, being
only his half brother, shall never inherit the land as heir to
his brother. But if a man possessed of fee-simple lands
dies, leaving a brother and two sons by different wives, on
his death the land shall descend to the elder son, as before-
mentioned ; and in case of the death of such elder son with-
out issue, shall come to his uncle ; and then, if his uncle
should happen to die without issue, the land shall from him
descend to his nephew, the half brother of the son from whom
it came to the uncle; to whom the nephew was heir of the
whole blood, notwithstanding he could not inherit the land,
as heir to his elder brother {/').
As to the disposal of an intestate's personal estate, it is pro-
vided by the statute of distributions 22 and 23 Car. 2. c. 10.
explained by the 29th. of the same king, c. 30, that the sur-
plusage of the effects of intestates, after paying their debts
and funeral expences, shall, after the expiration of one whole
year from the death of the intestate, be distributed in the
following manner, viz.
If the deceased leave a wife and children, one third of his
estate is to be given to the widow, and the residue to the chil-
dren in equal proportions, or if any of them be dead, to their
representatives, that is their descendants. But by the afore-
said statute, no representatives are admitted amongst callateral
relations, beyond nephews and neices, of the deceased; after
which it is to be recollected, that the distribution will be per
.capita, and not per sterpes. If there be no children, nor
lineal descendants of children, one moity or half shall go to
the widow, and the residue to the nearest of kin to the de-
ceased, and their representatives. If there be no wife, then
the whole shall be distributed amongst the children, and their
representatives.
But here it is to be observed, that by the statute 22 and
23 Car. '2. c. 10. if any clu'ld, other than the heir at law,
who shall have been portioned, or otherwise provided for by
the father during his life-time, to the amount equal to the
distributive sliare of the other children, he shall be excepted
from this distribution; and that if he shall have beeu iu part
provided for, he shall have oaly so much of the distributive
as shall make his portion equal to the rest. But the
(f) Halt's Hist. C. L. 238. z BL Com. 337.
heir
590 Of Wills and Testaments.
Jieir at law being excepted out of the statute, will have an
equal distributive part of the personal property of the de-
ceased ; notwithstanding any land he may take by descent or
otherwise.
If there is neither wife nor children living nor representa-
tives of children deceased, the whole is to be given to the
father of the deceased. If he has no father living, the whole
$hu:l O to the mother, and brothers and sisters of the de-
cea-fd, in equal proportions, and the representatives of the
brothers arid sisteis deceased. If there are neither of the*e,
tli whole will io to the mother.
it h'otl<eis and i uf such, but
HO mud . 'uh hn.iluT* ml
sister., or tinii i ..i- , .1. i.ut it tlu-re ;ire neitli- '
fore mentioned kindreds of Ui: le
bLall go to tin :her or giaudnr ''
tb( -
3 < I
1 I ihi.e -i ill lue :ibove-ii.', mimu'd, > n die whole shall
go to tiie IK-A! '..earr t of kin to the dect;: >liull be
lj mtr. In uliu.l distribution, it is to be remembered, no
distinction i- mmie )>et\\v< n the \\lioie and the half blood of
the deet-avd.
For fuither inf-irn.ation on this subject, \\r beg to refer the
reader tu tl 1 t \e- uaclul and interesting publication, William-'.s
La\\ ol \\ .1U .11. : 1 esiamcnts; to which Ave have bit n much
indebted in the com|>. '.hu-r branches <>t iur ^ut>j
which comprize the law of Wills and Legacies.
8. Ofcodkib.
A codicil is a .supplement to a Mill, or an addition made by
the u -tutor, annexed to and to be taken as part of a ;
nieut; being for its explanation <>r alteration, or to make some
addition to, or sub'.rai ti*>n from, the former dispositions of the
testator, or to ma*e .some aueruiion m the qiiiintity of the
k-gacies, or the regulation. 1 : made in tbe will.
The law relating to rodinis agrees in general with that
vhich relates to wills and testaments; like tho^e it may b
either Britten or verbal, under the same restrit Uous as regard
wills (g); and \\here it is used for the purpose of devising
real estates, it requires the same ceremonies to attend its <
ration as an original devise ; the same latitude also is ad-
led in its form and publication, when its object is the dis-
{g ) * Bl. Co. c. J.
position
Of Wills and Testament's:
position of personal property only. In some respects, how*,
ever, they differ; for though a man can regularly make but
one will or testament, he may make as many codicils as he
pleases, and unless they are contradictory to one another, they
will all stand (K),
CHAP. XL
Of Legacies.
A LEGACY is a bequest, or gift of goods and chattels by
will or testament; the person to whom it is given is styled the
legatee: and if the gift is of the residue of an estate after
payment of debts and legacies, he is then styled the residuary
legatee.
This bequest transfers an inchoate property to the legatee ;
but the legacy is not perfect without the assent of the exe
cutor; for if one has a general or pecuniary legacy of 100/.
or a specific legacy of a piece of plate, he cannot in either
case take it without the consent of the executor. For in
him all the chattels are vested ; and it is his business first of all
to see, whether there is a sufficient sum left to pay the debts
of the testator (i). But if there is a fund to pay the debts,
and the executor then refuses his assent to the legacy, he may
be compelled to give it, either by the spiritual court, or by a
court of equity (A).
In case of a deficiency of assets, all the general legacies
must abate proportionably, in order to pay the debts ; but a
specific legacy (of a piece of plate, a horse, or the like,) is not
to abate at all, or allow jmy thing by way of abatement, un-
less there be not sufficient without it (/). Upon the same prin*
ciple, if the legatees have been paid their legacies, they are
afterwards bound to refund a rateable part in case debts come
in, niore than sufficient to exhaust the residue after the legacies
are paid (>)
If the legatee dies before the testator, the legacy is a lost
or lapsed legacy, and shall sink into the residue. And if a
contingent legacy be left to any one, as n'hen he attains, or if
he attains the age of twenty-one, and he dies before that time,
' () Swlnb. 15. (i) Co. Lit. iii. Bract, lib. a. c. 36. (*) March,
Rep. 19. (/) ^ Vern, in. (CT) IbuJ.^oj.
it
Of Legacies.
it is a lapsed legacy (11). But a U-jjincy to one to be paid when
he attains the age of tu< nty-rm- Mars, is a \<*h<! Uuacy; an
interoi which commences i)> /./< i-w//, though it be >(./.>/-
dww /;/ inturv ; and it' the legatee dies before tint a<:-, his
representatiu-s .-hall irceive it out of the testator's pt-r.-^nul
estate^ at the time that it would have become payable in case
the legatee had lived. 'I his distinction is borrowed from the
civil law, and its adoption in our courts is not so much owing
to its intrinsic equity, as. to it* having been before adopted by
the ecclesiastical courts. For since the cham-n\ l,:,s a con-
current jurisdiction with them, in regard to ilu ut<>v<iyof
legacies, it was reasonable tlu re should be a conformity in
the-edt terminations, and that the subject >hould have tin- sum-
of ju.*tue in whatever court he- sued (o). Until"
such contingent legacies be charged upon a it :il t >t:ite, in
both cases Aey shall lapse tor the beiuiit ot the i)t ir ; tor
M itli n ;ard to devisee nftecting lands, the rc It ^iusliral ronrt ha-*
|io coiKi:iii:nt jurisdiction (p)'. And in case of a u^ted le-
gacy due iinmtdiati 1\, ,and cluuut-d on land, or nunu-y in lh
/units, \\hich yield an iiiimt'diate pn'lit, inten >t shall br j
tible thcifon trOBi the tolatoi's death; but it clraiged only on
the personal estate, which cannot be immediate Iv <_Mit in, it
j-hall cairt interest only frOm the end of the M;;I alt', r tin-
ciealh of the testator (y ).
IJesidi s tlieho lojmal li-jai-ies contained in a man's will
and ii st-jnu-nt, there is also pcmnttrd anothrr <lath-brd dis-
position of property, \\hicliiscalltdadonation, niit*<( >nn>-
tis, a gilt in | u.spect of death. This itt, it t):e donor
dies, uieiis not tlh- a-.-i-nt nf tin f\t mtors ; \>'t it shall nt
])ieviiil agani.it the < < -iirnpunird with
lllij.lud HUM, that !'
bhull itsert to himself, bt-ing only given in contemj>!:ition of
ilculli, inoitis i-fiufti (r).
/\s this donation m;.y be avoid* d by creditors, 50 may it by
the \\itt and clnldn 11 (jt a tit i mai;, if it break in on tlu 11
.11 y sharts ().
\Ve .-hall now proceed more particularly to enquire,
1. Who may be legnt
\\litn i. .in to childten, pa\ablt- at a future
] t riodj lnl'Ti :i \ h > an- ;>liv.- at the tiiru- <>) tin- dis-
tiibut.on, whclhtr born after or before the testator's iltath,
() i Eq. Abr 895. () IhiJ. [(f) a P. Wjni. 601. (f) Ibid. *$.
(r) 3 Ibit. 357. () a Vcrn. bU,
are
Of. Legacies. 393
are entitled to shares of the legacy, provided they are in es*e<
at the time appointed for the distribution of the legatory
fund (if).
But a bequest to natural children will extend only to those
who urc in tsse at the date and making of the will (v). Nei-
ther will a bequest to " children" generally, enable a natural
child to take under a will, unless particularly named by the
testator, and manifestly and incontrovertibly intended ()
\\iien a legacy is, in all its consequences, to take etfect im-
mediately, and be distributable on the testator's death, the
persons oi!y who are described as legatees at that time, or
who are in esse within the year after the testator's death, will
entitled to shares in the bequest (w).
if the person described, and intended to take a testamen-
tary gilt on the death of another person, to whom it is given
for life, or for a determinate period, be not in existence at the
arrival of the time appointed for it vesting in him beneficially,
and there are other executory limitations of the same pro-
perty, it seem:-!, that although s'ich persbn should be bora
after the period last mentioned, he will not be permitted tu
claim the legacy, but it is to be divided among those capable
of taking, when by the tenor of the will the testator intended
the property to vest in possession ; for the law will not suspend
the rights of the subsequent legatees, on account of the pos-
sibility of a person, named as a prior legatee, coming into ex-
istence, who might answer the description, but who was not
Jiving, and therefore incapable of accepting the bequest at the
period intended by the testator (i - ).
The admission of parol evidence to explain doubts and
difficulties in wills, is jealously admitted in courts of justice.
In cases, however, of wrong or imperfect descriptions of le-
gatees, and to ascertain legatees whose names have been
mispelled or mistaken, such evidence has been admitted ( ?/).
So, where only a part of the name or description has been
omitted, parol evidence is let in to explain the testator's in-
tention (2). But if there be an entire omission of the legatee's
name or description, parol evidence cannot be admitted to
supply the defect, and to ascertain the legatee ().
An inaccurate description or addition of a legatee, correctly
named, will not destroy the effect of a legacy given to him by
nomination ; but the wrong description or addition will be
(<) i Yes. in. r Bro. C. C. 582. (v) i P. Wms. 529. () 5 Ves.
Jun. 530. (-W) i Ibid. 405. (*) 6 Ibid. 47. (y) 3 Ibid. 148.
(*J 4 IbuU68o. V (*) 3 lJro;C.C.jii.
reiected
394 Of Legacies.
rejected (b). But if the erroneous description is applicable
to another person, so as to render it doubtful whether the
person named or the person described is entitled, the bequest
will be void for uncertainty ; for heirs at Jaw are not to be
disinherited by conjecture, but only by express words or by
implication (c).
2. Of pecuniary legacies.
If a parent, or a person in loco partntis, gives an imme-
diate advancement or provision to a child before provided for
by the will of the parent, or of such person, such advai,
ment or provision will amount to an adriuption or a satis-
faction of the legacy given by the will (d). But the ademp-
tion or satisfaction being merely presumptive, parol evidence,
if clear and indisputable, and not founded on mere con-
jecture or probability, is competent lo rebut the presumed
satisfaction (ri.
And if the legacy and advancement* be not tjusdrm "'-
neris, the latter will be no ademption of the former; as if the
bequest were pecuniary, and the advancement by -grant of
beneficial lease (/")
.'. Of vested legacies.
When a legacy is given to A. to be pavi, .or payable at, or-
vhen he shall attain- tire age of twenty-one, or any -other de-
terminate period, the legacy will be considered , as Tested Jn
A. immediately; and . therefore , if A. aliould ;die before the
day of payment, his assignee or personal reprraeiitalive will
be entitled to the legacy ( if). 1 or the legacy i con>ul TI <\
vesting in picsenti, and the period mentioned atoeferrinjr -to
the legacy 'is not a condition; btrt the -tirfwrtaiieiK tlte -party
should be put into complete :posserion ; -unless the time
appears to have l>een fixed by 'lie .teMaJur ayabsolutely ne*
essary t< i rived before any pun of his bounty can
tach to the legatee. But if it nppoanythat die testator in-
lendrd the time as a condition pn ' dUni \.\tr.i\ M-hich the le-
gacy must take } 11 if .MIC!, condition or conn.
Vws riot happen, the gift never, anstuj; And therefore, when
the time appointed for payment is annexed to the legacy ; a.
if 1 bequeath to A. )<*>/. <//, or of, or nilim, or provide^
he attains twpnty-onr, or on the day .of his marriage, if he
dies before lie an nat age, or is married, it is a lapsed
(A).
<*) V. Jua. 589. (e) 6 T. R. 671. (/) Str. 135. (<) i Vri.
Jun. to- Rro.C. C.42J. (f) 5 Yes. Jufl. 509. (b) Prrc. in
317. i A tit. 500.
Though
Of Legacies. 395
Though in a bequest of personalty) the insertion of the
words " payable" or " paid/' have the effect of immediately
vesting the legacy, and the omission of them the contrary
effect ; yet no such distinction prevails in legacies originally
payable out of, or chargeable upon,, real estate ; for the whole
condition upon which the legacies were given are required to
be complied with, viz. the attainment of the devisee or le-
gatee at the age of twenty-one, &c. admitting of no excep-
tion. But where the legacies are charged both upon the
real and personal estate, if the legatee dies before the time
of payment, the legacy will sink into the land in all cases
where it would be held to sink, if the fund consisted of real
estate only: and it will be considered as vested with regard
to personal estate, in all cases, in which the same would
be so adjudged if the fund consisted of personal property
only (i).
But when the postponing of the time of payment of a le
gacy has been owing to the circumstances of the testator's
estate, and not to the circumstances of the legatee, the re-
presentatives of the legatee who died before the time of pay- 1
ment, may recover the legacy (K).
4. Of legacies upon condition.
Legacies upon condition are divided into conditions pre-
cedent and conditions subsequent. The former must happen
or be performed before the legacy can vest ; for the conditions
being precedent, no interest vests prior to the performance of
them ; the latter, by non-performance, will defeat the legacy
already vested.
Conditions which ane impossible at the time of the crea-
tion, or which were good at the commencement, but became
impracticable by a subsequent event, as by the act of God, or
of the testator; or which are repugnant to the nature and
enjoyment of the bequest, or are contrary to law, are void,
and the grantee is excused from the condition. But it must
be observed, that the effect of these conditions in relation to
legacies, is not always the same ; fir it' the condition be pre-
cedent, that is, if it be to be performed before the legacy
vests in interest, although the condition be void, from the im-
practicability or unlawfulness of the performance, yet. as the
legacy is only given upon the terms of complying with the con-
dition, the legacy, as depending upon, it, must also be void,
In all cases, however, of the event or condition becoming im-
(i) s, Vern. 416. (k) z Atk. 127.
possible,
396 Of Legacies.
possible, if the conditions be subsequent, the legacies will be-
come absolute, as if given upon an impossible condition (/).
Legacies given to persons, with a coudttion not to dis-
pute the validity or bequests of wills and testaments are not
obligatory ; so that if there exists probabilis raitsa iitigattdi,
an endeavour to set them aside will be no forfeiture (>).
Restraint upon marriage being prejudicial to society, in pre-
venting the propagation of the species, personal k-gacie* given
on condition, not to marry generally, or not to marry without
the consent of other persons, without restriction as to time,
will be considered absolute, viz. discharged from such condi-
tions, whether precedent or subsequent ().
But although such conditions as restrain marriage gene-
rally are void, yet conditions whicli restrain marriages to par-
ticular persons, or not with particular persons, or from mar-
rying under twenty-one, or if under twenty-one vntliiu any
other reasonable tinu-, with the consent of parents, tn.
or guardians, are good conditions; lor in these mstances, tin:
liberty of marriage is not absolutely takrti away, but onK a
qualification imposed, which maybe expedient (<*).
A condition by a husband, that 'tos wife ^honid br entitled to
the bequest he has It-It her onl\ M.> l-inir as abecontiMiH d Ins
5. Of the payment and appropriation of |{><rario*>
If the will appoint* no 'IMTVR> for the payment of legacies,
they must in general be pakl oirt of the testators assets, vfithin
the expiratiort of a year after his death : ;uid it no hind l.e as-
signed for the purpose, they must bo paid in tile currency of
that country when- tii, will w madc^.f^Hfi
If an executor pay a legacy given to -.nrinfunt, to the in-
fant himself, or to <uioth< r personr during his 1 minority, he will
be compelled to pay it over again (/-K unless tlu n.tant le-
gatee, OM attaining his full age, ratifies such pimm-uts or ad-
vanoements (.s).
Where the executor 01 tnistco is not empowered under th
tmst rejH>s'd HI him, to apply more than the interest of legacy
tor the maintenance of the legatee, he will not br alhmed anv
payments made for the benefit or advancement of such
<-ept for espiv^ net es-aiir-. ; and wit even for these,
if he applies the principal or capital, or even a part of
(/) Ambl. Jj6. () 3 P.Wmi. 344. () 3 Atk. jjo. () Wm'.
Law of Willi, p. 87. (f) 2 Vern. 308. (7) Itro.C.C. 3J. (r) I
P. Wnu. 285. (i) 4 Vcj. Jun. 362. (r) !<>id. 3ji.
Uut
Of legacies. S97
But if an exigputotf does, without .application, what a court of
equity \vold Jiave approved, hq iwjil not, be forced to undo
it, (merely because it was done without application (v).
Legacies bequeathed lo married women. ought, in general, to
be paid $o t^eir husbands ; but the xecutors may withhold the
payment of suclj Jejacies ui.tf.ii the. hu$ baud consent to a suitable
settlement or provision on the wife (u), unless the wife, con-
sent ^n court, or it abroad, before 'proper commissioners, to
the payment of ihe, .legacy to the husband (z). But where a
legacy is given tp a married woman' for her separate use for
life, -and after lier decease according to her appointment by
will, sh/e has not such an absolute property in the legacy
so us to entitle her husband, by her consent, to the paynveut of
ito/>.
If a legacy is payable at twenty-one, and the legatee dies
before that period, his representative must wait for the legacy
until the legatee, if living, would have attained twenty-one;
but if die legacy be limited over to B. upon the event of tlie
legatee's dyiug under twenty-one, and he does die before
that time, B. will, immediately on his death, be entitled to
demand payment of the legacy {z).
But -if interest be given to the legatee during his minority,
his representative may claim the legacy immediately. If the
legacy bears a less interest than the utmost use, the executor
has a right to the use of the money, paying the aiodtiied iu-
terest. (a).
(}. Of the abatement and refunding of legacies.
If a testator's assets be insufficient to pay both debts and
legacies, the pecuniary legacies must aba*e proportionally
inter se (b). But if an executor pays one legacy, as it is a
pre-smnption that he is possessed of assets sufficient to pay all
the legacies, if solvent he must make up the deficiency out
of his own estate, and the court will not permit him to bring
a bill to compel the legatee, whom he voluntarily paid, to re-
fund (c), unless he has paid the legacy by compulsion, as
where the legatee has recovered by decree (i/); or if debts, of
which he had no notice before the legacies were paid, are
claimed after the assets are distributed (e).
Though specific legacies are not compellable to abate on a
deficiency of assets to pay general legacies, yet if all the per-
(v) 3 Hro.C. C. 6c. (*) 3 P. Wms. 20:. (x) 3 Ves. Jun. 321.
(j) 4 r.ro. C. C. 4?3- (*) 2 P. Wms. 336. (a) 3 Ves Jun. 13.
i P. Wms. 422. (c) * Ibid. 292. :.</) 2 Vern* 205. (e) i
. Cas, 135.
soTul
398 Of Legacies.
sonal estate not specifically bequeathed, be exhausted in sa-
ti>tving part of the testator'* debts, or if the testator, in par-
celling out the specific sum among the legatees, exceed the
amount of it by mistake, or that the fund out of which the le-
gacy is bequeathed is not in existence, the specific legacies
will be obliged to abate proportionably inter $e (f).
7. Of lapsed legacies.
It is a general rule, that if a legatee dies during the life-
time of the testator, the legacy given him shall lapse, or tall
into the general personal estate of the testator, nutv\ ithstund-
ing it be given to the legatee, his executors, administrators,
or assigns ; and parol evidence to shew that the testator was
apprized of his death when he made his will cannot be ad-
mitted (g). If, however, it appears, that the words " exe-
cutors and administrators" were used by the testator with the
intention of substituting them in the place of the legatee in
case of his death, they will not lapse (A).
But where a legacy is given in trust, though the trustee dies
before the testator, jet the legatee will be entitled to the
legacy (i).
8. Of the repetition of legacies.
When legacies repeated iu the same will are of equal
amount, or the same corpus is given twice to the same person,
and no additional cause is assigned for the second beque.st, or
any implication to shew, that the testator meant that the same
thing, prim& facie, should accumulate, the second legacy will
not operate (A'}. But if the legacies differ in amount, or if
either of them be contingent, such legacies will not be consi-
dered as merely repeated, but accumulative (/).
When legacies are given by will and codicil to the same per-
son, whether of equal, greater, or less values, such legaci*
mentioned to be given for a particular reason or purpose, or it
given by an additional description of the legatee, so as to par-
ticularize him as a peculiar object of favour, will, impliciti-r
and prim&J'ucif, be considered as distinct gifts ami accumula-
tive, and not a substitution (m)
So if the provisions in the will and codicil are won tjusdtm
generis , as where one is given as a pecuniary legacy, and the
oth.-r by way of annuity; or when the legacy by the codicil
i- ;iveu upon a contingency, and tliat in the will is absolute,
both provisions must be satisfied (M).
(/) iP.Wmi.4<>3. ft) Ibid. 83. fl) 3 Adc. c 7 j. (i) i \V.
Jun. 465. (I) 4 Ibid. 79- f/J S Bro. C. C. ::j. (*) i P..Wm.
4-Ji. () 3 Vei. Jun. 735.
1 he
tfca<:leacies given by two in-
' shall: be additional" and^ ^acQiujislative, may be re-
parx>J e.yjidence, shywing.iji^o.iitr.ary intention Ju tbe
testator; but .tliejo/fr/;: -of- making, sujch & proof is throwu
upon the^e^e^ijjtory and not/ .upon the l,egatfies irj .And if the
codicil appears ; %>b^.uir^ly:^;-si)^repetitipn of the will, or
if it appears that the latter instrument ^wa.s g)a.de for the pur-
pose qjf explaining ofc better ascertaining the. legacies bequeathed
by the former ,iftsti-^p.eijt, the presumptioji _oi accumtilatiou
yyill be repeUed-j^v. , : ._ ' .
-9. Of die fatisfeqtion.of d.ebts and portions 4^y. legacies.
If a legacy beqiieathed.-t>y Q testator to his debtor is as much
or. more than the debt, the legacy will be considered as a sa-
tisfaction of the debt,, unless expressly specified, that the tes-
tator intended to give such legacy exclusive of the debt; and
parol evidence will not be received to the contrary (/;). But
when there is no deficiency of assets, if the legacy be inferior
in amount to the debt, the legacy will not be considered to be
given in part payment or satisfaction of the debt (q).
When the debt and legacy are of equal amount, if there be
a difference in the times of payment, so as the legacy may not
be equally beneficial to the legatee as the debt, the legacy will
not be a satisfaction of it (r).
So if a debtor bequeath to his creditor property of a dif-
ferent nature from that of which the debt consisted (s) ; or if
the legacy be given on a contingency (t^; or the legatee is
entitled to a sum of money absolutely, and the testator bequeaths
to him an equal sum for, life only (t>) ; equity will not deem the
testamentary gift a satisfaction of the debt.
So if the debt be contracted by the testator subsequent to
the making of his will, a legacy of equal value will not amouat
to> satisfaction of the debt (/*).
And if a running account subsists between the testator .and
the legatee, the legacy will not be a satisfaction, if the tes-
tator's estate appears indebted on winding up the account (x).
For the law relating to legacies-, to chaiitauiv wses, see
page 379- : f>m
10. Of interest on legacies. ;.
If executors omit to pay Ug^icies^ at the expiration of one
year next after the death of the testator, -the legatees will be
. ,
(o) 3 Ves. Jun. 462. (/>) 3 P. Wms. 354. (7) I Ves. 262. Cr) z
Atk. 300. (s) aP. Wms. 614. (/);]i Ibid. 5J3- r^) 2 Ves. 37.
() J Vcs. Jun. 561. (*} Chan. Prec. 314..-
entitled
400 Of L
entitled to iutete-t from tlrat period (y). And if tlie U>>t;ih
lMtitii> tp^art fcfrpuiubic to the eonstruetiou, will
:u his death (:). So interest on specific le-
gacies is to br computed from the death of the testator {).
In the case of >ti aiders, if LI I. frac\ .L>.s-.>!nit 1\, ami
payable at twenty-one, 01 at any other definite tune, the) \\ill nut
be entitled to interest before the arrival of those periods (6).
Hut where devises in either of tl. :,ie >i\\-\\ to chil-
dren, the'cotirt will direct interest to be computed on their
legacies from the death of the parent (r).
Hut \\here a maintenance has been ni\vn by the parent, al-
though le-s tlian the annual interest of the 1 uii'-;. , children \\ill
vil) not be entitled to any further allo\\unee (</).
With regaid to the rate or quantum of interest to le al-
lowed on legacies when ilu- amount has not Urn ;is ( ertaim d
by the testator, no more than four jt< rcciil. \\ rd be allowed,
whether the legacy wriv hailed on leal or personal estate
11. Of the construction of beqn
If a testator in the, disposition of his property omit or
neglect to provide for an event which it is probable he would
not have omitted if the particular linstance had occurred to
him or been mentioned to him, a court of justice cannot
tifv the mistake by implying or m>citm'_ r ihe IK cary c lau.-e (f).
Hut when a manifest and indubitable implication arises upon
the face of the VM 11, that a legatee should have his let;ar\ on
an event not accurately described, if the event happen the de-
tect will b- supplied (if).
i , [For f'urtlit'r iiifoniifitioii on thi* haul, w Jl'i/litiiHss IMK
of l\ il/s mid Tcttamcnts, p. 1()4 to 108.]
1C. Of mistake and uncertainty in hr<ju<
Though thi- subjects of 1>eque>t-, \\ln n nit piopnly de-
scribed and a-ci-i tail. < d, or \\hen indelimle, an: \oidforuu-
certainty (/O; >et if the testator mistake the name onl\ of the
thing intended i" . |;;IMDJ im otln r thing to \\hieh tin-
l.-iiin of tin' bcijiiest i .m !) applied, the wrong description of
the l)ju Nt \M!I not defeat the legacy (/).
If a person intend-, to pu< a legacy of a certain value, but
in eiuimeialing the funds selected ii>i pa\ment o< it, is mis-
taken in the t.-Kact amount of some ot them, the legatee \\ill
totvvilhstaiuling be entitlul to tlic sum actually intended (Aj.
(y) i Vei. 367. (} Ibid. 30*. (*) 6 Vet. Jun. 34$.
(*i 4 lb,J. i. to -3 Aik.43*- (^) 3 Vet. fun. Jt6. (r) i JW.
,84. ,(j k'T. K. 511. . ; Ves. Jun. 449. (b^ >
Toutb. 430. (0 3 Ve. Jun. ,jo6. v r i V^-..
3. Of
Of Legacies. 401
13. Of the executor's assent to legacies.
As the legal interest of the whole of the testator** personal
property is vested in the executor by operation of law, tha
legatee cannot legally appropriate any part of the testator's
assets in satisfaction of his legacy without such assent (/).
And even where a testator forgives his debtor, or releases him
from the money owing to the estate, yet such release or for-
giveness, before it can take effect, will require the executor's
assent.
An executor may assent before probate ; and where there
are two or more executors, the assent of any one or more of
them is sufficient (m). But executors cannot assent to legacies
subject to revocation, nor can they conditionally, except the
condition be precedent to the assent ().
Very slight expressions by the executor will, however, be
sufficient to constitute an assent (o). And if the executor
allows the devisee of a term to receive the rents for a time
only, or to apply the rents directed by the will to be applied
for the devisee's maintenance during minority, it has been held
an implied assent (p).
Although the assent of the executor is necessary to com-
plete the title of the legatee, yet before such assent the legatee
takes an inchoate right or interest in the subject of the be-
quest, which may be forfeited, and which will be transmissible
to his personal representatives in case of no disposition by
will ().
The assent of a married woman appointed executrix, with-
out the privity and concurrence of her husband, is nugatory
and ineffectual (r).
14. Of residuary estates.
When a residuary legatee is appointed by the testator, he
will, in general, be entitled, not only to what remains after the
payment of debts and legacies, but also to whatever may fall
into the residue after the date and making of the will (s). But
if it appears that the testator intended such legatee to have
only what remained after payment of legacies, lie wiil not as
residuary legatee be entitled to any benefit from the lapses (t).
If no disposition is made of the residue, the executor will
be entitled to it ; and if no executor be named, it will be dis-
tributable among the testator's next of kin, according to the
statute of distributions.
(/) Off. Ex. 221. () Ibid. 228. (n) IVi4.3$. () Ibid. za&
(p) Plow. Com. ^39. (?) Qff. Ex.29. ( r ) Sid ' lM * K 1 ) 4-Ves.
Jua, 803. (t) Ambl. 577.
Dd tf
Of L
If the executor has* legdcy. r, t i* precluded from tlie un-
disposed fvsidufe, nnd is considered as trustee for the next of
kin (i '), tnon though the.ucxt of Lin has been provided i< by
!{;:<
. But in order to deprive executors of the undisposed residue,
fhe legacies ziven to the in must be of equal value; for an in-
ference arises from the difference in v;:iue, ihiit the te.stator
>nly intended to prefer some. of the executors lo tin- oti;
and not to exclude them of any benefits to which they were
!!v entitled in the chara' to; nt fxeaiiois
Where there ore sevtral cxcrut^rs, if leiiiift > Lc -_iven to
t\vo or n tore of them only, and no legacies to the others, the
legacies so given will n< ithrr exclude the executors receiving
them iVom participating ot the undisposed residue \viih their
co-ex$A:utors, jior couvert the executors into trustees for the
next f kin (>/",.
So the luw is the same, 'it- mi inference can br collected
from ihi mil that hv the (legacy tin- u--';ii <r did not uicau lo
exclude the executor from Uk.in{r the residue :
It also teems, that if a man appoints his wife executrix,
as a legacy property of hrr own, to which
me would have beitn entitled independent of the will, she 'wli
not lie exchtdfd Ir-im the undisposed -surplus (-a).
In nil :iiore than .,11 oiiice is coniVrred
u cxrdi' ^.lii-re they are expressly called t
in tru.-'t,} or W!MM a \< -jarv is ^i\, n to one of :
a SK inn ; \eciited, or v here the n-ii!i<:
ie cxpri'- oiuc .nc of tiicm, ujioii Uu>t,
ihcv \\ill be l):int (i of the residue (6)
\\ hen the residue i^ or ; -ii,all\ .-tiwlly Liven nway
riitora, I or some. pat of it .
.tiou
:inr> IMIMI such S(.
li ilu- lesidue i>e i -pre -iy sjiven t. . utor lur life,
the i:'it> will exilude iutn pan of it abso-
'}
() i C*^ i I' >
C 1.1:1.316. .[a]
</, i Atl.
Of Libel, 403
PART IV.
HAVING, iu the preceding divisions of our subject, given
a summary account of the law respecting persons and property,
we shall now proceed to show., in this and the following ones,
in what manner they may be affected by civil injuries; or crimes
and misdemeanors.
Of Civil Injuries
CHAP. I.
Of Libds.
A LiBiiL is a -malicious, defamation, expressed in printing
or writing, or by d^ns, pictures, &c. temlm 4 to injure the re-
putation of another, and thereby exposing such person to- pub-
jlic hatred, -pontempt, or ridicule. r JT'< e Direct tendency of
these libels is the breach pf the public peace, by stirring up
the objects of them to revenue, and perhaps t< bloodshed (c).*
With regard to libels in. general, tiiere aie two remedies; one
by indictment, and another by action. The former for tljje
.public offence; for every libel has a tqn laucy to the breach of
the peace, by-provokiug:lhe..pfrsun lulled .-to break it; which
v offence is the same (in paint .of law) whether the matter con-
tained be true or false, and .therefore tl,e defendant, on an in-
.dictment for publishing a libel, is not allowed to allege the
rtrutli of it by way of justification (-/y. 13ut in the remedy by
action on the case, which is to repair the party in damages for
the injury done him, the defendant mjy, as for words spoken,
justify the truth of the fact, and show that the plaintiff has
.received no injury at all (g) ; for, as in a civil action, the libel
must appear to be false and scandalous, if specific circum*-
stances can Jje staled on the record .and proved by evidence^,
so as to support the general charge of the libel, it 3eem.s that
the courts would determine them. to be u suucient justification
for the defendant (/*).
(c) 4Bl.Ccm. 150. (/) 5 Co. ia$. (^)'Hob. aj 3 . n Mol
?v . (b) i T. R. 748-
P d 2 ' Thouab.
4*U Of Libtl.
Though it has bren held, that tin- truth of a libel is no jus-
tification in a criminal prosecution, }i4 in many instances it is
rt>nndpied as an extenuation of the offence ; ami the court of
king's bench has laid down this general rule, viz. that it \\ill
not grant an information for a libei, unu>.-> tin- prosecutor, \\lio
applies for it, makes an affidavit, availing diivctls and posi-
tively, that he is innocent of the chuige imputed to him. But
thw rult mav be dispensed with if tlie person libelled resides
abroad, or if the imputations of the libel are general or inde-
finite, or if it is a charge against the prosecutor for language
which he has held in parliament (i ).
This species of defamation is usually tinned written scan-
dal, and thereby receives an aggravation, in that it is presumed
to have been entered upon with coolness and deliberation, and
to continue longer and propagate wider than any other scandal.
The important distinction between lilu ;s and words spoken
was fully established in the rase of Vi!i-;.-- r. Mousley v /t)- As
there i> a difference between the malignity and injurious con-
sequtncesof slanderous words spoken or urittin, many word*
which if spoken would not be actionable, aie actionable if
published in the way of libel. In the case alluded to it was
decided, that whatever renders a man ridiculous, ^r lowers him
in the esteem and opinion of the world, amounts to a libel ;
though the same expression if spoken would not have been
defamation. Hence the word srcitmtc r, if spoken of another,
(unless it be spoken m relation to his trade or business,) is not
actionable (/); but if it be published in the wa> or libei it is
actionable (m). Also the jmblicatton of a letter, containing
some verses, in which the pi rtntiff was called aji iteh\ old toad,
was deemed a libel (H). So the publication of a letter, in
whch the plaintiff MUS stated to be <ne of the most mini al
villains that ever disgraced human nattiie, ha.s been heid to be
actionable \\ithoutproof of special damage (o).
\Vhtre a uritin invti^hs u- n .i .i>t mankind in general, or
against a particular order <>t mm. this is no libel; n nm-i
*rcml to particular.-* and individn:i!s to make it a lil>el (//). liut
a general relit ction on the ; rnnunt is a libel, tlionli no
particular pcrsou is rrtlrcted on; and the \\nt.ng against tht
ino\rn law is litkl to bo ciiminal (9).
A defamatory vritinu', expressing only one or t\\> letter* of
a name, iu such a manner, that, from \\hat goes bclore and
{) Doug. 171. 371. (*' a WiU. 4j. (/) a Her. BJ. $31.
fm) 1 T K. 741.. ( ) 1 Wl.l 4 < 3. (} I Bo* acd Pal. >
(/} 1 r. u W. 3, D. R. (?) 4 it* 1>. 6/ * 93-
follows
Of Libel. 405
follows after, it must be necessarily understood to signify such
a particular person, in line plain, obvious, and natural construc-
tion of the \vhole, is as properly a libel as if the whole name
had been expressed at large ; for it brings the utmost contempt
upon the law to sufter its justice to be eluded by such trifling
evasions (r).
A person may be punished for a libel reflecting on the me-
mory of the dead; but it must be alleged, and proved to the
satisfaction of the jury, that the author intended by the publi-,
cation to bring dishonour and contempt on the relations and
descendants of the deceased (s).
A fair and candid comment on a place of public entertain-
ment in a newspaper is not a libel (t).
In like manner, a comment upon a literary production, ex-
posing its follies and errors, and holding up the author to ridi-
cule, will not be deemed a libel, provided such comment does
not exceed the limits of fair and candid criticism, by attacking
the character of the writer unconnected with his publication;
and a comment of this description every one has a right to
publish, although the writer may suffer a loss from it-(v).
Such a loss the law does not consider as an injury ; for since
the plaintiff has chosen to embody himself with his works,
has made himself a public character, and commits himself to
the mercy of public opi.iion, he has no right to complain if
that opinion be unfavourable. As he solicits praise, he must
bear with ridicule (per Lord Ellenborough).. But if a per-
son, under pretence of criticising a literary work, defames the
private character of the author, and, instead of writing in the
spirit and tor the purpose of fair and candid discussion, travels
into collateral matter, and introduces facts not stated in the
work, accompanied with injurious comments upon them, such
person is a libeller, and liable to an action.
It is not a libel to publish a correct copy of the reports or
resolutions of the two houses of parliament, or a true account
of the proceedings of a court of justice (u) ; but a highly-
coloured account of such proceedings, mixed up with insnua-
tions of perjury, cannot be justified (r).
Printing or writing may be libellous, though the scandal is
not directly charged, but obliquely and ironically ; and where
a writing, pretending to recommend to one the characters of
several great men for his imitation, instead of taking notice of
(r) Hawk. P. C. bk. i, c. 73, s. 5. (;) 4 T. R. 126. (i) i p
tf. P. C. a8. () i Can,p. N. P. C, 3^. (*) 8 T- R. 9V Bcfc
and Pul. 525, (K) 7 East, 493.
what
Of.
JP> they W< *rkrafty fetitonb- for, piH-.rs on such qua!
onf* which their eiVetn:^ rlHr?e them wiuh the want of, as
b* proposing swbi n-.r, ulio
is* Inxmn to be 1 a crootl soldirr but a a <t>iaiv, 8
atfonnt to a 1
Hauling up or burning an effigv, with intent to expose some
particiflar person) tr> 'ridicule and lxhit*mpt>, w an the
same nature as ft libel, and has been fr quer.lly punished with
great but pro;
The cotnmtHi f a bbel to any person is :i publica-
tion in the eve of the law (r); and therefore the sending of aa
abtisive private lelWir i as mmh a Mifl us it it were openly
printed, for it equally tend- rh of tin: pen
It is not ron'i.n-tent to a defendant chaiyeii with hn>
published a lihel, to prove, that a paper simll.t/ to th it for
jmblication of uhich he is prosednted, \va$ prtbli^ied OUR
former occaiof by other persons, \vho have i. >se-
cirted for it (7>). '
In the making of libel*, if one man dictates; and another
writes a libel, both are guilty (r).
When anr pvrron firkfe a libel, if it l>e tt;>rtt a private per-
son, he fin-Jit to h'Mii it, or dh'\rr it to :\ un;
uhen it .1 nv.igihtratc, he .ihould deir
^ magistrate (d).
The sale of a liKl by. a nv:nt in a shop is ftrimi'i J'ftcie
evidence of piiblicntion in B pioserntion a;ain^t tlir in:i>ter,
and K sufficient for conviction, unless contradicted by contraiy
evidence, showing that he was not privy, and not in any degree
assenting to it (f). '
The proprit tor of a newspaper :il>l criminally M
well as civilly f>r the acts of hts servants in the publication of
a libel, although it can br such pui-.
.viiy of the p'
It is immaterial, on a criminal ;
the ( ; the libel, whether t!i< n;;itt< r of it bo true
false; be. - .- !i >f tin-
the provocation, nor t. is the i
Criminally, though doubtle- .-hood of it may aggravate
its guilt : its punishment. In a civil u vo
, n lil>' 1 mmt n|>]>cnr t<
f candal'jus ; fbr'if-the charge be tiue the pl.iiuuff lias reccive4
,'/; I Hj\vk. I' , () Mo<rr. Jij. '.'4^:
150* f/l5T. R. 536.
Vrj 3. AJu 47*. 5 Bur. f6$6. (/; j F'. N. I'. . ai.
110
Of Ztfeft
no private injury, <md ha$ no ground to demand acompcusa-
tion for himself, whatever offence it may be against the public
peace; and therefore upon a civil action the truth of the ac-
cusation may be pleaded in bar of the suit. But in a criminal
prosecution, the tendency which all libels have to create ani-
mosities, and to disturb the public peace, is the whole that the
law considers. And therefore, in such prosecutions the only
points to. be enquired into are. first, the making or publishing
of the book or writing; and secondly, whether the matter be
criminal; and if both these points are against the defendant,
the offence against the public is complete (<;).
It seems to be clearly agreed, that in an indictment or cri-
minal prosecution for a libel, the party cannot justify that the
contents thereof are true, or that the person upon whom it is
made had a bad reputation; since the greater appearance there
is of truth in any malicious invective, so much the more pro-
voking it is; for, as Lord Coke observes, in a settled .slate of;
government the party grieved ought to complain lor every in-
jury done him, in the ordinary course of law, and not by any
means to revenge himself by the odious course of libelling or
otherwise (it\
The punishment of libellers for either making, repeating,
printing,-^ or publishing a libel, is tine, and such corporal pu-
uithment (as imprisonment, pillory, Sec.) as the court in its
discretion shall inflict, regarding' the quantity of the offence
and the quality of the offender (/).
It having been frequently, determined by the court- of king's
bench, that the only questions for the consideration of 'the jury)
in criminal prosecutions for libels, were the fact of publica-
tion, and the truth of the inuendos, that is, the truth of the
meaning and sense of the passages of the libel, as stated and
averred in the record, and that the court aioiif, were; .competent
to determine whether the subject of publication was or was
not a label ; the stat. of 3'2 (Ico. 3, c. (JO, was passed, intitled
" An Act to remove Doubts respecting the I ; u!|cU"ns of
Juries in Cases of Libel." By this act it is declared, that on,
every trial of an indictment or information for a libel, the jury
may give a general verdict of guilty, or not guilty, upon the
whole matter in issue, and shall not be required or dnected by
the judge to find the defendant guilty, merely on the proof of
the publication of the paper charged to be u libel, and of tha
f g] 4 BI. Com. 150. (b] Bac. Abr. tjt. Libd, A. j. ( i Hawk,
P. C. c. 73, s.ulj,
sense
40* Of Libel.
sens* ascribed to it in the record. But the ttatute- provides,
that the judge may give IMS opinion to the jury respecting the
matter in issue, and the jury may, at their discietion, as in
other cases, tind a special \erdict, and the. defendant, if con-
victed , may move the court, as before the statute, m arrest of
judgment.
The proceeding against the printers, publishers, and pro-
prietors of newspapers, either civilly or crimin u!y, for any
lib( I contained in such paper, an- much facilitated by tin- Mat.
38 G<o. 3, c. 78, by which it is enacted, that no person -.hall
print or publish any newspaper until an affidavit or aftir. na-
tion in case of a quaker) shall have been delivered nt the
Stamp-Office, setting forth the real and true names, additions,
descriptions, arul places of abode, of the printer, puhlislur,
and proprietors, >y Deifying the amount of the shares, the true
description of the building wherein such paper is intended to
be printed, and the title of such paper, &c.
And to prevent the dispersing of papers of an irreligious,
treasonable, and seditious naUin- among the lower classes of
the community, it is enacted by the stat. .>{) deo. S, c. 7<J, that
every person having any printing press, or types tor printing,
and every person carrying on the bns.m^s of a letter founder,
or maker or feller of types for printing, or of printing -presM *,
shall give no'ice thereof to the clerk of the , i;u , uudtr a
penalty of -20/. And every person \\ho shall sell t>|cs or
printing presses shall keep an account of all persons to whom
they shall be sold, and shall produce such an account at any
time to any justice of the peace requiring the same, under a
like penalty.
And it is farther enacted, that the printer shall print upon
the front of every paper which is printed on OIK side only, and
upon the first and last sheets of every pubhca ;i->n which con-
tains more than one leaf, his name and place of abode, and in
ca*e of omission shall forfeit tor every c->|>y published "JO/. ;
and i very person who prints for profit shall keep one copy of
every paper so printed, on which shall be written or punted
the name and place of abode of the person by whom such
printer shall be employer!, and shall produce the same to any
justice of the peace, who, within the space of six months,
shall require to see the same, and upon neglect or teiiisal shall
forfeit 20/.
Any person may apprehend those who are publishing papers
without the name and abode of the printer, -or may cou\cy
them, or deliver them to a constable to convey, to a magistrate
to
tp be examined ; smtl a peace officer, Ly a warrant from .a jiw^
tice of the peace, may cuter any house or -room to search tor
any printing press or types suspected to be kept or used wjth-
vut the notice required by the act, and seize and carry them
away, together with all printed papers found in such house or
room.
We shall conclude our observations on this head with the
emphatic words of Sir William Blackstone Where blas-
phemous, immoral, treasonable, schismatical, seditious, or
scandalous libels are punished by the English law, the Liberty
of the Press, properly understood, is by no means, says that
elegant v riter, infringed or violated. The liberty of the prest
is indeed essential to the nature of a free state ; but this con-
sists in laying no previous restraints upon publications, and in
freedom from censure for criminal matter when published.
Kvery freeman has an undoubted right to lay \\hat sentiments
he pleases before the public; to forbid this is to destroy the,
freedom of the press; but it he publishes what is improper,
mischievous, or illegal, he must take the consequences of hi
own temerity. To subject the press to ihe restrictive power
of a licenser, as was formerly done, both before and since the
revolution, is to subject till freedom of sentiment to the pre-
judices of one man, and make mm the arbitrary and infallible
judge of all controverted points m learning, religion, and go-
vernment. But to punish (as the !*w does at present) any
dangerous or offensive writings, which, when published, shall,
on a fair and impartial trial, be adjudged of a pernicious ten-
dency, is necessary for the preservation of peace and good
order, of government, and religion, the only solid foundations
of civil liberty. Thus the will of individual's is still left free;
the abuse only of that free will is the object of legal punish-
ment. Neither is any icstramt hereby laid upon freedom of
thought or inquiry: liberty of private sentiment is still leftj
the disseminating or making public of bad sentiments, destmc-
tive of the. ends of society, is the crime which societv corrects. ,
A man (says a tine writer on this subject) may txj allowed t
keep poisons in his closet, but not publicly to vtnS them ai
cordials. And to this we may add, that the only plausible argu*
ment heretofore used for the restraining the just lit* 3 n ->f the
press, " that it was necessary to prevent the daily abuse of it," '
will entirely lo&e its force, when it is .shown (by a seasoalla
exertion of the laws) that the press cannot be abused io iny
bad purpose without incurring a suitable punishment ;, whereas
>. it
410 Of Slanted
it never can be used to any good-one, when under the coo*
straiut of an inspector. So true \\ ill it be found, that UMCtMNM
the licentiousness is to maintain the liberty ot the piuss (A ).
CHAP. ir.
Shifter.
IF a man maliciously and falsely utter any <landei or fale
tale of another, which may cither endanger hiui in
impeaching him of some heinous crime, or which may exclude
him from society, it is actionable.
An action on the case lies against any person for falsely and
maliciously speaking of another, words which dirt ctly charge
him with any crime, for the commission of which the offender
i* punishable by law (/), as treason (m), murder (H), larceny (o),
perjury (y/>, keeping a bawdy-house (7), or wiih h.r
contagious disorder, the imputation of which ma
from society, as leprosy, plague, and lues i . But
charging a person with having had a contagious disorder is not
actionable (s).
In order to sustain this action, it is cssentia'il.
the words should contain an express imputation oJ line
liable to punishment, some capital offence, or other iufai.
crime or misdemeanour. An imputation of the mere
want of moral virtue, or moral duties, or obligations, is not
sufficient (/). To call a man a thief is not actionable, u
it be intended to impute felony to him. Hence., when that
expression is accompanied with other words which cleuiU de-
note that the speaker did not iutciid to impute klon; io the
party charged, 110 action can be maintain* d
-iirak falsely and m:iliriou.sly, and publish of aimliier
Tvords which tend to disinlniit him (u), or to dipnve him of
his estate (?t), or which slai.der him in 1
u ('//). or Jrade (z), are adiojuibh ; and I-
kind an action may be broii,ht befojc the injury has been
taiucd.
(*) 4 Rt. Com. 152. (fl Finch. () Ibrdr (**, I Rl.
Abr. -a. pi. 4. (ft) i K
<f) lvJ. 44. I. 15. yig.Acf. Def. D. a. (; :
(0 ^ v : '77 6T. P. C-4-
17- (to] . (x) Salk. C4.
() Cro. J.ir 578.
Of Sknder. 41 I)
Words spoken in derogation of a peer, a judge, or other
great office? of the realm, which are caiied scandal-tun magna-
tnm, are held to be still more heinous (0);. and though they
be such as would not be actionable m the case of. a common
person, yet, when spoken in disgrace of such high and re-
spectable characters, they amount to an atrocious injury, which
is redressed by an action on the case, founded on the statutes
Westin. 13 mduu 1, c. 34; '2 Ric. 2, c. o; 12 Ric. 2, c. 11;
as well OH behalf of the crown to inflict the punishment of
imprisonment on the. slanderer, as on behulf or the party to
recover damages for the injury sustained. But this action is
now seldom resorted to. By tlte two statutes (3 . jGtte. 1,
2 Ric. 2,) on which it is founded, the' defendant may be im-
prisoned till lie. produces the; first author of the scandal.
Words also tending to scandalize a magistrate, or person in
a public trust, are reputed more highly injurious thai v..hen
spoken of a private man (fr).
But mere scurrility, or opprobrious words, which neither
in themselves import, nor are in fact attended with, any injuri-
ous effects, will not support au action. So scandal which
concerns .matters merely spiritual, as to call a man a heretic,
or adulterer, are cognizable only in the ecclesiastical court (<),
unless any temporal damage ensues* Words" of heat, anger,
or passion, spoken suddenly or without deliberation, as to call
a man a vogue, scoundrel, rascal, villain, knave, miscreant,
liar, fool, or the 1 like, if productive oi" no ill conseqncnces, are
not actionable (d). Neither are words imputing to a person
an evil mchiuition, wEIcFf is not carried iuto effect, action-
able (>) IS or are words spoken in a friendly manner, as by
way of advice, admonition, or concern, without any tincture or
circumstance of ill-will (/); nor if spoken in confidence,
as where a master, upon being applied to for the character of
a servant, honestly and fairly gives a true character of such
servant (g). For in these and similar cases, malice, which is
the essential ground in an action for slander, is wanting. Nei-
ther are words spoken by the defendant as counsel, if perti-
nent to the matter in question, actionable (A).
To constitute it-gal slander, the words must impute a precise
crime, which would subject the party defamed to an indict-
ment for a felony or misdemeanour. Hence, it is actionable
(<i) I Vent. to. ' {!>} Ld. R.iym. T^ft (c) No 7, 64. ft!) 3 HI.
i'^m. 125. . (f) 4 Esp >N. P.C'-fiS. (f) 3 EL Co;n. 115.
() I T. R. no. 3 Cs. and i'-i. 594. (*) Cro. Jac. 91.
to
412 Of Ma lic'ious Prosecu t ions.
to say a man is a highwayman ; but it is not so, to say, he is
worse llian a highwayman (<)
It is not actionable to say of a person lie is forsworn, or
that ht* has taken a false oath ; for upon many occa-i u a per-
son may be pnilty of false swearing without being subject to any
temporal punishment ()
A verbal cha:ge of incontinence and prostitution against a
modest woman is not n Sunder co^mvahlc in any temporal court,
except in the city rourt, and even then the cause of action must
arise within the jurisdiction of the city of London.
Woids not actionable in themselve* ma\ btrome so by reason
of jome special damage arising from them, e . * .if a p*r.oii
shall f-ay to woman, " Yon are a whore, '' whereby she loses her
marriage (/), or a substantial benefit arising from the hospita-
lity of friends (in). So if u person slander the title of ano-
ther, whereby he is prevented from stllio" his estate (>/). lint
in these cases it is incumbent on the party injured, not only to
state and prove the speaking of the words, but also the parti-
cular injury which he has sustained ; becau.se the words not
being actionable in themselves, the special damage is consi-
dered as the gist of the action (o).
. It must also appear, that the special damage was the legal
and natural consequence of the words spoken : for an illegal
consequence, viz. a tortious act, will uot be sufficient ( />).
Jt is actionable to republish any slander invented by another,
unless the rcpublication be accompanied 1.. u disclosure of the
author's name, and a precise statement of the author's words,
so as to enable the party injured to maintain au action against
the author. This disclosure and .statement must be made at
the time of repubhshing the slander; for it will not avail the
defendant to make it for the I'IIM time in pleading to au action
brought by the party injured (ry).
CHAP. III.
Of malicious Indictments and Prosecutions.
,
AN action on the case lies against any person who ma-
licimislv, and without probable cau-e, prosecute* another,
whereby the party protecuttd Mistains an injury, either in per-
(i) 3 Wilj. 184. (k) 6T. R. 69 r. (/) I RI. Ak. 35. I. 1$.
') Cro. Or. 140. (
(f ) j T. R. 17. i k-it'i Rtp. 46.
. .
(m) i T4unt. )f, ') Cro. Or. 140.
f/) t u'$ Rep. i.
Of Malicious Prosecu tions. 4 1 3
son, property or reputation. But it is not actionable to bring
a civil action, though there be no good ground for it, because
it is a claim of right (/). So also for suing a man in the ec-
clesiastical court for matters not cognizable there, this action
lies (*); and for prosecuting an indictment falsely it will lie,
though the indictment \vas bad, or not found by the grand
jury (t): but it is in all cases incumbent on the plaintiff to
show that the defendant prosecuted maliciously and without
any probable cause, for both must concur to support this
action (o).
The grounds of the action for a malicious prosecution are
the malice of the defendant, either express or implied (),
want of probable cause (T), and an injury sustained by the
plaintiff, by reason of the malicious prosecution, either ia
his person by imprisonment, his reputation by the scandal, ot
in his property by the expence.
By analogy to the action for a malicious prosecution, th
law in modern times has permitted an action to be main-
tained for maliciously arresting or holding a party to bail,
either where there is not any debt due, or where the party is
held to bail for a larger sum than is really due ("//).
So an action will lie for falsely and maliciously suing out a
commission of bankruptcy against the plaintiff, which was
afterwards superseded (z).
Where a justice of the peace maliciously grants a warrant
against another, without any information, upon a supposed,
charge of felony, the remedy against the justice is by an action
of trespass vi et armis, and not by an action on the case (fl).
A captain in the navy, was accused by his commander hi
chief of neglect of duty, disobedience of orders, &c. and
having been tried by a court martial, was honourably acquitted ;
it was held that an action for a malicious prosecution would
not lie in such case (6).
An action on the case, in the nature of a conspiracy, also
lies where two or more combine for the purpose of preferring
indictments, charging crimes against any one without founda-
tion, or otherwise conspiring to prejudice a man wrongfully,
either in his person, in his fame, or in his property : out it
cannot be brought except against two, and theietoie the most
(r) i Salk. 14. (i) Cro. Jac. 133. (/) iStr. 691. (T) Bui.
N. P. 14. (t) 9 East's Rep. 161: (*) 4 Bur- 1974. (jr) t &u:n<i,
ai.- .Wil$.3os, () aWih. 145. (a) 2 T. R. aap (*} i '
Ibid. 493. , ' ' , .
usual
414 Of Awwlt &d Baltay.
usual way is, to bring tl* ; action for a inaliqious prosecu-
tion (< ).
The actiuu on the case fur a malicious prosecution varies
in its form ys the circumstance of each -particular grievance
may require.^ Whatever engines oi' the law malice may em-
ploy to comjM-s its ( vu ci. .iiist innocent and unoffend-
ing persons, \\hiilher in the shape of indictment or i
\\liich chaise a party with crimes injuri<us to his fume
aud reputation, and tend to deprive him oi his liberty; or
whether such malice is evidenced by malicious arrests, or bv
exhibiting grouudiesss accusations merely \vith a view to
/casion expenoe to the j>arty, who is under the necessity of
defending himsulf against them, this actiou on the cose afford*
on adequate remedy.
CHAP. IV.
Of Assault and ftnttery.
AN assault is an attempt, with force and , to do t
corporal injury to another, as by holding up one's fist at him
in a menacing nramu i .king: at another with a cane or
stick, though the party misses liis aim: preseming a aun af
a j'crson \\lio is within the disUni.-f thi unn will cany; draw-
inu: a sword or bayonet ; pur-i'-.n^ a pitchfork at a person who
is within the reach of it, t!u"\Miv^ a bottle or inht.vs \\iili
intent to wound or strike, ir by any other similar act
companied with such rimnnM lienote ;it the lime an
in*, ntion, coupled with a prevent ability, of usuing actual
. nee again.vt the person of artotlu'i ; and for which tfc
injured party may recover damages -commensurate to the
injniy siMaim-d.
A battery, \\hich Hrlndes an assualt, is the un-
lawful touching another in a rude or unsgry mannor, a>
striking, pnsl.: n, filliping \\\
'the nose, spitting in the face, pulling oil a button,
is a battery f/'-; ":' the loa>t touchina; of anothn's pti
wilfully, and in an angry and insulting manner is a battery, aud
(0 3 Bl. Pvn. 116. (</) i Hawk. P.C. c. 6. s. i. (0 6 Mod.
173. jRI.Abr. 145. I Sa' (f) Wood's luit 418. I Bac.
Abr. 154. LU. Raym. 62, 231.
fie
Of Assault ari'd Battery. 415
the law cannot draw the line 'between different degrees of
vjulence, and tln.rdore totally prohibits the first and lowest
stage of it: every man's person being sacred, and no other
having a right to meddle with it, even in the slightest man-
ner () But 1 battery "is in some cases justifiable and law-
ful; and there aie three sorts of defence to an action of
assault and battery : 1. By injiciation, or denying the fact, by
pleading the general issue " not guilty," and proving the
falsity of the charge; for matter of justification cannot be
g,\t>M in evidence on this issue, even in mitigation of da-
mages (A). C 2. By matter oftxcuse, which is a plea admitting
the fact, but showing that it was done accidentally, without any
default in the defendant; but this defence is seldom spe-
cial iy pleaded, because it may be given in evidence under the
general issue. 3. By justification, as that the plaintiff; or
the defendant, was a husband or servant, and did it iu
defence of his. wife or master; or that he was a parent or
master, and did it in giving moderate correction to his child,
Jus < scholar, or apprentice. So -also in defence of a man's
goods or possessions, he may justify laying hands upon ano-
ther, to prevent his taking away the one, or depriving him
of the other, bo also in the exercise of an office, as that
of churchwarden or beadle, a man .may lay hands upon ano-
ther, and plead what is called a man us mo litter vqpwuitf to
turn him out of the church, and prevent his disturbing the
congregation. On account therefore of these causes of justi-
fication, battery is defined to be the unlawful beating of
another; for which the remedy is, as for assault, by action of
trespass vi et arrnuj wherein the jury will give adequate
damages (/).
In order to maintain this action, it is immaterial, whether
the act of the defendant be wilful or not. Hence this action
lies against a soldier who hurts one of his comrades while
they are exercising, unless the defendant can show such cir-
cumstances as will make it appear to the court, that the
injury done to the plaintiff was inevitable, and that he was not
chargeable with any negligence (k).
This action not only lies against him who commits the
injury, but against him also at whose command it is
dune (/).
There is also one species of battery, more atrocious and
() 3 Bl. Com. no. (/.>) Bui. N. P. 17. (\) Finch, 303. 3 Bi,
'Com. in, (k] Hob, 134. (1} i Roi. Abr. 555,
4l6 Of raise Imprisonment.
penal than the rest, which is the beating of a clerk m orders
or clergyman. Accordingly, it is enacted by the statute called
mrliculi c/fri, Q EHta. 2. c. 3, that if any person lay violent
baiuU upon a clerk, the amends for the |>eace broken shall be
before the king; tlitrt is, by indictment in the king's courts;
and tlu assailant may also be sued before the bishop, that ex-
communication or b->dilv penaiu e niuy he imposed, which
it the offender mil redeem bv money, to Ije given to the
bishop or tin: |>:nt augi i< vt l, it may be sued for befoie the
bishop; whereas oilu r\\ i*e to sue in any spiritual court, for
civil damages for the battery, falls within the danger of a
premumie. So that upon th- whole it appear*, that a person
guilty of such biutal behaviour to a clergyman is subject to
three kinds .of prosecution, ail of which may b pursued for
one and the .same offence : an indictment, for the breach
of the king's peace by such assault and battery ; a civil action,
for the special damages .sustained by the party injured; and a
suit in the ecclesiastical court, first, pro correctioue et salute
aninuc, by enjoining penance, and then again for such sum of
nr-mry as shall be agreed on for taking off the penance en-
joined.
In actions for assault and battery. By the statutes 43 Eliz.
c. (). and iI2 and 23 Car. 2. c. 9, s. l.,t). when the jury gives
less than 4<K damages, the plain' iA ' shall have no more costs
rhan damages, unless- the judge certify that the freehold was
chiefly in question.- But bv 8 and <) IV. 3, c. 11. if the
judge certify that the trespass was wilful and malicious the
plaintiff shall have full costs, though the damages be under
40s. ; and also by 4 and A W. and M. c. 23. if the trespass
be committed in violation of the game la\v.
CHAP. V.
Of False Imprisonment.
FALSE imprisonment is an injury to personal liberty, for
which the law has not only decreed a punishment, as a hein-
ous public crime, but has also given a pii>au- u paratiou to
to the paity; as well by removing the actual confinement fr
the proent, as, after it is over, by subjecting the wiong doer to
an action of tre^as-s, on account of the damage .-mnained ly
the lout of time. It consists in the unlawful detutitiuu of
the
Of Netigence or Folly. 417
the person, without any legal authority. Every restraint of
a man's liberty, under the custody of another, either in goal,
house, stocks, or in the street, is in law an imprison-
ment (m).
To constitute the injury of false imprisonment there are
two points requisite: 1. The detention of the person: and
2. The unlawfulness of such detention. An illegal deten-
tion or arrest may be with reference to the person, as where a
\vrit is sued out against an executor or administrator, without
suggesting a devitstavit, for otherwise they are not liable to be
arrested (?/) ; or if any person be arrested by civil process on
a Sunday (<J9 Cat: 2. c. 7) : but it is not false imprisonment
to arrest a witness returning home from the courts, or a peer
of the realm> or a certificated bankrupt, or an insolvent
debtor (o) ; for in the first ease the privilege is not to the person
of the witness, but to the court (/?); and in the others, the
officer is justified by the writ : nor will this action lie against
& judge of a court of record, for any act done by him in the
execution of his office (</); but in general, unless a person
who arrests another be authorized by process from the courts
of justice, or by some warrant from a legal officer having
power to commit under his hand and seal, and expressing the
cause of such commitment; or for some other special cause
Avarrauted for the necessity of the thing, either by the common
law or by act of parliament; such as the arresting of a
felon by a private person without warrant, the impressing
of marines for the public service, or the like; this action
will lie (?) But the damages in which the injured party
may be recompensed by means of this action, would be a
very inadequate satisfaction, if the imprisonment also could
not be removed ; the law, therefore, has for this purpose pro-
vided the writ of habeas corpus, the "most celebrated writ in
the English law (s).
(CHAP. VI.
Of Negligence or Folly.
NEGLIGENCE or folly may also be productive of in-
juries, for which the party may bring an action on the case ;
for every man ought to take care that he does not injure his
() 2 Inst. 589. () 3 Wils. 368. (o) Doug. 646. (f) 6 Co. 52.
fy) Salk. 396. ( r) jo Mod. zig. Str. 691. a lust. 589, Foster, 154.
(i) 3 Bl. Com. 134.
E e neighbour;
4 1 8 Of Adultery.
iir; and, therefore, \vlu-i. \<T. a man receives any hurt,
eilhe.1 in his \n I'MHI or pmpeiiy, tluou^h the default of ano-
ther, \\hether \)y doing some act, or .by the neglect of any
fluty, tin U'_ih the MI UK- \\ere not wilful, set if it be QtfCftMMMfd
by negligence or lolly, tlic law gi\es him this action to it -
cavexjlaniiigta for tin- jnjury jo Buatrtiued; as where ihe de-
fendant, by uncocking his pun, accidentally wounded il c
plait tfiftj ^ho \\us .-landing by to >ee hint doit; or \\hm- a
man iclains an attormy to toiulnit a < ' !; by son e
omission IOM> it, and therrby injures his ciu nt ('); t>r \\hftc
a pcr&ou vho is bound to clraiifce a ditch, j-ntit-i.- :t to become
>< t';til that his neihboui'.i land is ovcrlltivcd ami injured (// ;
for it i* no IACUM: lor the defendant in llus action to say, that
the injury \\ as involuntary u his partu), or that by projur
attention the person \\\\i> reeeiM-d tiie injniy nni;ht ha\c
avoided it(//): but if the injury \vas occa.Monrd by the plain-
tiff's o\vu neglect or folly, the action \\ill not lie (:).
CHAP. VII.
IN rmticnt times adultery was inejuhable in tourn* and
l< ets (//), and punished by tine and imprisonment; but at the
p. -cut day this offence belongs to the cccl< -iastiral comts
and the temporal courts do not take any cogui/ance ot it as
a pnbli'- wron::. Se\eral attempt.", indeed, have been made
by the legislature, to hi ing thi.s offence within the pale ot
riminal jurisdiction, but the\ have, for the most pait, b- n
n holly ineffectual '(/') During the time of the common
wealth, in the year Hi"'", \\htri a< IMackMoue justly obsi i ves.
the ruling powers found it lor their interest to put on the
semblance of a %eiy exliaordinary strictue>- a:id puriiy <!
morals, adult, ry was made a capital dime. Uul at the
r -toration, when men. iVom an abhorrence of the h\p<><
of the late liim s, tell into a contrary tMi.iu.- o! lu--i.;i"Us-
IH->, il \\as not thought |roper to renew a law of .such un-
fashifinable rigour: adultery therefore at the pesmt day, at
as respects the temporal c.nirts, is considered nuicU as a ir.il
(i) Finch, 188. () Cro. Biz. 219. (*) i Lev- 17*- , (j)
Jj. 446. () a J.cv. 196. (*) 3 ln:U ic6. (*) 1 '- ir( -
5 j. p 88.
iiijury;
Of Adultery i
injury; and the only remedy which the law affords, is an ac-
tion, whereby the husband may recover, against the adulterer,
a compensation in datnages for the loss of the society,
comfort, and assistance of his wile, in consequence of the
adultery (c).
The datnages may be increased or diminished by the par-
ticular circumstances of the case : the rank mid quality of the
plaintiff, the condition of the defendant; his being a friend,
relation, or dependant of the plaintiff; or being a mart of sub-
stance; die seduction or otherwise of the wife, founded on her
previous behaviour and character ; and die husband's obligation
by settlement or otherwise to provide for the children of the
marriage, which he cannot but suspect to be spurious; are
all proper circumstances of aggravation (</).
To enable the husband to maintain this action, there must
be no imputation of his having courted his own dishonour,
or having been instrumental to his own disgrace; for it is
cow settled, that it the husband has consented, or provided
means for the adulterous intercourse of his wife with the de-
fendant, the defendant will be entitled to a verdict; for voienti
lion Jit wjitria (e). But if the husband's conduct does not
prove actual consent, but only that degree of negligence or
levity, which probably contributed to the seduction of his
wife, it will not deprive him of a verdict, however it may
lessen the damages (fj.
So if the wife be suffered to live as a prostitute, with the
privity of the husband, and the defendant has thereby been
drawn in to commit the act of which the husband complains,
the action cannot be maintained (g). But in such case, if the hus-
band is not privy, it goes only in mitigation of damages (//).
Evidence may be given in mitigation of damages that the
husband carried on a criminal correspondence with other
women, in an open, notorious and undisguised manner (z);
or that he was not accustomed to treat his wife with tender-
ness and affection, or that they did not live together upoti
terms of harmony or cordiality.
In the case of Wyndlmm v. Lord Wycomb, (), Lord
Kenyon held, that where a husband kept a mistress, he was
not entitled to maintain this action against another for
adultery with his wife, as recrimination is a bar to-
(c) Selw. N. P. ii. (d ) 3 Bl. Cum. 139. ( 4 T. R. jV
(f) Ibid. (g) Peake N. P. C. 39. (c) BuL N. P. 27. (?) 4
Esp. N.P. C. 237. (*) Ibid. 16.
E e 2 a divorc a
4 CO Of Crimes and Misdemeanours.
a- divorce in the spiritual courts. Hut from the above cited
d06 of Bromley i'..\\ allace(/ , it should .si tin, that unless the
jury should think that the husband lives so much \\ith other
\\omeu, as to amount to a total abandonment of hi* \vife, it is
only a circum-tam e which will aft'ect the damages, but \\hich
will not be a bar to tin- action.
If the husband live> separate from hi* wiie in consequence
of a mutual agreement, he caintot maintain this action ; for
the gist or foundation of the action i- held to consist in tin
husband's loss of the comfort and socictv of In* \\ ilc (///). But
in a subsequent ca-e, \\here the husband and \\ife had entered
into a deed of separation vith the approbation of tm-'
and in \\hi<:h (Iced it \\as provided, that the \\ife might liavr
the care of the younu'cr children of tin mania;;*', and visit the
others, more, especially \\hen they should be ill, so as to re-
quire the attention of the mother; and the vife, at the time
of the adulterous inteieoursr, was living separate from the
husband, not in pursuance of the terms of the deed, the court
of king's bench held, that the husband >\as barred of this ac-
tion ; for though the husband, by eiittrinir into a deed of Se-
paration with his wife thereby renounces his marital rights,
yet, unless he has " given up all claim to be d ri\ed from her
comfort, society, and assistance," he is not prevented from
maintaining an action for her .seduction (?<).
PART V.
Of Crimes and Al'utdemcanours, and I he JModcs of
Punahmenf.
AcRIMF. is a positive breach, or disregard of .-me exit-
ing public law, arid is generally taken to mean those ofienee*
vhich amount to felony. Crimes ca*i have no existence piio :
to the resolution to do some criminal act, and are punishable
only when that resolution is capable of proof (o).
(I) 4 r.< P . N. r.C. 237. (m) 5 T. P. 357. 00 Kail's Rep. 144*
() tacn' I'riiuipltidf Penal Law, p. 84. Bcccarii, p. 17. 4BLC%>m. 5.
Misfe.
.
Of dimes and MiJemeanours. 421
Misdemeanours arc also acts . committed or omitted in
violation of a public law, either forbidding or commanding
them : but they in general denote those offences that are under
the degree of felony (p).
Felony, in its general acceptation, comprises every species
of crime which occasioned at common law the forfeiture of
land or goods (q).
The guilt of offending against any law whatsoever necessarily
supposing a wilful disobedience, can never justly be imputed
to those \\ho are either incapable of understanding it, or of
cor.lbnning themselves to it; and therefore, neither infants
under the age of discretion, idiots, lunatics, nor madmen are,
pritnu -J'ticH't capable of guilt: but if it appear, that an infant,
above the age of seven years has a capacity to discern between
good and evil, he shall be capable of guilt according as his
discernment appears, for malitia supptct atatem ; but the
presumption shall be in favour of his innocence until he at*
tains the age of fourteen years, at which period he is, as to
the commission of crimes, supposed to have attained discre-
tion, and his actions shall be subject to the same modes of
construction as those of the rest of society ; but within the age
of seven years, an infant cannot be punished for any capital
offence, whatever circumstances of a mischievous disposition
may appear; for, ex presumptions juris, he cannot have dis-
cretion; and against this presumption no averment shall be
admitted (;) So also, if one who has committed a capital
offence, becomes non compos before conviction, he shall not
be arraigned; and if after conviction, he shall not be executed;
but he who is guilty of any crime through his voluntary
drunkenness, shall be punished for it as much as if he had
been sober ; and he who incites a madman to commit a crime
is a principal offender, and as much punishable as if he had
done it himself (s). A feme covert shall not suffer punishment
for committing a bare theft, or burglary, or robbery, in com-
pany with, or by coercion of her husband : but these ex-
ceptions do not extend to high treason, or to any criminal act
done by herself alone (t). Persons also committing crimes by
casualty or misfortune, by ignorance or mistake of fact, by
(/>) 4~Rl.Com. 5. (7) Ibid. 94. i Hawk. P. C. 99 . (r) 4B!.Com,
ax. Puff. bk. 8, c. 3. Dale. c. 147. 8 St. Tr. 322. i Hal. P. C. 24. Mirror,
0.4, s. 6. Plowd. 19. Foster, 70. 113. 349. (j) 3 Inst. 4. 6. 481.
Tr. 205. 8 Ibid. 285. 4 Bl. Com. 24. 388. Co. Lit. 247. (t) 4 Bl.
Com. 28. .1 Hale, P. C. 49. i Hawk. P. C. 4.
compulsion
Of Crimea and Misdemeanour*.
compulsion or necessity, are not punMmMe; Init all these cir-
cumstances <-f acrident. nccesMty, or inlirmicy, miM be satis-
factorily made out by the party \\lio relirs nj>..n them for bis
excuse, unless tljcy ari-e out of the evidence adduced ;i
him (v).
Persons ptiilty of ciimes may be guilty either as principals
in the first degree, ;.s principals in the secortcf degrtfe', a* ne-
cessaries before the f.ict. < r us :: ;?> T t!-e fart (?/).
A principal in the tiiM [ he that is the actor 01 .
lute perpetrator <f the crime (.r).
A principal in the 5tcond degree is he who is present, aid-
ing and abetting the fact to be done: which pre-encc
not always be an actual immediate standing by, within ci'Jit
or hearing of the fact (j/); for there may be also a construc-
tive presence, ns \vh re one commits a lobliery or murder, and
another k^eps \\atch or guard at some convenient detain
and, indeed, vherevtr a person contributes to a felony, and no
other person can be considered as a principal, he shall be t>u
considered, unless lit- be clearly only an accessary (a)!"
.An is he \\lio is not the chief actor in the ofVeiuv,
iior present at its performance, but is someway concerned
therein, either before or after the fact comtniti>-d (6).
An accessary before tTie fact is one \\ho, being absent at
the time of the crime committed, doth yet procure, eounsrl,
or command another to commit a < rime ; atul ali^im u, ab-
solutely i: .t>ary to make him an accessary ; for if such pro-
curer be present, he i* guilty of the crime as principal (c).
An accessary after the fact may be, where a person knowing
a felony to have been committed, receives, relieves, comforts,
or assists the felon. And, generally, any assistance whatever
given to a frlon, to hinder his being appirht-ndt d, tried, or
suffering piiiiishmei.t, makes the u-sisieV an accessary : as
furnishing him with a horse to make his escape ; 01 <v.mt\-
ing instruments to him to break gaol, or to bribe the gaoler to
kthim escape, makes a man an . to ihe felony. So
by the statutes t> Ann. c. 31, and 4 Gto. 1, c. 11, re
of stolen goorls are made accessam - (\\heie the principal tc-
'tiiiits of accessaries), anil ma) be tian-pi>M:d lor i^ur-
and in the case of nceiving imeu stolen Irom
(*) i Hawk. P. C. j. JnnolU (uj 4 F/. Corn. c. i. (JT) IS'J. p. 34.
(f) l IU>. P (. () Foster, 350. (a) 4 h!. Cora. 35-
(i) + l:iJ j. (e) a H^- V. C. < ,.
bleaching
Of Apostacy ami Heresy. 423
bleaching grounds, are by stat. 18 6'co. 2, c. %7> decl.i. ed fe-
lons without benefit of clergy* (r/).
Jn high treason there are no accessaries, but all are prin-
cipals; so also in jetty larceny, a id ;.ll other cri HO under
the degree of felony (<)
Having described the persons who may be punis' ed for
being guilty of crimes, and the degrees of guilt of which they
may be capable, we shall proceed to enumerate the several
crimes and misdemeanours known to the laws of England.
CHAP. I.
Of Offences against God and Religion.
1. OF Apostaey.
Apostacy is a total renunciation of Christianity, by embracing
either a falwe religion, or no religion at all. 15y the fj and 10
71 '''. 3, c. 32, if any person educated in, or having made pro-
fession of the Christian religion, sliali by writing, printing, teach-
ing, or advised speaking deny the Christian religion to he true, or
the holy scriptures to l>e of divine authority, he shall upon the
first offence be rendered incapable of holding any office or
place of trust ; and for the second, be rendered incapable of
bringing any action, being guardian, executor, legatee, or
(d] 4 RI. Com. 38. (e) z Ingt.
* As this word is often mentioned, and as little understood, it may not be
amiss to explain the rise and meaning of it. In old times, icvv persons were bred
tp learning, or could read, but those who were actually in orders, or educated
for that purpose: so that it such a person was arraigned before a temporal judge
for any crime (the punishment thereof was death), he might pray his clergy;
that was to have a Latin Bible in a black Gothic character delivered.to him j
and if he could read in a place where the judge appointed, which was generally
in the Psalms, the ordinary thereupon certified yuod legit, and the criminal was
saved, as being a man of learning, and might therefore be useful to the public j
otherwise he was sure to be hanged. This privilege was granted jn all offences
but high treason and sacrilege, till after the ytar 1530, and was so great, that if a
criminal was condemned at one assize, because he could not read; ai-u was re-
prieved to the subsequent assize, he might again demand this benefit, either
"then, or even under the gallows; and h he could then read, he was of course to
be pardoned; of which there is an instance in queen Elizabeth's time. It was
at first extended not only to the clergy, but to any other person, who could read ;
who must however declare, that he vowed, or was resolved to enter into orders :
but as learning increased, this benefit of the clergy was restrained by several arts
of parliament, and now is wholly taken away, the benefit bsing allowed in all
clerjyaljle felonies.
purchaser
42-% Of Heresy, Reviling the Church, $c.
purchaser of lands, and shall suffer three years imprison-
ment without hail, except he repent within four months after
his first coroietiptlj and renounce hi* error in open court.
( J. < >f 1 lei <sy.
A second offence is that of heresy, which counts not in
a total denial of Christianity, lui ^onn of its essential doc-
trine?, publicly and obstinauly avowed. This offeuci- was
formerly punishable In the writ, r/f luvnliio cambut$udoi but
this punishment In i-.iu abolished bv the ^tat. '.K) ('</;. '2, c. [),
it is enacted by the <) and 10 /I . ;, c. :>'2, that if any p< ;
educated in the Christian religion, or proft ssing the same, shall
by writing, printing, teaching, oradvi>td speaking, deny any
one of the persons of the holy Trinity to In ( iod, or maintain
that there are more Gods than one, he .-hall suffer the same
penalties and incapacities as above described in the case oi
apostacy.
3. Of reviling the Church.
It 18 provided In, the statutes 1 />/:;'. f>, c. 1, and 1 Eliz. 1,
c. 1, that whoever \\ \iles the >:K sninent of tiic 1 Lord's snpprr
shall be punished by fine and imprisonment. And by th<
cond section of the latter statute, if any miniver shall >
any thing in derogation of the book of Common Prayer, he
shall, if not bent Tired, be imprisoned one year for the firs I
offence, and for life for the second; and if he be beneticed, he
shall, for the first offence, be imprisoned six months, and for-
feit a year's value of his benefice; for the second offence, he
shall be deprived, and suffer OIK- %e:u's imprisonment; and for
the third, shall in like manner be deprived, and suffer impri-
sonment for life. And if any person whatsoever shall in plays,
songs, or other open words, speak any tiling in derogation, de-
praving, or despising of the said book, or shall forcibly pie-
vent the leadmir of it, or cause any other scivicr to In- u-< <1
in its stead, he shall forfeit for the first offi nee an hundred
marks; for tin sec-r,d four hundred ; and for the third, all
ilis goods ami ( hatuls, and suffer imprisonment for life.
4. Of Non-eontormilN.
Non-conformists are of two sorts: 1. Such as absent them-
M-lve> from divine worship in the cstabli-ht il chinch through
total irreiigioOj and attend the ser\ice <>[' no other pel suasion ;
ynd tin M- offenders shall forfeit one shilling to the poor \ry
Lord's day the\ so :ib>rnt tlr . anil twenty pounds to
the L:i<_; il liny toniinue Mich <li fault f-r a month together;
ami if they continue an\ inmate tliu- irreligious!) dispo^d m
ll.<;: bouseSj tlu\ .shall f^rii il t n pounds a month; 1 /
Of Non-conformity.
c. 2j 23 7'J/?:. c. 1 1 ; .3 Jac. 1, c. 4. The second species of
non-conformists are papists and protestant dissenters ; but the
penalties to which these offenders were once liable, are greatly
lessened by the toleration act (1 IV. and M. c. 18), with re-
spect to dissenters. By .that act, which is confirmed by the
slat. 10 Ann. c. 2, it is provided, that the penalties mentioned
in the statutes 1 Eliz. 23 Eliz. and 3 Jac. \, shall not extend
to any dissenters, provided, 1 . that they take the oath of alle-
giance and supremacy (or make a similar affirmation being
qtiakers), and subscribe the declaration against popery ;
2. that they repair to some congregation certified to and re-
gistered in the court of the bishop or archdeacon, or at the
county sessions ; 3. that the doors of such meeting house shall
be unlocked, unbarred, and unbolted ; in default of which
the persons meeting there are still liable to all the penalties of
the former acts. Dissenting teachers, in order to be ex-
emptedfrom the penalties of the acts 13 and 14 Car. 2, c. 4;
15 Car. V, c. 6; 17 Car. 2, c. 2; and 22 Car. 2, c. 1, are
also to subscribe the articles of religion mentioned in the sta-
tute 1 3 Eliz. c. 1 2 (\\ hich only concern the confession of the
true Christian faith, and the doctrine of the sacraments), \vith
an express exception of those relating to the government and
powers nf the church, and to infant baptism; or if they scruple
subscribing the same, shall make and subscribe the declaration
prescribed by the statute 19 Geo. 3, c. 44, professing them-
selves to be Christians and protestants, and that they believe
the scriptures to contain the revealed word of God, and to be
the rule of doctrine and practice. And if any person shall
wilfully, maliciously, or contemptuously disturb any congre-
gation, assembled in any church or permitted meeting-house,
or shall misuse any preacher or teacher there, he shall (by
virtue of the same statute 1 H ' . and M.) be bound over to the
sessions of the peace, and forfeit twenty pounds.
The severe and cruel restrictions and penalties imposed by
former statutes on papists, are also removed by the statutes
18 Geo. 3, c. 60, and 31 Geo. 3, c. 32.
In order the better to secure the established church against
the perils from non-conformists of all denominations, in-
fidels, turks, jews, heretics, papists, and sectaries, there are
however two bulwarks erected, called the corporation and
test acts: by the former of which (13 Car. 2, st. 2, c. 1.),
no person can be legally elected to any office relating to the go-
vernment of any city or corporation, unless within a twelver
mouth before he has received the sacrament of the Lord's
supper,
4-6 Of Xon-ccn fortuity.
nipper, according to the rites of the church of F.ngland;
and he is also enjoined to take tiie oaths of allegiance and . i-
prcmacy at the same time that he takes the oath of rfiiec; or
in default of either of lho.se requisites, such election shall be
void. The other, called the test act, 'J.i (.'///. <J, c. 'J, ex-
plained by 9 (jco. C, c. 2(), directs all officers, civil and mili-
tary, to take the oaths and make the declaration auuitist tian-
suhstantiation at any of the king's courts at \Vc-tm:n-ter, or
iit the quartei '.sessions, within six calendar month* alter their
admission; and also \vilhin the same time to nccive the .-a-
cnimiut of the Ix>rd's supper, according to the usage of tin-
church of England in some public church immediately alt' i
divine service and sermon, and to deliver into court a certi-
ficate thereof, signed by the minister and church-\\ iirden. and
al>o to prove the same by t\vo credible \vitnes>es ; upon for-
feiture oif 500/. and disability to hold the same. Hut it is
usual before the end of every session of parliament, for an act
to be passed to indemnify all persons who have mt com-
plied with the rcquisitiou of the corporation ami lot ai-.
provided they qualify themselves within a iim<- specified in
the act; and provided also, that judgment in any action or
prosecution has not been obtained against them foi then former
omis.-ion.
By the 5 Gco.-l, c. 6, s. 3, the election into a corporate
office shall not be void on account of the person ilected having
omitted to receive the sacrament within a year betoie ihe
election to any office relating to the government of any city
or corporation, unless he shall be removed within si\ months
afttr his election, or unless a prosecution be eomme!
within that time, and bv carried on without delay ; and dur-
ing that time the office is not void, but only voidable ;
the person elected, until a removal or prosecution vu'hin the
time liuiited, is entitled to alJ the incidental right.' of In-
fice in as full an extent as if he had actually rcccucd the
craiuent within a year previous to his election ( / ).
By the 4th section of the above-mentioned f;itute,no nun or
r,r principal magistrate must appear at auy di>-er-,tmc; mutiuu'
with the ensigns of his office, on pain of disability to hold
that or auy other office : the |egjflhiure jpjd . it a ;:.':. i .,}'
propriety that a mode of worship, set up m opposition t<i tlil-
national, \\hin allowed to be exercised in peace. *houM 1.,.
erticd also with decency, uratitule, and humil.t; -
(f) i I'.-r.
5. Of
Of Blasphemy and IVitclicraft. 427'
5. Of Blasphemy.
Blasphemy, which consists in denying the being or pro-
vidence of God, or by tittering contumelious reproaches of
our Saviour Christ, or by profane scoffing at the holy scrip-
tures, or exposing them to contempt and ridicule, is punish-
able by fine and imprisonment, or other corporal punish-
ment (g).
6. Of profane Cursing and Swearing.
By 19 Geo. 2, c. 21, every 4abourer, sailor, or soldier pro-
fanely cursing or swearing, shall forfeit one shilling; every
other person under the degree of a gentleman two shillings ;
and every gentleman or person of superior rank, five shillings
to the poor of the parish ; and, on the second conviction,
double ; and for every subsequent offence, treble the sum first
forfeited, with all charges of conviction : and in default of
payment shall be sent to the house of correction for ten days.
Any justice of the. peace may, within eight days from the of-
fence, convict upon his o\vn hearing, or the testimony of one
witness ; and any constable or peace-officer, upon his own
hearing, may secure any offender, and carry him before a jus-
tice, and there convict him. If the justice omits his duty,
he forfeits 5/. and the constable 40s. And the act is to be
read in all parish churches and public chapels the Sunday after
every quarter day, on pain of 5l. to be levied by warrant from
any justice. Besides this punishment for taking God's name
in vain in common discourse, it is enacted by statute 3
Jfi.c. 1, c. 21, that if in any stage-play, interlude, or show,
the name of the holy Trinity, or any of the persons therein,
be jestingly or profanely used, the offender shall forfeit 10/. one
moiety to the king, and the other to the informer.
7. Of Witchcraft, Sec.
By the statute 9 Geo. 2, c. 5, whoever shall pretend to
exercise the arts of witchcraft, sorcery, enchantment, or con-
juration, or shall undertake to tell fortunes, or pretend by
crafty science to discover stolen goods, shall be imprisoned for
a year, stand four times in the pillory, and find sureties as
the court shall direct. And by statute 17 Geo. 2, c. 5, all
jugglers, fortune-tellers, gypsies pretending to physiognomy,
palmistry j or the like crafty science, shall be deemed rogues
and vagabonds.
I Hawk. P. C. 7.
8. Of
4128 Of Simony, Impostors, and Sabbalh-Brcaking.
8 Of religious Impostors.
Religious impostors are such as falsely pretend to an e\ti.!-
ordinnry commission from heaven, or terrify and abuse people
with false denunciations of judgments ; and are punishable by
line, imprisonment, and inlaimuis corporal punishment (ft).
!. Of Simony.
Simony is the corrupt presentation of any one to an
siastkal benefice for gift or reward. By the statute !1 AV/r.
c. (i, if any patron, for money or other corrupt considera-
tion or promise, directly or indirectly iiiveii, .-hall present,
admit, institute, induct, install, or collate any pcrs'n to an
t >( li -iastu-al benefice or dignity, both t and Inker
shall forfeit two \ ear* value of (he bi ::ei:i e or dignit;. ; one
moiety to the king, and the other to any OIK* \\lio will M
ihc siinc. If persons also corruptly resign or \chaiiin- their
benefices, both tin- giver and the laker shall, in like manner,
lorfeit double the \imie of ihe monev or othrr corrupt con-i-
deration. And ho\\c\cr apparently lair the transaction may
be, any resignation or exchange for money is corrupt: as
whciv a father agreed to securf, by a boiuj, the payment of
an annuity exactly equal to the annual produce of a ben< ii<-e,
itt consideration of the incumbent's re.-igniiig in favour of his
*<>n ; the transaction being held to '< con apt auil simoniwal^
and the bond adjudged void iy). And per.s<-ns who shall cor-
ruptly ordain or licence any mini-It r, or procure him to be
ordained or licensed (which is tin- true idea of simony), shall
UK ur a forfeiture of forty pounds; and the minister himself of
10/ I" incapacity to hold any ecclesiastical piefernu nt
for sevt n years afterwards. Corrupt flections and resignations
in colleges, hospitals, anil other eleemosynary corporations, are
also punished by the same statute with forfeifne of the doublo
value, vacating the place or office, and a devolution of the
liuht of election for lhat tmn to ihe cro\\n.
10. Of Sabbath-breaking.
SabUalh-breaking, or piofaiialion of ihe I.oid'.-, day, is pu-
Ic by the municipal law of I'lnnland. By the statule -7
If en. <i, c. .'), no fair or market shall be held on the principal
festivals, (iood lYiday, or any Sunday ( except the loin Smi-
d.i\s in haivot!, on pain of forfeiting the goods expu-ed to
5al< . And by tin: statute 1 ('//;-. 1, c. 1, lime -hall U- no
assemblies, meetings, or conconi M "I people out ot tin
(*) i Hawk. P. C. 7. (i) 4 Dl. Com. 63.
ri.- 1
Of Sabbnth-Break'ing. 4-29
fishes, for any sport whatsoever on this clay ; nor shall they,
in their parishes, use any bull or bear baiting, interludes,
plays, or other imidwjul exercises or pastimes ; on pain that
every offender shall pay 3s. 4d. to the poor for every offence.
Mr. Justice Blackstone says, that this statute does not prohibit,
but rather impliedly allows, any innocent recreation or amuse-
ment, within their respective parishes, even on the Lord's
day after divine service is over. I3ut by the statute 29 Car. 2,
c. 7, no tradesman, labourer, or other person above the age, of
fourteen years, is allowed to work on the Lord's day, works of
charity and necessity only excepted, on pain of forfeiting five
shillings. Neither shall any person publicly cry or expose to
sale any wares, merchandizes, fruits, herbs, goods, or chat-
tels whatsoever on the Lord's day, on pain of forfeiting tin;
same to the poor. But bv the same statute, meat in public
houses, milk .before nine in the morning, and after four in the
afternoon, and, by 10 and 1 1 IV. 3, c. 24, mackarel, before and
after divine service, may be sold on a Sunday.
No drover, horsr courser, waggoner, or higler, or their
servants, shall travel or come* to his inn or lodging on that
day, under pain of twenty shillings (29 Car. 2, c. 7). Nei-
ther shall any person use, employ, or travel with any boat,
wherry, lighter, or barge, without permission from a justice,
under penalty of five shillings. But by 11 and 12 W. 3, c.
2J, forty watermen are permitted to ply on the Thames be-
tween Vanxhall and Limehouse on Sundays.
By the 3 Car. 1, c. 2, no pack-horse, waggon, cart, wain,
nor any drover with cattle, shall travel on the Lord's day, on
pain of twenty shillings ; nor shall any butcher kill or sell any
victuals upon that day, on pain of 6s. 8d. But by 2 Geo. 3.
c. 18, iisn-carriages are allowed to travel on Sunday, either
lading, or returning empty.
By stat. 29 Car. 2, c. 7> yo writ, process, warrant, &c.
(except in cases of treason, felony, or for breach of the
peace), shall be served on a Sunday, on pain that the same
shall be void; and the party serving the same shall be liable
in damages. But by the same act, the service of a citation on
a Sunday is good.
By 1 Jac. 1, c. 22, no shoe-maker shall expose to sale any
shoes, or other wares, on pain of forfeiting 3s. 4d. per pair.
By .the 34 Geo, 3, c. (Jl, every baker shall be subject to a pe-
nalty, of IQs. to the use of the poor, for exercising his busi-
\iess in any manner as a baker, except that he may sell bread
between nine o'clock in the morning and one in the afternoon;
aiui
8
4JO Of Dmnkenttess and
and may also within that time bake meat, puddings, and
pies for any person, who shall fairy or send the same to In:
baked. And by 13 Gco. 3, c. fcO.no person shall on a Sunday
or Christinas day, kill any game, or use any gun, dog, net,
or engine, for that purpose, on pain of forfeiting from ten to
twenty pounds for the first offence, and from twenty to thirty
for the Mrond offence.
By '21 (.ii'o, 3, c. 49, if a house, room, or place is opened
upon a Sunday tor any public entertainment, <>r for debating
upon any subject \\hate\cr, to which person* an; admitted by
money or tickets, the keeper of it shall forfeit OO/. to any
person who \\iil prosecute; the manager or president JOO/.
and the receiver of the money or tickets 50/. and c\vrv pu-
son advertising or printing an advertisement of such a meet-
ing, shall in like manner forfeit 50/. for every offem-t .
Persons exercising their calling on a Sunday are only sub-
ject to one penalty; $or the whole is but one offence, or one
act of exercising, though continued the whole day (/).
11. Of Druukem:
Drunkenness is punished by 4 Joe. 1, c. 5, \\ith the
forfeiture of live shillings, or sitting six hours in the stocks.
12. Of open and notorious L0wdM
Open or notorious lewdness is either by frequenting houses
of ill fame, which i> an indictable offtnc.e; or by some Qro-^ly
scandalous and public indecencs. as that of those peisons who
exposed themselves naktd to the people in a balcony in Co-
vent (Jard n, for which the punishment Ls line and impri-
sonment (IH).
Many oll'encrs of the incontinent kind fali properly under the
jurisdiction of the < c clesiasbeal court, and art: appropriated to
it. But excej)t ll:i >c appropriated cases, the court of king's
In nch i> the custos montm of the peopU:, and has the super-
intenduncy of offences centra boat* mnr?& (f). In that
court, an information h::- he<-n cranted against a number of
person* concerned in aligning a young gni to a gentleman
under pretence of learn-! . but for the. purposes of
prostitution (.) A\u\ in a ca-e where a husband had formally
assigned his \\ile over to : Hutlicrman, l.r]d Mansfield directed
a pio-ecution for that tiansuction, as being notoriously against
public decency and good nnnwr.s ( p).
By the statin 1, r. 4, if a bastard brcomrs charge-
able to the paiish, two ju.-ti. v > may commit the mother to
7.640. !'!. Com. 65. fJ jBur.MjS. (Jltoi.
(?) '
1 the
Of -Piracy. 431
the house of correction, there to be punished and set on work
for one year ; and in case of a second offence, till she tind
sureties never to offend again.
CHAP. ii.
Of Ojftjices against the Lazes of Nations.
} . OF the Violation of Safe-conductg.
Truce-breaking, or the violation of safe-conducts or pass-
ports expressly granted by the king or his ambassadors to the
subjects of a foreign power, in the time of mutual war, is a
breach of the public faith, and was by 2 Hen. .5, c. (v, de-
clined high treason: but by 29 Hen. 6, c. 2, and 31 Hen. 6,
c. 4, is punishable by restitution and forfeiture.
, 2. .Of violating the Rights of Ambassadors.
By 7 Ann, c. 12, all process whereby the person of any
ambssador, or of his domestic or domestic servant, may be ar-
rested, or his goods distrained or seized, shall be utterly null
and void; and ail persons prosecuting, soliciting, or executing
such process, shall be deemed violators of the laws of nations,
disturbers of the public repose, and shall suffer such penalties
and corporal punishment as the lord chancellor and the chief
justices, or any two of them, shall, on conviction, think fit.
il. Of Piracy.
This is a capital offence by the civil law, and therefore a
pardon of all felonies does not discharge it. Formerly it was
only cognizable in the admiralty courts; but by 28 Hen. 8,
c. 15, all felonies and robberies committed upon the sea, or
in any haven, creek, river, or place, where the admiral has, or
pretends to have, jurisdiction, shall be tried in such county,
within England, as shall be appointed by special commission :
and a new jurisdiction is established for this purpose, which
we shall make mention- of in the ensuing chapter. By the
statute 1 1 and 12 \V. 3, c. 7> if any natural-born subject
commits any act of hostility upon the high seas against others
of his majesty's subjects, under colour of a commission from
any foreign power ; this, though it would be only an act of
war in an alien, shall be construed piracy in a subject. And
farther, any commander, or other seafaring person, betraying
his trust, and running away with anv ship, boat, ordnance, am-
munition, or good s, or yielding them up voluntarily to a pirate:
er conspiring to do these acts; or any person assaulting the
tomnaander
Of High Treason.
commander of a vessel, to hinder him from lighting in defence
of his ship; or confining him, or making or endeavouring to
make a revolt on board, shall, for each of thi-.c . be*
adjudged a pirate, felon, and robber, and shall sutler death,
whether he be principal, or merely accessary by .setting forth
such pirates, or abetting then) befoie the l.ict, or iecei\ii:u; and
concealing them or their jjoods after it. And the statute 4 (ieo.
1, c. 11, expressly excludes the principals from tin- benefit of
clergy. By the statute 8 dco. 1, C. 'J4, tin- trading with
knovui pirate*, or furnishing them \\;th store* <>r ammunition,
or tilting out any \es.-cl f i that ptn post , or in anywise consult-
ing, combining, Confederating, or ccrres|>onding with them;
or the forcibly boarding any merchant vessel, though without
ing or earning her ofi', and on throwini: any of the -nod*
i board, shall be deemed piracy; and Mich accessaries to
pirac\ as are described by the statute of King \\ Ulinnt are de-
clared to be principal phatis: and all pirates convicted by
virtue of this act are made tVlons \\ithout bt-m lit of cl-,
Bv the same statuies also (to encourage the defence of mer-
chant vessels against pirates) the commanders or seamen
wounded, and the. widows of such seamen as are slain, in any
piratical engagement, are entitled to a bounty, to be divided
among them, not exceeding one fiftieth part of the value of the
_<> onboard: ami such wounded seamen shall be < ntitlcd
to the ptnsiu'.i of Greenwich Hospital, which uo other stamen
are, except only such as have served in a frhip of war. And
if the commander shall behave cowardly, in not defending the,
ship, it she carries guns or arms, or shall discharge the ma-
riners from lighting, so that the ship fall into the hands of
pirate*, such commander .shall forfeit all his wages, and sutler
six months imprisonment.
CHAP. ID.
Of Oj/cnccs against the utt/irc/in' Exec at. ' IT, or (he
King and hit Gi>itrnment.
1. OF HiJ.
As the ii.ipmcal duties of allegiance and protection form
the foundation and .-npport of political union (</>, high ti.
>\hu:b in tvtjy m-taiice strikes at the well-being '' l g"l}>
$f) Edcb'i Principles of Final Law, 1 1$.
19
Of High Treason. 435
is the foulest crime that can be committed,, and ought therefor*
to be the most precisely ascertained. At the common law the
nature of this offence was vague and undefined 5 but the statute
of the 25 Edw. 3, c. 2, describes what offences only, for the
future, shall be held to be treason (r).
1 . " When a man doth compass or imagine the death of our
lord the king, of our lady his queen, or of their eldest son
and heir, and thereof be provably attainted of open deed by
people of his condition, it ought to be high treason." 25
Edw. 3, c. 2.
The king here intended i* the king in possession, without
any respect to his title ; for it is held, that a king de facto^
and not de jure, or, in other words, an usurper, who has got
possession of the throne, is a king within the meaning of the
statute. The queen regnant, as were Mary and Elizabeth, is
a king within this act, but the husband of such a queen is not.
The son of a king admitted by act of parliament in consortium
imperil, as was done by Hen. II., whereby there was rex pater
fy MX Jilius, is also a king within this statute. But a queen
dowager, or a princess dowager, or a queen divorced a vinculo
matrimoniiy the wife of the king's second son, the king's eldest
daughter, or any collateral heir apparent, are not within the
statute (s).
Let us next see what is a compassing or imagining the death
of the king, &c. These are .synonymous terms, signifying the
purpose or design of the mind or will ; and therefore being an
internal act, must be demonstrated by some open deed, or, as
it is usually called, overt act (/) Thus, to provide weapons,
or ammunition, or poison, or to send letters for the execution
thereof, for the purpose of killing the king, is held to be a
palpable overt act of treason, in imagining his death (a). So
also if men conspire to imprison the king by force until he has
yielded to certain demands, to and for that purpose to gatluer
company, and write letters, it is an overt act to prove the com-
passing the king's death (//). It has been held, that words
vrttten are an overt act of treason, but that words spoken can-
not be construed into such an overt act ; for it now seems
clear, that words spoken, unless in prosecution of a ti ailerons
purpose, amount only to a high misdenwanour, and no trea-
son (x). If the words be set down in writing, it argues more
deliberate intention ; and it has been held, that writing is an
(r) 4 Bl. Com. 75. (i) Ibid. 77. i Hale, P. C. 101. i Hawk. P. ;j
(r) 4Bi.Com. 7$. (or) i Hale, P. C. 109. (a) 3 Jnst. i.
(*) Cro. Car, 125.
f f ovart
434 Of Hi-h Treason.
overt act of treason ; for scribrre tst n::crc (//). A mere erm
-.Inient of a traitci cy will not amount to trt-a-
8on ; fovitbete niuat be ulli
of the intention, sonir p< lion in t! MIH-
consultation, persuasion, or means of iuci : but the
llli . ' V\C-
cuted, \\ill make tho adviser guilty of this >. And
in . thi:i', witfn'lv .i\:d ('i . _iK'il and at-
plfd to Lc done, \\1; life of iin;-My nia\ be en-
danger* d, is an act of rninpassir.j: liis drath ; but the e;uih
COiniU' :
.
t (joud sj" n is, " if a man do violate
ibe king's companion, or ti dattgbl r, uutuai;
or the Jwifeiof the kin \ and hi; roi
provably altainti-r condition, it ought to bo
adjudiivd tie:.
1>\ iht king's conipauiou is meant 1: ; . tl l>y violation
is uiidrrvi'od carnal kiiowlediie, as \\ell without force as with
it; am! this is lii^h treason in both pan
queen or princess dowager is any way within llie pur\i-\v of
this act. Under the words " - ; and heir," the MMI of
a queen regnant is included, and al.-.o tlie second v>n, alter the.
:h of the first, and perliaps ai^o ;t collateral heir appa-
JCllt (f).
;. The l! if a man do levy war
a-.;aiiHt om lord the king in his realm, and i
ably attainted by people of his condition, it ouyht to be ad-
d treason." it
Under this description a m.
directly against //* ktn^, is r.oj. IKUMMI: but jr.
for tr be actually K\n of
j>iialors, they are all i i as prnu'ipa! tia;
TJ a militai
or arnifd instirrfttion, ir ' j>ri\..U: .j
iiials. in>t 111 laim, or in :
; <f a particular n-dr->i, lint HK - !I a
juili
of l ll iiiin ; or '
lo v/ii'; ; or to with-
ui.
\l) IbiJ. i Hawk. t'. C. 51. 48!. Cm. 81.
Of High jfyeasdfa 435
hold castles and fortresses by weapons offensive and invasive s
or a wilful uncompellcd joining with open rebels; or, in short*
every effort of positive rebellion (d}.
And it has been held, that a rising with intention to kill one
of the privy council; a tumultuary combination to compel the
king to put away his ministers; an armed force wiih a general
purpose to destroy enclosure*, to deliver prisons, or to destroy
bawdy-houses, or to pull down meeting houses of dissenters,
in which cases the universality of the design is construed into
rebellion; and lastly, insurrections to effect redress or innova-
tion, though the insurgents have no special interest, or forcibly
to render ineffectual any act of parliament or law of the realm,
are all severally adjudged to be a levying of war within the
statute (c).
4. " If a man be adherent to the king's enemies in his
realm, giving to them aid or comfort in the realm or elsewhere,
and thereof be proveably attainted of open deed by people bf
his own condition, it ought to be adjudged treason." 25 Edw. 3,
c. '2.
This must likewise be proved by overt act, as by furnishing
money, arms, ammunition, and provisions, or sending intelli-
gence to the king's enemies, are acts of adherence, even though
they should be intercepted in their passage ; for the treason,
though ineffective, is complete on the part of the traitor. A
subject of the enemy country continuing under the protec-
tion of England, and practising while in England to the aid
and assistance of that enemy country, comes under the words
of the statute: but mere residence in a hostile kingdom is not
in itself an adherence, though a refusal to return to the mother
country upon proclamation may be evidence thereof. Other
acts of adherence are, actual war against the king's allies ; the
treacherous surrendering, in collusion with the enemy, of a
place of defence ; a voluntary oath of fealty to the enemy-
king, or cruising under his commission, thougk without any
absolute hostility (f).
5. " If a man counterfeit the king's great or privy seal, it
ought to be adjudged high treason." <25 />;. 3, c. '2. These
words extend to the aiders and consenteis to such counterfeit-
ing, as well as the actors ; but not to the taking wax bearing
(d} Eden's Principles of Penal Law, 130. 4 Bl. Com. 30, 80. z Hale,
P. C. 131. Footer, 195, zi6. i Hawk. P. C. 54. (f) Foster, 213.
(f) i H.'.le, P. C. 108, 159. 3 Inst, 12. Foster, 197, zzo. 4 Bi. Com. 8.
i Hawk. P. C. 55.
F f 2 the
436 Of High Treason.
the imjttPMMon of the groat .seal oft' from one pytont and fixing
it to another (or).
6. 'J he Mxth species of treason under the statute '.!."> /.Wrr 3
is, " if a man counterfeit the kin's monev, or brin-j faUe
money into the realm, counterfeit to tin- money of England,
knowing llit' money to be lalse, it is hisih treason."
As to the lust branch, counterfeiting the kin;:'- money, this
is trea.>f'iu \\heilur the fals money be utteied in payment or
not. .Abo if the kind's own minters alter the standard or
alloy established bylaw, it i.- treason. But gold and silver
money only arc held t, be within the statute, \\illi regard
likewise to the second blanch, importing foreign tounteifeit
money, iu order to nttu it here, it is held, that uttering it.
without importing it, i. not within tlie statute (A).
7- The last sp< eie.s of lieason a.-eeitaim d by the same <t:itiite
j>, ' if a man slay the chancellor, treasmt i , or the kind's jus-
tices of the one bench or the oilier, justice^ in e\re. \>r justice*
of Ji>>i/e, and all other justiets assigned to hear and determine,
btiiii: in their plaee.s, doinii their ofiice*;, it is hi<j,h trea-
oii." 'J his statute extends only to the aetnul killing, nf)t to
a bare att( nipt to kill, nor to actual \\oiu:dinp:, nnl< ss drath
nMie. It also extends only to the ollicirs thei:n s; < citied ;
therefore the barons of the excrufjucr, a< sneii, arc not
within the piotection of this act; but the lord Lcjnr <.r eoin-
.| the Mnat x al now seem to be within it, by \ntue
of the >taii.;< - . /./;... I-. and 1 //.and M.c. V\ (i).
I i,' - (.'let'til was ihe h-jiislatiiie, Sii \\ illiam Hlackstoix:
obsei^e-. In sjiecilv and reduce to a certainly the \amie notions
i*f tiea^on thai had fonr.eily )ic\ailcd in our i ourts. But the
act do s not stop heie, but j^oes on, " lu < an-e other hk-
i treawjii may happen in time to come, which cannot be
thought of or declared at present, it is aect.rdid, that it any
.iii'- .-nppo.sid to be tieason, \\hicli is not bo\e sp,--
ilitd, dolh happ< n bel'or any jnd^e, the jnde shall tairy
without "oiiii; to jiul^nn ut of lli- treason, till the can-. In
shown and decland before the king and his pailiammt, whe'.lu i
it ( n-!i! to l) adji.d-. d in a son or other felony. .And in < on-
stcmi"r 'it the l-ad -f eMra\at:ant lr'as ( .ns introduced in the
time of Richard the S.nd, in she lirst year of his -i
' i ' leiiiu, an act was p;j^ed. ie<'itinir, " that in no tune to
le) 4 *\.orn. t;. (*) i Hunk. 1. C. 4:. 4 PL Com.
i. L. 61. iM,I, l'.U.2 3 i. 48!. Cwn. 84.
come
Of High Treason. 437
come any treason be adjudged otherwise than was ordained by
the statute of King Edward the Third." But aftcruards, be-
tween the reign of Henry the Fourth and Queen Mary, and
particularly in the bloody reign of Henry the Eighth, the spirit
of inventing new and strange treasons being revived, by the
statute 1 Mfiti/, 1. c. 1, all treasons were once more reduced
to the standard of the .statute <J5 7/V/a". 3. Since which linn*,
though the legislature has been more cautious in creating new
offences of this kind,, yet the number is very considerably in-
creased (&).
These new treasons created since the statute 1 M<n-:/, c. 1,
and not comprehended under the description of statute 1 25
fiths. 3, may be comprised under three heads : 1 . Such as
relate to papists. C. Such as relate to falsifying the coin or
other royal signatures. 3. Such as are created for the security
of the protestant succession in the house of llanovr.
1. I5y the statute 5 KHz. to defend the pope's jurisdiction
hi this realm, for the first time incurs the penalties of a pnc-
jniti/ire; and if the offence be repeated, it is high treason.
To put in use any bull or instrument of absolution, ?Cc. within
this kingdom, amounts by the statute J3 FAiz. c. <2, to the
same crime. .Also by the statute 27 Kli~'. c. '2, if any popish
priest, born in the dominions of the crown of England, shall
come over hither from beyond the seas, unless driven by stress
of weather (/), and not departing in a reasonable time (in), of
shall tarry here three days without conforming to the church, and
taking the oaths, he is guilty of high treason. .And bv statute
3 Jfic. I, c. 4, it any-natural born subject be withdrawn from
his allegiance, and reconciled to the pope or see of Home, or
any other prince or state, both he and all such as procure such
reconciliation shall incur the guilt of high treason.
. With regard to treasons relative to the coin or other royal
signatures, as the statute Go Eflic. 3 extended only to the actual
counterfeiting of the gold and silver coin of this kingdom; and
secondly, to the importing of such counterfeit money with 'intent
to utter it, knowing it to be false, being found insutVrcient to
restrain the evil practices of coiners, it was, by 1 Man/, c. I,
enacted, 1. That if any pel-son falsely forge or counterfeit any
such coin of gold or silver as is riot the proper coin of this
realm, but shall bfc current within this realm by consent of itu-
crown; or, 2. shall falsely forge or counterfeit the. sign manual,
(.*) 46!. Com 85, 87. (7) SirTho, Rsym. 3-7. (m) Lsf.h, j..
1 privy
438 Of High Treason.
privy signet, or privy seal, -m h ofiences shall be dwmed high
tiv:i<i.n. And by st; tu e I and 1 J Ph and A/, c. i 1 , i 1
persons do bring into this realm such iiiUr or coiinlt i ; it
money, being current hi-iv, known. g tin- \ith
:.t to litter th; saint in p:nintnt, they .shall he deemid of-
fenders in nigh treason. And l>\ sunm*- .if
ti shall coin or counterfeit any kind o i or
silver coin, though not current \\ithni this reahn, li .-hah in*
guilty of felony, and may be transported lor >even \eni-; and
if any person shall knowingly and fraudulently bi . -m h
counterfeit coin into this kingdom, he shall U- >i.l>j ct i<> ihe
same punishment. And it any p< r>on knowingly utter, 01 LI
dcr in payment, or pay any such foreign counterfeit coin, lor
the first offence he shall be imprisoned .six months, and find
sureties for his pood behaviour for six more; for the s< loud
offence he slml! be imprisoned two \e-ars; and tor the third he
shall be guilty of a capital felony And if any person, \\ith-
out lawlnl excuse, shall have more than five such counterfeit
pieces in his custody, he may be convicted before a justice,
and fork-it from forty shillings to five pound* li-r each p;ect ;
and for failure of pa)ment may be imprisoned three months.
Clipping, ^ya^hlng, rounding, or tiling, for wicked
fake, any of the money of this realm, or other money sui'u-ied
to be current here, shall be adjudged hijih treason, ."> Lliz.
! 1, s. 2 ; and by statute 16 Liiz. c. 1, the >ame >pt-cies of
offence is described in other more general \\ords, viz. impair-
ing, dimifiishkig, falsifying, scaling, and lightening, aie u:.id;
liable to the same penalties. By the statute 8 and ;) /'
c. f 2G f made perpetual, by 7 Ann, c. "25, whoever, without
pioper auihonty, shall knowingly make or mend, or a
m so doing, or shall, buy, sell, conceal, hide, or knowingly
have in his possession, any impleuu at> i.f coinage >p il'i d in
the act, or other tools or instrument! pi opt r onl\ for th-
coin-iiie ot monty; or shall convey the same out of the k.
11. nit ; he, toLilht r with l.i> counsel l<n>, pn nui - . i.d
::l)fttois, shall I.. b trt:t>ou. Tlie statute
fnitl.n, and i,:t< -. that to u ark an\ i.oin on i!
h HI i-, 01 <<iln iwbe, in imitaiion ot tl: e i td in the r
or to colon i . Lilc. .v, i any coin re> nibhng the current
- ii to round bhui. 1 ' be < 011-
struul i 15ut all prose* ntions on ihi- act a.
be < d v ill, in time months ut'ttT thr couiniihMon of
tin lor making or amending any ronnni;
tu<_ -intnt^ or for making round the edges; \\
dirt
Of High Treason. 43S
directed to be commenced within six months after the offence
committed. 7 Ami, c. 25. Ami lastly, by statute 15 and 16
Geo. 2, c. C8, if any person colours or alters any shilling. or
sixpence, either lawful or counterfeit, to make them resembl*
a guinea or half-guinea, or any halfpenny or farthing to make
them respectively resemble a shilling or sixpence, this is also
high treason; but the offender shall be pardoned, in. case (be-
ing out of prison) he discovers and convicts two other offenders
of the same kind.
3. The other species of high treason is such as .is created
for the security of the protestant succession, over and above
such treasons against the king and government as were com-
prized under the statute C 25 E(hc. 5. For this purpose, after the
act of settlement was made, for transferring the crown to the
illustrious house of Hanover, it was enacted by the statute 13
and 14 IV. 3, c. 3, that the pretended prince of Wales, who
was then thirteen years of age, and whp had assumed the title
of King James the Third, should be attainted of high treason;
and it was made high treason for any of the king's subjects,
by letters, messages, or otherwise to hold correspondence with
him, or any person employed by him, or to remit any money
for his use, knowing the same to be for his service. .And by
statute 17 Geo. 2, c. 39, it is enacted, that if any of the sons
of the pretender landed or attempted to land in this kingdom,
or were found in Great Britain, or Ireland, or any of the do-
minions belonging to the same, he should be attainted of high
treason, and suffer the pains thereof. And to have corres-
pondence with them, or to remit money for their use, was
made high treason, in the same manner as it was to have cor-
responded with the fathe/. By the statute 1 Ann, st. 2, c. 17,
if any person shall endeavour to deprive or hinder any person,
being the uext in succession to the crown according to the
limitations of the act of settlement, from succeeding to the
crown, and shall maliciously and directly attempt the same by
-any overt act, such offence shall -be high treason. And by
stat. 6 JJnn, c. 7, if any person shall maliciously, advisedly,
and directly, by. writing or printing, maintain and affirm, that
any other person has any right or title to the crown of this
realm, otherwise than according to the act of settlement, or
that the kings of this realm, with the authority of parliament,
-are not able to make laws and statutes, to bind the crown
and the descent thereof, such person shall be guilty of high
treason.
B.siiles
440 Of High Treason.
Besides these statutory punishments of the offence of high
treason, there \\eie two acts of parliament passed m die :.}<iih
year of .his present majesty'* reign; one entitled " An Act for
the Safety and Preservation of his MajrM\\ Person and (Go-
vernment against treasonable and seditions Practices and At-
tempts ;" and the other, ' An Act for the more effectually
preventing seditions Meeting! and Assemblies."
By the first it was enarte-d, that if any person shall com-
pass, imagine, or intend death, destruction, or bodily harm to
the person of the king, or to depose him, or to levy war in
order by force to compel him to change his measures ui . -im-
pels, or to overawe either house of parliament, or to en :iie an
invasion of any of his majesty's dominions, and shall express
or declare such intentions by printing, writing, or any overt
act, he shall suffer Heath as a traitor, c. 7-
And if any one, by writing, printing, |n aching, or other
speaking, shall use any words or sentences to excite tin- people
to hatred and contempt of the king, or of the government and
constitution of this realm, he shall incm the punishment of a high
misdemeanour; that is, fine, imprisonment, and pillory : and
for a second, he i> subject to a similar punishment, >i tian>por-
tation for j.e'ven years, at the discretion of the. court, c. 7-
But a prosecution for a misdemeanour under this a, t, must
be brought within six months; and the statute is to continue in
force only until the end of the next session of parliament after
the demise of the crown, c. 7-
Tlit other statute for the suppie-si'-n of seditious meetings,
l>eing only a temporary statute*, was supposed to expire at the
conclusion of the last peace with France.
The punishment in high treuson is in n, r,i! v<t\ >olemn
and terrible That in high treason not relat.ni; to the com i-,
" that i. be dutuu tw the plate o! execution, and
be there hanged In ihe neck, ami cut down alive 1 ; that his en-
trails b taken <-ut and burned before his fa<re ; that his head
L: rut oft; that hi* body be cut into four quarters; and that
his head and quarters be at the king's disposal."
The king may, and often does, discharge all the pmmU-
ment except hi heading, especially \\here any of noble blood
are attuii
Judgment in hijih trc;H<m relating' to the coin, or fc>:
tl:at il,,- oil/ndi i ilia'.l in- .ii:isu\ to the place uj
rxecutu-Uj am! there hanged by the no k til! !: l>< dud."
in] 4 Bl. Com. ai.
% f
Before
Of High Treason. 441
Refore tlie statute of 30 Geo. 3, c. 48, from the remotest
times,, women for every species of treason were sentenced to
be burned alive; but by that humane act they are now in all
cases to be drawn to the place of execution, and there to be
hanged by the neck till dead.
The consequences of this judgment are attainder, for-
feiture, and corruption of blood.
When sentence of death is pronounced, the immediate, in-
separable consequence of the common law is attainder, by
which the offender is entirely put out of the protection of the
law. He is no longer of any credit or reputation; he cannot
be a witness in any court ; neither is he capable of performing
the functions of another man; for by an anticipation of his
punishment he is already dead in law. This is after judgment;
for there is a great difference between a man convicted and
attainted. After conviction only, a man is liable to none of
these disabilities; for there is stiH in contemplation of law a
possibility of his innocence. Something may be offered in
arrest of judgment; the indictment may be erroneous; he may
obtain a pardon, or be allowed benefit of clergy. But when
judgment is once pronounced, both law and fact conspire to
prove him completely guilty. Upon judgment therefore of
death, and not before, the attainder of a criminal commences;
or upon such circumstances as are equivalent to judgment of
death; as judgment of outlawry on a capital crime, pro-
nounced for absconding or fleeing from justice, which tacitly
confesses the guilt. And therefore, either upon judgment of
outlawry, or of death, for treason or felony, a man shall be
said to be attainted (o).
The consequences of attainder are forfeiture and corruption
bf blood.
Forfeiture is two-fold ; of real and personal estate. First,
a* to real rstiites : by attainder in high treason the offender
forfeits all liis lands and tenements of inheritance, whether
fee-simple or fee-tail, and all his rights of entry on lands and
tenements which he had at the time of the offence committed,
or at any time afterwards, to the crown for ever; and also thi
profits of all lands and tenements vyhich he had in his own
right for life or years, so long as such interest shall subsist: but
a wife's jointure is not forfeited, although her dower is. This
forfeiture relates back to the time of the offence committed.
In petit treason and felony, the offender forfeits all his chattel
(P) 4 &. Cdm, 380.
interests
Of High Treason.
interests absolutely, and the profits of all estates of freehold
.11.; hff, aiiU alter his death all his lands and tim-un uts in
-iinyle, but not ihose in fee-tail, to the crown i
and a uav ; and the king may commit t!u roiu \vliat waste he
ple;*M . These forfeitures also relate back to the time of the
inmitted (/>).
The forfeiture, of goods and chattel? on conviction
>t luuh- treason, or misprision ot of puit ueuson;
of felony in ii,eneral, and particularly of inanslan^hu r ; uj
\iction of t:\cu.-able homicide (</); but outlawry
lor treason or felony, even though the party be acquitted of
tin- i"..ct; by landing mute, when arraigned of k-ionv ; !>y
drawing a weapon upon a jud;e, or striking any OIK ID the
kind's courts; by pr(cnmnirc.\ hy pr l -nded proplu -cu-s, upon
. ( Mid conviction ; by outlawry; by n^idiujr abroad oi ar-
tificiT.s ; ar.d by challenges to tiht on account of in
at ^ainii!^ (/). And this forfeiture accrues upon ivic-
ti'in oi tbe offender, or if the jury iiml that the offender tUd,
.111,4 of sucn 'hght by the jury (.-;; or ii;
: uvry for 1 1 (..!> 'U or tVlonv, upon the olVrndcr la-inu .
put in ti ,i, \\ithout staying till he his quhtLo eiactus, or
iy outlawul; for the secreting himself so lonij from
justice, is coiutaud a tliulu in law (1). lint .1-^ ti .iur
noantinor K'latic)ii, as in tin- ca-e of foifeiture
of lands, a traitor, felon, or oilier olu-nder, may sell 1.
. t any time before such foiieitmv actually
to the crown, by I he conviction, JXc. (v); Uiou,
that if f; i.rbe killed in iKinji from, or thp
officers ot justice, the forfeiture shall relate to the tin:
the oiience committed (ti): i Llaic, (and
\\liich seems to be tlie better opinion) to the linn
flight (.1). But uotwilhstauduig an otluulu ii:a_. M !i
goods Lonn fide, before conviction, \< . \ t it ii
Mich iiuods by a colourable .sale, for the nurpo-
riiiht >i the crown, sr void both by common law
and the statute 1.) l-'./iz. c. :;. ; and Mich colii'-
1K> properly lo the vendee, and the offeiidu
ac(juittcd, may recover back his goods (:) *.
(/) 4 Bl. Com. 370, 374. (y) 3 Inst. 310. (') a Bl. '
{) J ' l -3 l - I' 1 ^'*- (*) i Hawk. 454. (u) llnd.
361. (>) i HaL 455. (*) Sk.n: 357.
* We have enumerated here all the offences which induce a forfeiture of goods,
U aroid rrpeiiuons in other divisioos ol our iuhiect.
2 Corr.ip i
Of Offences against the Coin.
Corruption of blood is another unavoidable consequence of
attainder, both upwards and downwards ; so that an attainted
j>t-rson can neither inherit lauds nor hereditaments from his
ancestor, nor retain those he has already in possession, nor
transmit them by descent to any heir; but the same shall escheat
to the lord of the fee, subject to the king's superior right of
forfeiture; and the person attainted shall obstruct ail desi ei.ts
to his posterity, wherever they are obliged to derive a tule
through him to a remote ancestor (a).
1 2. Of Felonies injurious to the King's Prerogative.
Felony in the general 'acceptation of our English law, com-
prises every species of crime, which occasioned at common
law the forfeiture of lands and goods. Treason list If, savs Sir
lidward Coke (i), was anciently comprised under the nama
of felony.
The felonies more immediately injurious, to the king's pre-
rogative are, 1. Offences relating to the coin, not amounting
to treason. 2. Offences against the king's council. 3. The
offence of serving a foreign, prince., 4. The offence of embez-
ling or destroying the king's 'armour or stores of war: to
winch may be added a fifth, 5. Desertion from the king's
armies in time of war.
I. Offences relating to the Coin.
And first by statute 27 Edw. 1.. c.. .3. None shall bring
pollards or crockards, which were foreign com of base
Uictal, into the realm oil pain of forfeiture of life ant! goods,
}>y statute [) liidio. 3, st. '2, no stealing money shail be
melted down; upon pain of forfeiture thereof. By stat. !4
IZliz. c. 3, to forge any coin, although it be not made cur-
rent here by proclamation, is misprision of treason. I>y
statute 13 and 14 Car. 2, c. 31, the offence of melting dowi\
auy current silver money shall be punished with forfeiture of
the same, and also double the value ; and the offender, if a free-
man of any town, shall be disfranchised; if not, he shall suffer
six months imprisonment. l>y statute () aud 7 H' 3, c. 17-
if any person buys or sells, or knowingly has in his custody,
any clippings or tilings of the coin, he shall forfeit the same,
and 600/. one rnoiety to the king, and tbe other to the infor-
mer, and be branded in the cheek with the letter R. By
statute 8 and { 9 W. 3, c. 2(), if any person shall blanch or
whiten copper for sale, (which makes it resemble silver ;) or
buy or sell or oiler to sale any malleable composition, which
(d) 4BI, Com. 3^8. (' } 3 Intt. 15.
Of OffeiKts against the O//;i.
shall be heavier than silver, and look, touch, ami wear like
gold, but be beneath the standard; or if any pi rson 'lull re-
ceivo or pay at a less rate, than it imports to be (\vhieh de-
monstrates a consciousness of basenes and a fraudulent de-
sign) any counterfeit or diminished milled money of this l: ; n^-
dom, not being cut in pieces; (an operation which is e\pre--lv
directed to be performed when any such monev .shall be pro-
duced in evidence, and which any person, to \\lmm anv gold
or silver money is tendered, is enno\\end by statutes ?) and
10 W. 3, c. '21. H Ceo. 3, c. 71- and 14 C/Yo. ;!, r. ;>, to
perform at his own hazard, and the officers of the exchequer
and the receivers general of the tuxes arc particnhn !\ re-
quired to prform;) all such persons shall be guilty >f fel'iny,
and may be prosecuted for the same any time within thne
months after the offence committed. 13ut these prcweCtitioftri
not being found sufficient to prevent the uttering of false or
diminished money, which was only a misdeimanor nt common
law. it is enacted by statute 15 and If) 6ro. c. 'JS, that if ;.uy
piT.-on shall utter or tender in payment any counterfeit coin,
knowing it so to be. he shall for the first offence be imprisoned
six months, and find sureties for his pood behaviour six months
more; for the second offence, shall be imprisoned two vears,
and find sureties for two years lonier; and tor the third
offence, shall be unilty of felony \vithout benefit of ch
jM-o if a pei son knoninuly tend* rs in payment any counter-
feit money, and at the same time has more in his eiisro.U ;
or shall, within ten days after, knowingly tender other fal^e
money; he shall be deemed a common utteier of f;ils t; mone\ t
and shall for the iirst offence be imprisoned one y<-;ir, ami
iind sureties for his irood behaviour for t\\o \< am longer: and
for the second, be guilty of lelt.ny \\ithout benclil of c 1
IU the sam*' statute it is also enactrd, that if ...'> j.. .
cotinteifeit the copper coin, he shall suffer two year- nnj n>< M-
nient, and Iind sureties for t\\o var.s more. Hy statute II
G co. 3, c. 40, persons counterfeiting!; copper haltpeuee or
farthings, with their abettors; or buving, sellintr, reei ivin<r, or
flitting otF any counterf-it cop|x r money (not being Cut in
pit ces or melted down) at a less value than it import- t
of; shall be puilty of felony, lint the statutes ! j and Hi
'.', and the 1 1 f/ro. D, sprcitVing only halfp-iKi* a^l<l
farthings, and other pieces of copper monev having b.
iieti. the provioions of those statutes ::re bv the
Geo. 3, C. 12f,i. *-.xteitdnl to all oilier p:- "pper ni"iit v
vthicli Jiic oiilei%;d to Ixi current bv the king's proclamation.
And
Of destroying the King's Armour, eye.
And by the 14 Q^o. 3, c. 42, revived and made perpetual by
the i.9 Gco. 3, c. 74, it" any quantity of money, exceeding the
sum of five pounds, being or purporting to be the silver coin
of this realm, but below the standard of the mint in weight
or fineness, shall be imported into Great Britain or Ireland,
the same shall be forfeited in equal moieties to the crown and
prosecutor.
For the statutes relating to the Bank Tokens, and the sale
of the go/J coin of the realm, see Appendix.
y. Of Offences against the King's Council.
They are, 1st. if any sworn servant of the king's house*
hold conspires or confederates to kill any lord of this realm,
or other person sworn of the king's council, he shall be guilty
of felony. 2dly. By statute 9 -dun. c. 16, to assault, strike,
wound, or attempt to kill, any privy counsellor in the execution
of his office is made felony without benefit of clergy.
3. Of Offences in serving Foreign States.
By the statute 3 Jac. 1, c. 4, if any person goes out of the
the realm, to serve any foreign prince, without having first
taken the oaths of allegiance before his departure, it is felony.
.And it is felony also for any gentleman, or person of higher de-
gree, or \\lio has borne any office in the army, lo go out of the
realm to serve such foreign prince or state, without previously
entering into a bond with two sureties, not to be reconciled
to the see of Rome, or enter into any conspiracy against his
natural sovereign. And farther by 9 Gco. 2, c. 30, enforced
by 29 (jto. 2. c. 17, if any subject of Great Britain shall
enlist himself, or if any person shall procure him to be
enlisted in any foreign service, or detain or embark him for
that purpose, without licence under the king's sign manual,
he shall be guilty of felony without benefit of clergy; but jf
the person so enlisted or enticed, shall discover his seducer
\vithin fifteen days, so as he may be apprehended and con-
victed of the same, he shall be indemnified.
4. Of ;he Offence of destroying the King's Armour or war-
like Stoies.
By the statute .31 FAlz. c. 4, it is enacted, that if any poi-
son having the charge or custody of the king's stoics, em-
bezzle the same to the value of twenty shillings, it is felony;
and by '22 L'ar. 2, c. 5, felony without benefit of clergy ;
with a power for the judge, after .sentence, to tiansport
the offender for seven years. And by the statute 12 G$o.
3, c. 24, to set on fire, burn, or destroy any of his majesty'.--,
ships of war, w heiher built, building, or repairing ; or auy^of
446 Of Desertion.
the I 'iti;;*.* arsenals, magazines, dock-yard jrds, or vic-
tualling ofHces, of materials thereunto belonging; <>r military
naval, or v.cluiilling itores, or ammunition, or cai
procuring, uUttir.;;, or assisting in, such offence, shall U-
felony withon;
.5. "Or the Offence of D&'eVtiotf.
.Desertion from the Mug's armies in time of war, v.lu thrr
by tea Or land, in England or in parts' beyond the seas, H I\
the standing laws of the land, (exclusive ot' the annual
of parliaments to punish mutiny and desertion), 'and particu-
larly by statutes IS //;//. (i, c. !>., and 5 E/iz. c. 5, made,
felony, but not \vithoir benefit ofclergv. But by iL-
2 and :] /'/:.-. G, c. '2, c!>-:L r v is taken away from su'.'h de-
?t-rtTs, and the otVt-nce ii made tiiahle by the justice of t vi ry
shire. By statute .'37 (^o. 3, c. 10, if an, ut-rson A\:\\\ nia-
liciously and advisedly endeavour to seduce, any j,. .ing
in his majesty's service by sea cr ^and from his dutv ami a!!-
unce; or to incite any JHTM.H to commit ;mv act of mutiny
or mutinous pructicr, lie shall be uilty of felony, and shall
suft'er death without bent fit of cleriry. And by the ICDd.
chapter of the same statute, it i.s enacted, that whoever shall
administer, or cause to be administered, or shall be prex ut
at and consenting to the administering of, or shall take any
oath or < ut intended to bind any person in any mu-
tiuou- 01 seditions purpo.-e, or to belong to any seditious
BOCRty in i 'ii!' ! to obey any committee, or any
pe^on not h ti autliority for that purpose, or not to
give evidence a^am<t any confederate <r other person, ii
to dinner any nnluwlid combination, or any ille--:':
any illegal >ath or en'.'aireinent, shall be giulfy of ftlnv, and
may bi- lian^nni' -. Compulsion shall :
noevcu.se, milt-s.s t|, ( . ptirty \vithiu four days -after he h;L^ an
opportunity di.M-lnse tin \\hoK: of tl. the
, <-r il a M-.imau or soldier, to hi-.j commanding oil:
6. Of Pr.fMniihf
Pi.i-munire uas an offence whereby the papal author!?;,
enconra-ed and pr.'in->ti:d in dimmntion to the authority of tht
t forewarn," in thu
viit In \\liah the punishiii- ni v. a-> .i.lli out
of i |>n>lr< ti"ii. (I' ; :in i -_'>'i(l> :'or!ri;.
nd ilitii b 'dies aitaclul l<> answer the
mcil (c).
(c) 4 UI. Con. c. S.
The
Of PrcKmunire. 447
The offences that incur ii Pracmunire are, 1. By statute/
24 Jlen. 8. c. 12, and C 2J) Han. 8, c. 19, 21, to appeal to
Home iVoiu any of the king's courts ; to sue to Rome for any
licence of dispensation ; or to obey any process from' thence ;
are made liable to the pains of a pnemunire. By statute
'25 lien. 8. c. 20, if the dean and chapter refuse to elect the
person named by the king to a vacant bishopric, or any arch-
bishop or bishop to confirm and consecrate him, they shall
fail within the penalties of the statutes of praemunire. Also
by statute 5 Ellz. c. ]j to refuse to take the oath of supre-
macy will incur the pains of a praanuinire ; and to defend the
}M>pe's jurisdiction in this realm, is a pnenumire lor the first
oiitvncr, and high treason for the second. So too by statute
]3'l:li'i~. c. 'J, to import any agirus Dei, crosses, beads, or
other superstitious things pretended to be hallowed by the
bishop of Rome, and tender the same to be used ; or to receive
the same with such intent, and not discover the offender; or if
a justice of the peace, knowiifg thereof, shall jiot within four-
teen days declare it to a privy counsellor, they all incur a
praemuune. But importing or selling mass books, or other
popish books, is by statute 3 Jac. 1. c. 5, s. 25, only liable to
a penalty of forty shillings. Lastly, To contribute to the main-
tenance of a Jesuit's college, or any popish seminary whatever,
beyond sea ; or any person in the same ; or to contribute to
the maintenance of any Jesuit or popish priest in England,
is by statute. 27 Ellz. c. 2j made liable to the penalties of a
praemunire.
But by subsequeut statutes the penalties of a prjsmunire
have been extended to offences which have very little relation
to that from whence the name is derived.
Thus, 1. By the statute 1 and 2 Ph. and M. c. 8, to
molest possessors of abbey lands granted by parliament to
Henry the eighth, and .Edward the sixth, is a prajinunire.
2. So likewise is the offence of acting as a broker or agent,
in any usurious contract, when above ten per cent, interest is
taken, by statute 13 E/iz. c. K). 3. To obtain any stay of
proceedings, other than by arrest of judgment or writ of en >r,
in any suit for a monopoly, is likewise a prasmunire by' statute
21 Jac. 1, c. 3. 4. To obtain an exclusive patent for t6e so e
making or importation of gunpowder or arms, or to hinder'
others from importing them, is also a preniunire, by statuies 16
Car. 1. c. 21, and 1 Jac. 2, c. 8. 5. On the abolition, by
statute 12 Car. 2, c. 24, of purveyance, and the prerogarive*
of pre-emption, or taking any victual, btasts, or goods jtoi th
44S Of Prsmumre.
ling's use, at a stated price, without consent of the proprie-
tor, the exertion of any such power, for the future was de-
clared to imur the penalties of praemunire. 6. To assert,
maliciously and advisedly, by speaking or writing, that both
or cither hou.se of parliament have a legislative authority
without the king, is declared a prjemunire by statute 13 Cur.
2. c. 1. 7. By the habeas corpus act, and also by the 31
Car. 2. c. 2, it is a piaeinuniie, and incapable of the king's
pardon, besides other heavy penalties, to send any subject
of this realm a prisoner into parts beyond the sea*. S. i'.v
the statute 1 //'. and M. st. 1. c. 8, refusing to take the
oaths of allegiance and supremacy incurred a pnemnnire ; but
by the 31 Gco.3, c. 32, it is enacted, that no person shall
be summoned to take the oath of supremacy, or make the
declaration against transubstantiation, or be prosecuted for not
obeying a summons for that purpose. By statute 7 and 8
IV. 3, e. '2 L, scrjeants, counsellors, prodtors, attorneys, and
all officers of courts, practising without having taken the
oaths of allegiance and supremacy, and subscribed the de-
claration against popery, are guilty of a praemunire, wheih'T
the oaths be tendered or not. 9- By statute ri Ann, c. 7, to
assert maliciously and directly, by preaching, teaching, or
ndvi>ed speaking, that the then pretended prince of \Yalcs or
any other person than according to the acts of settlement and
union, has any right to the throne of these kingdoms; or
that the king and parliament cannot make lu\\s to limit the
descent of the crown; such pi caching, teaching, or advised
speaking is a prannunire : as \\riting, printing, or publishing,
the same doctrines amounted, we may remember, to high
treason. 10. By statute (j Ann. c. C:>, if the, assembly of
peers of Scotland, convened to elect their sixteen representa-
tives in the British parliament, shall preMime to neat of any
other mailer, save only the election, tlie\ incm the penalties
of a przemnnire. II. The statute (\ (ico. I, c. IS. make all
unwarrantable undertakings by unlawful Milxciipti.'iis, suhji ct
lo the penalties of a pne:nnnhe. 1'2. The statute I'J (ico. 3.
c. 1 1, subjects to the penalties of the statute of pru IIIUUIK
such as knowingly and \\ilftill\ Mlcmni/c. :is>i-t, u ;i:<- present
at, any forbidden man ".: "i such of the descendants of tin
body of Kn . ml. a^ are by that act prohibited
to contract marnaue without the consent of the CIO\MI.
The punishment for pra-munire, is, that the tVeiu!ur shall
he put out of the kin Mon, and that hi* lands, t>
jj)i nts, goods and chattel- .-hall be forfeited to the king, and
that
Of ImbezZling or vacating Records. 449
that- his body shall remain in prison at the king's plea-
sure.
4. Of Misprisions and Contempts, affecting the King and
his Government.
'Misprisions, from mespris, neglect or contempt, are gene-
rally understood to be all such high offences as are under the
degree of capital treason, but nearly bordering thereon. A
niisprision is contained in every treason and felony; and the
king may proceed against the offender for the misprision only.
Misprisions may be either by omission or commission. JJy
omission, where a person knows that another has committed
treason or felony of any kind, and does not reveal it : by com-
mission, as in contempts and high misdemeanours ; as by the
mal-administration of such officers as are in public trust and
employment; neglecting to join the posse comiiatus when re-
quired by the sheriffs and justice, according to 2 Hen. 5, c. 8 ;
speaking or writing againsi the king or his government ; denying,
by heedless discourse, his riglit to the crown; striking in the
king's palaces or courts of justice ; rescuing a prisoner from
any court ; dissuading a witness from giving his evidence, and
the like (d).
CHAP. IV.
Of Offences against public Justice.
1. OF imbezzling or vacating Records.
Imbezzlmg or vacating records, or falsifying certain
other proceedings in a court of judicature, is a felonious
offence aguinst public justice. It is enacted by the statute
8 Hen. d, c. 1%, that if any clerk, or other person, shall wil-
fully take away, withdraw, or avoid any record or process in
the courts of justice in Westminster hall, by reason whereof the
judgment shall be reversed or not take effect ; it shall be fe-
lony not only in the principal actors, but also in their pro-
curers and abettors. Likewise by statute '21 Jac. I, c. 26, to
acknowledge any fine, recovery, deed enrolled, statute, recog-
nizance, bail, or judgment, in the name of another person not
pnvy to the same, is felony without benefit of clergy. Which
la\v, extending only to proceedings in the courts themselves, it
(d) 4 Bl. Com. c. 9.
G g wag
4JO Of Rescue.
\\:is uinrted by the 4 W. and M. r. 4, that to personate any
other person (as biiil) beiore any judge of assi/.e, or other com-
missioner authorised to take hail in the country, is al-o felony.
-. Of Duress of Imprisonment.
To prevent abuses- h\ the extensive power \\hich the law is
obliged t > repose in gaolers, it is enacted by statute \4 I.
3, c. 10, that if any gaoler, b\ I duress of imprison-
inent, ni;.kes un\ premier that lie has in ward become an ap-
prover or an appellor against liis will, that is to accuse ami
turn evidence against some other person, it is felony.
3. Of Obstructing Proe<
To obstrtirt nn arrest upon a criminal process makes the
offender a particC]>s criwhiis ; and by 8 and 9 IV. .S, c.
\] Cicfi. I, c, C8 ; ;ind 1 I Gro. 1, c. d'2, to oppose the exe-
cution of any process, in any pretended privileged place \\ithin
the bills of mortality, i felony.
4. Of Escape.
Officers \vho, after arrrt, neiili^mtly permit a felon to
rscape, are punishable by line (r); but if the oflicer volunta-
rily sifters u felon to t-scapr, he becomes jiuilty of the same
crime for which the felon was in custody (f).
5. Ot breaking Pri.sc^u.
To break |)iison \\hen la\\ fully committed for any tn
or felony, is felony; and when confuted on any inferior charge,
if a m'lM'f mranour (,;'')
^'. < >l IWiic.
Ton sent 1 a person apprehended for felony, is felony; for
treason, treason ; and for a misdemeanour, a nii.*denu -anour.
Hv .stat. ]G (.ico. 2, e. .')!, to convey to any prisoner in eu^-
toily for treason or felony, any arms, instruments of r^-ape,
er disguise, without the knowledgeof th- gaoler, thoim!,
ipe be a!ti uip;ed, or any \\ay to ;!^i-l MK li prisojiei t->
a'.tempt an >:-:!pe, thoii-h no e-'rape lie ai'tnally maile, is
telony, and the olVi nder to transportation I
. M- if the piisMiier be in eustmly i"i p'tit l-ir'i.
other inleriftr otVeiiee, or charged with a debt of 1OO/. it in
then a misdemeanour, punishable with fine and impi:
:lt.
IK- the : scne,
an\ j.ei-MMi committed for murder, or for trauspoit:iti...n I'i
Geu. J, c. '2.'. , <>r '. turnpike
r for any of-
C. 6x>. (/> 4 B' C.in. 119. () ^ Hawk. P. C. ia.
1 fence;*
Of Receiving Stolen Goods; 45 i
fences against the Black Act, (P Gco. 1, c. 22) it is felony
without benefit of clergy. Anxt to rescue, or attempt to
rescue the body of a 'felon committed for murder, subjects to
transportation for seven years. Nay, even if any person be
charged with any offences against the Black Act, (J Geo. 1,
c. 2 C 2, and being required by order of the privy council to
surrender himself, neglects so to do for forty days, both he
and all that knowingly conceal, aid, abet, or succour kirny are
felons without benefit of clergy.
7. Of Returning from Transportation.
By 4 Geo. 1, c. 11; 1(5 Geo. 2, c. 15; 8 Geo. S, c. 15, if
any offender ordered to be transported to Ajmerica ; or by
19 Geo. 3, to any part beyond the seas, shall return into'
any part of Great Britain or Ireland, without some lawful cause
(() Geo. 1 , c. 23), before the end of the term for which he'
was transported, it is felony without benefit of the clergy;
as is also the assisting him to escape from such as are con-
veying him to the port of transportation. And by the 24
Geo. 3, c. 56, if any offender shall be ordered by the court
to be transposed, or shall agree to transport himself on cer-
tain conditions, either for lite or any number of years, and 7
shall be afterwards at large before the expiration of the term,-
without lawful cause, in any part of Great Britain or Ireland, he
shall, being lawfully convicted thereof, suffer death without
benefit of clergy.
8. Of Receiving stolen Goods.
This offence is only a misdemeanour at Common la\v. But
by the statutes 3 and 4 f'V. and M. c. 9, and 5 Ann. c. 3/
to buy or receive any goods or chattels that shall be felo-
niously taken or stolen, knowing the same to have been stolen,
makes the offender accessory to the theft and felony com-
mitted, for which, by 4 Geo I , c. 11, he shall be transported;
for fourteen years. And because the accessory cannot in ge-
neral be tried, unless with the principal, or after the princi-
pal is convicted, it is enacted by the statutes J Ann, c 9, ?nd;
o Ann, c. 31, that such receivers may be prosecuted for af
misdemeanour, and punished by fine and imprisonment, though
the principal felon be not before taken so as to be prosecuted
and convicted. And, in case of receiving stolen lead, iron,
and .certain other metals, such offence is by statute 29 Geo. 2,
c. 30, punishable by transportation for fo-jrteen years. So
that now the prosecutor has two methods in his choice : either
to punish the receivers for the misdemeanour immediately, be-
fore the thief is taken: or to wait till the felon is convicted,
o g S aucl
Of TJuftbute find barratry.
and then punish lii:n ;-> an acce.--r.ry to the iVh \iy. But it is
yiMMtird b} llio same . t!-;:t lie shall only make use of
oiu, ai.a not boih < I ;l ;>e imtl.o<.U of ,,uni>lni:<.ut. In- the
:'il. iron,
nnd <t 11 iiittals in their and nut i\h :;tc-
:i. t < Vint ho\\ they ;vi>eby ilr - ivofa'tim-
Ueimanour, an 1 pmn>! -aUe by liri neat, --Viui
1 -taluic Id (;t :',. <.-.-', all km-un r(C'ti\fis ot stoli n
jCVt.U, lakin ly ic-i It iy en il;r liiili \\;iy, or \\lirn a
buililaiy arc;
as L. - :iit jnincipa!, ami \\h<'tb-r he hi- in
or out i . all be a(/juilgeil guilty
..
."By iht- itaUite 2 . : r r--
ctivc a!i} j.uil ol'thu car^D of any >l.ip or \>s ( -l in ihr liver
r riia;i!t>. knouingthe . ;nuv in- triii
fore theptii!' <.i.s
of au\ i ti T in any sli.ipr,
ina\ lit- irinl btforc tl I, and transportt d
forscvn t to hard labour for tin . And by
the 2'2 f .n all t-acs uhalvooMr, \\iifif any ;j,ood>
. i ciiaitiis (c-xcfpt lead, iron, and
sol ..tolni, t: r may be puni>hcd f<-r iluMnis-
ilf)t;ei:nour, whether the principal be amenaUe to justice or
not, except the principal lias been n>n\ietcd of grand Ian
or sonu . .u nee, in stealing the same.
As to the ofteuce of taking a reward, under pretence of
helping the n\\ner to hia stoU ;. it is provided by the
statute 4 G.c. 1, <-. 11, that whoever shall take a
under the pielence of 1 ; any one to ^
sufii r as the feJoil who Stole tin in: unl< .1 h prin-
cipal felon to be apprehended, mid brought to triid, and
against them.
0. OfTheftbote,
Th( ftlote, \\hi(.!i p.bbed not nly k
..poll
. nt m it t,> pr - . l.i\v
with line and imprisonment, liy .statute '2J (.jco. .
even to advertise a rewnd tor the return of stolen goods, with
n<> > the
1 ,,ter lo a loiiciture oi JO/, taeh.
10. Of .
..slice ot ; and
:,p suits and |uancls between .
Of Maintenance and Champerty.
either at law or' otherwise ; - the punishment of which in a
common person, is by fine and imprisonment, and surety for
good behaviour; but,' if the offender belongs to the profession
of the law 8 , it is enacted by statute 12 Gco. 1, c.29, that he shall
be transported for seven years. Hereunt6 also may be referred
another offence, of equal malignity and audaciousness ; that
of suing another in the name of a fictitious plaintiff; either
one not in being at all, or one who is ignorant of the suit.
This offence, if committed ,ih any of the king's superior cou
is left, as a high contempt, to be punished at their discretion.
But in courts of a lower degree, where the crime, is equally
pernicious, but the authority of the judges not equally extensive,
it is directed by the statute 8 Eliz. c. 2, to be punished by
six months imprisonment, and treble damages to the party
injured.
J 1 . Of Maintenance.
Maintenance is an officious intermeddling in a quarrel or
suit, to the disturbance or hindrance of common right. It is,
iirst, ruralis, or in the country ; as where one assists another
in his pretensions to certain lands, by taking or holding the
possession of them from him by force or subtlety ; or where
one stirs up quarrels and suits in the country, in relation to
matters wherein he is no ways concerned; and this kind of
maintenance is punishable by fine and imprisonment. Se-
condly, cnrialis, or in a court of justice, where one officiously
intermeddles in a suit depending in any such couri,whichno way
belongs to him, by assisting either party with money or other-
wise in the prosecution or defence of any such suit ; and this
is also punishable by the common law by fine and imprison-
ment ; to which the statute 3'2 Hen. S, c- Q, has added a for-
forfeiture often pounds (A). A man may, houever, maintain
the suit of his near kinsman,- servant, or poor neighbour, out
of charity or compassion, with impunity (t).
ie. Of Champerty.
Champerty is a species of maintenance, and punished in
the same manner, being a bargain with a plaintiff or defend-
ant, campum partite, to divide the land, or other m-itter
sued for between them, if they prevail at law; whereupon
the champertor is to carry on the party's suit at his own ex-
pence (k).
(b) i Hawk. P. C- .535- Co. Lit. 368. 2 Inst. 208. ((') Noy's Max.
c. j, s. 18. {k) 4 Bi. Com. 135.
13. Of
4-54 Of Compounding Informations, 8$c.
J3. Of Compounding Informations.
By the statute 18 Efiz. c. o, it is enacted, that if any per-
son informing under ptetence of any penal law, even where
the wliole penalty is given to the prosecutor, makes any com-
position without leave of the court, or lakes any money or
promise from the defendant to <-xui>r liini (\\hich demon-
strates his intent in commencing the prosecution to be merel\ to
serve his own tuds, and not for the public good), he shall for-
feit 10/. shall stand two hours on tin: pillory, and shall
be for ever disabled to sue on any popular or penal Mu-
tate.
But it is no offence to compound a misdemeanour, for in
case of a misdemeanour, the person injured may maintain an
action to recover a compensation in daniuges (/).
14. Of Conspiracies,
Conspiracy, strictly taken, is an agreement between two
or more to appeal or indict an innocent man of felony, i
and maliciously, without any probable cause ; who is accord-
m_lv appealed or ird-cred, and afki wauls lawfully acquitted.
In this i ;;;, ; ,".ents, for there must be two at K-a-t
to form a conspiracy, are punished by imprisonment, fine, and
pillory.
Every conspiracy to injure individuals, or to do acts which
are unlawful or prejudicial to the community, is a conspiracy.
Journeymen, who refuse to work, in consequence of a com-
bination, till their wages are raised, may be indicted for a
conspiracy (///). But by the 40 Gco. 3, c. JOC, any two jus-
tices of the peace have cognizance of offences of this kind, and
may, upon conviction, punish the offenders by imprisonment
in the county gaol for three month?, or by imprisonment and
hard labour in the house of correction for two months.
Though it is legal for one journeyman or Mtivaut to n
to work, unless he is paid tin- wa^es he demand.-, yet a com-
bination of two or more to raise their \\;.:es becomes criminal.
So a combination of two or more ma-teis io lower the
of their servants would be equally criminal.
i.o. Of J'i-ij
Perjury . crime committed by wilful
swearing in IttJ judicial proceeding, in a matter material to
the isMie or point in question, on a lawful oath admin
by some person of competent authority. Subornat:
(/) 4 B!. Cum. 136. n. (V I?wk. P. C. 54*
Of Bribery. 455
jury is the offence of procuring another to take such false oath
as constitutes perjury in the principal. The punishment for
these offences is line and imprisonment, and never more to be
capable of bearing testimony. By 5 Eliz. c. Q> whoever
shall procure another to commit wilful and corrupt perjury
shall forfeit forty pounds, or suffer one year's imprisonment,
and stand on the pillory, and never from thenceforth be re-
ceived as a witness in any court of record. And by 2 Gco. 2,
c. 25, besides the punishment already to be inflicted for so
great crimes, the offender may be sent to the house of correction,
or transported for seven years. .To constitute perjury, the
falsehood of the oath must be wilful, from a j>erverse mind
and deliberate intention; and not happening through unavoid-
able haste, inadvertency, or weakness. The import of the
oath may be true, and yet the swearing may be false ; for if a
person swears to a truth, yet if he c<uild not possibly know
the fact, he is as much perjured as if it had been false. The
oath must be administered by some person having competent
authority for that purpose ; for all extrajudicial oaths are il-
legal; and although a person may be forsworn, he cannot be
perjured; ?nd therefore it must also be in some judicial pro-
ceeding. It need not, however, be absolute ; for a man may
be perjured in swearing that he thinks or bc/ieves a fact to
be true which he must know to be false ; but the fact must
be in some degree material, or no injury is done ; and if it be
material, it is of no consequence whether it be believed or
not (//).
16. Of Bribery.
Bribery is where a judge or other person concerned in
the administration of justice takes any undue reward to in-
fluence his behaviour in his office. In inferior officers, this of-
fence of taking bribes, is punished with fine and imprisonment ;
and in those who offer a bribe, though not taken, the same(o).
But in judges, especially the superior ones, it has always
been loeked upon to heinous an offence, that the chief justice
Thorpe was hanged for it in the reign of Edward 3. J3y the
statute 1 1 Hen. 4, all judges and officers of the king, convicted
of bribery, shall forfeit treble the bribe, be punished at the
king's will, and be discharged from the king's service for
ever (p],
() i Hawk. P. C. 318. 4 Bl. Com. 136. Leach's Cr. Law, 470.
(f) 3 Inst. 147, (p) 4 lil. Com, 139.
456 Of Bribery.
It was held to be a misdemeanour to offer a sum of money
to the first lord of llie tr< a^ury, tor the |) 'ipo.se of obtaining
an appointment under government by his interest and i
mendation (^).
Uuder thw head, the taking or giving of a bribe for <
of a public nature, and which is said to be br:i ; m.s ro-
ferrible.
By stat. 5 and 6 Edw. 6. c. 16, it is enacted, " that if -.my
prison bargain or sell any office, or deputation >'
or any pait of any of them, or receive any n.
directly or indirect!?, or take any promise, &c. to receive any
jnonty, &c. directly or indirectly, for any office, or for tlie de-
putation of any office, < ' of any of them ; or to the
intent that any person should have, exercise, or enjoy .<
fice, or the deputation of any office, or any pan ot any of
them, which shall in anywise concent the administration or
execution of justice, or the receipt, &.e. of am of tin
re, or the keeping of any ot the kind's towns. 6Cc
for a place of strength and defence ; or which shall concern
or touch any clerkship to be occupied in any manner of court
of record wherein justice is to be administered ; th;it then
every person that shall so offend, shall not only lose and for-
feit all his and their right, interest, and estate, in or lo any of
:hl office or offices, &c. but also all persons \vl
or pay any sum of money, &c. or shull nuke any promise, &c.
shall immediately be adjudged disabled in the law to all intents
and purposes to have, &,c. the said office, &.c."
And " it is further enacted, that bargai:. promises,
bonds, agreements, covenants, and assurances shall be void to
tmd against him and them by whom any such b.i
shall be made."
" Provided always, that this act shall not extend to any
office whereof any person is seized of any estate of inhei i
nor to any office of parkership, or of the keeping of any
park- house, manor, garden, chace, or forest, or ;
them."
" It is ,also provided that this act shall not be j
the ji' :e; but that they
dune before the making of this act,"
i
( ? ) 4 Cur. 2493.
Tor
Of Embracery, Extortion, and Riots. 457
For Bribery at Elections, see title <f Parliament;" under
which head the following omission should have appeared.
13y 7 and 8 IV. 3, c. 7, all contracts and securities given
to procure the return of a member of parliament are void,
and the maker or giver of the same is liable to a penalty of
300/.
17. Of Embracery.
Embracery is an attempt to influence the jury corruptly to
one side by promises, persuasions, entreaties, money, enter-
tainments, or the like. The punishment for the person em-
bracing is by tine and imprisomeut ; and for the juror so em-
braced, if it be by taking money, the punishment (by divers
statutes of the reign of Edward 3), is perpetual infamy, im-
prisonment for a year, and forfeiture of the tenfold value.
18. Of Extortion.
Extortion, in a large sense, signifies any oppression under
colour of right: but in a strict sense, it is the taking of
money by any officer, by colour of his office, where none at all
is due, or not so much as due, or where it is not yet due.
It is punishable with forfeiture of the office, tine, imprisonment,
and other discretionary censure, regulated by the nature au4
aggravation of the offence committed (r).
CHAP. V.
Of Offences against the public Peace,
1. OF Riots, Routs, and unlawful Assemblies.
A riot is a .tumultuous disturbance of the peace, by three
persons or more assembling together of their own authority,
with an intent mutually to assist one another against any one
who shall oppose them in the execution of some enterprize
of a private nature, and afterwards actually executing the same
in a violent and turbulent manner, to the terror of the people,
whether the act intended were of itself lawful or unlawful ().
A rout is a disturbance of the peace, by persons assembling
together with an intention to do a thing, which, if it be exe-
(0 i Hawk. P.C, *i 6. 4 Bl. Com. 141, (*) i Hawk. P. 293.
I<d. Rajm. 484,
2 cuted,
4,58 Of Riots.
cuted, will make them rioters : and actually making a motion
towards the execution thereof will hav- u, .IVct (/).
An unlawful assembly is a disturbance of the peace. l>v
pn^n> liarely assembling together with an intention to do u
thing, which, if it were executed, would make them rioters,
but neither actually executing it, nor making a motion to-
wards the execution of it; and indeed any met ting whalso-
of great numbers of people, with such circumstances
of terror as cannot but endanger the public peace, and
f ars and jealousies among the king's subjects, seems to be an
unlauful assembly. These offences are in general puni-:
trespasses by line and imprisonment, and sometimes by jul-
lory (11).
The statute 1 Ceo. 1, c. 5, enacts, generally, that if any
t\\ the persons (but fiom the number of three to eleven, is by
fine and imprisonment), are unlawfully assembled to the dis-
turbance oi the peace, and any one justice of the peace,
sheriff, under-shcriff, or mayor of a town, shall thirl* pioper
to command them bv proclamation to di^pcisi-; il i: i) con-
temn his orders and continue together for one hour a!?> ruaids,
such contempt shall be felony \\ithout benelit of cln-A. And
farther, if the reading of the proclamation br by l<>:re ( .|i-
posed, or the reader be in any manner \Mltu!i\ hmdtied from
the reading of it, such opposers and him!* -r TS air felons with-
out benciit of clergy: and all persons to whom such pro-
clamation ought to have been made, and knowing of such hin-
derance, and not dispersing, are felons without benefit of
clergy. And by a subsequent clause, if any person so riotously
assembled, begin, even belou proclamation, to dtmoh^h or
pull down any church, chape!, or building fm religious worship,
certified pursuant to the toleralioii net i I /I . and M. c. IS), or
any d\\ell.ng-hoiise, barn, stable, or other out-house, he shall
h)adiMH,d u felon without benefit . And by the
.slat, i.; ll'ii. 4, <;. 7, any two justice^, together \\ith the
sheriff and undtT-sheriff of the county, may come with the
pussc t iiniita fuf. if need be, and -iippie^ :ni\ *w\\ riot, assembly,
or rout, arrest the rioters, and rc<ird upon the spot the na-
i;cu;i stances of the \\holc transaction; \\hich ie-
cord aloiu- shall be a MiflJcier.t -on\icrion of t!.e ofleit4eM.
In th- ' tation of \\h;ch statute it lias bun held, ih.it
s. Doblemen fod others, exicpt \\omen, clergymen
() i TlawL.P. C. 297. DaJtoa, 85, (u) i lUwk. 1'. T. Z9JL * Rol.
Abr. 208.
JM i sons
Of Riots. 459
-persons decrepit, and infants under fifteen, are bound to a|-
teud the justices in suppressing a riot, upon pain of line aijd
imprisonment ; and that any battery, maiming, or killing of the
rioters, that may happen in suppressing the riot, is justi-
fiable (ic).
By the 9 Geo. 3, c. 9> the above statute of 1 Geo. I,
c. 5, is extended to " any wind, saw-mill, or other windmill,
or any watermill or other mill, and the works thereunto be-
longing."
By a clause of the act 1 Geo. 1, c. 5, persons injured by
any buildings being demolished by a riotous assembly, may
recover damages in an action against the hundred. And it
was determined after the riots in 1780, that the owners of
houses might recover damages also for the destruction of fur-
niture, or for any injury to their property done at the same-
time that the buildings were demolished, or were in part
pulled down (x).
By statute 13 Car. 2, stat. 2, c. 5, the soliciting, labour*
ing, or procuring the putting of the hand or consents of
above twenty persons to any petition to king, or either
house of parliament, for any alteration in church or state,
unless the matter thereof be approved by three justices of
the peace of the county, or the major part of the grand
jury, either at the assizes or quarter sessions, or in London, by
the lord mayor, alderman, and common council ; or present-
ing any petition by more than ten persons at a time ; incurs
in either case the forfeiture of 100/. and three months impri-
sonment.
Care must also be taken, that petitions to the king contain
nothing which may be interpreted to reflect on the administra-
tion ; for if they do, it may come under the denomination of
a libel : and it is remarkable, that the petition of the city of
London, for the sitting of a parliament was deemed libellous ;
because it suggested, that the king's dissolving the parlia-
ment was an obstruction of justice (y). To subscribe a pe-
tition to the king, to frighten him into a change of his mea-
sures, intimating that, if it be denied, many thousands of his
subjects will be discontented, &c. is included among the
contempts against the king's person and government, .tending
to weaken the same, and punishable by fine and imprison-
ment (z),
(T) j Hale. P.O. 161. 495. (*) Doug, 673. (y) Read. Stat. IV.
353. (*) i Hawk. P. C. c. 23, s. 3.
It
460 Of Uma-icful Hunting, $c.
It may not be improper to mention hero how when c
!<* lo make gnod t. irfs produced by riots.
Where a mob attacked a baker's house and broke tlv
and windows, and compelled the baker to sell flour at a price
named by themselves, below the marketable value; it \\a*
held that the plaintiff might recover for the damage done" to
the house in an action against the hundred, but not for the
value of the flour so sold, that not being consequential to the
act of demolition. Nor could he recover for th<
other flaur taken and waited in another warehouse, distinct
from his duelling house, on the opposite side of the street,
of which the lock was only burst; that not being a beginning
to demolish, Jkc. within the act, with the view with which it
appeared to be done (a) *.
Of unla\\ ful Hunting.
Hy statute <J (l,n. 1, c. <2C, to appear armed in any in-
closed forest, or place where cU-er are usually kept, or in any war-
r hares or conies, or in any high road, open heath,
inon, or down, by day or night, with faces blacked or<-
or (being so disguised) to hunt, wound, kill, or
ny deer, to rob any warren, or to steal fish, or to pro-
cure by gift or promise of reward any person to join them in
such unlttwlul act, is felony without benefit of del
3. Of sending threat "ers.
l?y {) CVo. 1, c. CO, amended b\ statute. 07 Gro. 2, c
if am peis-on shall knowingly seiul any htr<r without any
Bribed thereto, or signed with a fictitious name, de-
manding money, venison, or any other valuable thing, or
i \\ith-mt any demand) to kill any of the
:-. or to lire their houses, outhouses, L ks of
(a) i East's Rep. 615.
* T 1 ', hundreds are liable are: for damages sir.tsincd 1>y
i idmgs, i Gco. i, M.2, c. 5. By ktlfing
acks of c.
-
. or corn.to prcvei.t expi
oying woo'. .
) for the il.
jc be committed, or dangerous wound given,
:i by misadveniure, or in *elf-de!ctue, in
;enf, ia the day-timr, and the offender eKJpe, the
; I; and - .vn, Uic hundred shall b -
j'5
corn
Of Affrays, destroying Locks, CJT. 461
corn or grain, hay or straw, he .is guilty of felony without be-
nefit of clergy.
By SO Geo. 2, c. 24, whoever shall senior deliver any letter
or writing, with or without a name, threatening to accuse any
person or any crime punishable by death, transportation, or pil-
lory, with a view or intent to extort or gain money, goods,
\\arcs, or merchandize, from the person so threatened to be
accused, shall be punished by pillory, or public whipping, or
line and imprisonment, or transportation not exceeding seven
years.
4. Of Affrays.
An affray is the fighting of two or more persons in some
public place, to the terror of his majesty's subjects ; for if the
lighting be in private, it is no affray, but an assault. Affrays
may be suppressed by any private person present; but the
constable, who is bound to keep the peace, may break open,
doors to suppress an affray, or apprehend the affrayers. The
punishment for common affrays is by line and imprisonment (/;).
13y the 1 Mary, c. 3, to disturb any lawful priest during
divine worship incurs an imprisonment for three months. By
1 W. and M. c. 18, to disturb any congregration permitted by
the Toleration Act incurs a penalty of lifty pounds. By 5 and
6 Edw. 6, c. 4, if any person shall, by words only, quarrel,
chide., or brawl in any church or church-yard, the ordinary
shall suspend, if a layman ab ingressu fcclesite ; and if a clerk
in orders, from the ministration of his office during pleasure :
and if any person, in such church or church-yard, proceed to
smite or lay violent hands upon another, he shall be excom-
municated ipso facto ; or if he strike him with a weapon,
he shall, besides excommunication, on being convicted by a
jury, have one of his ears cut off, or having no ears, be branded
with the letter F in his cheek.
5. Of destroying Locks, Sluices, or Flood-gates.
To pull do,wn or destroy any lock, sluice, or flood-gate,
erected by authority of parliament, on a navigable river, is, by
statute 8 Geo. 2, c. 20, made felony without benefit of clergy ;
and the rescuing any person in custody for the same, is subject
to the same punishment. By the statute 4 Geo. 3, c. 1%,
maliciously to damage or destroy any banks, sluices, or other
works on such navigable river, to open the flood-gates., or
otherwise obstruct the navigation, is made felony, punishable
with transportation for seven years. And by statute 13 Geo. 3,
(b) 46!. Com. 145.
. S4^
4fl2 Of spreading False AY
c. 84, maliciously to pull down or otherwise destroy any turn-
pike-gate, or fence, toll-house, or weighing-engine thereunto
belonging, erected l\v a-.ithority of parliament, or to rescue any
person in custody for the same, is made tVlonv, punishable al
the discretion of the court by transportation for M veil years.
or imprisonment for any term not exceeding three years. Aud
this is extended by the 'J I (ie-). :>, c. JO, to all subsequent acts
to the 13 Geo. 3, which had been, or should in future be,
passed for amending and repairing any particular turnpike-road
in England.
(3. Of forcible Entry and Detainer.
At common law, a man disseized of lands or tenements.
might legally regain possession by force, unless his right, of
entry was gone by neglecting to enter in proper time : but tin-
being found by experience to be very prejudicial to the public
peace, it \\fls thought necessary to restrain all persons from
the use of such violent methods of doing themselves Justin ;
so that the only entry now allowed by law is a peaceable one.
By the statute 5 J{/r. <2, c. 8, all forcible entries ar: punished
with imprisonment and ransom at the kill's \\ill. And by the
several statutes of 15 Ric. 2, c. 2; 8 lien. 6, c. 9; .SI /-'//;.
c. 1 1 ; and 21 Jttc. 1, c. l.i, upon any forcible ntry or forcible
detainer after peaceable entry, one or more justices of the
peace, taking sufficient power of the county, may go to the
place, and there record the force upon his own view, and up '.!
such conviction may commit the offender till he makes line
and ransom to the king; or such justice or justices may sum-
mon a jury to try the fact; and if the same !>< found by that
jury, may restore tlit! possession. But this provision does not
extend to such as endeavour to maintain possession by force,
where they themselves, or their ancestor-, have been in the
:ible enjoyment of the lands or tenements for three years
immediately preceding (c).
7. Of riding or going armed. %
By 2 Z',Y/<v. :}, c. 3, no man. i\- ..:.!!, shall go or ride
arm* d, by night or bv day, with dangerous ur unusual weapons.
temhiii'j; the good pi-ople .t' the land.
8. ( M' spreading Jalae Ne\\*.
To make discord hetuei n the king and nobility, as conreru-
i \ great man ot the re;lm, i> punishable by common law
with line and imprisonment; \\iaeli is confirmed by statutes
(0 4 Bl. Com. 14*.
Wcstm.
Of False Prophecies, Owling, 8$c.
Westm. 1. 3 Ed. 1, c. 34; 2 Ric. 2, st. 1, c. 5; and 12 Ric.
2, c. 11.
9. Of false and pretended Prophecies..
The 5 Eliz. c. lo, ordains, that if any person do advisedly
and directly advance, publish, and set forth, by writing or
open speech or deed, any false or pretended prophecies, with
intent to make rebellion or disturbance in tiie realm, he shall
pay a fine of 100/. and suffer a year's imprisonment for the
first offence, and forfeit for the second all his goods and chat-
tels, and suffer imprisonment for life.
10. Of Challenges to fight.
A challenge to fight, although not an actual breach of the
peace, yet, as it tends to provoke and excite others to break it,
is an indictable offence, and punishable by fine and imprison-
ment. If this challenge arises on account of any money won
at gaming, or if any assault or affray happen upon such ac-
count, the offender, by statute 9 Ann, c. 14, s. 8, shall forfeit
all his personal estate to the crown, and suffer two years im-
prisonment. This offence may be committed at any time
after the playing by which the money is won (<7).
CHAP. VI.
Of Offences against public Trade.
OFFENCES against public trade are either felonious or
not felonious.
1. Owling.
Owling, so called from the offence being carried on in the
night, is the offence of transporting wool or sheep out of the
kingdom, to the detriment of its staple manufacture. By the
8 Geo. 3, c. 38, all the statutes relating to the exportation or
carrying coastwise of sheep, wool, woolfells, Sec. are repealed,
except so much of 9 and 10 IV. 3, c. 40, as relates to wool
shorn, laid up within ten miles of the sea, in the counties of
Kent and Sussex. The principal prohibitions of the '28 Geo. 3,
are, that if any person shall send or receive any sheep on board
a ship or vessel, to be carried out of the kingdom, the sheep
and vessel are both forfeited, and the person so offending shall
forfeit 3 /. for every sheep, and shall suffer solitary imprison-
ment for three months. But wether sheer> A by a licence from
(d) 4 Ent's Rep. 174.
the
OfS.: ..
collectors of the . may be taken on board for th<
ol the .ship's company. And eVery person who shall export
out <>f the kingdom any wool or \\ooilrii articles slightly made
ijup, so a to he reduced to wool ajiain, or any fu;
earth, or tobacco pipe clay, ami c-u-iy canier. ship- owner,
: -Dundee, mariner, or other person, v.ho shall kno\\
sist in exporting, or in attempting to export, the^e ai iicl> s. .-hall
forfeit three shillin-s 1 >r every pouud weight, or the sum of
50/. in the \\hoie, at the election of t'n> , ..ml .-hull
also suffer solitary imprisonment for three months. But wool
may be carried coastwise, upon being duly ei> nity
being given, according lw iuc < the
ofliccr of the port from \Uume liie same shall 1
Aiid the owurr.s ol -.vhich a;.-
the sea, or within ten mik-.s ;n Kent and . ;i:-ne
the \vt)t>l without lire to the ulKcer of the
port, as directed by the statute.
. Stmiiijili.
Smii or the offence of importing ijood-! without jnv-
ing the duties imposed thereon by the laws of the cn.-ioms anil
excise, is an offence generally connected and carried on I 1 1
in hand with the former. This is restrained by a great variety
of. stauites, which hiflkt pectin i-c-s and ihe
goods lor claudesLine soiuggling, and ath.\ the i^nilt of K !
\vith tian>poitai: is, upon the nn-r
d.ii'ii_, and av-ivml practices; but the last of them, ly Cx
4. is loi tlie pnrp.the iii-star omnium; for it makes all
{oicible . carried on in defiance of ;
or even in tli ie them, felony wilhoj
cle or more \
uiih lire-arm
utatiou or importation of
, or in r -cuit'^ o
fci.v
\\ounil, .^liont at. or !
the eM:< nli'ii <n^ \\nh-
out tlu
vhich i- ier,
un '. '
the
sui'-
pent time, i.
as lei.i'i s to the
itruorUuiuiy ineliuu them t<>
Of Fraudulent Bankruptcy and Usury. 465
render. But Professor Christian, in his note on the above
pus^iiije, observes, that the 19 Geo. 3, c. 69, s. 23, has ex-
pi ess! v declared, that the met hod of apprehending the offenders ^
described in the 19 Geo. 2, c. 34, and of causing them to
surrender, is continued by all the statutes which nave con-
tinued the 19 Geo. 2, c. 34 ; and it is also recited at length in
the 24 Geo. 3, st. 2, c. 47, and is there directed to be enforced
for procuring the apprehending of the capital felons described
by that statute, who are persons who shall maliciously shoot
into any ship or boat, or at any custom-house-officer or his
assistant, in the execution of his duty, either on shore or within
four leagues of it.
3. Fraudulent Bankruptcy.
Another offence against trade is fraudulent bankruptcy, of
which we shall treat hereafter; the several species of fraud
taken notice of by the statute law will now be barely men-
tioned, viz. the bankrupt's neglect of surrendering himself to
his creditors; his non- conformity to the directions of the se-
veral statutes ; his concealing or embezzling his effects to the
value of 20/. ; and his with-holding any books or writings with
intent to defraud his creditors : all which the policy of our
commercial country has made felony without benefit of clergy.
And even without actual fraud, if the bankrupt cannot make
it appear that he is disabled from paying his debts by some
casual loss, he may, by the statute 2 1 Jac I , c. 19. be set upon
the pillory for two hours, with one of his ears nailed to the
same, and cut oft'. To this head we may also subjoin, that
by statute 33 Geo. 3, c. 5, it is felony, punishable by trans-
portation for seven years, if a person charged in execution for
any debt under 300/. neglects or refuses, on demand, to dis-
cover and deliver up his effects for the benefit of his creditors.
And these, continues Mr. 'Justice Blackstone, are the only
felonious offences against trade, the residue being mere misde-
meanours: as,
4. Usury.
Usury, which is an unlawful contract upon the loan of money,
to receive the same again with exorbitant increase.
Whatever were the prejudices of early times against the
taking of interest, they appear to have worn off in the reign
of Henry the Eighth; a rational commerce having taught the
nation, that an estate in money as well as an estate in land,
houses, and the like, might be let out to hire, without the
breach of one moral or religious duty. And indeed when the
source of this prejudice is examined, it will be found to have
H h originated
466 Of Usury.
originated in a political, and not a moral precept ; for though
the Jews were prohibited from taking usury, that is, interest,
from their brethren, they were in express words permitted tcr
take it from a stranger.
In the reign of Ilenry the EigTith If)/, per cart. was allowed
as the legal rate of interest ; but this statute was repealed by
the 5 and 6 Ed. 6, c. 20, by which all interest was prohibited,
the money lent and the interest were declared to be forfeited,
and the offender to be subject to fine and imprisonment. .And
thus the law stood till the statute 13 KHz. c. 8, which revived
fee. 37 Hen. 8, c. Q, and ordained, that all brokers .should be
guilty of a premunire, who transacted any contracts for more ;
and that the securities themselves should be void. The statute
&l Jnc. I, c. 11, reduced the rate of interest to 8 per cet.;
And it having been lowered in 1650, during the usurpation, to
C) p<*r ecu'., the same reduction was re-enacted after the resto-
ration, by statute 12 Car. C, c. 13; and lastly, the statute
1C Ann, st. 2, c. 16, has reduced it to ol. per cent, which i
now the e:\tremity of legal interest that can be taken,
}5y this statute 12^Tw, c. lf>, no person shall, directly or
indirectly, for loan of any money, or any thing, take above the
value of ;">/. for the forbearance of 100/. for a war, and so-
p'roportionabK For a greater or Jess sum; and all bonds, con-
tracts, and assurances made for payment of any principal sum
to be lent on usury, above the- rate of 5/. jicr cent, shall be
utterly void: and whoever shall take, accept, or receive, by \\av
of corrupt bargain, loan, Sic. a greater interest, shall forfeit
treble the money borrowed, one half of the penalty to the pro*
secutor, the other to the king : and if any scrivener or broker
takes more than five shillings per cent, procuration money, or
more tlui'i t\v. Ive pence for making a bond, he shall forfeit
gO/. with costs, and suffer imprisonment for half a year.
These restrictions, however, do nut apply to contracts made
in foreign countries; for on such contracts thu cotut will d.
the payment of interest according to the law of the country in
which such contract Mas made- (/). Thus Irish, American,
Turkish, and Indian interest have been alkmed in our court*
to the amount of even twelve per coif.; for the moderation
or exorbitance of inttreit depends upon l<:eal cireumstaucea,
nnd the refusal to enforce such couliacta would put a btop to
ill foreign trade.
(*) i P. Wai. 396, IkiJ. * Bro. Pul. Ca. jt.
The
Of Usury. 467
The following determinations will further explain the general
principles that govern the cases on this subject.
It is not necessary that money should be actually advanced
to constitute the offence of usury, but any contrivance or pre^
tence whatever to gain more than legal interest, where it is the
intent of the parties to contract for a loan, will be usury; as
where a person applies to a tradesman to lend him money, who,
instead of cash, furnishes him with goods, to be paid for at a
future day, but at such an exorbitant price as to secure to him-
self more than legal interest upon the amount of their intrinsic
value, this is an usurious contract. The question of usury,
or whether a contract is a colour and pretence for an usurious
loan, or is a fair and honest transaction, must under all its cir-
cumstances be determined by a jury, subject to the correction
of the court by a new trial (y*).
It is remarkable, that one species of indirect usury is
guarded against by the statute Hen. 8, c. 9* and this part of the
statute seems to be still in force. By this statute it is enacted,
that no person shall sell his merchandize to any other, and,
within three months after, buy the same, or any part thereof,
for a less price, knowing them to be the same, on pain of for-
feiting double the value; half to the informer and half to the
king, and also to be punished by fine and imprisonment.
It is now clearly settled, that bankers and other persons dis-
counting bills may not only take five per cent, for interest, but
also a reasonable sum besides for their trouble and risk in re-
mitting cash, and for other incidental expences (g). But if a
banker deducts the discount of 5l. per cent, upon a bill, and
instead of paying the remainder in cash, gives a draft for it,
even at a short date, this has been held to be usury ; for he
not only gains five per cent, but also the further benefit of the
money till that draft is paid (h). But whether more than 5/.
per cent, intentionally taken for the loan and forbearance of
money is a question of fact to be decided by a jury. It ought
not to be considered usury if it is done at th request and for
the convenience of the party, who might have had cash instead
of such bills, and where it is not a device and contrivance to
get beyond the fair allowance of interest and expence of com-
mission (?!).
If a person discounts a bill for the drawer upon the terms
that he shall receive 5 per cent, discount, and an additional
(/) Cowp. ii2. Ibid. 770. Doug. yoS. 3 T. R, 53:, (g) Ibid. 53.
(b) i East's R. 92, (i) j Bos. and Pul. 144.
B h % sum
465 Of
sum for guaranteeing the payment of the bill by the acceptor,
he having no doubt of the acceptor's solvency, this is an usurious
contract (j).
On a contract for a loan, reserving 5/. per cent, interest, if
a premium be tuken at tin- time of the loan, the crime of usui \
b complete as soon as any interest i paid(fc)-
If a contract is ehtered into to p;> more than legal iutcn -t,
though all seeurities are immediauly void, yet the jK-nalty |*
not incurred till more than legal interest is actually paid (/).
For, to subject the party to the penally under the statute 1'2
Ann i st. '2, c. Hi, there must be both an usurious contract
at (he time of the loan, and an usurious taking in pursuance of
it, of money or money's worth (in).
But in order to avoid a security it must be shewn, that the
agreement was in its origin illegal and usurious; it \\ill not be
usury if more than legal interest is afterwards paid, if not ori-
ginally agreed for (n).
An agreement to replace stock and pay the amount of the
dividends, though more than of. percent., is not usurious (o).
\Yhere the principal is secured at all events, except from the
insolvency of the borrower, and more than ol. per cent, may
he gained by the terms of the contract, as by the profits of
some concern, the contract is usurious (/)).
But it is an established rule, that no contract is v\itliin t',<
statute of usury, although more than tive jier cent, is to be.
paid upon the money advanced, if the principal is actually put
in hazard, and may be totally lost to the lender (ry).
And if the original contract be not usurious, nothing done
afterwards can make it so; a counter-lxmd to save one harm-
less against a bond made upon a corrupt ai teim.it. \\ill n<>t
be void by the statutes. But if the original agreement be cor-
rupt between all the parties, and so within the statute, wo co-
lour will exempt it from the danger of the statutes a:aint
umry (/')
A contract for 61. per cent, made before the statute, is not
\vithin the i. nailing of it; and therefore it is still lawful to re-
ceive such inteie-it, in lespcct of :;uy su< h contract. The
i - ij-.l of higher intciivt than is allowed by the Matnte, by
vi lent to the ;.:> contract, d
n.>t avoid an a-uiai, made (.) iV.ll. i s a bond
, Taunt 5/1. Ewf. R. 19?. (fi T>nu|. 113.
,. f ' 3 Anitr. 940 T. <5- (f 4 T R. 553.
I'-ii. Cro Jjc 108. (r> i Brwnl /j. i And. ^iS. 4 S.iep.
br. 170. ( i ; j Alutr. 940.
Of Cheating. 469
made to secure a just debt, payable with lawful interest,
avoided by a subsequent usurious contract; but the obligee is
is thereby subject to tlie penalty by the latter clause of the
statute 18 Car. 2, c. 13 (/)
4- Cheating.
Cheating, as it was understood at common law, may in ge-
neral be desciibed to be deceitful practices, in defrauding ano-
ther of his "known right, by means of some artful contrivance,
of a nature to affect the public interest, and so subtle and con-
cealed that the common prudence and caution of mankind is
not sufficient to elude the effect of it. But there being many
species of fraud which could not, in strictness of law, be com-
prehended within this definition, the statute 33 Hen. 8, c. I,
enacts, that if any person shall falsely and deceitfully obtain
any money or goods, by colour and means of any false privy
token, or counterfeit letter made in another man's name, Sec.
for obtaining money or goods from such person, he shall suffer
punishment by imprisonment, setting upon the piliory, or any
corporal pains short of death that the civil court, in its discre-
tion, may think proper. But this statute not affecting those
frauds against which the common prudence of mankind was
thought sufficient to guard, the 30 Geo. 2, c. 24, introduces a
new oftence, and enacts, that all persons who knowingly and
designedly, by false pretences, or by sending threatening letters
in order to extort money or goods, shall obtain from any per-
son money, goods, wares, or merchandizes, with intent to
cheat or defraud any person of the same, shall be put in thft
pillory, or publicly whipped, or fined and imprisoned, or
transported.
A false assertion or affirmation, without an artful device or
contrivance, will not amount to a false pretence ; and there-
fore it has been determined, that it is not a false pretence
within the statute to purchase goods, and to give a bill for them,
drawn upon a banker with whom the drawer has no effects (v).
But where the defendant had made a bet upon a race, to be
run upon a future day, -by which false representation he ob-
tained a sum of money from the prosecutor to let him have a
share' of the wager, ihis was held a false pretence within the
statute (ii).
So where a man pays a number of workmen, and receives
from a clerk what is due to them, if he represents that more
is due to them than actually is, he may be indicted for obtaining
the difference under a false pretence (a ).
ft) i Saund. 294. . (v) 6 T. R. 565. () 3 T. R. 828. (w) East.
P. C. 830.
Changing
470 Of Monopoly and Forestalling.
Changing corn by a miller, and returning bad corn in the
stead, is punishable by indictnrtent, being an offence against
the public (or). But selling beer short of the m UMUO, is not
indictable as a cheat (y). Nor selling gum of one denomina-
tion for that of another (z). Nor selling wrought gold, as
and for gold of the true standard ; the offender not Ueing a
goldsmith (a).
The distinction laid down as proper to be attended to in
all cases of thia kind, is this : That in such impo>itions and
deceits, where common prudence may guard persons against
their suffering from them, the offence is not indictable-: but
the party is left to his civil remedy for redress of the injury
done him; but where false weights and measures an u
or false tokens produced, or such methods taken to cheat and
deceive, as people cannot by any ordinary care or prudence
be guarded against, there it is an offence indictable (6).
As there are frauds which may be relieved civilly, and not
punished criminally, so there are other frauds, which in a
special case may not be helped civilly, and vet shall be punishrd
criminally. Thus, if a minor, pretending to be of age, de-
frauds many persons, by taking credit for a considerable quan-
tity of goods; the persons injured cannot recover the value of
their goods, but may indict and punish him for a common cheat (<)
5. Monopoly.
All monopolies are contrary to Magna Charta. By statute
38 Edy. 3, all merchants may deal freely in all manner of
merchandise, notwithstanding any charter to the contrary. And
therefore every grant of the king which tends to a monopoly
will be void by the common law(J).
So by stat. 21 Juc. 2, c. 3, all monopolies, and all commis-
si'ms, giants, licences, letters patent, ivc. to any person, body
politic, 8tc. for any sole, buying, selling, making, woiking,
using of any thing, Sec. shall be void.
Dut by a proviso in the same statute, letters patent. Sec.
herttofore uiad for 21 years, or lim.i;ii i-> U mutir ii 14
.is, for the sole woikin or making ot" :-.nv nc\v invtiitn.i
mau i ;..( tint* lire excepted, provided they be not ccutmry to
law, or mischievous to the state, or generally MM un\viii< nt.
.iits to a city or corporation, or to an\ coinnai.v
the maintenance or ordering of trade; and l m con-
cerning printing, saltpetre, gununvuier, gi and
fchot, are also cxccptcd.
(x) i Se*fc Ca. 117. (y) t Will. 301. i Bl. R. 174. () Sayr, aoj.
(*) Cowp. 313. (*) t BUT. 1119. (t) Bart. 100. (^) i Rol. 4.
3 6. Forestalling
Of Monopoly and Forestalling. 471
6. Forestalling, Ingrossing, and Regrating.
Forestalling, Ingrossing, and Regrating are offences gene-
rally classed together as of the same nature and equally hurtful
to the public.
The offence of forestalling the market is an offence against
public trade. This was described by the -5 and 6 E4v, ft,
c. 16, to be by buying or contracting for any cattle, mer-
chandize, or victual coining on the way to the market ; or
dissuading persons from buying their goods or provisions
there; or persuading them to enhance the price when there ;
any of which practices makes the market dearer to the fair
trader. And in Rex v. Waddington (d), it was decided, that
spreading rumours with intent to enhance the price of any
article amounts to the same offence. For other acts which
constitute forestalling, see the same case.
Regrating was described by the same statute to be the buy-
ing of corn or other dead victual, in any market, and selling
k again in the same market, or within four miles of the place.
For this also enhances the price of the provisions, as every
successive seller must have a successive profit.
Engrossing was also described to be the getting into one's
^possession, or buying up, large quantities of corn or other
dead victuals, with intent to sell them again. And so- the total
engrossing of any other commodity, with intent to sell it at an
unreasonable price, is an o^feoce indictable and fineaijle at .the
common law.
Several statutes iiave been made from time to time against
$hese offences in general, also especially with respect to par-
ticular species of goods according to their several circunx-
stances; almost all of which from o and 6 Edw. 6, are re-
pealed by the 10 Gco. 3, c. 71. But these offences still con-
tinue punishable upon indictment at the coflvmon law by fine
and imprisonment.
And at the common law, all endeavours whatsoever to en-
hance the common price of any merchandize, and all kinds of
practices which have an apparent tendency thereto, wj^ethtr by
spreading false rumours, or by buying things in a market
before the accustomed hour, or by buying and selling again
the same .thing in the same market, or by any other such like
devices, are highly criminal, and punishable by fine and impri-
sonment .().
By the common law, a merchant bringing victuals into the
realm may sell the same in gross : but no person can lawfully
t>uy within the realm any merchandize in grogs, and sell he
(4) i East's Rep. 143. ,() i Hawk. c. 8p.
same
472 Of the Liberty of erer rising Trades.
same in gross again, without being liable to be indicted for
tlie same (J).
The bare engrossing of a whole commodity, with an intent
to sell it at an unreasonable price, is an offence indictable at
common law, \\htther any part thereof be sold by the en-
grosser or not ( <:).
7. Of the Liberty of exercising Trades.
In England freedom of trade is not only allowed by
common law, but is asserted and established by M;.
Charta. By the statute 15 EdK.'J, c. 4, it is enacted, that
the seas shall be open to all merchants to pass with their
merchandize where they please, liidetd the laws of England
hold out every possible encouragement for the extension of
commerce. By the common law every subject may exercise
himself in every lawful trade. For notwithstanding the pro-
hibition of the statute 37 Hdic. 3, c. 6, which required every
man to confine himself to one mystery or trade, it has been
held that the same person may exercise several trades or
mysteries (//).
But though a man may exercise whatever trade he pleases,
yet he cannot use a trade in \\hich he is insufficient (?) -And
by statute 5 Eliz. c. 4, no one can exercise a trade in any
to n, without having previously served as an apprentice lor seven
uars, on pain of foifeiture of forty hillings by the month.
r lhe statute, however, be ing ; in restraint of the common la\v,
the resolutions of tlie courts have rather confined than ex-
tended the restrictions ( /). It is therefore held, that it a
person has without inlcii uption worked at, or in any m:<
followed, a trade for seven years, either as a ma-tcr, servant,
inmate, &c. at home or beyond the sea, he is not subject to
the penalties of this statute, although he has ne\er been nu
apprentice, or bound to the trade. In like manner it he has
vsorked at, or followed, several trades for seven \< ais, he may
use them all (A). So if the wife of a tradesman be tmpJo < d
in his trade for seven years, and he dies, she llie
tiadc alter his death (/). But if a person uses a trade mtitly
for the use of his family, :uid not for his livelihood, 1.
\\ithinthe statute (///). So it i> l:rld that this stal';
not txhnd to a person uho works as a jouiiK\r..an (n).
QH. \Vlu-llu-r the master \'. ho employs him is not liable:
(f\ 3 Init. 196. (g ) I Hawk. c. So. (b) n Co ?4t
}Iob. in (} 2 Ro!. - . 197. (j) i J 16.
jB-r.6. (I- ' CIM'-. i6j. iS1k."67. Ibid. 3 ICcl. iflo. Cmb 7.
b4>k.6ij V. ,u. 168. i Bl. K. a]j. (/)iBaro.Jfc7 (> 8 Co.
129, j. >. u IbiJ. 54, a. Cio. Ci. 499. Hob. 211. () J .Mod. 315.
/j burr. -1,9.
3 But
Of Combinations, c. 4/3
But by the stat 1? Gro. 3, c. 5:5, dyers in Middlesex,
Essex, Surry, and Kent, may employ jou;iie\uien who ha.e-
not served apprenticeships, /is may ail hatters by the 17
Geo. 3, c. 55.
No trades are held to be within the statute but such as are
enumerated or were in being at the time of making it (o).
.As a draper, ironmonger, soup maker, knife-haft-maker,
brewer, baker, taylor, upholsterer, point-maker, spinner, liier,
fell-monger, barber, and cook (p).
But the statute does not extend to employments which
do not require skill (gO.
Sir William Blackstone says, that f:>r trading in a country
village, apprenticeships are not ncces^ry ; but the better opi-
nion, Mr. Serj. Williams observes, in h s note to the case of Res
v. Kilderby (/), seems to be, that the statute does include viiia *< vs.
If a person advances a sum of money in a trade, and be-
comes a partner, but does not meddle in the exercise of it,
he is not within the statute 5 KHz. though he never served
any apprenticeship (s). But if a man who has not served an
apprenticeship himself, exports woollen cloths which have
been manufactured in his own house by journeymen clothiers,
who have served apprenticeships, it is a trading within the
str-tute (?).
A trade is not transmissible, but it is put an end to by the death
of the trader: if they do carry on the trade of their testator,
it must be for their advantage, and at their own risk, unless under
the direction of the court of chancery (r)
8. Combinations among Victuallers or Artificers.
Combinations among victuallers or artificers, to raise the price
>f provisions, or any commodities, or the rate of labour, are
severely punished by many particular statutes; 'and, in ge-
neral, by statute 2 and 3 Edu\ (j, c. If), with the forfeiture
of 10/. or twenty days imprisonment, with an allowance of
only bread and \vcter for the first offence; 20/. or the pillory,
for the second; and40/. for the third, or else the pillory, loss
of one ear, and perpetual infamy.
Journeymen who, in consequence of a combination, refuse
to work, till their wages are raised, may be indicted for a con-
spiracy, And by the 39 and 40 Gc;.>. />, c. 106, any two
justices of the peace may, upon conviction, punish all journey-
men conspiring to raise their wages, by imprisonment in the
(> Ld. Raym. 514. S Co. 129, b. Sal!c. 611. z Str. ySS. 12 Mod. 31*.
(f] 5 Com. Dig. 370. (q) IbU. 372. (>-) i Sauna. 311. (0 ^
Wils. 40. S. C. i Burr. 2. (t) 2 Saik. 610, Garth. 162. 3 Mod.
313, i Show. 241. (v) i T. R. 29^.
county
474 Of Seducing Artificers.
connty goal for three months, or by imprisonment and haul
labour in the house of correction for two months.
But though it is criminal for two or more to combine to
raise their wages, yet one journeyman or servant may refuse
to work, unless he is paid the wages he demands ; for one
person alone cannot be guilty of a conspiracy (M).
9- Of Seducing Artificers and Manufacturers, and expoi tiu.j
prohibited tools, &c.
To prevent the destruction of our home manufacturers, by
transporting and seducing our artists to settle abroad, it is
provided by statute 5 Geo. 1, c. 27, that such as so entice or
seduce them shall be fined 10O/. and be imprisoned time
months; and for the second offence shall be lined at d it-
eration, and be imprisoned a year ; and the artificers, so
going into foreign countries, and not returning within six
months after warning given them by the British ambassador
where they reside, shall be deemed aliens, and forfeit all their
lands and goods, and shall be incapable of any gift or legacy,
and be deemed an alien, and out of the king's protection.
By statute 23 Geo. 2, c. J3, tbe seducers incur, for the lirst
offence, a forfeiture of 500/. for each artificer contracted
with to be sent abroad, and imprisonment for twelve months ;
and for the second, 1000/. and are liable to two years' im-
prisonment: and by the same statute connected with the
14 Geo. 3, c. 71, if any person exports any tools or utcn.sils
used in te silk, linen, cotton, or woollen manufactures,
(except by 15 Geo. 3, c. 5, t>. 9, stock cards not exceeding
4s. per pair, and spinners' cards not exceeding Is. (nl. per
pair, intended to be exported to North America) he forfeits
the same and 200/. and the captain of the ship, haviirj know-
ledge thereof, 100/. And if any captain of a king's .ship, or
officer of the customs, knowingly suffers Mich exporta-
tion, he foifeits 100/. and his employment; ami is for ever
made incapable of bearing any public office: and every
person <<!!. 'ding such tools or utensils, in order to eijujit the
e, shall on conviction at the u^si/es, forfeit such tools and
By the statute 21 Geo. 3, c. 0, if any person shall put on
board any ship, not bound to any place in (Jreat Britain
or Ireland, or shall have in his cu.<.t'dy, with intent to
export, any engine, tool, or implement, used in the linen,
:)!!, \\oollen, or silk manufactures lie shall I'oileit the *ame,
aix e Mini of 20O/. ami shall be impi i.v.uiL-d tu<
,i<Uir months and till the ("lieiture is paid. And every
(u) i Sua. 193.
Of Offences against Public Health. 475
captain and custom-house officer, who shall knowingly re-
ceive the same, or take an entry of it, shall forfeit 200/.
Provided that nothing herein shall extend to the prevent-
ing of woollen cards or stock cards from being exported to
America.
Finally by the 22 Geo. 3, c. 60, if any person shall entice
or encourage any artificer employed in printing callicoes,
cottons, muslins, or linens, to leave the kingdom, he shall forfeit
500/. and be imprisoned one year. And persons who export,
or attempt to export, any engines or implements used in that
manufacture, shall forfeit oOO/. Captains of ships and
custom-officers conniving at these offences, forfeit 100/. and
become incapable of holding any office under the crown.
And by the 25 Geo. 3, c. 67, any person who entices or
encourages an artificer in the iron or steel marmfactures to leave
the kingdom, shall forfeit 500/. and be imprisoned for one
year. Persons who attempt to export the articles specified in
the statute 26 Geo. 3, c. 89, shall forfeit 200/. and be impri-
soned one year. And captains and custom-house officers, con-
niving at the offence, are subject to the same penalty, and be-
come incapable of exercising any public employment.
CHAP. VII.
Of Offences against Public Health, Public Police) and
Economy.
1 . Offences against Public Health.
By statute 1 Jac. 1, c. 31, it is enacted, that if any person
infected with the plague, or dwelling in any infected house, be
commanded by the mayor, or constable, or other head officer of
his town, or vill, to keep his house and disobey such command,
he shall, though there be no plague sore upon him, be punished
as a vagabond by whipping, and be bound to his good behaviour ;
but if he has any infectious sore upon him, uncured, he shall
be guilty of felony. And to prevent the introduction of this
dreadful malady from foreign parts, ships coming from in-
fected countries, are . to perform a quarantine of forty days ;
and by the statute 39 and 40Geo. 3, c. 80, which repeals
all former acts on this subject, it is enacted, that if any ship
come from any place visited with the plague, or other infec-
tious disease, or shall have any person on board actually in-
fected, if the commander shall conceal the same, he shall
l>e guilty of felony without benefit of clergy. And if whilst
the
476 Of Clandestine Marriages.
- ; ;ip is performing quarantine, he quits the ship liim-
s< It', or pt n.uis any oilier person to quit it, he shall foiieit
.500/. ami every other person quitting it shall suffer six months
imprisonment, and shall forfeit GOO/.
2. Of selling unwholesome Provisions.
Selling UBwfaolesome provisions is reckoned by Black-
stone among offences ar.iinst public health. To prevent
\\hich the statute ol Hen. 3, st. 6, and the ordinance tor
baker?, c. 7, prohibit the sale of corrupted wine, contagious
or unwholesome flesh, or flesh that is bought of a jr\\ ;
under pain of amercement, for the first offence, pillory for
the second, i.ne and imprisonment for the third, and abjura-
tion of the town for the fourth. And by the statute }'2 Cr.
1, c. CJ, s. 11, any Inewing or adulteration of wino is pu-
nished with the forfeiture of 100/. if done by the wholesale,
nicrchrmt; and 40/. if done by the vintner or retail dealer.
(>l Clandestine Marria.
]) ^tatute 2(j Ceo. Q, c. 33, it is required, that all banns
shall be published in the parish church, or in a public chapel
in \\hich banns have been usually published, belonging to
the parish or chapclry wherein the persons to be in
reside, upon three Sundays preceding the marriage; and if
i ties dwell in different parishes or chapelries, then the
banns are to be published in the church or chapel belonging
to the parish or cuapelry wherein each of the pu^oiis ducll;
it both or either duel! in an extraparochial place having no
church or chapel, then the banns are to be published in a
church or chant 1 belonging to the adjoining parish, and in
such case the clergyman shall certify the publication in
t< , .uer as if either of the parties dwelt in sueh
It; and further, it is .required, that the mania^e shall be
in one of the parish churches, \\htre the bai.ns
: l)i < n published. The .second section provides that
notice shall be LIM n to the miuisl. i, of the nunies, |.!
within tie })a:i>!i I i ic-idci
of the pat the pitblieuM HI of the banns;
olhei - ^r slull not l;e ibliged to publish ;
It is i !i\ th<- :"d. M-cticu, that no mini-tiT shall
>;,< ;il c ( r s->l( inni,:iii^ m:.r-
of llu | nij. -one,
li.iniis publMicd, it l !
.. ) ro not gi\. --en! ;
mnis or miai one of them j)uli-
it ll.c tiniL of publication, then the
banns
Of Clandestine Marriages. 477
banns will be void. And by section the fourth it is further
enacted that licences shall be granted to solemnize marriages
in the church or chapel of the parish or chapelry only within
which the usual place of abode of one of the parties shall
have been for four weeks before the marriage; or where
both or either of the parties dwell in an extraparochial
place, tlien in the church or chapel of the adjoining parish or
chapelry.
By the 8th section, it is enacted, that to solemnize marri-
age in any other place than a church or public chapel,
wherein banns have been usually published, except by licence
from the archbishop of Canterbury; and 2. to solemnize
marriage in any church or chapel without due publication of
banns, or licence obtained from persons duly authorized to
grant the same ; do both of them not only render the
marriage void, but subject the person solemnizing it to felony,
punishable by transportation for fourteen years.
The eleventh section enacts, that all marriages solemnized
by licence, where either of the parties- not being a widower
or widow, is under the age of twenty-one years, without the
consent of the father (if then living) of such of the parties
so under age, first had, or if dead, of the guardian of the
person of the party so under age, lawfully appointed, or one
of them ; arid if there be no such guardian, then of the
mother (if living and unmarried); or if there be no mother
living, then of a guardian of the person appointed by the
court of chancery, shall be void.
An illegitimate child has been held to be within the mean-
ing of this clause (x).
And in order to preserve the evidence of marriages,
and make the proof thereof more certain, and easy, it is
enacted by the fifteenth section of the same statute, that all
marriages shall be solemnized in the presence of two or
more witnesses, besides the minister; and immediately after
such celebration an entry thereof shall be made in such re-
gister, in which it shall be expressed that the marriage was
by banns or licence ; and if either of the parties married by
licence be under age, with consent of the parents or guar-
dians, and shall be signed by the minister with his proper
addition, and also by the parties married, and attested by such
two \\itnetses
Jiy the Kith section, to make # false entry in any marriage
{*) iT. R. $5.
register;
478 Of Polygamy.
registei ; to alter it when made; to forge, or counterfeit such
entry, or a marriage licence; to cause or procure, or act, or
assist in such forgery; to utter the same as true, knowing it
to be counterfeit; or to destroy or procure the destruction
of any register, in order to \acate any marriage, or subject
any person to the penalties of this act; all these ofVcnr
knowingly and wilfully committed, subject the party to the
guilt of felony without benelit of Hergy.
Upon the words " or in a public chapel in \vhich banns
have been usually published" in the tint section of this sta-
tute, a question arose, in tin- \ear 1781, \\hethcrtltcstntiite
was to be construed to moan such chapels, wherein banns
were usually published at the time when the marriage in
question took place, or such chapels only as existed at the
time of passing the act. The court of king's bench were of
opinion, that the legislature meant chapels existing at the
time of the act ; and con.-eqm mly, that a marriage celebrated
in a chapel erected since l\\t- -ta'ute 2() Gen. '->, was void al-
though banns had been fuquently published tin re,
marriages de facto celebrated there previously to the mam
in question (j/). As soon as the, determination of the court
in this case was known, Lord Beauchamp introdiu d a bill
into parliament, which passed into a law, for making all
mairiiiu-'S which had been ce!rbr:'trd in any parish church
or public chapel, erected since the statute /> (J'CM. <2, and
consecrated, valid in law, and to exempt the clergymen, who
had celebrated such marriages, from the penalties of that
statute. 21 Ceo. :}, The operation of the statute,
21 (ico. 3, however, not being prospective, a similar pro-
\ision was made by the statute 44 Geo. 3, c. 77, in respect
of marriages 'MiemftiMd before the '2.">th of March, 1805, in
any chinch or public chap< 1 in England, &e. erected sin-e
the making of the statute '2(i Geo. 2, and consecrated. And
by the statute -IS (,Yo. ;5, c. 107, the same provisions have
been made in respect of marriages solemnized before August
. 1SOS, 'm any church, &c.
4. Of Pohgamy.
Polygamy, as it is corruptly called bigamy, is another
felonious offence, with ngard to matrimony. By statute I
Jar. 1, c. U, if any person being Blamed, do afterwards
m;,ny again, the former husband or wife being alive, it is
felony; but uiilun the benefit of clergy. The first wile in
(,) Dot*. 6 5 S.
this
Of Vagrancy. 479
this case shall not be admitted as a witness against her husband,
because she is the true wife; but the second may, for she is
indeed no wife at all : and so vice versa, as a second husband.
This act makes an exception to five cases, in which such se-
cond marriage, though in the three first it is void, and the
parties subject to the censures and punishment of the
ecclesiastical, is yet no felony. 1. Where either party has
been continually abroad for seven years, whether the party
in England has notice of ihe other's being living or no.
2. When either of the parties has been absent from the
other seven years within this kingdom, and the remaining
party has had no knowledge of the other's being alive within
that time. 3. Where there is a divorce (or separation a
mensa et thoro) by sentence in the ecclesiastical court.
4. Where the first marriage is declared absolutely void by
any such sentence, and the parties loosed a vinculo. Or,
5. Where either of the parties was under the age of consent at
the time of the first marriage, for in such case the first marriage
was voidable by the disagreement of either party, which the
second marriage very clearly amounts to. But if at the age of
consent the parties had agreed to the marriage, which com-
pletes the contract, and is indeed the real marriage; and
afterwards one of them should marry again; it is the opinion
of Sir William Blackstone that such second marriage is within
the reason and penalties of this act.
5. Of Vagrancy.
By statute 17 Geo. 2, c. 5, vagrants are divided into three
classes. 1st. Idle and disorderly persons, who are punishable
with one month's imprisonment in the house of correction.
2dly. Rogues and vagabonds, who are punishable with whip-
ping and imprisonment not exceeding six months. 3dly. In-
corrigible rogues, who may be whipped and imprisoned for
any time not exceeding two years. And if an idle and dis-
orderly person, or a rogue and vagabond, break from his con-
finement, he shall be deemed an incorrigible rogue; and
if such incorrigible rogue break prison, he shall be deemed a
felon liable to be transported for seven years.
Idle and disorderly persons are, 1 . Those who threaten to
run away, and to leave their families upon the parish; 2.
Who return from the parish to which they are removed as
paupers, without a certificate; 3. Who refuse to work for
the usual wages; 4. Who beg within their own parishes;
$. And who neglect to work, or who spend their money idly,
without making a sufficient allowance /or their families.
Rogues
480 Of Vagrancy.
Routes and vagabonds are thus desrribrd : 1. Gatherers of
alms i:n;!( r j H u nee of losses, or for prisons or hospitals;
'J : H .iv. aids; 4. Plavcrs of interludes, not being
authorized by law; 5. Minstrels; 0. Jugglers: 7- Gypsies;
8. l-'ortune-telloTN ; \). Deceivers by subtile crtti; 10. Hor/en
and better* at Utthwrul jrair.es; 11. Persons \\lio runaway
and leave their families durgeablc to the parish; 1'2. Un-
licensed pedlars: 1.:. Persons who wander abroad, and lodge
in ale-houses, outhouses, or in the open air, without giving
<i acoiu: t of themselves. 14. Persons wandering from
home, muter pretence of seeking harvest work, without a
.licatc from the minister and one churchwarden of their
parish; 1.3. .And all wandering beggars. And by 8 Geo. 3,
c. SS, ail peisuns who are apprehended with any picklock
or instrument* with intent to JVloniously break and enter any
dwelling houee, or with any oftensive weapon, with intent t(>
felor.ion.-!\ assault any peison; or \\ho shall be found in, or
ujxw any duelling-house, outhoiHe, yard, area or -garden,
\Mt!i intent to steal^ tihall be deemed rogues and vaga-
bor.ds.
iiy the ^f) and 40 Geo. S, c. 50, if any persons to the
nnniln r ot l\vo 01 more shall be found in anv open or en-
efooed ground of any description in the nijrht, that is l.rtutfii
o'clock at n.. 'lit and six in the morning, from the 1st
'-tciber to the 1st of r\bni.,iv. or between ten at night
and four in the morning from the 1st of February to the
i-t 01 Octobet in each year, having any gun or instrument
\\itli the intent to di j-.iiii' 1 ; or if any person shall
:i with any gun, bludgeon, or <;!Y-!-si\e weapon;
it >ha!l IK- lawful for any one to apprehend such ofieic:
!iem into the custody >r a pi ncv \l:>
I tn carry them before one of his :
peace i v ho iiur. ;!-< i-sue his \\airant
upon eoniplair.t for apprehending tbeOl, and if they ait CMH-
\iclii ljet'!<- him of such oftenee by the ne \rit-
i . ,!i ! | i. .uds, and fur
,,,<>.
\\lio :i;.i- when t!
. or t" be H d.
:'
\\h<> re I'; ,\c\.d by a ;
\ t or \\lio commit
i't. i
V> j ui of being a K-ue u
befoie
Of Common Nuisances. 481
before a jtistice of the peace, the justice may order him to
be whipt, or imprisoned till the next sessions, or lor any less
time; and if imprisoned till the next sessions, the justices may
then order a further imprisonment for six months ; female va-
gabonds are subject to the same imprisonment, but in no in-
stance are liable to whipping, 32 Geo. 3, c. 45.
To this head may be referred another offence against good
order and economy, which is by idle soldiers and mariners
wandering about the realm, or persons pretending so to be,
and abusing the name of that honourable profession ; such a
one not having a testimonial or pass from a justice of the
peace, limiting the time of his passage ; or exceeding the time
limited for fourteen days, unless he falls sick; or forging tes-
timonials; is by statute 39 E/iz. c. 17, made guilty of felony
without benefit of clergy. This sanguinary law, though in
practice deservedly antiquated, still remains a disgrace to our
statute book : yet attended with this mitigation, that the of-
fender "may be delivered, if any honest freeholder or other
person of substance will take him into his service, and he abides
in the same for one year ; unless licensed to depart by his
employer, who in such case shall forfeit ten pounds.
In the vagrant act, 17 Geo. 2, c. 5, there is an exception
in favour of soldiers having certificates from their officers, or
the secretary at war; and also in favour of mariners having a
testimonial from a justice of the peace, who were thus licensed
to beg. But by the 32 Geo. 3, c. 45, such certificates and
testimonials were very properly declared to be null and void ;
and tlmt all soldiers and manners, who should wander abroad
and beg, should be deemed rogues and vagabonds within the
meaning of the vagrant act.
In all cases of commitment, whether for an act of vagrancy,
or for a criminal offence, it is enacted by the statute 3 JCLC. 1,
c. 10, that offenders are to bear their own charges, and the
charges of those who are appointed to guard them ; and if
they refuse to pay, the charges may be levied by the sale of
their goods. .And by stat. 27 Geo. 2, c. 3, if they have no
gcods, &cc. within the county where they are apprehended,
the justices are to grant a warrant on the treasurer of ,the
county for payment of the charges. But in Middlesex, the
same shall be paid by the overseers of the poor of the parish
where the person was apprehended.
6. Of common Nuisances.
A common nuisance may be defined to be an offence against
tke public, either by doing a thing which tends to the annoy-
I i ance
4$ ( 2 Of Coirwon Xuisancts.
ance of all the king's subjects, or by neglecting to do JTTTT
tiling Mhich the ronimnn pood requires. All an'ioyanccs in
tin- hii;rmd\s, bridges, ami public rivers, e'n^ier by obstruc-
tion or want of repair, are nuisances. All tliese kinds of nui-
sances (such as offensive trades and manufactures) which when
injurious to a private individual are actionable, are, when de-
trimental to the public, punishable by public prosecution,
*nd subject to fine according ro the quantity of the misde-
meanour; and particularly the ki oping of hogs in any citv or
market town is indictable ;i a public, nuisance. AM di^ordei'v
inns or alehouse*, bawdy houses, gaminghouses, stag*- plays
unlicensed, booths ami starts for rope-dancers, mountebanks,
and the like, are public r , and may upon indictment
be suppiesM d and lined. Inns, in particular, bring intended
for the lodging and receipt of travellers, may be indicted, sup-
pressed, and tin- innkeepers t'ned, if they refuse to entertain a
traveller without a sufficient cause: tor thus to frustrate the
end of their institution is held to be d;ord'-rly behaviour.
I3y the statute 10 and 11 //'. :>, c. 17, all pretended lott
are declared to be public nuisances, and all grants or licti,
for the same to be contrary to law. Ry the 'J'J Gen. .*>, c. 47,
no one shall keep an office for the sale of tickets in the public
lottery, without a licence from the stamp-office, under a ]>-
nalty <>f 100/. And if any person shall sell the chance or v
of a ticket for less time than the \\hole time of drawiivj, or
shall insure for or against the drawing of any ticket, or shall
rtctive any money to return money or cjoods upon any cnn-
tingrncy depending upon th* 1 tickets in the lottery, he shall
forfeit 50/. And by the 1?7 Gco. .S, c. 1, persons guilty of
any of the preceding oftences, may also be proceeded anainst
a ropues and vagabond.-, under llie \anrant act; but it" they
re convicted ts vagabonds, they are discha-ged frc^m the pf-cu-
niary penalties. And no person shall sell any share less than
a sixteenth, or without a stamp, under a penalty of oO/. But
the owner of a \\h.>Ie ticket may insure his ticket \\ith a li-
ci n-ed lottery ofiice keeper, so as to indemnify himstlf, and
receive its value only. 'I lie insurance muit be made for the
whole remaining limt of the drawing of the lottery, and in
the manner ; .' hv the net. Tht: penalties under '
statute* mu.st In- -n.i f>r within six months in the courts at
^'esUnins-ter, and the defendant may be held to bail to the
amount of 5OO/.
I'. : 1 If), all 1. Merio, c;dlrd little -.
are declared to he public nuisances; mid if any one shall
keep
Of Common Nuisances. 483
keep an office or place to exercise or expose to be placed any
such lottery, or any lottery whatever not authorised by parlia-
ment, or shall knowingly suffer it to be exercised or played at
in his house, Jie shall forfeit 500/. and be deemed a rogue and
vagabond. And if any person shall promise to pay any money
or <>oods on any contingency relative to such lottery, or publish
any proposal respecting it, he shall forfeit 100/.
If any editor of a newspaper, or other person, advertises
any illegal scheme of gaming in the lottery, he is subject to a
penalty of 50/.
The making and selling of fire-works and squibs, or throw-
ing them about in any street, is, on account of the danger that
may enme to any thatched or timber buildings, declared to be
a common nuisance by statute 9 and 10 IV. 3, c. 7, and there-
fore is punishable by fine ; for making and selling 5^. and for
throwing or firing them 20s.
It is a public nuisance to suffer any mischievous dog to go
unloose or unmuzzled, to the danger and annoyance of the
neighbours or passengers, and the owner thereof may be in-
dicted ( y) ; and an action for damages will also in such case
lie against the owner (z). But it seems, that such action can-
not be brought against the owner of the dog for biting a per-
son, unless the owner had notice of his having bit somebody
at least once before (a).
An action will also lie against a man for keeping a dog ac-
customed to bite sheep, provided it can be proved, that he
knew him to be guilty of such a practice ; and it has been
held, that his having killed and wounded sheep once before is
sufficient proof of his being so accustomed (6).
And to this head we may refer (though not declared a com-
mon nuisance) the making, keeping, or carriage, of too large
a quantity of gunpowder at one time, or in one place or ve-
hicle. By statute l^J Geo. 5, c. rjl, no one is to keep more
than two hundred pounds of powder, nor any person, not a.
dealer, more than fifty pounds, in the cities of London and
Westminster, or within three miles thereof; or within any
other city, borough, or market town, within one mile thereof;
or within two miles of the king's palaces or magazines ; or half
a mile of any parish church ; on pain of forfeiture, and two
shillings a pound ; except in licenced mills.
(y) Dyer, 25. () 2 Str. 1264. (a) 12 Mod. 555. i Ld. Raym. 606.
(A) Dyer, 136.
I i 3 Eaves-
484 Of Gaining.
Eaves-droppers, or such a> listen under walls or window*,
or the caves of houses, to hearken after discourse, and there-
upm to frame slanderous and mischievous tales, are a common
nuisance, and presentable at the court U-et ; or are indictable
at the sessions, und punishable by fine, and finding sureties for
their good behaviour.
Lastly, a common scold is a public nuisance to her neigh-
bourhood : for which offence she. may be indicted; and if
convicted, may be placed in a certain engine of correction
called the trcbucket, castigatory, or cucking stool, which in
the Sa.\on language is said to f-.ignify the scolding stool ;
though now it is frequently corrupted into the ducking stool,
because the residue of the judgment is, \\hen she is ao placed
therein, she shall be plunged in the water for her punish-
ment (r).
7 Of Gaming.
(jaming is not restrained by the common law, unless it i.
so practised as to become injurious to the public economy;
but the legislature has, in many instances, laid it under par-
ticular restraints. A wager or bet is a contract entered into,
without colour or fraud, between two or more persons, for a
good consideration, and upon mutual promises to pay a stipu-
laUd sum of money, or to deliu r some other thing to each
other, according as some prefixed and equally curtain con-
tingency shall happen within the urins upon which the contract
is made (a ).
To restiain the pernicious effects of gambling, the .statutes
S3 Hen. 8, c. 9, s. 1 1, and the S3 Geo. 2, c. 24, enact, that,
no person, of what degree, quality, or condition soever, shall
by himself or agent, for his gain, lucre, or living, keep any
house for playing at any game prohibited by any statute, or
auy new unlawful game afterwards invented, on pain of forty
shillings a day, and Gs. 3d. for every person frequenting such
house. And the same statute prohibits, to all but gcntleim n
the 'j-jiiK.s of tennis, tables, cards, , b . tlier un.
bwful diversions therein specified, unless in tin; time of Ch:
mas, under pecuniary pains aud imprispnrneut. By 16 Car.
t) c. 7, if any person by playing or betting at any game or
ther thaw for ready money), lo.'-e more
than ](>(){. ut any one time or meeting, upon tn k or ledif, or
otherwise, he shall not be compellable to pay the same ; aud
(0 4 Bl. Com. iti. (</) Rol. Abr. Mirrour. 18.
the
Of Gaming. 4SJ
the winner shall forfeit treble the .value., one moiety to the
king, and the other to the informer. The statute 9 Ann.
c. 14, enacts, that all bonds and other securities, given for
money won at play, or money lent at the time of play withal,
shall be utterly void ; that all mortgages and incuuibrances of
lands, made upon the same consideration, shall be and enure
to the use of the heir of the mortgagor; that if any person at
any time or sitting, loses IOL at play, and shall pay the same
or any part thereof, he may recover it back from the winner;
if the loser does not recover back the money so lost within
three months, any other person may recover the same, and
treble the amount besides, with costs, one half for him-
self, the other half for the poor ; and if a promissory note
or other security has been given for money so lost, by the 18
Geo. 2, c. 34, s. 3, such winner may by bill in equity be
forced to discover the fact upon oath (e) ; avid that in any of these
suits no privilege of parliament shall be allowed. The statute
9 Ann. further enacts, that^ if any person, by cheating at
play, shall win any money or valuable thing, or shall at any one
time or sitting win more than 102. he may be indicted there-
upon, and shall forfeit five times the value to any person who
will sue for it ; and (in case of cheating) shall be deemed in-
famous, and suffer such corporal punishment as in case of
wilful perjury. By several statutes of the reign of king Geo.
, viz. 12 Gfo. 2, c. 28; 13 Geo. 2, c. 19; IB Geo. 2,
c. 34, all private lotteries by tickets, cards, or dice (and
particularly the games of faro, basset, ace of hearts, hazard,
passage, rolly-polly, and other games with dice, except back
gammon), are prohibited under a penalty of 200/. for him
that shall erect such lotteries, and 50/. a time for the players.
The statute 13 Geo. 2, c. 19, "to prevent the multiplicity of
horse races, another fund of gaming, directs that no plates or
matches under 50/. value shall be run, upon penalty of 2CO/.
to be paid by the owner of each horse running, and 100/. by
such as advertise the plate. At Newmarket and Black Haro-
bleton, however, a race may be run for any sum or stake less
than s()l. But though such horse races are lawful, yet it has
been determined, that they are games within the statute
9 Ann. c. 14, and that of consequence wagers above 10/.
upon a lawful horse race, are illegal (f). A foot race and a
race against time have also been hekl to be games within the
statute of gaming (g). So a wager to travel a certain dis
(0 I test. 364. (/) 2 Bl. Rep. 706. (f) a Wiis. 36.
tajice
486 Of Gaming.
tancc withii) a certain time, with a post chaise and a pair of
horses, luis been considered of the same nature (A). A wager
for less than 10/. upon au illegal horse rare, is also void and
illegal (/). And though the owners of horses may run them
for a stake of 50/. or more, at a proper place for a horse
race, yet it hai been held, if they run them upon the high
way, the wager is illegal (A - ). By the statute 18 (jco. C, c. ."> 4,
the statute 9 -4nn. is further inforced, and some deficiency
supplied : the forfeitures of that act may now be recovered m
a court of equity; and moreover, if any man be convicted
upon information or indictment of \\ inning or losing at
play, or betting at one time 10/. or GO/, within twenty- four
hours, he shall be lined live times the sum for the benefit of
the poor of the parish.
By statute 9 Geo. 1, c. \9, if any person shall, by colour of
any grant from any foreign prince, set up anv lottery, or under-
taking in the nature of a lottery, &c. he shall forfeit 1 JOO/.
By 10 Hen. c. 26, s. 109, no person shall keep any office or
place for making insurances on marriages, births, christenings,
&c. on pain of oOO/. By 7 Geo. 2, c. 8, all wagers relating
to the present or future price of stocks, are deemed illegal and
void.
Upon the construction of words " at any one time or sit:
in the statute 9 Ain\ y it has been held, that \\here fouiUm
guineas had been \\on and paid after a continuance at plaj, i \-
cept an interruption during dinner, it was to be considered as
von at (me time or sitting; but the court said, that if the
action had been brought for the penalty, by a common infor-
mer, they would have held, that the money had been lost at
tun sittings (/).
\V .!;]>- in general, by the common Jaw, were unlawful con-
tracts, and all wagers may still he recovered in a court of
justice, which an- lift made upon -:iine>. or \\hich are not
-urn as are likely to disturb the public peace, or to encourage
immorality, or Mich as \\ill probably allect the interests, cha-
racters, and f ( hi"/- of persons, not parties to the \\agi-r, or
h as are contrary to sound policy, or the general inteiebts of
tin- community (/).
\\ I" - ni had given 10O/. upon condition of recciv-
irn: 3(X)/. it pence \\as not concluded with France within a
time, and he afterwards brought his action to recover
(*) 6 T. R. 499. f i ) 4 IVul. i. (0 T. 8*1. and P|. l. (0 a
flep. iiiO. (m) 31. R. 693. 4 Bl. Com. 173. n.
the
Of Offences against the Game Laws. 487
the 300/ it was held that the wager was void, as being incon-
sistent with general policy ; but he was allowed to recover
back the 100/. which he had paid, under a count for so much
money had and received by the defendant to his use (/<) So
also a person was permitted to recover back his share of a
wager against a stakeholder upon a boxing match (o).
K. Of Offences against the Game Laws.
By the primary laws of nature every man has an equal right
of pursuing and taking to his own use all .such creatuies as are
properly fera- naturae. At the first distribution of things, the
all bountiful Creator gave to man " dominion over the tish of
the sea, over the fowl of the air, and over every living thing
that moveth upon the face of the waters." Whilst mankind
continued in a state of primeval simplicity, no inconvenience
could arise from this general liberty ; but when they began to
increase in numbers and connections, and the establishment of
society gave rise to complicated interests, this natural right in
animalsyc/ve untune was found to be uo longer practicable,
consistently with the wants and interests of the whole ; as the
good order of civil government was constantly distracted by
the turbulent contentions of various persons striving to attain
or acquire possession of the same object. By the municipal
laws, therefore, of every civilized nation, this natural right
was restrained by positive laws enacted for reasons of state, or
for the supposed benefit of the community ; such animals have
been deemed to be appropriated property, and the privilege of
hunting them exclusively vested in the sovereign of the state
only, or persons of a particular description. The reasons
which concurred for making these constitutions, Sir William
Blackstone observes (p), were probably, 1. For the encourage-
ment of agriculture and the improvement of lands, by giving
every man an exclusive dominion over his own soil. 2. For
the preservation of the several species of these animals, which
would soon be extirpated by general liberty. 3. For preven-
tion of idleness and dissipation in husbandmen, artificers, and
others of the lower rank, which would be the unavoidable
consequence of universal licence. 4. For prevention of po-
pular insurrections and resistance to the government, by dis-
arming the bulk of the people.
f) 7 T. R. 535. () 5 Ibid. 405. (?) *Bl. Com. 411.
Qf
488 Of Offences against the Game Laws.
Of the Qualification.
The qualifications for killing game, as they are usually
called, or more properly, the exemptions from the penal
inflicted by the statute law, arise either from estate or cc rti-
fjcato, and are first,
tty Estate. Hie estate required to exempt the possrssm
from the penalties of the game laws, as specified by the sta-
tutes 13 Ric. 2, c. 13; 1 Jac. 1, c. 27; 7 Jar'. 1, c. 11 ;
and 22 and 23, Car. 2, c. 25. As these several acts are still
in force, we shall detail their enactments.
By the statute 13 Ric. , c. 13, it is enacted, that no lay-
man, v. ho hus not lands or tenements of the value of 40s. a
year, or clergyman, not being advanced to 10/. a year, shall
have any greyhound, hound, or other dog to hunt; nor shall
use any ferrets, bags, nets, hare-pipes, cords, or other engines,
for taking or destroying hares or conies, or other gentleman's
game, on pain of one year's imprisonment, to be inflicted by
the justices at their quarter sessions.
By 1 Jac. 1, c. 27 (repealed by the 48 Ceo. 3, c. 93, so
far as concerns hares), it is provided, that every person, un-
less seized in his own estate or his \\ ife's. right of an estate of
inheritance of 10/. a year, or of a life estate of 10/. a yt-ar,
or goods to the value of 200/. or unless he be the son of a lord
or knight, or the son and heir apparent of an esquire, who
shall keep any greyhound for coursing of deer or hare, or any
setting dog, or net to take pheasants or partridges, he shall
forfeit 20s. to the poor, or be committed to gaol for three
months, or after one month's imprisonment, be bound with two
sun ties in 20/. each, not to offend again.
The. statute of 7 Jac. 1, c. 11, every person, having free
women, and every lord of a manor, and also every )i-
liolder, seized in his own or his wife's right of lands or lu-ie-
ditanutits, of the clear value of 40 /. by themselves, or by their
household servants duly authorised, may take pheasants and
partridges in the daytime, between Michaelmas and Christ-
mas, on their own or muster's free warren, manor, or i'i
hold.
By thr stsUuto 2? and 23 Car. c. 5, it is < IKK ! <1, that no
person not hating lands or tenements, or some other e c tat
inheritance of his own or his wife's right of the clear yearly
value of 100/. or for a term of life, or having lease or I.
of
Of Offences against the Game Laws. 489
of nine-nine years, or for any longer term, of the clear yearly
value of 150/. other than the son and heir apparent of an
esquire, or other person of higher degree, and the owners
and keepers of forests, parks, chases, or warrens, being stocked
with deer or conies for their necessary use, in respect to the
.said forests, parks, chases, or warrens, shall have or keep for
themselves or any other person, guns, bows, greyhounds, set-
ting dogs, ferrets, coney dogs, lurchers, bags, nets, low bells,
hare pipes, gins, snares, or other engines, for the taking or
killing of conies, hares, pheasants, partridges, or other game,
but shall be prohibited to have or use the same.
In the construction of the first clause of this statute, viz.
- c having lands or tenements, or other estate of inheritance, of
the clear yearly value of 100/." it has been held, it is not
necessary that it should be a freehold or a legal estate, for
copyhold or an equitable estate of inheritance of the clear
yearly value of 100/. is a qualification (q). But it is not suffi-
cient if the value of the estate has been reduced below that
sum by the interest of a mortgage or other incutnbrance created
by the owner, or by those under whom he claims (r).
In the second clause of the statute " or for term of life,
or lease or leases for ninety-nine years, or for any longer
term, of the clear yearly value of 150/.;" on the words *' or
for a term of life," a doubt having arose, whether they
should be referred to the 100/. or to the 150/. per ann.
the court of king's bench were of opinion, that from the sta-
tute 1 Jac. 27, it was evident, that the intention of the
legislature was to make the yearly value of an estate for life
greater than that of an inheritance ; and thereupon deeided,
that a tenant for life must have 150/. per ann. to exempt him
from the penalties of the game laws.
An ecclesiastical living, which a man holds in right of his
church, is a life estate within this act, although it may hap-
pen to be determined sooner, as by resignation, deprivation,
or by accepting another living incompatible (s).
As to the third clause, " other than the son or heir apparent
of an esquire, or other person of higher degree," it has been
decided, that though the eldest son of an esquire, or of any
person of higher degree, is qualified without any estate, whilst
his father is living, yet the father himself is not qualified
without having the estate required by the statute (if).
(y) Caldecot's Cas. 230. (*) ftid. (i) 2 Burn's Justin, 309.
(/) -it.R. 44-
A It
490 Of Offences against the Game
It is unsettled what constitutes a real esquire, for it is not
an estate, however large, that confers this rank upon its
owner (rj. According to Cainden and Blount, esquires are,
1. The eldest sons of baronets, knights of the bath, and
knights bachelor, and their heirs male in perpetual succession.
2. The \ounger sons of peers, and their heira male in like per-
petual succt ssion. 3. Esquires created by the king's letters
patent, or other investiture, and their eldest son?. 4. Esquirei
by viitue of their office, as justices of the p ace, and others
who tear any office under the crown. To these may bo added,
ihe esquires of knights of the bath, each of whom constitute;*
three at his installation; and all foreign, nay Irish pens.
Persons of highf r degrees than esquires, are colonels, serjrants
at law, doctois in three learned proles-ions (), and barristers
at law (&). But it has bern determined, that a diploma from
a Scotch university, appointing a person doctor of ph)ic,
\vill not give him a Qualification \\ithin this statute r). A
doctor ot physic of the English universities, is not qualified
as such C % y). It has also been determined, that the words
" other person of higher degree" do not relate to the esquire
himself, but mean the son of an esquire, or the son of any
person of higher degree ( z ).
33y the statute 5 Ann, c. 14, which is the act most fre-
quently resorted to at this day, and indeed the most itlicacious
in its tendency, it is enacted, that if any person not qualified
shall keep or use any dogs or other engines to kill or de-troy
the game, and shall thereof he convicted on the oath of one
credible witness, before one justice, he shall forfeit bl. ono
half to the informer, and half to the poor, to be levied by di
tre^s; or for want thereof, the offender to be sent to tin-
house of correction for three months for the lir-t offence, and
for every other offence four months. And am justice of the
peace, or lord or lady of manors may take a\\ay any hare or
other game, and likewise all dogs, guns, nets, xc. from any
unqualified person, to then o\\n n-.e.
And by the statute '2'2 and <Z:> Car. 2, c. 25, s. 2, it is
enacted, that gamekeepers, or any other persons, by warrant
of u justice of the peace, may, in the day-thm , sraidi the
bouses, or other places, of any such persons :is are prohi-
bited by i his act to keep or use any do;.'*, nets, or other engines
aforesaid, and to seize and keep the .same for the u-e ot the
(v) i Init. 668. 3 Ibid. 30. i Bl. Com. 406. (u) i Bl Com. 406.
(w; i Wil>. 144. f*;iT. R-44. C?)1W. yy ( *) Ib.J. 44.
lord
Of Offences against the Game Laws. 49!
lord of the manor, or otherwise to destroy and cut them iu
pieces.
On the statute 6 Ann, c. 14, the following determinations
have been made :
1 . A qualified person may take out with him persons who
are not qualified, to beat the bushes, and see a hare killed (a).
Q+ The statute being in the disjunctive, " keep or use," the
bare keeping one dog is an offence (6). 3. So the bare keep-
ing a gun is within the act, provided it be used for killing
game (f). 4v As to the using, it has been determined, that
walking about with an intent to kill game, is a using of the
instrument or dog within the statute. 5. The using of a hound
to destroy game is not within the act ; for that species of dog
is not mentioned in it (d). (>. An offender is liable only to
one penalty, although lie kills ever so many hares, &c. on the
same day (c). ? And where several unqualified persons of-
fend by going out and killing a hare, it has been determined
that only one penalty can be recovered (f).
By Certificate. By the 25th Geo. 3, c, 50, and 31 Gto 3,
c.' 21, every person who shall go in pursuit of hare, pheasant,
partridge, heath-fowl, or grouse, or any other game wlutso-
ever, without having first delivered in his name and place of
abode to the clerk of the peace of the county or district within
which such person resides, and taken out a certificate, shall
forfeit 20/. And here it is necessary to remark, that the
certificate will not authorise any qualified persons to kill game
out of season.
This act has been modified by the 48 Geo. 3, c. 55 ; and
other birds, viz. woodcock, snipe, quail, landrail, or any conies,
in any part of Great Britain, are designated as game ; and the
duties, viz. for a qualified person 31. 3s. (s. 1), and for a
game-keeper I/. Is. are directed to be paid to the collector*
of the duties for the parish, ward, or place, where the person
so qualified shall reside, on pain of forfeiting 20/. over and
above the duty ; and the , collector shall, on payment of the
duty, give a receipt for the same, for which receipt he shall
be entitled to demand Is. over the duty, as a compen-
sation (s. 2,).
And by the 10th section of this act, if any person shall be
found using any dog, gun, &,c. for any of the purposes men-
tioned in this act, whereof such person shall be chargeable,
(a) Loft. 178. (*) i Str. 4^6. (c) z Str. 1098. (<// ftid,
(t) 10 Mod. *6. (/> z T. R. 713.
492 Of Offences Against the Game Ltws.
t>y any assessor or Collector of the parish where any such per-
son shall then be, it shall be lawful for the assessor, collector,
commissioner, or game-keeper, inspector, or surveyor, or other
person assessed as aforesaid, .or the owner, landlord, U*s?ce,
or occupier of the land, to demand and require from the
person so using such dog, gun, &c. the production of a cer-
tificate, which certificate every such person is hereby required
to produce to the person so demanding the same, and permit
him to read the same, and (if he tltull think fit) to take a copy
thereof; or in case no certificate shall he produced to the
person demanding the same, then it shall be lawful for the
person having made such demand, to require the persou so
using such dog, gun, &c. to declare to him his Christian and
surname, and place of residence, and the parish or place (if
any) in which he shall have been assessed to the duties by this
act ; and if any such person shall, after such demand, wilfully
refuse to produce and show a certificate, or in default thereof,
shall produce any false or fictitious certificate, or give any
false or fictitious name, place of residence, or place M
nitnt, every such person shall forfeit the sum of 2<)/.
Persons not quulifud. The persons prohibited from killing
game arc persons of mean estate, inferior tradesmen, and of-
ficers and soldiers.
By the statute 4 and 5 W. and M. c. 23, s. 10, it is enacted,
if any inferior tradesman, apprentice, or other dissolute person,
shall hunt, hawk, fish, or fowl (unless in company with the
master of such apprentice duly qualified), such person may
be sued for their wilful trespass of coursing on any person's
grounds, and if found guilty, shall pay the full costj, al-
though they they have done no injury to the soil by so tres-
passing.
Who are, or who are not inferior tradesmen under this sta-
tute, is a question for the jury (g).
By the annual Mutiny Act, it is enacted, that if any officer
or soldier shall, without leave of the lord of tho manor, pvi n
under his hand and seal, take, kill or destroy, an\ hart-, coney,
pheasant, partridge, pigeon, or any sort of fowl, poultry, or
fish, or his M;ijt >tv's game, and be thereof converted In lux
a justice, on the oath of one witness, every officer so offend-
ing shall forfeit j/. to the poor of the place; and e\. r \ of-
ficer, commanding in chief upon the, place, nli:ill forfeit 20s.
for every such offence committed by any soldier under his
(l) a WiU. 70.
command ;
Of Offence* a gainst the Game Laws. 43
command ; and if such officer, after demand by tbe constables
or overseer, shall not pay the penalties within two days, he
shall forfeit his com mission.
And by the statute 4 and 5 IV. and M. c. 23, s. 3, every
constable, headborough, and tithing man, being authorized
by one jussice of the peace, is empowered to enter and search
the houses of suspected persons not qualified; and in case any
hare, partridge, pheasant, pigeon, fish, fowl, or other game
(except rabbits) (/i), shall be found, the offenders shall be
carried before a justice of the peace ; and if they do not give
u good account how they came by sach game, or shall not, iu
convenient time, to be named by the justice, produce the party
of whom they bought the same, or procure some creditable
person to depose upon oath the sale thereof, they shall be con-
victed by the said justice of such offence, and shall forfeit for
every hare, partridge, fish, or other game, any sum not under
5. nor more than 20s. one moiety to be paid to the informer,
and the other to the poor of the parish where the offence is
committed, to be levied by distress under warrant of the jus-
tice, and for want of distress the offender shall be committed
to the house of correction, for any time not exceeding one
month, nor less than ten days, there to be whipped and kept
to hard labour.
Of the La&s for the Preservation of the Game.
Having considered the game laws as they relate to th<
qualifications, we shall endeavour to show in what manner the
legislature has interposed for the preservation and protection
of the jrame.
1. Deer. For the general preservation of the deer, it is
enacted by the stat. 28 Geo. 2, c. i(J, that if any person shall
unlawfully set fire to, burn, or destroy, or assist in so doing,
any furze, goss, or fern in forests or chases kept for the pre-
servation of deer, he shall forfeit a sum not exceeding Ll. nor
less than 40s. or on default of payment be committed to the
county gaol for a time not greater than three mouths nor less
than one.
And by the 9 Geo. 1, c. 22, called the Blact Act, if any
person being armed and disguised, shall appear in any forest,
chace, park, paddock, or inclosed grounds, where deer are or
have beeu usually kept, or shall unlawfully hunt,, kill, or steal,
(1) i Ld. Rajm, i$i.
aoy
4.94- Of Offemts against tlit Game taws.
any red or fallow deer ; or if any persons, whether armed or
di^u sod, or not, shall unlawfully and wilfully hunt, wound,
kill, d. stiov, or steal any red or fallow deer, fed or kept In
an* pl.ic.es, in any of the king's forests, or chares, which are
inclo> d with rails or pales; or in any park, paddock, or ground
^d, where deer have been usually kept; or shall forcibly
rescue any offender, or procure another to join in any of the
saui offences; he shall be guilty of felony without benefit of
elei u> .
A.I by the statutes ifi Geo. 3. c. 30, and 4 f i Geo. 3,
c. 107, to course, hunt, or take in any snare, or to kill, wound,
or destroy, or to attempt .so to do, or to carry away any red
or fallow di-er in any forest, chace, purlieu, or ancient walk,
w!u iher incl' sed or not, or knowingly to assist in such of-
fence, \Mthont the consent of the owner of such deer, or with-
out b nj (hnv authorized, subjects the offender to transporta-
tipn for .M <ii rns. To wilfully pull down or destroy, or
cause, to be pulled down or destroyed, the paling or wall of
any forest or urmin-i uhere. any n-il or fallow deer, or to be
discovered with th unlawful possession of any red or fallow
deer, renders the offender liable to several pecuniary penalties.
And as a further preventative against the destruction of deer,
the ranker or keeper of other places where deer are kept, is em-
powered to take from pel sous trespassing thereupon, all guns,
lire-arms, slips, nooses, toils, snares, engines, and dogs, in
like manner as game-keepers are empow rtd by 22 and &i
Car. 2, c. 25, s. 2, to take do,;s, nets, and other engiih-,
from persons not duly qualified to carry or use the same, and
also to detain and cany before a justice the person having the
same ; and if any person shall hurt or wound the ranger or
keeper, or his assistants, in the exercise of .such authority, or
attempt to rescue any offender in his custody, he shall be guilty
of felony, and transported for seven years.
But any lord of pailiamcut has \\iihout any express licence ,
the privilege, by the common law ot the realm, to kill a de-r
or two ai the king's forest, as often as he shall have occasion
to pass through the same, either in going to or returning
from any summons from In niajv.-ty, so that the forester be
present, or a horn be sounded by the p-er. or his servants, to
give notice that he is going to exercise Ins rii;ht (/)
Hares. By 14 and 15 hen. H, c. 10, it is enact. -d, that
BO peraon, of what estate, degree, or condition, he be, shall
(0 4 hit joJ.
trace,
Of Offences' against the Game Laws. 493
trace, destroy, or kill any hare in the snow, upon pain of
forfeiting for every hare so killed the sum of 6s. Sd.
By 1 Jac. 1, c. 27, every person who shall trace or course
any hares in the snow, or destroy them with snares, shall be
committed to gaol for three months, unless he pay to the
churchwardens, for the use of the poor, the sum of 20s. for
every hare he shall so take or destroy; or after one month
from his commitment, become bound with two sureties in 20/.
a-piece, not to offend in like manner.
.And by 22 and 23 Car. 2, c. 25, 8. 6, if any person shall
he found setting or using any snares, and shall be thereof con-
victed within a month after the offence committed, he shall
pay damages to the party injured, at the discretion of the ma-
gistrate before whom he has been convicted, and shall further
pay down immediately a sum not exceeding 10s. to the use
of the poor of such parish as the justice shall appoint, or
else shall be committed to the house of correction for a time
not exceeding one month.
Conies or Rabbits. By 3 Jac. 1, c. 13, it is enacted,
that if any person shall in the night-time, enter into any
grounds inclosed vsith a wall, pale, or hedge, and used for
the keeping of conies, and unlawfully hunt, drive out, take, or
kill any conies, against the will of the owners, he shall be im-
prisoned three months, and pay to the party grieved treble
damages and costs; and shall rind sureties for his good de-
meanour for seven years, or remain in prison till he dots.
By 22 and 23 Car. 2, c. 25, s. 4, if any person shall at
any time enter wrongfully into any warren or ground lawfully
used for breeding or keeping of conies, whether it be inclosed
or not, and there take, chase, or kill any conies against the will
of the owner or occupier, not ha-. ing lawful title so to do,
and shall be thereof convicted within one month after such of-
fence, he bhall yield to the party grieved treble damages, be
imprisoned three months, and so long afterwards till he finds
sureties for his good behaviour.
And by 5 Geo. 3, c. J4, s. 6, if any person shall enter in
the night-time into any such warren or grounds, and take or
kill any coney against the will of the owner of the said ground,
or shall be aiding or assisting therein, he shall be transported
for seven years, or suffer such other less punishment by whip-
ping, fine, or imprisonment, as the court shall award.
By 2 Geo. 1, c. 22, if any person, being. armed and disguised,
shall appear in any warren or place where conies are usually
kept, or shall rob such warren ; or shall., though not armed
and
Of Offences agahist the Game Laict.
and disguised, rescue any person in custody for such offence,
or procure any person to join him therein, he shall be guilty of
felony without benefit of clergy.
J>y '22 and 3 Car. C, . , , I. 3, no pcr-ou shall take or
kill in the night-time any c :ii. ;->M \\arrcns
or other grounds lawfully i. r^ediug or keepiug of
conies, except such ptTsou be owner of the soil, or lawful
possessor of the ground whereupon such conic killed,
or be by him employed, on pain of damavu.s t> -lie party
grieved, and 10.v. to the poor, or in default thereof be com-
mitted to the house or correction for a term not exceeding
one month.
The statute says, upon the borders of warrens; therefore
if rabbits come upon a man's ground from u w:ine:i i !v\\'n, r.-,
and damage his corn or h< rb^M-, he may lawfully kill them ( /').
IJut he is not justified in killing t'.t in for feeding up-m a com-
mon to which he may be entitled to commonage ().
By the O'th section of the same statute, if any person shall
be found setting or using any snares for the taking of comes,
hi- .'hall be li-.ible to Uicaame penalties as abovementioned.
And by :> Jac, 1, c. 1;J, s. 1, if any person not having
lands or heic-ditamctits of 40/. a year or not worth in good*
200/. shall use any gun or cros* bow to kill conies, or shall
keep any engines, bags, nets, ferrets, or coney-dogs (except
he have grounds enclosed for keeping of conies, the increase
of which shall amount to 40s. a year to be let, and except
warrcncrs in their warrens), in such case any person having
hereditaments in fee, in tail, or for life, of the yx-nrly value
of IOO/. in his own right, or in right of his wife, may law-
fully seize the same to his own n^e.
//fla'/.s. Though the. diversion of hawking has become
less prevalent than formerly, yet as it subsists in some place*,
\\e .'hall r.initv the law on that subject.
Hy 1 1 lien. 7, c. i?, n<> man shall bear any hawk of the
bricd of Kngl.md, called a nvose, goss-hauk, tassel, laner,
lai,. i.dcon, or disturb them in then coverts, or *lay
or Lint ih< m lor any mi-.chicf they may have done, on pam
of forfeiting I 1 )/.
By '34 Edw. 3, c. 22, persons finding any species of knwlc
that ift lost, shall lake it tot , \v!i.> .shall make pro-
cl-nualion tliat he has it in his ru.stody ; and if challenged in
foui monllis, the owner paying the costs, shall have it aguin;
(j) Cro.Jac. x,s- Cr. Car. ^8*, '^. SJU. 876-
othcrwba,
Of Offences against the Game Laws. 497
otherwise the sheriff shall have it ; making gree with the finder
if he be a simple man ; but if a gentleman, the sheriff shall
deliver to him the hawk.
Bj 37 Edw. 3, c. 19, stealing a hawk is made felony, but
within clergy.
By 11 Hen. 7) c. 17, persons, of whatever degree, are
commanded not to take, either in their own or other persons
grounds, the eggs of any falcon, gosshawk, tassel, laner, or lane-
ret, out of their nests, under pain of fine and imprisonment. .
And by 23 Eliz. c. 10, which also confirms the above act,
it is enacted, that if any manner of person shall ha\vk, or \\ ith
his spaniels hunt in another man's corn after it is eared, and
before the same shall be shocked, he shall for every such of-
fence forfeit 405. to the owner.
S&ans. By 22 Ed.K. 4, c. 60, no person, other than the
kind's son, unless he have a freehold of five marks a year,
shall have any marks or game of swans, on pain of forfeiting
the swans.
It is felony to take any swans that are lawfully marked, al-
though they be at large ; and so it is as to swans unmarked, if
they be domesticated and tamed, that is kept in a moat or
pond near to the dwelling- house, r so long as they ketp within
a man's manor, or within his private rivers, or even if they
happen to escape, and are pursued and brought back again ;
but if swans unmarked are at their natural liberty, then the
property of them is lost, and felony cannot be committed by
taking them. And yet such wild and unmarked swans may be
seized by the king's officers to his use, by his prerogative. The
king also may grant them, and by consequence another may
prescribe to have them within a certain precinct or place.
By 1 Jac. 1, c. 27, s. 2, every person who shall tatce the
eggs of any swans out of the nest, or willingly spoil them in
the nest, shall be committed to gaol for three months, unless
he pay to the churchwarden, to the use of the p^or, twenty
shillings for every egg; or after one month after his commit-
ment, become bound by recognizance, with two sureties in 20/.
a-piece, not to offend in like manner again.
And by 11 Hen. 7, c. 17, no person shall take, or cause to
be taken, on his own ground or any other man's, the eggs of
any swan, on pain of imprisonment for a year and a day, and
fine at the king's will.
Partridges and Pheasants, By 11 Hen. 1, c. 17, no per-
son, of whatsoever condition, shall take, or cause to be taken,
any pheasants or partridges by nets, snare.-., or other engines,
K k out
Of Offences against the Gawc La:,. .?.
out of hh own warren upon the fret hold of any other person,
without the special licence of the owner of the Fame, on pain
of JO/.
By I Jac. 1, c. 27, s. 2, every per.ion'who shall shoot at,
kill or destroy, any pheasant or partridge with any gun or bow,
or shall take, kill, or destroy them with setting di^rs or nets,
or \\ifh any manner of iu-t<, Hiare.*, engines, or instruments
whatsoever, or shall take th-ir ejyjjs out of their nest, shall be
imprisoned three months, or pay OOs. for every partridge,
pluaant, or egg, to the nse of the poor; or after one mouth's
imprisonment, be bound, with two sureties m (>/. a-pieee, not
to oftend again:
By 7 Ja'- 1, C. 1 I, s. ?, every person \\lio shall take, kill,
or destroy any pheasant or partridge with setting <l nets-,
or with am net's snares, or engines, shall forfeit the like sum,
and enter into the Uke sureties.
Pigfmi*. By 1 Jac. l,c. y pt-r.^on who shali
slioot at, kill, or destroy any house dove or pigeon, \vith any
gnu or boW, or shall take, kill, or destroy the same wi:
tin;: dogs or nets, or with any manner of nets, snares, i>r en-
. sh:ill be c-onnniti- l>u- thrr-c months, unless he
pay CO.t. for every pigeon to iht M-C of the poor.
.', if any p( r--on "hall "hoot at, with intent
to kill, or by any means kiN, or take with a wilful intent to
destroy, any hou^e dove or pigeon, he shall forfeit <2(Xs. and H
not innm niateJy paid, be committed to the common gaol or
house of correction, and kept to hard labour for a term not
exceeding three calendar months, nor le^ than one.
notwithstanding t!;e pnni.>ions of the above acts, th
wner of the land may kill such pigeons as he shall find ihcreo
destro\ir,ir his corn (A - ).
/r;/,/ D*ch } lUMVecff, ^r. By I Jac. 1, c, G7, s. ,
u \\l:o phall shoot at, kill, or destroy, with any gun
or bow, v.y mallard, dock, teal, or wigeon, and the offence be
proved by (lie roiil'cs<:on of the party, or by the testimony of
r.vo v 'ijiriii oath, bcfoie \.\\ o jiistiee^ wlierethe oflence
^liall be eoininillcd, the j)nrt\ apprehended shall be imprisoned
three months, nnlf-s he j:i\ to the ehureb\\:ii(len <>l the parish
\\here tin .milled,- or where he was appre-
,1, to the use of the poor; or within
one month lit. i eoinin>:: Jine bound, with tw sureties
li, not to -'fiend :;
Cros Jac. 49*
Of Offences against the Qame Laws.
l&ath Fuzel, Grouse, and Bustards. By 1 Jac. 1, c. 27,,
S. <2, if any person shall shoot at, kill, or destroy, with any
gun or bow, any grouse, heath-cock, or moor-game, he shall
be subject to the same penalties as are provided for the pro-
tection of wild ducks, wild geese, &c.
'Herons. By 1 Jac. 1, c. 27, s. 2, to shoot at, kill, or de^,-
stroy any heron, with gun or bow, incurs a penalty of '20s. for
each heron.
By 19 Hen. J, c. 11, no person without his own ground
shall take, or cause to be taken, by means of any craft or eiif
giue, any heron, unless it be with hawking or with long bosvs,
on pain of Cis. 8d. ; neither shall any person without his own.
ground take any young herons out of the nest, on pain of 10*
for evtry young heron..
Other Fozct. By 25 Hen. 8, c. 11, it is enacted* that no
manner of persons shall, from the 1st day of March to the
last day of June in every year, by day or night take or de-
stroy any eggs of any kind of wild fowl from or in any nest
or place where they shall chance to be laid, on pain of .impri-
sonment for a year, and of forfeiture of 20d. for every egg of
a crane or bustard; Sd. for every egg of a bittern, heron, of
shovelard; and Id. for every egg of a mallard, teal, or other
wild fowl, except crows, ravens, foscards, and other fowl, not
used to be eaten.
And by the statute 7 Jac. c. 27, s. 2, any person who shall
take the eggs of any pheasant or partridge out of the nest, or
willingly break, spoil, or destroy, the same in the nest, shall,
on conviction before two justices, be imprisoned for three
months, unless he pay, to the use of the poor, '20s. tor every
egg ; or within one month after his commitment, become
bound, with two sureties in 20/. apiece, not to commit the
like offence again.
Of destroying Game at improper Seasons of the Year.
By the statute 9 Ann, c. 25, s. 4, and 10 Geo. 2, c. 32,
it is enacted, that if any person whatsoever shall, by bags, tun-
nels, or other nets, drive and take any wild duck, teal, Vvige'on,
or any other water fowl, in any place o,f resort for wild fowl
in the moulting season, between the first of June and the first
of October yearly, he shall, on conviction, forfeit 5s. for every
fowl ; and the bags, net x s, or tunnels, used in driving or taking
such fowl, , &hali be destroyed.
K k <2 Bj
500 Of Offences against the Game Let:.-*.
By statute 2 (ifn. C, c. 19, s. 1, and If) Geo. 3, c. 34, no
person shall, upon any pretence whatsoever, take, kill, de-
stroy, carry, sell, buy, or have in his possession, or use, any
partridge or pheasatU, bctweeu the first of February and the
first of September yearly, on pain of forfeiting 5/. for every
such fowl, with full costs of suit. But this is not to extend
to any pheasant taken in the proper .^..VMI allowed by tl
acts, and kept in a mew or breeding place.
By 13 (no. '3, c. 55, no person shall take, kill, destrov,
cany, sell, buy, or have in his possession or use, any heath-
fowl, commonly called black game, between the 10th of De-
cember and the '2Oth of August, (in the New Forest, county
of Southampton, and in the counties of Somerset and Devon,
by 5O Geo. 3, c. 55, ihe time within which heath fowl may
be taken is between December l()th and September 1st;) nor
any grouse, commonly called red game, between the 10th of
December and the l'2th of August; nor any bustard between
the 1st of March and the 1st of September in any year, on
pain of forfeiting not more than '20/. nor less than 1O/. for the
first offence, and for every subsequent offence not more than
SO/, nor less than 20/. ; or in default thereof to be imprisoned
for any time not exceeding six months, nor less than three.
And for the better preserving of black game and grouse, by
4 and 5 W. 3, c. '23, s. 11. to burn, between the 2d of IV-
bruary and the ^4th of June, any greg, ling, heath, furze,
goss, or fern, on any mountains, hills, heaths, moors, forests,
chases, or other wastes, incurs imprisonment for any time not
exceeding one month nor less ten days, with whipping and
hard labour.
Of destroying Game in the Right Time, on a Sunday, and
on a Christ mat Duy.
By 23 T.liz. c. 1O, if any person, of whatsoever estate, de-
gree, or condition, shall take, kill, or destrov any pheasants or
partridges in the night time, he shall forfeit for evrry pheasant
20*., and for every partridge 1 0<. ; half to him that >hnll -MI--, and
half to the lord of the manor, unless Mich lord .-hull licenee
or procure the said taking or killing, in which cn*e the said
half shall go to the poor, &c.
By 9 Ann, c. 25, a. 3, if any person what>oev.-r shall take
or kill any hare, ph< a'-ant, partridge, moor-name, heath-game,
or grouse, in the the night-time, he shall, .n conviction, for-
feit 5/i.; half to the informer, and half to the poor of the
parish ;
Of Offences against the Game Laws. 501
parish ; to be levied by distress, or for want thereof, be sent
to the house of correction for three months for the first offence,
and for every subsequent offence four months *.
But these penalties being found insufficient, it was enacted,
by the 13 Geo. 3, c. 80, s. 1, that if any person shall know-
ingly and wilfully kill, take, or destroy, or use any gun, dog,
snare, net, or other engine, with intent to kill, take, or destroy
any hare, pheasant, partridge, -moor game, or heath-game, in
the night-time, viz. between seven o'clock at. night and six iu
the morning, from the 12.h of October to the 12th of Fe-
bruary, and between nine o'clock at night and rour in the morn-
ing, from the J2th of February to the 12th of October; or in
the day-time, on a Sunday or on Christmas-day, he shall, on
conviction, forfeit for the first offence a sum not exceeding 20/.
nor less than 10/. ; for the second, not exceeding 30/. nor less
than 20/. ; and for the third and every subsequent offence, 50/. ;
or on default of payment, be imprisoned for not less than
six months, nor more tlian twelve, and be whipped at the
end of the imprisonment.
And by 3Q and 40 Geo. 3, c. 50, after reciting, that idle
and disorderly persons frequently assemble and assist each
other in the destruction of game in the night, and, if inter-
rupted, are guilty of violence, to the terror of the people, it
is enacted, that if any persons, to the number of two or more,
shall enter into, or be found in, any forest, chase, park, wood,
plantation, paddock, field, meadow, or other open or enclosed
ground, in the night, namely, between eight o'clock at night
and six in the morning, from the 1st of October to the 1st of
February, or between ten o'clock at night and four in the
morning, from the 1st of February to the 1st of October, hav-
ing any gun, net, engine, or other instrument for the purpose
and with intent to destroy, or shall wilfully destroy, take, or
kill any hare, pheasant, partridge, heath-fowl, commonly called
black game, or grouse, commonly called red game, or any
other game; or if any person shall be found with any. gun,
fire-arms, bludgeon, or other offensive weapon, protecting,
aiding, abetting, or assisting any such persons as aforesaid, the
ranger, owner, or occupier thereof, or their keepers or ser-
vants, or any other person, may apprehend any such offender,
and deliver him into the custody of a peace officer, who shall
* It has been decided, that the taking of game up, after it had been killed,
in order to carry it to the lord, is net .a possession within this act. 10 Last's
Rep. 19.
convey
502 Of Offences against the Game Laics.
convey him befoic a justice; or in c:-e :my such offender shall
not be so apprehended, any justice, on information on oath of
one witness, w:-\ is^ie his warrant to apprehend such offender;
am! it it shall appear to such jii^tic-. . on the oath of one wit-
ness, that such person is guilty of any of the offence* afore-
said, lie >hall be deemed to be a rogue and \ag:ib<>nd vuthin
the meaning of ihe 1? G'eo. C, c. 5, and shall suffer as tltnun
directed.
Of buying and sell hi" Game.
By I Jar, l,c. C7> s. 4, it is enacted, that if any person shall
sell, or buy to sell again, any deer, hare, parti idge, or |
sant, ("except the partridges and pheasant.* In i en red or brought
up in houses, or brought from abroad,) he shall, on comiction,
forfeit for every deer 40s., for every hare 10.s., f ;r every par-
tridge 10s. , and for every pheasant '20s. ; half to him that will
sue, and half to the poor of the parish.
By the 5 shin, c. 14, s. 2, any higler, chapman, carrier,
innkeeper, victualler, or alehouse-keeper, who shall have in
his custody any hare, pheasant, partridge, moor-game, heath-
gnme, or grouse, or who shall buy, sell, or offer to sell, any n< h
hare, pheasant, &c. shall, on conviction, forfeit for every li
pheasant, &c. the sum of'5/. ; one'half to be paid to the in-
former, and the other half to the poor of the parish, to be
levied by distress ; and in default thereof, the offender lobe
imprisoned in the house of correction for three months for the.
first ollence, and four months for every subsequent offence.
But this is not to extend to any carrier where such game has
been sent -by persons qualified to kill game.
.And by the _'S Gco. '2, c. 12, s. 1, it is provided, that if
any one, whether qualified or not qualifud to kill i:am< , *hall
sell, expose or offer to sell, any hare, pheasant, paitrnk
hi';:t!i game, or grouse, lie shall for tvny MH ii <>nV,u-e be
liable to the penalties of the statute :> Ann. above mention* d.
Of committing 7'm/>//.ss in t/if Pursuit <;f G<ime, and //,
of hunt ing Foxes and 7'.
Trespass, in the limited and routined sense in \\hirh we are
at pi i se ul to consider it, signifies an entry upon anotln r man's
nd without his pci minimi, and r.-pccully if contrai \ to
>:der, and doing .-OHM- damage, liv >( \ei IIICOHH-
.ible, to h.s u:d pio|>eity ; f<;r which a -:i!i>!:tc! KHI is i
aci< 'lie inttnt of the tns[K. \\ilfidor
Of Offences against' the Game Lazes, 5O3-
inadvertent, and the damage actually sustained (/). Every
trespass is wilful where the defendant has notice and is espe-
.cially forewarned not to come upon the land, as every trespass
is malicious where the intent of the defendant plainly appears
to be to harass and distress the plaintiff (m).
The common law allows the hunting of foxes, badgers, and,
such noxious animals, in the grounds of another man, for the
public good, and excuses a trespass done in pursuit of the
same, provided in doing tins, no more damage is dc,ne than is
.necessary and inevitable, and that it is done in the usual and
ordinary manner (}/~). But in hunting a badger or fox, a man
is not justified in digging and breaking the soil to uuearth
them (o).
No lord of a manor can justify sporting in another manY
grounds in an unlawful manner, unless he have grant of free
warren over such other man's grounds (p).
We shall close this head by subjoining a few remarks on the
legal property \\hich persons duly qualified have in particular
cases to the game they are in pursuit of. If a man starts any game
within his own grounds, and follows it into another, and kills
it there, the property remains m himself (q) ; for the property
consists in the possession, which commences by the finding it
in his own liberty ; and is. continued by the immediate pursuit.
And so if a stranger starts game in one man's chase or free
warren, and hunts it into another liberty, the property coji-
.tinues in the owner of the chase or warren, this property
arising from privilege, and not being changed by the act of a
mere stranger. Or if a man starts game on another's private
grounds, .and kills it there, the property belongs to him ii\
whose ground it was killed, because it was also started there,,
the property being ratione soli (/'.) -Whereas, if after being
started there, it is killed in the grounds of a third person, the
property belongs not to the o\vner of the first ground, because
the property is local ; nor yet to the owner of the second, be-
cause it was not started in his soil ; but it vests in the person
,\vho started it, though ,he is guilty of a trespass against both
.the owners, (s).
(/) 3 Bl.-Com. 20$. .() Ibid. 2:14. (a) i T. R. 334.
(0} Cro. Jac. 321. 2 Rel. 538. (f) 2Bac. Abr. (f) liMod. 75.
( (r) Ld.Raym. 251.' (i) Aid. 7 Mod. i 8.
CHAP.
-504. Of Homicide.
CHAP. VIII.
OfCjfencet against the Persons, the Habitations, and the
Property of Individuals.
Against the Persons of Individuals,
1. Of Homicide.
Homicide, or the killing of any human creature, is of three
Jtindh : justmahle. . - . : < , and felonious
Justifiable ' on.,ud- '.- no ., _niilt at all, as it
mint arise f.om somo M uy, without any
\\ill. ir."i,;;on, or d : vithout any inadvertent e or
negligence in the party killing: 01 it must be committed for
the advancement of publn ju.- 1 tv; or for the prevention of
an; forcible and Htrocious crime.
\Vlien it is justiriable by unavoidable necessity is where, by
virtue of a particular office, one is obliged in execution of
of public justice, to put a malefactor t<> d. ath, \\ho had
forfeited his life by th* u\\> and vtrdict tt his country. But
to aulhorve thi, the lav. mii.st require it, olhei\M.se a is not
ju>r:f.able : ' n!y to kill the reatr>t ot male-
factors, a ft-lon or a trait'M, attainted or outla\ve<l, deliber-
ately, imconipelKd, and evtiajudicially, is murder. And
further, if judgement of draih h< given l>y a judge not autho-
tiM-d by lawful commission, and executu n is done accord-
ingly, the judge is guilty ol murder. Als-> such jinljrnu-nt,
\vhcn legal, must be rxecied by the proper officer, or Ins
appointed deputy ; for if another person does it of his o\\u
head, it is held to be murdei, ev-u thouh it be the judge
himself (0- I 1 must furllu-i b- M ( ii:nl, >. /win juris on:
th?t is it must puism tin s nterci- cif the court. If an officer
b< h ads <uif \\ln. i.-adjnd^id ;<> I e haiinril, or tier versa, it
is murder (r): but il a -ln-iiti chanu'es .nt knwl ol death lor
another, he thru ai ts by ills own authority, which extends
not to the commit' >n of homi<-ide. '1'he king indeed may/
remit part of a sentence; as in the case of treason, all but
the beheading.
(/) i Hale, P. C. 501. I Hawk P. C. 70. Dili. 150. (v) l Ilalc,
F. C. 501.
\VhfU
Of Homicide. .505
When homicide is justifiable for the advancement of public
justice is, 1. Where an officer in the execution of his office,
either in a civil or criminal case, kills a person that assaults
or resists him (M). 2. If an officer, or any private person,
attempts to take a man charged with felony, and is resisted,
and in the endeavour to take him, kills him (j:). 3 In case of
a riot, or rebellious assembly, the officers endeavouring to
disperse the mob, are justifiable in killing them, both at
common law, and by the riot act, 1 Ceo. 1, c. 5. 4. Where
prisoners in a goal, or going to a goal, assault the goaler or
officer, and he in his defence kills any of them, it is justifi-
able, for preventing an escape (y). o. If trespassers in forests,
parks, chases, or warrens, will not surrender themselves to
the keepers, they may be slain by virtue of the statutes 21
Edw. 1. st. 2, and 3 and 4 IV. aud.Jkf. c. 10. But in all
these cases there must be an apparent necessity on the officer's
side, viz. that die party could not be arrested or apprehended,
the riot could not be suppressed, the prisoner could not be
kept in hold, the deer-stealers could not but escape, unless
such homicide were committed : otherwise without such ab-
solute necessity, it is not justifiable.
When homicide committed for the prevention of any for-
cible and atrocious crime is justifiable, is, if any person at-
tempts a robbery or murder of another, or attempts to break
open a house in Hie night time (which extends aho to an at-
tempt to burn) (z), and shall be killed in such attempt, the
slayer shall be acquitted and discharged. But this reaches
not to any crime unaccompanied with force, as picking of
pockets ; or to the breaking open of any house in the dav time,
unless it carries with it an attempt of robbery also (a).
The English law likewise justifies a woman, in killing one
who attempts to ravish her (/>): and so too the husband or
father may justify killing a man, who attempts a rape upon
his wife or daughter; but not if he takes them in adultery
by consent, for the one is forcible and felonious and the other
not (c). And 1 make no doubt, Sir William Blackstone
observes, but the forcibly attempting a crime of a still more de-
testible nature, may be equally resisted by the death of the
unnatural aggressor.
(a) i Hale, 484. i Hawk. 71. (x) i Hale, 494. (y) Jbr'. 496.
(*) Ibid. 498. (a] 4 BJ. Com. 1 80. (4) i Hawk. 71. (c) i
Hale, 485.
Excusable
5Q6 Of Homicide.
Excusable homicide is either per infortitnimn, by misad-
venture, or se defendmdo, in self-defence.
Homicide per infortunium or misadventure, is whore a-
a man doing a lawful act, without any intention of hurt, un-
fortunately kills another; as where a "Snan is at work with a
hatchet, and the head thereof flies off and kills a slander-.
or where a person qualified to keep a gun, is shooting at a
mark, and undesignedly kills a man (</). So where a parent
is moderately correcting a child, a master his appi entice or
scholar, or an officer punishing a criminal, and happens to
occasion his death, it is only misadventure, for the act of
correction was lawful: but if he exceeds the bounds of mo-
deration, either in the manner, the instrument, or the quantity
of punishment, and death eusues, it is manslaughter at least,
and in some cases (according to the circumstances') murder.
for the act of immoderate correction is unlawful (c) .
As boxing and sword-playing are unlawful acts, if either of
the parties be killed, such killing is felony or manslaughter ( f).
JJkewi.se, to whip another's horse, whereby he runs ou
child and kills him, is held to be accidental in the rider, but
manslaughter in the person who whipped him (ir>. And in.
general if death ensues in consequence of an idle, tiauuri<>n,
and unlawful sport, as shooting and casting stom-- in a town,
and the barbarous diversion of cock-throwing, in these and
similar cases, the slayer is guilty of manslaughter, und not
misadventure only, for these are unlawful acts (/<).
Homicide in self-defence, or se defendendo, i.s where a man,
to protect himself from an assault or the like, ui the course
of a sudden brawl or quarrel, happens to kill him who assaults
him; and this is frequently called chance-medley, as pro-
ceeding from a casual affray. To excuse this species of
homicide, it must appear that the slayer ha.l n<> po>ible
means of escaping from his assailant. l ; or which u a>on Uic
law requires, that the person who kills another in his own
defence, should have retreated as far as he conveniently or
safely can, to avoid the violence of the assault, before he
turns upon his assailant, and that not fictitiously, or in order to
uatch his opportunity, but from a real teuuYiut of shed-
ding his brother's blood. The party assaulted inu-t tln-u .
flee as far as he conveniently can, either by reason of sonu-
(4) I Hawk. 73. (/) 4 UI.C.n. 181. (/) li-ii. i8j, ( f ) I,
Hawk. 73. (b) 4 lil. Com. iSz.
wall
Of Self-Murder and Manslaughter, 507
wall, ditch or other impediment ; or far as the fierceness of
the assault will permit him (/).
2. Self- Murder.
A fflo de se is he that deliberately puts an end to his exist-
ence, or commits any unlawful malicious act, which is the con-
sequence of his own death : as if attempting to kill anoiher he
runs upon his antagonist's sword ; or shooting at another, the
gun bursts and kills himself (/c). The party must be at years of
discretion, and m his senses, else it is no crime. 13ut if a
real lunatic kills himself in a lucid interval, he is afelo de se
as much as any other man (/). The punishment for this
offence is an ignominious burial in the highway, with a stake
driven through his body; and all his goods and chattels for-
feited to the king.
3. Of Manslaughter.
Manslaughter arises from the sudden heat of the passions,
and is delined to the unlawful killing of another, without
malice, either express or implied. The offence may be
committed either on a sudden quarrel, as if upon a sudden
quarrel two persons iight, and one of them kill the other;
and so it is if two persons upon an occasion go out and fight
in a lield ; for this is one continued act of passion ; and the
law pays that regard to human frailty, as not to put a hasty
and deliberate act upon the same footing with regard to guilt.
So also if a man be greatly provoked, as by pulling his nose,
or other great indignity, and immediately kills his aggressor,
though this is not excusable se defendendo, yet neither is it
murder, for there is no previous malice, but is manslaughter.
J5ut in this, and in every other case of homicide upon pro-
vocation, if there be a sufficient cooling time for passion to
subside and reason to interpose, and the person so provoked
afterwards kills the other, this is deliberate revenge and not
heat of blood, and accordingly amounts to murder. So if a
man takes another in the act of adultery with his wife, and
kills him directly upon the spot, it is but the lowest degree of
manslaughter (ni).
If two persons play at sword and buckler, unless by the
king's command, and one of them kills the other, it is man-
slaughter (n). So where a person does an act, lawful in it-
self, but in an unlawful manner, and without due caution
CO 4 Rl- Com. 185. (k) i Hawk. 68. (I) i Hale, 412.
(m\ i Hawk. 8.2'. Foster, 236. i Hale, 486. 4 Bl. Com. 191. () 3
In st. 56.
.508 Of Murder.
and circumspection ; as where a workman flings down a stone
or piece of timber into the street, and kills a man; this may
be either misadventure, manslaughter, or murder, according to
the circumstances under which the original act \vas done : if
it were in a country village, where few passengers are, and he
calls out to all people to have a. care, -it is misadventure only;
but if it were in London; or other populous town, where
people are continually passing, it is manslaughter though he
gives loud warning (o); and murder, if he knows of thtir
passing, and gives no warning at all, for then it is inalire
against all mankind (/>). And, in general, when an involun-
tary killing happens in consequence of an unlawful act, it will
be either minder or manslaughter, according to the naturt- of
the act which occasioned it. If it he in prosecution of a
felonious intent, or in its consequences natuially attended with
bloodshed, it will be murder ; but if no more was intended
than a mere civil trespass, it will only amount to man-
daughter (q).
The punishment for manslaughter is, that the offender shall
be burnt in the hand (commuted by 19 Geo. 3, c. 74, for a
small pecuniary fine), and shall forfeit all his goods and chat-
tels. But by 1 Jar. 1, c. 8, where any person shall stab or
thrust another, not then having a weapon drawn, or who has
not then first strucken the party stabbing, so that he dies
thereof within six months after, the offender shall not have
the benefit of clergy, though he did it not of malice afore-
thought.
4. Of Murder.
Murder arises from the deliberate wickedness of the heart,
nd is defined to be, " when a person of sound memory and
discretion unlawfully kills any reasonable creature in being,
and under the king's peace, with malice aforethought either
express or implied (r).
Malice is the great criterion by which murder is distin-
guished from every other kind of homicide ; for as we have
alreadys hewn, homicide may be founded in tln-di>p nsitmnsof
public justice, occasioned by mere accident done for si-lf-pre-
i vation, arising from a sudden transport of passion, or, lastly,
be committed in malice. Kx press malice is that dclilx iatr in-
tention to take away the life of a fellow-creature which is
manifested by txternal circumstances capable of proof; as
(} Kcl. 40. ( f ) 3 In$t. 57. (f) i Hawk. 84. Fc.tcr, 158.
(r) 3 Ia;t. 47.
lying
Of Murder. 509
lying in wait, attendant menaces, former grudges, and coa-
certed schemes to do him some bodily harm. If a person
kills another in consequence of such a wilful act as shows him
to be an enemy to all mankind in general ; as going deliber-
ately, and with an intent to do mischief, upon a horse used
to strike, or coolly discharging a gun among a multitude of
people (s). And if two or more come together to do an unlaw-
ful act against the king's peace, of which the probable con-
sequence might be bloodshed, as to beat a man, to commit a
riot, or to rob a park, and one of them kills a man, it is
murder in them all, because of the unlawful act (t).
Implied malice is that inference which arises from the
nature of the act, though no particular malice can be proved.
If a man kills another suddenly, without any, or without a
considerable provocation, the law implies malice. No affront
by worlds or gestures only, is a sufficient provocation, so as to
excuse or extenuate such acts of violence as manifestly endan-
ger the life of another" (v). But if the person so provoked had
unfortunately killed the other, by beating him in such a manner
as showed only an intent to chastise and not to kill him, the law
so far considers the provocation of contumelious behaviour, as
to adjudge it only manslaughter, and not murder (it). In like
manner if one, kills an officer of justice, either civil or criminal,
in the execution of his duty, or any of his assistants endeavour-
ing to conserve the peace, or any private person endeavour-
ing to suppress an affray or apprehend a felon, knowing his
authority or the intention with which he nnterposes, the iavr
will imply malice, and the killer will be guilty of murder (i).
'And "if one intends to do a felony, and undesignedly kills a
man, this is also murder (y). Thus if one shoots at A. and
misses him, but kills B. this is murder, because of the previ-
ous felonious intent, which the law transfers from one to the
other. The same is the case where one lays poison for A,
and B. against whom the prisoner had no malicious intent,
takes it, and it kills him. And by the statute 43 Gto. 3,
c. 58, it is enacted that if any person shall wilfully and mali-
ciously administer to, or cause to be administered to, or taken
by, any of his majesty's subjects any deadly poison with intent
to murder, he, his counsellors, aiders, and abettors, shall be
guilty of felony without beneiit of clergy. And to attempt to
murder by poison, which by the common law was only a
(i) i Hawk 74.. ((] Ibid. 84. 4 Bl. Com. 200. (v) i Hiwk. Sa.,
() Foster. 291. (x) I Haie, 457. (_y) Ibid. 465.
misdemeanour
OfMunkr.
misdemeanour, is now made a capiia! nrn* 1 . Also, ff a
man docs such an act, of which tin- pr:bahie consequence
way be, and eventually is, dcatli ; such killing in \ be inc.
ai though no stroke be struck by hi-iiMlt, and no killum may
be pi lumpily intended: as was tin- c.i-e of the unnm>,
*I!M his sick father to the :ur, against his v\i!J, by
jrea-on \vhereof he died (;); of the harlot. v!i<. 1 .1-! l:i < i.ild
under leasts in an orchard, wry-re a kite .struck it ami K
it {'0: of il. e- 1 ari*h officers, \\lio shifted a chid I'M >
to parish, till it died tor \vant. of care and J>} ; and
ef the master vho reln-ed neie-viry ; UK c i->
liis appn utice, and trtatt-d him \\ith such <-, ,n mi> d hai >h-
;ily as \ \\\ (c). So too, it a
man has a bfa-t that is used to do mischief; and he knowing
it, .Mill* r , abroad, and it krlis a man; even tin
inai,. i in the o\vner; but if he had purposely tin
it looM', tlmii-Ji barely to f;i;.: ;.id make \\h;it i-i
called sport, it is murder (d). But if a ph..sH i-in, surji.-ou, or
apotlucaiA L;I\I .-, his p-jtu lit a poti-m <>i | : .i:sttr to cure hui),
\vhich coutiary to expectation kills him, this is neither nun
nor Manslaughter; but misadventure. ; and he shall not bt
puiiishfd criminally, however liable he imhi formerly have
i to a civil action for neglect or ignorance, in ordei al-o
to Tnake this kijlin-^ murder, the party must die within a \
and a day alter the strol. i!, or cause of death ad-
ministeied: in the computation of which, the whole day upon
which the hurl was done shall be reckoned the first (f).
And to prevent the abominable practice of procuring abor-
tions, by the statute 43 (tio. ;3, c. ^S, it is enacted, that
if any pi is,, n shall wilfully and maliciou.-ly adinim.stt r to, or
t.nreio be administer! ii to, or taken by, any woman then
quick \Mth child, any noxious or di iMietive substaiu i , with
inienr tin it-by to piocuie the miscartiaije of her cliilil, such
pi ron, and all who conn.-el. aid, anil abet, snail be guilty of
Itlony \\iiliont bctK'tit of clergy . And to attempt by ad-
ministering drugs to deMroy a living infant in r.'ittre s<i mfrt,
thouuh it may in no degree be injured, is also punUhable
with death. Jt is also enacted by the same statute, that \\i
any medicines shall be >< adnnnisteied, or any ui-tiuiiien! oi
other mean, -hail be UMI| to caiiM- an abortion, and the
woman k\>M not be, or shall nut be proved to be, at the time
() i Hawk. 7. (a) i Hale, 431. (t) P!m . S 4. (<) Leach '
Crown Cai, 127. (</) IbiJ. (<) 4 Bl. Com. 197.
quick
Of Petit Treason and Mayhem. 1 1
quick with child, then such offenders shall be guilty of felony,
nd shall be liable to be fined, imprisoned, set in the pillory,
whipped, or to one or more of these punishments; or to be
transported for any time not exceeding 14 years, at the dis-
cretion of the court.
The punishment of murder and manslaughter were for-
merly the same, but now by 23 Hen. 8, c. 1-, and I JkWrc'. 6,
C. 12, the benefit of clergy is taken away from murder
through malice prepense, the abettors, procurers, and coun-
sellors.
5. Of Petit Treason.
Petit treason, according to the statute 25 Eclw. 3, c. 2,
may happen three ways: by a servant killing his master, a
wife her husband, or an ecclesiastical (either secular or re-
gular) liis superior to whom he owes faitk and obedience. A
servant who kills his master whom he has left, upon a grudge
conceived against him during his service, is guilty of petit
treason (f). So if a wife be divorced a mensa ft thoro, still
as the vincitlum matrimonii subsists, if she kills her divorced
husband, she rs a traitoress. f ) And a clergyman is under-
stood to owe canonical obedience to the bishop who ordained
him, to him in whose diocese he beneficed, and also to the
metropolitan of such suffragan or diocesan bishop : and there-
fore to kill any of these is petit treason (/*).
The punishment for petit treason we have already men-
tioned. The aiders, abettors, and counsellors of this crime
are allowed benefit of clergy by the statutes 23 Hen. 8, c. 1,
and 4 and 5 P. and M. c. 4.
6. Of Mayhem.
Mayhem consists in violently depriving another of the use
of such of his members as may be useful to him in fight, either
to defend himself, or to annoy bis adversary. Among these
defensive members are reckoned, not only arms and leg 5 ', but
a finger, an eye, a foretooth, and also some others. But the
loss of one of the jaw-teeth, the ear, or the nose, is no may-
hero, at common Jaw, as they can be of no use in fighting ;
though the statute 37 Hen. 8, c. (). has punished the cutting
off of an ear, by giving the injured party treble damages.
As a criminal injury, the law considers it as an atrocious
breach of the peace for which the offender may be punished
by fine and imprisonment (*').
I
(f) i Hawk. 89. (g) i Hde, 3 gi. (4) Ibii. () 4 Bl.
Com, ac6.
3 By
5 1 2 Of Forcible Marriage.
By statute 37 lien. H, c. 6, to cut off the ear or ears of
another, otherwise than I \ authority of law, or mischance,
incurs a forfeiture of civil damages, ixc. By '22 and '23 Car. 2,
c. 1, called the Coventry Act, if -my person shall on purpose
and of malice ai.'ie'jionghi, ami by lying in wait, unlawfully
cut out or disable the tongue., put out an eye, silt the nose,
cut off a nose or lip, or cut off or disable any limb or member
of any other person, with latent to maim or uisr.gure him;
such person, his councilors, aiders, and abettors, shall be
guilty o.' felony without benefit of clergy. And by the 43
Geo. S, c. 58, if any person shall wilfully and maliciously
stab or cut any of his majesu's subject* with intent to murder,
rob, inaiui, disfigure, or disable him, or to do him some griev-
ous bodily harm, or with intent to resist or prevent the ap-
prehension and lietfcintr of the person so stabbing or cutting,
or of any of his accomplices for offences for which they
might be lawfully apprehended and detained, he. his coun-
sellors, aiders, and abettors shall be guilty of felony \\ithout
benefit of clergy : provided that if Mich acts of stabbing or
cutting were committed under circumstances, that if dea'h
n -tied, the same would not in law amount to the crime of
murder, then the person so indicted shall be acquitted.
To strike \\ith the sharp or claw part of a hammer has
be"cn held a cutting v\ ithin the statute.
0. Of Malicious Shooting.
By f) Geo. 1, c 22, if any person or persons shall wilfully and
maliciously shoot at *n\ p< is< n, in any dwelling house or other
place, he shall be guilty of felony Without benefit of ch ;
By the 4f> Cico. ,j, c. SP, if anypirson shall \\ilfulh and
maliciously shoot at any of his majesty's subjects, or shall
present or level any kind of loaded fne arms ut any one, and
attempt to discharge thr same by drawing the trigger, or in
any other manner \\ilh intent to murder, rob, maim. li>ii.iure,
or disable him, or to do him some grievous bodily harm, he,
his CPUIIM llors, aidirs. and abettors, shall be guilty of felony
without benefit of cleruy : piovided that if it shall appear
upon the trial that such shooting and attempt to <i:
file an:. N n< . e < ommitted in, Irr eitvuni^aiK ek, that if death
..I, ti e -aine '.\oiti.l not lune r-nionnied to the crime of
murder, th< n the per- MI indicted ^hall be acquitted.
7. Of Forcible Muni
By 3 Hen. 7, c. '2, it is enacted, that if any person shajl
for lu< re t:'ke :in> \\oman, being maid, widow, or wife, and
having substauce either iu goods or land*, being heir ap-
parent
Of Rape. 513
parent to lier ancestors, contrary to her will ; and afterwards
she be married to such misdoer, or by his consent to another,
or defiled ; such person, his procurers and abettors, and aich
as knowingly receive such woman, shall be deemed principal
felons ; and by statute 39 Eliz. c. 9, the benefit of clergy is
taken away from all such felons, who shall be principals, pro-
curers, or accessaries before the fact.
An inferior degree of the same kind of offence, but not
attended with force, is punished by the 4 and 5 P. and M+
r. 3, which enacts, that if any person, above the age of fourteen,
shall unlawfully convey or take away any woman child unmarried
(which is held to extend to bastards as well as to legitimate chil-
dren) (j), within the age of sixteen years, from the possession
and against the will of t}ie father, mother, guardians, or gover-
nors, he shall be imprisoned two years, or fined at the dis-
cretion of the justices ; and if he deflowers such maid, or
woman child, or without the consent of parents, contracts
matrimony with her, he shall be imprisoned five years, or
fined at the discretion of the justices ; and she shall forfeit all
her lands to /her next of kin, during the life of her said hus-
band. But this latter part of the act now is rendered al-
most useless by provisions of a very different kind, which
make the marriage totally void, iu the statute 26 Geo. *%>
c. 33.
8. Of Rape.
Rape is an offence in having unlawful and carnal knowledge
of a woman by force, against her will ; but an assault to ravish
her, however shameless and outrageous it may be, if it proceed
not to some degree of penetration, and also of eoiission, cau-
uot amount to rape.
This offence is by statute 18 Eliz- c. 7, made felony with-
out benefit of clergy: as is also tiie abominable wickedness
of carnally knowing and abusing any woman child under the age
of ten years ; in which case the consent or non-consent is imma-
terial, as by reason of her tender years she is incapable of
judgment and discretion.
A male infant, under the age of fourteen years^ is pre*
sumed by law incapable to commit a rape, and therefore il
seems he cannot be found guilty of it. For though in other
felonies malitia supplet atatem, yet, as to this particular
species of felony > the law supposes an imbecility of body as
well as mind (k).
Stra. ii6z (*) AB1, Com. ai,
M It
Of Burglary .
As this is nn accusation easy to bo. ninth', ami hard to be
<! tended by the party accused, though innocent, the following
concurring circumstances are required to give credibility to the
testimony of the party injured: that she be of good fame;
that she pre.-cntly discovered the offence, and made search
for the offender; that the party accused fled for it; these and
the like are concurring circumstances which give greater pro-
bability to her evidence. But, on tin- other side, if she be
of evil fame, and stand unsupported by otlier>; if she con.
cealed the injury for any considerable time alter she had op-
portunity to complain ; if the place, where the fact wa<
alleged to be committed, was where it \\;:> pnible she
might have been heard, and she made no outcry; these and
the like circumstances cany a j-trong, but not conclusive,
presumption that her testimony is false or feigmd.
It is felony to force even a concubine or harlot (/).
Against the Habitations of Individuals.
1. Of
Arson is the innlirious and voluntary burning of the house
or outhouse of another by night or by day.
In 9 Geo. 1, c. 'J'2, to set lire to any house, bain, out-
house, hovel, cock, mow, or stack of com, hay or wn,
felony without bciutit of clergy. The 13 (>rn. .
enacts, that 'if any person shall wilfully and maliciously set
fire to any house, out-house, mill, warehouse, or shop, whe-
ther they are in possession of himself, or of any other pi r.-un.
v ith intent to injure or defraud his majesty, any of his .sub-
jects, or any body coporate, he, hi> e.nuiM llors, aiders, and
abettors shall be guilty of felony .without hem ill of c!>
And by statute Ann. c. 31, any servant negligently Ailing
fire to a house, or out-houses, shall forfeit KJO/. or be
to the house of correction for eighteen months.
<1. Of Burglary.
Burglary is the breaking and entering the mansion hou-c
of another, in the night time, to the* intent to commit -
felony within the same, \\hether the felonious intent be
\. ented or not.
To constitute this offence, 1 . the bnr.i'hiry must be committed
iif the night, . in a mansion house, :). theje mn-t he both
(/) 1 4wk. 13.
a bi>
Of Burglary. 513
a breaking and entry, and 4. such breaking and entry must be
with a felonious intent.
1. The time must be by night, and not by day; for in the
day time there can be no burglary. As to what is reckoned
night, and what day for this purpose: anciently the day was
accounted to begin only at sun-rising, and to end immediately
upon sun set ; but the better opinion seems to be, that if
there be day light or crepnscu/um enough, b6gun or left, to
discern a mail's face withal, it is no burglary (m~). But this
does not extend to moonlight.
2. As to the place. It must be according to Sir Edward
Coke's definition, in a mansion house. For no distant barn,
warehouse, or the like, are under the same privileges, nor as
a breaking open houses wherein no man resides attended with
the same circumstances of midnight terror. A house, however,
wherein a man sometimes resides, and which the owner has only
left for a short season, ammo revertendi, is the object of
burglary, though no one be in it at the time of the fact com-
mitted (). But where a house is built, purchased, or rented
and is making /eady for the reception of the owners no
burglary can be committed in it, until the owner, or some part
of his family inhabits it (o). If a barn, stable, or warehouse,
be parcel of the mansion house, and within the same common
fence, though not under the same roof, or contiguous, a bur-
glary may be committed therein; for the capital house pro-
tects and privileges all its branches and appurtenants, if
within the curtilage or home stall (p). But where
an outhouse was separated from the dwelling house by au
open passage eight feet wide, but not connected with
the dwelling house by any fence inclosing both, it has been
held not to be part of the dwelling house, and that no bur-
glary could be coinmitted therein (<y). A chamber in a
college or in an inn of court, where each inhabitant has a
distinct property, is, to all other purposes as well as this, the
mansion house of the owner (r). So also, is a room or
lodging in any private house, the mansion for the time being
of the lodger; if the owner does not himself dwell in the
house, or if he and his lodger enter by different outward
doors. But if the owner himself lies in the house, and has
but one outward door at which he and his lodgers enter, such
(m) 3lnst. 63. i Hale, 350. i Hawk. 101. (n) i Hale, 56 !.
(a) I-each, 169, 893. (/>) i Hale, 558. r Hawk,. ;OA. (a) U-^h,
Iji. (r) z Hale, 556.
L 1 2 todera
Of Burglar fr
lodgers seems only to be inmates, and all their apartments to
be parcel of the dwelling house of the o\\ner(s). So
if I hire a shop, parcel of another man's house, and work
or trade in it, but never lie there; no burglary can be com-
mitted therein (/) l$"t if a shop is rented with some
the apartments of a house, it has been held that a burglary
may be committed in it (t).
3. As to the manner of committing burglary. There must
be both a breaking and an entry to complete it. But they
lieed not be botk done at once : for if a hole be broken one
night, and the same breakers enter the next night through the
Same,- they are burglais (M). There must in general be an
actual breaking; as at least by breaking, or taking out the
glass of, or otherui^e opening a window; picking a lock, or
opening it with a key; nay by lifting up the latch of a door,
or unloosing any Other fastening T\hich the owner has pro-
vided. But if a person leaves his doors or windows open, if
a man enters therein, it is no burglary: yet if he aftt-rward^
unlocks an inner or chamber door, it is so (K). To come
down a chimney is held a burglarious entry (.r). So also
(o knock at a door, and upon the opening of it to rush in, will*
a felonious intent; or, under prttence of taking lodgings, to
full upon the landlord and rob him; or to procure a con-
Stable to gain admittance, to search for traitors, and then to
bind the constable and rob the house: all these eiitn- h.;-. r
been adjudged burglaries, though there was no actual break-
ing ( ?/). And so, if a servant opens and enters his master
chamber door with a felonious inlent; or if any other perwn
lodging in the same house, or in a public inn, open-? and < a
another's door, with such evil intent; it is bprulary. .Viy if
the servant conspires with a robber, and lei* him into the
house by night, this is burglary in bothc). liut it does not
eem to be burglary to break the doors of cupboards, presses*
and closets (u).
As for the entry. Any the least degree of it, K-ith any part
of the body, or with an instrument heKl in the hand, is suf-
ficimr : as to step over the threshold, to put u hand or a
hook in at u window to draw out goods, or a pistol to demand
one's money, are all of them burglarious entries (/>). And
by statute J2 Ann, c. 7, if a pcrsou enters into the
() i H>, 556. (0 Ibid. ss. M Leach, 287- ()
Hal<u<?3- (w) HJ. (*) Ibid 553. (/) I Hiwk. 102.
{) i Hale, 5Sj. (-) aEst'if<C. 4X8. (*) I Halt, 55$. i Hawk.
icj.
dwelling
Of Larceny. 5 1 7
dwelling-house of another, without breaking in, either by day
or by night, with intent to commit a felony ; or being in such
house, shall commit any felony, and shall, in the night, break
out of the same, this is declared to be burglary.
4. Ad to the intent. It is clear that such breaking and entry
must be with a felonious intent, otherwise if is only a trespass.
And it is the same, whether such intention be actually carried
into execution, or only demonstrated by some attempt or overt
act, of which the jury is to judge. And therefore such a
breach and entry of a house as has before been described, by
night, with intent to commit a robbery, a murder, a rape, or
any other felony, is burglary, whether the thing be actually
perpetrated or not (c).
Against the Property of Individuals.
J. Of JLarceny.
Larceny is either simple or mixee}. Simple larceny is also
distinguished into grand and petit.
Grand larceny js where the goods amount tp more than the
value of twelve pence, and are not taken violently fronj the
person of the owner, nor out of his house.
Petit larceny is where the goods so taken are of, or under,
the value of twelve pence.
Mixed or compound larceny is a felonious taking of thp
goods of another, either from his person or his house, and
includes tlje crimes of robbery and housebreaking.
Of Simple Larceny.
Simple larceny is the felonious taking and carrying away the
personal goods of another.
Every larceny must include a trespass, and if the party be
guilty of no trespass he cannot be guilty of felony in carrying
the goods away. Thus, if a person find goods, and convert
them ammo j'urcindi to his own use, or obtain the actual de-
livery of them from the owner for a special purpose, as a car-
rier to convey them to a certain* place, or a taylor to make
.them into clothes, and afterwards convert them, yet neither
the -finder, the carrier, nor the taylor can be guilty of larceny;
bjut j.f the goods were not lost, or the carrier or taylor pre-
(c) 4Bl.Com. 227.
.} 1 S Of Larceny.
tnuled to convey them, or to make them op, with a dishonel
and fraudulent intent to carry them feloniously away, in such
case the law will consider then), notwithstanding the delmrv,
us constructively remaining in the possession of the owner; and
being taken from his possession, the parties carrying them a\\ay
will be guilty of larceny. To constitute larceny, the property
must be taken from the possession of the owner; and tin K -
fore, where a man intending to go a journey hires a 1:
fairly and bond jide for that purpose, and evidences the truth
of such intention by actually proceeding on his way, and after-
wanls rides off with the horse, it is no theft, because the
felonious design \\as hatched subsequent to the delivery; and
the delivery having been obtained without fraud or design, ihq
owner parted with his possession, as well as his property, and
thereby gave the hirer complete dominion over the horse, upon
trust that he would return him when the journey was per-
formed (d ). But where one Pear hired a horse to go a few
miles from town, but instead of going, immediately sold the
horse> and the jury found, that he had hired it with a fraudulent
view and intention to convert it to his o\vn use, the judges held
it to be felony (r). And it is now fully established, that in all
cases where horses or carriages are hired and never returned,
if the jury are of opinion from the circumstances, that the per-
sons to whom they are delivered intended at the time of the
hiring n ver to restore them, or that the intention to convert
them to their own use existed in their minds at the time they
gained possession, they are guilty of felony (/'). And \\l:rr-
a person hires a horse for a particular time, or to go a .-pecifio
journey, and after complying with the terms of tin spei-ial
agreement, sells it, his possession being then unsupported !>y
any privity of contract or consent of the owner, he is held to
be guilty of felony Q;).
A person who has the bare charge or special u*> of _
but not the possession, as :i -hi piierd who looks aftn sheep,
or a butler who t.ikcs care of plate, may be guilty of ft-lony m
taking them away (//). And in general, if the pos.-es.siou of
property is obtained bj any contrivance aniinn furninii, as by
pretending to find a valuable IIIIL', cullini; cards, or l:i\iir_'
Wig . undertaking to thange u note into cash, or g
into silver, it amounts to felony (/). But where the -air \ ,\.
or any other article is complete, and possession \D deii-
(/) Law Grammar, p. 44 3. () Lfch, 189. (f) ISid. iSq, ;;.-.
(;) Ibid. (6) | Hawk. 155, iu note*. (!) Lcacli, ac6, 226, 239.
veit-J
Of Larceny. 519
vered to the buyer, who rides away with the horse, or carries
off the article, without paying for it, no felony is committed.
For the property as well as the possession is iu that case parted
with, and the owner is defrauded, not of the horse or article,
but only of its price, and he has his remedy by an action to
recover it (A~).
There must not only be a taking or converting, but a carry-
ing away is necessary to constitute larceny. A bare removal
from the place in \\hich tire goods are taken, although the* thief
does not quite make off with them, is a sufficient asportation
or carrying- away. As if a man be leading another's horse out
of a close, and be apprehended in the fact, or if a guest steal-
ing 'oods out of an inn, has removed them from his chamber
. '
down stairs, these have been adjudged sufficient carryings away
to constitute larceny (/). Or, if a thief intending to steal plate
takes it out of the chest in which it was, and lays it down
upon the floor, but is surprized before he can make his escape,
this is larceny '/). So where a man snatched an ear-ring from
a lady's ear, aiid afterwards dropped it in her hair, it was held
a sufficient asportation to constitute a robbery (n). The re-
moval of a parcel from one end of a waggon to the other,
with an intent to steal, was held to amount to a larceny (p).
But where a bale of goods was raised and placed upon its end
in a perpendicular posture, this was not thought to be a suf-
'f-cient carrying away, there not being a complete removal from
the place it before occupied (p). So where a man was
stopped and ordered by the prisoner to put down upon the
ground a parcel which he was carrying, but which the prisoner
did not afterwards take up, this was held not a sufficient as-
portation to complete the crime of robbery (q). So if a purse
is tied to the pocket by a string, or goods to a counter in a
shop, and the purse is taken out of the pocket, or the goods
from the counter, yet the larceny is not complete if the string
remains unbroken (/) The goods taken must be personal
goods of some intrinsic value ; for larceny cannot be 'committed
of things fixed to the freehold, or savouring of the realty, as
corn, grass, trees, and the like. But if the thief severs them
at one time, whereby they are converted into personal chattels
in the constructive possession of him on whose soil they
are left or laid, and come again at another time when they are
so turned into personalty, and takes them away, it is larceny ;
(}.) Leach, 528. (/) 3 Inst, ip8. (m) i Hawk. 93.
(s) Leach, z6 4 . () Ibid. at^. (?) Ibid- (j) Ifcid. 216,
(r) a East's P. .556.
and
,520 Of Larceny.
and so it is if the owner or any ope else has severed them (s).
Upon nearly the same principle the stealing of writings relating
to a re-al estate is no felony, but a trespass, because tlu:y con-
cern the land, or (according to technical language) savour of
the realty, and are considered as part of it by the law (t\ So
also they ought not to be things of a base nature, as <i
cats, bears, and the like; but of wild animals, as of fu-h in a
river, deer, hares, or conies, in a park, field, or warrc-.n, if
they l>e restrained or appropriated, or reduced to lameness,
larceny may be committed.
On a conviction of larceny the prosecutor shall have restitu-
tion of his goods by virtute of statute 21 Hen. 8, c. 11; for
Jjy the common law there was no restitution of goods upon an
indictment, ii being considered as at the suit of the king only,
and therefore the pai ty was forced to bring an appeal of rob .
bery in order to have his goods again. But it being consi-
dered that the party prosecuting the offender by indictment
deserves to the full as much encouragement as he who prose-
cutes by appeal, this statute was made; which enacts, that if
any person be convicted of larceny, by the evidence of the
party robbed, he shall have full restitution of his money,
goods, and chattels, or the value of them, out of the offen-
ders goods, if he has any, by u writ to be granted by the
justices.
It is now usual for the court, upon the conviction of a felon,
to order (without any writ) immediate restitution of such goods
as are brought into court, or the party may peaceably retake
his goods \\heiever he haj-pMi> to find them (M) 5 or if the
felon be convicted on the evidence of the owner of the goods,
and afterwards IJUM l.is rl. j-jry, or be pardoned, the owner may
bring trover against him (j), or against any one in whose pos-
session the goods may be found after the conviction; but no
action win" lit against :i man who may have purchased them
Loiiri f'nJ' iu m;nkrt o\ut, and sold them again before the
, .viction, notwithstanding ihe owner gave him notice of the
robhery while they \\v\c in his possession ( y).
And if goods are obtain* d u.nlt i I;I!.M- pretences, and after-
ward pasuie.'l, it s. t ms that tin- paunec is entitled to retain his
lien a^:iinst the true o\\nrr, though he prosttnte the offender
to conviction. Tints in a case \\heie it app( an rl that cetfam
goods had bi.cn obtained from the defendant by false pretences,
(>) 3 Init. 109 i Hale, 510. (^ 4 Bl. Com. 133. (u)aKol.
Abr. 565. (*J Siylc, 346. V) 3. T. R. 750-
Of Larceny,
and afterwards pawned to the plaintiff for a valuable consi-
deration, without notice of the fraud ; that the person obtain*
ing them had been convicted by the defendant, on which the
latter got possession of the goods again ; and the action was
brought by the pawnbroker to recover them from the defen-
dant; and a verdict having been found for the plaintiff^ it wa*
movea to enter a nonsuit. But the court said, the case was
distinguishable from the case of felony; for there, by a posi-
tive statute, (21 Hen. 8, c. 11,) the owner, in case he prose*
cutes the offender to conviction, is entitled to restitution ; but
that does not extend to this case, where the goods were ob-
tained from tlit? defendant by a fraud (z).
Servants rolling their Masters.
By 21 Hen. 8, c. 7, if any servant, to whom any good*
have been entrusted by his master or mistress, shall go away
with the same, with an intent to steal them, or shall embezzle
any property during his service, to the value of forty shillings,
he shall be guilty of felony, except apprentices and servant*
under eighteen years old. And by 12 Ann, c. 7 , whosoever
shall feloniously steal to the value of forty shillings or more in
any dwelling-house, shall be guilty of felony without benefit of
clergy. But this act does not extend to apprentices under
fifteen years of age.
By the 39 Geo. 3, c. 85, if any servant or clerk shall, by
virtue of his employment, receive any money> bills, or any
valuable security, goods, or effects, in the name or on the
account of his master or employer, and shall afterwards em-
bezzle any part of the same, he shall be deemed to have felo-
niously stolen the same, and should be subject to transport**
tiou for any term not exceeding fourteen years.
Servants of the Bank.
By statute 15 Geo. 2, c. 13, officers or servants of the
Bank of England secreting or embezzling any note, bill, war-
rant, bond, deed, security, money, or effects* entrusted with
them or with the company, are guilty of felony without benefit
pf clergy.
{*) 5 T. R. 175.
Servants
.512 Of
Servant* of the Post-Office.
By 5 Crto. S,,c. '25, and 7 Geo. 3, c. 50, if any. deputy,
clerk, agent, letter-carrier, post-boy or rider, or any other
officer or person whatsoever employed in the Post-Oifcce, shall
secrete, embezzle, or destroy, any letter, packet, or bag ol" let-
ters, which he shall be entrusted with, containing any bank-.
ttott, bank-post-bill, bill or exchange, exchequer bill, KT. <.r
any security whatever for the payment of money, or shall steal
aod take the same out of any letter or packet that slrill mmr
to his possession, he shall suffer death without benefit of
clergy. Or, if he shall destroy any letter or packet with which
he has received money for the postage, or shall advance the rate
of postage on any letter or packet suit by tin- post, and shall
secrete the money received by such advancement, lie shall be
guilty of single felony.
Robbing Lodgings.
By f> and 4 IV. and M. c. P, if any person shall take mvav,
with intent to steal, embezzle, or purloin, any cliatt. 1, !><<;.
or furniture, which by contract or agreement he \vns t<> us
shall be let to him in or with such lodgings, he shall be guilty
of felony.
Stealin a Chose in Diction.
Bond*, bills, note?, which concern mere choses in action,
were at the common law held to be such goods whereof larceny
might be committed. But by the statute '2 (jeo. 2, c. 'J.">,
whosoever shall steal, or take by robbery, any exchequer orders
or tallies, or other orders entitling any other per>on t<> any
annuity .or share in any parliamentary fund, or any exchequer
bills, bank-notes, South-Sea bonds, East-India bond.-, or any
other company, society, or corporation, bills of exchai.
bills, or debentures, goldsmiths notes for the paMiieut of
money, or other bonds or warrants; bills or promissory notes
for the payment of any money, being the property of any other
person or of any corporarion, shall be deemed gmltvuf fhny
of the same nature and in the same degree, and \\ith <>r \\ith-
out the benefit of clergy, in the same manner as it would haxc
been if the offender hud stolen the money tli-\ \\, i, ,
secure.
Robbing
Of f*arceiiy.
'Robbing the Mail.
By 5 Geo. S, c. 25, and? Geo. 3, c. '50, 'whoever shall rob
any mail in which letter? are sent or conveyed by the post, .of
any letter, packet, or bag of letters, or shall steal or take from
any suqh mail, or from any bag of letters sent or conveyed by
the post, or from or out of any post-office, or house or place
for the receipt or delivery of letters or packet? sent, or to bt*
sent by the post, any letter or packet, shall be deemed guilty of
felony, and suffer death without benefit of clergy.
Stealing from Shipwrecks.
By 12 Ann, c. 18, justices, on information that any ship is
in distress, are authorized and required to summon and employ
revenue officers and others for the preservation of the cargo;
and if any person shall make a hole in such ship, or steal liec
pump, it is felony without benefit of clergy.
And by the 26 Geo. 2, c. I9j to plunder, steal, take away,
or destroy any shipwrecked goods that are there, or to beat or
wound any person endeavouring to save his life from the wreck,
or to hold out false lights, so as to bring any ship into danger,
is felony without benefit of clergy. But if the goods stolen
are of small value, and no barbarity used in taking them, the
offender may be prosecuted for petit larceny.
Stealing Dogs.
By 10 Gtfo. 3, c. 18, if any person shall steal any dog or
dogs of any kind or sort whatsoever from the owner thereof,
or from any person entrusted by the owner therewith, or shall
knowingly buy, sell, receive, harbour, keep, or detain any such
dog or dogs, on conviction by one witness, or on confession
before two justices, they shall forfeit for the first offence not
exceeding 30/. nor less than 20/., together with the charges
previous to and attending such conviction; on 'default, to be
committed to the house of correction for not more than twelve
nor less than six months, unless the penalty be sooner paid. For
the second offence, not exeeding 50/. nor less than 30/., and
from twelve to eighteen months imprisonment, and to be pub-
licly whipped within three days after commitment. One jus-
tice, on information, may grant a warrant to search, &c. and
if any such dog, or the skin of such dog, be found, the pos-
sessor,
sessor, if privy to the said theft, is liable to the penalties
aforesaid.
Stealing Catt/e.
By 14 Gco. C, c. 6, and \5 Geo. %, c. 34, if any person
hall feloniously drive away or steal, or ahall wilfully kill any
o.y, bull, cow, steer, bullock, heifer, calf, sheep, or lamb, with
a felonious intent to steal the whole carcase, or any part iherc-
of, or shall assist in committing any such offence, he shall bo
guilty of felony without beueiit of clergy.
Stealing Horses.
By 1 Edw. 6, c. 12, and 2 and 3 Edre. 6, c. 33, to take or
steal any horse, gelding, or mare is felony without bent-lit of
clergy. And by 31 Eliz, c. 13, s. 5, not only all accessaiu >
before the fact, but all accessaries after the fact shall be deemul
guilty of felony without benefit of ltrir\. At the timo
this statute was passed an accessary was only guilty for receiv-
ing the felon, not for receiving the goods. But now, h\ ;i
^ud 4 IV. and M. c. 9* those who receive stolen lu>r>i * an m
Uie description of receivers of stolen goods, and liable t
transported for fourteen years,
Stealing Trtn.
By 6 Geo. 3, c. 48, whoever shall in the night-timn steal,
damage, or destroy any oak, beech, walnut, ash, elm, cellar,
fir, asp, lime, sycamore, and birch, or the lops and lops thereof;
and by 13 Gco. 3, c. 33, poplar, alder, larch, maple, and
hornbeam, or any tree likely to become timber, without the
consent of the owner, (or in any of his majesty's forests or
chases without the consent of the surveyor, or hi* deputy, <-i
persons entrusted with the care thereof,) shall for the iii.st
offence forfeit not exceeding 20/., with the li;i;'_'' > [>n viuus to
and attending such conviction; or in default thei:.<>l, to he im-
prisoned for a term not exceeding twelve, nor less than six
months, unless the penalty and charge*, be before paid; for
the second oQ'encc to foifeit not exceedin- ;H)/., with the
charges a-> akin-aid, or be imprisoned from twelve to t i-^hteeii
JHonths; and for a third oii'enrr, the oflriider to K dt eineit
guilty of felony, and be transported for seven years.
525
by the same statute (C) Geo. 3) it is provided, that if
any person shall, in the night time, go into the woods, or
wood grounds of any of his majesty's subjects, and cut, spoil*
or otherwise destroy any kind of wood> or carry or convey the
same away (or shall, by night or day, cut down, destroy, take,,
or convey away any hollies, thorns, or quicksets, growing in
any of his majesty's forests or chases^ or within the woods of
wood grounds of any of his majesty's subjects, 9 Geo. 3>
c. 41 ) ; or shall have in his custody any kind of wood or young
trees (or any such hollies, thornSj or quicksets, as are specified
in the 9 Gco. 3, c. 41), and shall not give a satisfactory ac-
count how he came by the same ; he shall, on conviction^
forfeit for the first offence not exceeding 40s. with the charges
previous to and attending the conviction^ or on default thereof
be committed to the house of correction for one month to
hard labour, and be once whipped there ; for thfc second of-
fence he shall forfeit 5/. with the charges as aforesaid, or be
imprisoned for three months, and be whipped once in eveiy
of the said months; and for the third offence, be imprisoned
for any time not exceeding two years> nor less than six months,
to be kept to hard labour, and whipped in such manner, and
at such times and places as the justices at the sessions shall
think fit.
By 29 Geo. 2, C. 36,, any person who shall unlawfully cut,
take, destroy, break, throw down, bark, pluck up, burn, deface,
spoil, or carry away, any tree growing in any waste, wood, "or
pasture, in which any person has a right of common, shall incur
the like penalty as by statute 6 Geo. 1, st. 2, c. 48.
And the 45 Geo. 3, c. 66, enacts, that if any person, with-
out legal right and authority, shall carry away any bark from
any wood or wood grounds, or shall have any bark in his pos-
session, and shall not give a satisfactory account of it, for the
first offence he may be fined 40s. for the second ot. with
costs, and for the third, he may be punished as an incorrigible
rogue.
To prevent the destruction of wood in forests, it is provided
by the 4 Geo. 3, c. 31, that every surveyor of his majesty's
Vvoods, and his lawful deputy, and the officers and keepers of
any forest, or chase, may seize and take away for his own use
any axe, or other instrument, used by any person whom they
shall find unlawfully cutting down or destroying any timber or
other tree, underwood, of covert, within such chase or
forest.
Aud
Of Larceny:
And the 15 Car. C, c. 2, enacts, that the constable
apprehend, or cause to be apprehended, every person he
.shall suspect, having or carrying any burden of any kind of
wood, underwood, poles, young trees, bark, bast of any trees,
or any utite-. stiles, posts, pales, rails, or hedge wood,
broom, or furze; and by warrant of one justice, he-inay enter
into and search the houses, or other places belonging to the
houses, of every person he shall suspect to have any kind of
wood ; and when he shall find any such, may apprehend the
persons suspected of cutting and taking the same, and carry
them bt-fore a justice : and unless such persons shall give a
good account how they came by the same, or produce the
party of whom they bought the same, or some credible wit-
ness to depose upon oath such sale thereof, they shall for the
iirst offence give the owner such recompcn.ee for damages, and
within such time as the justice shall appoint, and shall also
pay to the poor a sum not exceeding lO.s. or in default thereof
be committed to the house of correction for any time not ex-
ceeding one month, or be whipped by the constable ; for a
second offence, be sent to the house of correction fr one
month, there to be kept to hard labour; and for a third of-
fence, to be deemed an incorrigible rogue : provided that in
all eases they are questioned within six weeks after the offence
committed.
And as a farther prevention of this offence, k is provided
by the 1,3 (V/? 1 . 'J, c. 2, that whoever shall buy any hurdrm of
wiiud, ik.c. which may justly be suspected to have 1* m >t .K-n,
one justice, on complaint within six weeks, may examine the
matter upon oath, and award the purchaser thereof to pay
treble value to him from whom it was unlawfully taken ; or in
default thereof may commit the party to gaol, there to remain
one month without bail.
Stealing Hedge Jl r ooJs.
If any person, by day or night, cut, take, destroy, break,
thrown down, bark, pluck up, burn, deface, spoil, or carry-
away any wood springs, pales, woods, tops of trees, under-
woods, or coppice woods, thorns, or quicksets, without the
.MiiMiit of the owners theieuf; or .shall lm-;ik open, lluou
dn\\n, levrl, or destroy any ^sedges, fences, dyltel* or other in*
closure^ tluifuf: if the uffendi r is not knoun, the owner
may h:i\e MKM HM.ompencx- from the inhabitants of tin.- pa-
4 rishcs,
Of. .Larceny. 527
rishes,. towns ; hamlets, villages, or places, joining on such
wood springs or wood grounds, and recover such damages,
and in the same manner and form, as by the 13 cfcr. 1, st.
1, c. 4G ; unless the offender is convicted by such parishes or
places within six months : but if the offender is known, he
shall be committed to the house of correction to hard labour
for three months ; and where there is no house of correction,
to the prison for four months, to be publicly whipped once a
month during the time, 1 Gco. I, st. 2, c. 18, 6 Geo. 1, c. 6.,
Stealing Shrubs.
O
By G Geo. 3, c. 36, if any person shall in the night-time
steal, damage, or destroy any root, shrub, or plant, of the
value of five shillings, growing in any garden ground, nursery
ground, or other inclosed ground ; or shall be aiding and as-
sisting therein ; or shall buy or receive such root, shrub, or
plant, knowing the same to be stolen ; he shall be guilty of fe-
lony, and transported for seven -years.
And by 6 Geo. 3, c. 48, whoever shall steal, damage, or
destroy, any root, shrub, or plant, in any field, jiursery,
garden, or garden grounds, shall forfeit for the first offence not
exceeding forty shillings, and for the second not exceeding
five pounds.
A doubt having arose whether this statute did not virtually
repeal the 6 Gco. 3, c. 36, on a case reserved, the twelve
judges were of opinion, that it was not repealed, but to be
considered in pari materia ; and when taken together, that
these provisions will stand thus : if the property be of the
value of five shillings, and be taken in the night, it is felony ;
if under five shillings, and taken either by night or day, it i* a
misdemeanour ; if above five shillings and under forty shillings,
if taken in the day, a misdemeanour ().
Stealing Vegetables.
By the 13 Geo. 3, c. 32, if any person shall steal and take
away, or maliciously pull up and destroy any turnips, potatoes, -
cabbages, parsnips, peas, or carrots, growing or being in any
garden, lands, or grounds, he shall, on conviction within
thirty days, forfeit, over and above the value of the goods stolen,
a sum not exceeding ten shillings to the use of the poor, first
(a] Howe's Case, Cases in Crown Law, 417,'
snaking;
5C8 Of Larceny.
making the owrter satisfaction ; and on default of payment, to
fee committed to the house of correction, there to be kept to
fcard labour for any time not exceeding one month, unless the
penalty shall be sooner paid. And by 31 <ter>. C, c. 3.3, the
fame punishment is indicted for the stealing of madder
roots.
And by the act of 42 Gfo. 3, it is enacted, that if any per-
on shall be convicted of having committed the offence- i< -
cited in the above act (iSGfo. .3), in any paiden, orch
lands, or ground, open or inclosed, he shall forfeit a sum not
exceeding twenty shillings, besides the value of the goods.
Robbing Orchards and Gardens.
By 43 Eliz. c. 7, to rob any orchards or gardens, or to dig
or pull up any fruit trees, or destroy any h, <i'j. s. p-i!rs rails,
or fences therein growing or placed, with intent to take tin-
fame away (the same not being felony by the laws of thi->
realm), incurs a compensation for the damage done ; and on
default of payment, the corporal punishment of whipping.
A*- lo what shall be deemed telony by the laws of this realm,
the distinction seems to be, that if they arc annexed to the
in hold, as trees growing, or apples growing upon the tree^
then the taking and carrying them away is not felony, but a
.'as*, for a man cannot steal a part of the freehold ; but if
they are severed from the freehold, as wood cut, or apples ga-
thered from the trees, then the taking of them is not a tres-
pass only, but a felony (6).
Stealing Black Lr id.
By <25 GM. 2, c. 10, whoever skill unlawfully break, or
\>yfoice tn'ti into any mine, pit, shaft, or uin of wad,
black cauke, or black lead, \\ith an intent to carry away from
thence any wad, black cauke, or black lead ; or shall unlaw-
fully from thence take and curry away any wad, black cauke,
or i>lm k lead, although such mine, &,c. be not actually broke,
or 1^ ton. entered into, by such offender; or shall aid, abet.
t, IIIM . or command any person or persons to commit
Mich offences as aforesaid, such offenders shall be guil:
felony, and may be committed to the county gaol or house <>f
torrtion for any time not exceeding a year, and publicly
(*) 4 Burn'* justice, 414.
whipped
Of Larceny.
whipped; or transported for a term not exceeding se\n
years.
Stealing Lead.
9
By the 4 Ceo. 2, c. 32, to steal, rip, cut, or break, \vith
intent to steal, any lead or iron bar, iron grate, iron pallisa-
does, or iron rail whatsoever, being fixed to any dwelling-
house, out-honse, coach-house, stable, or other building,
used or occupied with such dwelling house, or thereunto be-
longing, or to any building whatsoever, or fixed in any garden,
orchard, court yard, fence, or out-let belonging to any
dwelling house or other building ; their aiders, abettors, and"
assisters ; or whoever shall knowingly bin or receive the
same; shall be guilty of felony, and may be transported for
seven years.
And by the 21 Geo. 3, c. 68, whoever shall slip, cut, break,
or remove, with mterit to steal, any copper, brass, bell-metal,
utensil or fixture, being fixed to any dwelling house, ;ut-house,
coach-house, stable, or other building used or occupied with
such dwelling house, or thereunto belonging, or to any other
building whatsoever, or fixed in any garden, orchard, court-
yard, fence, or out-let belonging to any dwelling house or other
building, or any iron rails or fencing set up or fixed in any
square, court, or other place (such person having no title or
claim of title thereto) ; or whoever shall be aiding, entiling,
or assisting therein ; or shall knowingly buy or receive the
same, although the principal felon had not been convicted of
stealing the same, shall be guilty of felony, and may be trans-
ported for seven years, or imprisoned for any time not exceed-
ing three years, f nor less than one ; and there kepi to hard
labour, and within that time be once, or oftener, but not more
than three times,, publicly whipped.
Stealing Fish.
By the 5 Eliz. c. 21, it is provided, that if any person
shall unlawfully break down or destroy any head o* dam of a
fish pond, or shall wrongfully fish therein, with intent to
take or kill fish, he shall, on conviction, be imprisoned three
months, pay treble damages to the party grieved, and tind
sureties for good behaviour for seven years.
By the 22 and 23 Car. 2, c. 25, to fish in a private or se-
veral fishery, whether with nets or lines, or to take an^tish by
M m any
530 Of Larecny.
any means whatsoever, IH any river, stf\v, pom?, moat, or
other water, or to be aiding thereunto without the o\\ ner's
consent, the offender, on conviction within one month after
tin- otltnce committed, .shall ,give to the party injured a sum
not exceeding treble dnma-jrcs, ami moreover forUit to the
ns. of the poor a sum not exceed. ng 40s. or OH default thereof,
be imprisoned for a term not exceeding one mouth, unites
lit enters into a bond with surety, in a sum not exceeding it)/,
never to offend in like manner.
By the 4 and ,') //. .'], c. 23, none but the owners and oc-
cupiers oi " li -1'.'. iios, the makers and sillers of in t., authorized
fishermen and their apprentices, shall keep nets or oiher en-
"jines for taking of tii-h, on pain of seizure.
By 9 (*co. 1, c. 'J'J, if any person, armed and disguised,
shall unlawfully steal or take auoy any lish out of any river or
pond ; or, whether armed and disguised or not, shall unlawfully
and maliciously break down the liead or mound of any ti>h-
]K>nd, thereby the fish shall be lost or d -.-troyi-d. or shall
rescue any person in custody for any such offence, or procure
any other to join him therein, he shall be guilty of felony with-
out benefit of clergy.
And by the 5 Geo. 3, c. 14, to enter, without the consent
of the owner, into any park or paddock inclosed, or into any
garden, orchard, or yard, belonging to or adjoining any
dwelling house, in or through which park, paddock, garden,
orchard, and yard, any river, stream, pond, pool, moat, stew,
or other water shall run or be, and shall, by any means \\hat-
oever, steal, kill, or destroy any ti>h, bred, kept, or pre-
served therein; or to be assisting therein ; or to receive or huj
any such lish; is transportation for seven years: piovidrd the
offenders have been indicted within six months after the of-
fence committed. And by the 3d section of iht s;mn art, to
take, kill, or destroy, or to attempt to take, kill, or di-.iioy any
fish in any rivers, &c. in any inclosed private ground, not being
a park, &c. b< loirjing or adjoining to a dwelling hou-r, incurs
a penalty of five pounds, and on di fault thereof to be Committed
to the house of correction for a time not exceeding six
months.
Stealing from Tenters.
By 22 Car. 1, c. 5, to cut or 5leal any cloth or woollen
znanufut tuns fiom the rack or tenter in the night time, u
( 1 n\ % ithout ! cm-f.t of clergy.
StC(llilt
Of Larceny.
Stealing from Bleaching Grounds.
By the 18 Geo. 2, c. 27, to steal by day or night any
linen, fustian, callico, cotton, cloth made of cotton or linen-
yarn mixed, or any thread, linen, or cotton yarn, linen or
cotton tape, incle, filleting, laces, or any goods whatsoever,
exposed to be printed, bleached, bowked, or dried, in any
printing or bleaching ground, or in any of the shops, lofts,
or places thereto belonging, to the value of ten shillings, or
to assist in so doing, is felony without benefit of clergy; but the
judge has a discretionary power to transport for fourteen
years.
Stealing from a Church.
By 23 Hen. 8, c. 1, and 25 Hen. 8, c. 3, to steal, carry,
or take away, any goods and chattels from any church, chapel,
or other holy place, is felony without benefit of clergy.
But it having been held not to be sacrilege within these-
statutes, when not accompanied with the actual breaking of
the church or chapel from which the goods are stolen (c) ;
it was enacted by the statute 1 Edw. 6, c. 12, that to steal
goods out of any parish church, or other church or chapel, is,
whether accompanied with a breaking or not, felony without
benefit of clergy.
Of Mixed or Compound Ltyceny.
Mixed or compound larceny consists in a taking from one's
house or person.
Larceny from the person is either by privately stealing, or
by open and violent assault, which is usually called robbery.
. Privately Stealing from the Person.
By 8 Eliz. c. 4, the felonious taking of any money, goods,
or chattels, above the value of twelve pence, from the person
of any other, privily without his knowledge, in any place what-
soever, is felony without benefit of clergy.
It has been held, that this statute does not protect per-
sons who by intoxication have exposed themselves to the
dangers of depredation (d ) ; unless the person upon whom the
(c) 2 Hale, 133. (d} Leach, 275. 915.
M m 2 larcenf
532 Of Larceny.
larceny has been committed, was made drunk by the artifice
of the prisoner, and in order to accomplish tin's purpose (e).
But an offender who steals any thing privily from the
person of another, while such person is deprived of conscious-
ness by the powers of sleep, he is guilty of the capital part of
the offence (/).
It was formerly held, that no one could be capitally con-
victed of privately stealing from the person, if the theft VAUS
in the slightest degree perceived by any one at the time it was
being committed ; but a different construction has of late been
adopted ; and it is now held a capital offence to steal privily
M ithout the knowledge of the owner of the property, though
the theft may be observed at the time by others.
Robbery of the Person.
Robbery is the forcible and felonious taking from the person
of another of goods or money to any value, by violence or
putting him in fear. And 1. There must be a forcible taking,
otherwise it is no robbery ; but any, the least degree of force
which may inspire the mind with fear is sufficient ; and there-
fore, where a person kept fast hold of a basket on his head
until it \vas wrenched from him by the thief, or to snatch an
ar-ring from a lady's ear, have been held robbery ; neither
can he, who has once actually completed the offence, by forcibly
taking goods into his possession, afterwards purge it by any
re-delivery (g). 2. It is immaterial of what value the thing
taken is : a penny act well as a pound, thus forcibly extorted,
makes a robbery (//). 3. It must be a taking from the person ;
as a horse whereon a man is actually riding, or money out of
his pocket: or else openly and before his face; as if u thief,
having tirst assaulted me, take away the horse that is standing
by me, or having put me in frai drive my cattle, in my pre-
sence, out of my pasture; or take up my purse, which in my
fright I had cast intoabush ; for these thnrj>, being immediately
under my personal care -ind |>iotr< t.on, may propeily niouli
be said to LH- a taking from mv pi MOM : but if the fear excited
by the menaces of the iluet IK- snlse.(iicni 1 > the taking, l!:. n
it is larceny, and not robbery. 4. It must be with some de-
gree of violence, or by putting in tear; but the law does ii"t
require, in this ca*e, pi oof of an actual violence to the person,
(<) ft Eait'i P.C. 704. (/) Cuei in Crown Law, 384. (f) \ Hawk.
147. i Hal*, 53 1. (b) 4 Bl. Com. 143.
r
Of Larceny. 533
r an existing fear in the mind ; for if a man with a cutlass
under his arm, or a pistol in his hand, feloniously demand and
obtain the money of another, \vithout touching his person, yet
it is robbery, though no actual violence is used. So also, if a
man threaten another to accuse him of having been guilty of an
unnatural crime, and by that means obtain money, it is rob-
bery; although from conscious innocence the party threatened
with such an imputation may not have felt any existing fear in
his mind. The fact of fear need not be alleged in the indict-
ment; it is sufficient to charge, that the offence was com-
mitted violent er et contra vohnttatem ; and if it appear upon
the evidence to have been attended with those circumstances of
violence or terror, which in common experience are likely to
induce a man to part with his money or goods against his
will, either for the safety of his person, or for the preservation
of his character and good name, it will amount to robbery (i).
But this species of robbery is confined to menaces of a spe-
cific infamous nature ; for if money is extorted by a threat to
carry a person before a magistrate, and to prosecute him for
any other crime, it will not amount to the crime of
robbery (k).
Upon every robbery committed, it is provided by the statute
of Winchester, 13 Edw. i, c. 1 and 4, that fresh suit shall
immediately be made from town to town, and from county to
county ; and that hue and cry shall be raised upon the felons,
and they that keep the town bhall follow with hue and cry,
\vith all the town and the townsmen ; and so hue and cry
shall be made from town to town, until they be taken and
delivered to the sheriff. And that such hue and cry may the
more effectually be made, the hundred is bound by the same
statute, c. 3 f to answer for all robberies therein committed,
unless they take the felon.
The regular method of levying hue and cry is for the party
to go to the constable of the next town, and declare the fact,
and describe the offender, and the way he is gone ; where-
upon the constable ought immediately, whether it be night or
day, to raise his own to\\n, and make search for the ofieider;
and upon the not finding of him, to send the like notice with
the utmost expedition to the constables of all the neighbouring
towns, who ought in like manner to search for the offender,
(0 i Hale. 553. i Hawk. 148. Foster, ia8. 4 Bi. Cam. 244. (It) Leach,
?3J.
and
534 Of Larceny.
and also to give notice to their neighbouring constables, and
they to the next, till the offender be found (/).
The party robbed is not bound to pursue the robbers
h'mself; or to lend his horse for that purpose ; but still has
h.s remedy against the hundred if they are not taken ; though
if any of them are taken ('-7 /-'//:. c. 13, s. 8;, either within
forty days after the robbery (8 Geo. 2, c. Hi), or before llie
plaintiff recovers, the hundred is> discharged (/)
By stat. 27 Eliz. c. IS, s. 11, it is enacted, that no per-
son that f-hall happen to be robbed, shall maintain any aeii: ;i,
or take any benefit of the statutes which make the hundred
li.ible, except the person so robbed shall, with as much con-
venient speed as may be, give notice of the robbery so com-
mitted unto some of the inhabitants of some town, village,
or hamlet, mar unto the place where any such robbery shall
be commi:tul.
And by the 8 Geo. 2, c. 16, it is further enacted, that no
person shall maintain any action against the hundred, unless
he shall (besides the notice already required by the -7 Eliz.
c. 12), v\iih as much convenient speed as may be, aftrr any
robbery committed, give notice thereof to one of the con-
stables of the hundred, or to some constable, hm.sholder, luuul-
borough, or tithing man of some town, parish, village, hamlet,
or tithing, near unto the place where such robbery t-hall happen,
or shall leave notice in writing of such robbery at the dwell-
ing house of such constable, Sec. describing, so far as the na-
ture and circumstances of the case will admit, the felon, and
the time and place of the robbery; and also shall, within the
space of twenty days next after the robbery committed, cause
public notice to be given thereof in the Ixnidon Gazette,
therein likewise describing, so far as the nature and the cir-
cumstances of the case will admit, the felon and the time and
place of such robbery, together with the goods and th
\\hereofhe was robbed.
Also by the 27 Eliz. c. 13, s. 11, it is enacted, that the
party robbed shall not have any action, except he shall fir.-t,
within twenty days next before such action to be brought, b-
examined upon his corporal oath, before some jn.slicr of tin
peace of the eounly \\hue the robbery was committed, whe-
ther he knows tin paitiis that committed the i"bbi-iy, or any
of them; and if, upon examination, it be confessed, that he
(/)3 Insu 116. Diluc.;3. 2 Hawk. 75. (m) 4 Leon. 180. Sid. ir.
knows
Of Larceny. 535
knows the parties, or any of them, that then lie shall, before
the action be commenced, enter into sufficient bond by recog-
nizance before the said justice, effectually to prosecute the said
perse n or persons.
By the 22 Geo. 2, c. 24, no person shall recover on the
statutes of hue and cry above 200/. unless the person or per-
sons so robbed, shall at the time of such robbery, be together
in company, and be in number two at the least, to attest the
truth of his or their being so robbed.
And by the SO Geo. 2, c. 3, s. 116, and 4 Geo. 3, c. 2,
s. 1 18, no receiver-general of the land-tax, or his agents, cau
sue the hundred for a robbery, unless the persons carrying the
money be three in company.
It st-f ms to be admitted, that no kind of robbery will make
the hundred liable, but that which is done openly, and with
force and violence ; and that therefore the private stealing, or
taking any thing from the party, does not come within the
statutes which make the hundred liable, because the hundred
is not liable for not preventing the robbery, but because they
did not apprehend the robbers, which in private felonies, and
of which they had no notice, it would be difficult, if not im-
possible for them to do (o).
It has also been adjudged, that a robbery in a house, whe-
ther it be by day or night, does not make the hundred li-
able (p). But if a person be assaulted in the highway, and
carried into a house, and there robbed, it seems the hundred
shall be liable (q}. Neither does it seem necessary, that the
robbery should be committed in the highway (r) ; it may be in
a private way, or be in a coppicCj, and in both cases the
hundred shall be chargeable (sj.
It is clearly agreed, that if a robbery be committed in the
night, the hundred is not chargeable, because they cannot be
presumed to have notice thereof, so as to be able to appre-
hend the robbers (t).
But yet, it is not necessary that the robbery should be
committed after sun- rise, and before sun-set; for if there be as
much day- light at the time, that a man's countenance may be
discerned thereby, though it be before sun-rise or after sun-set,
the hundred shall be liable (i>).
(o) 7 Co.6. z Salk. 614. ff) 7 Co. 6. (f) j Sid. 263. (r) J
Mod. 159. (j) 2 Salk. 614. i Show. 60. ( t) a lust. 569.
i'vj 7 Co. 6. a. Cro. Jac. 106. i Show. 60.
By
536 Of Larceny.
By stat. C7 Eliz. c. 13, s. 9, the action must be brought
vithin one year after the robbery commuted. And by stat 8
Oto. 2, c. '6, the paity robbed mn-4 outer into a bond in
tin sum of 100/. with two Mifh'cient sureties, lor payment of
costs, in case he shall happen to be nonsuited, or shall dis-
continue the action, or in case judgment shall be given in de-
murrer, or a verdict against him.
In order to encourage tart her the apprehending of certain
ftl'ii-;. reward* and immunities, are, b\ divers acts of par-
liament, besto\\od on sucli as bring them to justice. 'I In- sta-
tute 4 and 5 W. and M. c. 8, enacts, that such as apprehend
a highwayman, and prosecute him to conviction, shall re-
cei\e a reward of 40/. from the public, to be paid to them
(or, if killed in the endeavour to take him, to their executors)
by the sheriff' of the county ; besides the horse, furniture,
arms, money, and othef troods taken upon the person of such
robber; with a reservation of the right of any person from
whom the same may have been stolen : to which the .statute
8 GYo. '2, c. ifi, superadds JO/, to be paid by the hundred in-
demnified by such taking. By statutes and 7 /I 3, c. 17,
anj.1 l5Geo.% t c. K, persons apprehending and comicting
any offender against those statutes, respecting the coin
shall" (in ease the offence be treason or felom), receive a re-
gard of forty pounds; or ten pounds, if it only amount to
counterfeiting the copper coin. By statute JO and 1! IV. 3,
c. 2.', any peison apprehending and prosecuting to conviction
a felon guilty of burglary, house-breaking, horse-stealing, or
private larceny to the value of five .shillings from any shop,\\are-
liouse, coach-house, or stable, shall be excused from all pari-h
offices in the parish in which the felony \\a.s committed. And
by statute 5 Ann. c 31, any person so apprehending and pro-
secuting a burglar, or felonious house-breaker (or, if killed in
the attempt, his executors), shall be entitled to a reward of
40/. and be exempted in like manner as by the 10 and I 1 /f. 3.
And the certificate granted under both statutes, may, before it
is used, be assigned once, and the assignee or bujer \\ill be
privileged to the same exemption as the prosecutor. By
Statute 6 Geo. 1, c. 2.3, persons discou-ring, appiehcn< :
and prosecuting to conviction, any person taking reward tor
helping others to their stolen goods, shall be entitled to forty
pounds. By statute 14 (*eo.'2, c. 2i), explained by 13 (jeo. 'J,
c. 34, any person apprehending and prosecuting to convic-
tion such as steal, or kill \\ith au intent to steal, any sheep or
other
Of Larceny. 537
other cattle specified in the latter of the said acts, shall for
every such conviction receive a reward of ten pounds . Lastly, by
the statutes 16 Geo. 2, c. 15, and 8 Geo. 3, c. 15, persons dis-
covering, apprehending, and convicting felons, and others being
found at large during the term for what they are ordered to be
transported, shall receive a reward of twenty pounds.
Of privately Stealing from the House.
By 10 and 11 W. 3, c. 23, all persons who by night or day,
shall, in any shop, warehouse, coach-house, or stable, privately
and feloniously steal any goods, wares, or merchandizes of the
value of five shillings or more, or shall assist, hire, or com-
mand, any person to commit such oftence, shall be guilty of
felony without benefit of clergy.
The property stolen must be such as is common to, and
usually kept in the places mentioned in the act, and not any
other valuable thing which may happen to be put there; and
therefore it has been held, that only bridles, saddles, and the
like, and not the coachman's box-coat, or other livery, are
the proper furniture of a stable. Shops and warehouse*
also, when used merely as repositories of goods, and not as
places of sale,' are not within the act; and consequently, a
prisoner cannot be convicted of privately stealing in a shop au
article which is not exposed there for sale, but which happens
to be left there to be repaired, or for some other similar pur-
pose (/<) it has also been solemnly determined, that privately
stealing money to the amount of five shillings is not within
this statute.
In prosecutions under this act, it is held not to be privately
stealing, if any person whatsoever see or perceive the theft at
the time it is committed.
Robbing in a Dwellins. '-house.
\j O
By 23 Hen. 8, c. 1, and 25 Hen. 8, c. 3, to rob any
person or persons in their dwelling house or dwelling place,
the owner or dweller, his wife, children, or servants being
then within, and put in fear and dread by the same, is felony
without benefit ot clergy.
B\ 1 Edw. 6, c. 12, s. 10, to break a house burglariously,
if in the night time, or to break a house and commit a felony
(u) i P. Wms. 267. Foster, 78. Leach, 43. 235. 248. 474.
therein,
538 Of Larceny.
therein, if in the day time, any person being then in the same
bouse where the same bieuking shall be, and thereby put in
fear and dread, is felony without benefit of clergy.
There must be an actual breaking of the house or some
part oi it, as of a cupboard or door, to oust the offender of
kis clergy by this statute (x).
By 5 and 6 Edw. 6, c. 9> to rob any person in any part or
parcel of his dwelling house, or in any place within the pre-
cincts of the same, the owner, his wife, children, or servants
being in the same house or place at the time, whether the
o-.M.er, Ins wife, or child. en shall be sleeping or waking, is
felony without benefit ol el.
These statutes ixtend to cases where persons are within the
house at the time of the robbery ; the following where no per-
son is uithin liie house at the tune.
Bv S<J Etiz. c 1 , to take away in the day time any money,
goods, or chattels, being of the value of five shillings or up-
waids, in any due. ling h >u-e or houses, or any part thereof, or
am out-house or out-houses belonging to and used with any
dwelling house or houses, at the time such larceny is com-
mitted, is felony without benefit of clergy.
Robbing in a Sooth or Tent.
By 5 and 6 Edv\ 6, c. 9 to rob any person in any booth
or tent, in any fair, or market, the owner, his wife, chil-
dren, or servant or servants then being within the booth or
tent, whether they -shall a.t the time be sleeping or waking, is
felony without benefit of clergy.
Housebreaking.
By 3 and 4 W. and M. c. 9, to rob any dwelling house in
the day time, any person being thertiii. and put in tear, or to
comfort, aid, abet, assist, coun>el. hire, or command any
prr>on to commit such ofteiice, is felony without benefit d
clergy.
Although this part of the statute does not 0Zp) . T uify,
that breaking and entering the house is necessary to constitute
the crime, yet as the word rob, in a It-gal construction, nl<
includes the idea of force aad violence, it is held, that th in-
gredients of breaking and entering arc, ti n termini, included
(*) Foster, lot.
in,
Of Larceny. 559
in, and implied by, the term rob ; and it is settled in a va-
riety of determinations upon the statutes relating to this sub-
ject, that the breaking must be of a dwelling house, in the
same way as it would be necessary to constitute burglary at
common law (j/).
By 3 and 4 W. and M. c. 9> to break any dwelling house,
shop, or warehouse thereunto belonging, or used therewith,
in the day time, and feloniously to take away any money, goods,
or chattels, of the value of live shillings or upwards, therein
being, although no person shall be within such dwelling house,
shop, or warehouse ; or to comport, aid, abet, assist, counsel,
hire, or command any person to commit such offence, is fe-
lony without clergy.
Stealing in a Dwettmg* House.
O O
By 12 Ann. c. 7, to steal any money, goods, wares, or mer-
chandizes, of the value of forty shillings or more, being in a
dwelling house or out- house thereunto belonging, although
such house or out- house be not actually broken by such of-
fender, and although the owner of such goods, or any other
person, be or be not in such out-house; or to assist or aid
any person to commit such offences, is felony without benefit
of clergy.
Assaulting with Intent to rob.
By 7 Geo. 2, c. 22, if any person, with any offensive
Weapon, shall assault, or by menaces, or in any forcible or
\iolent manner, demand any money or goods of or from any
other person, with a felonious intent to rob such person, he
shall be transported for seven years.
There must be both an assault or menace and a demand
to complete the offence, and both of them must be on the
person intended to be robbed ; but a demand may be by action
as well as words; as if a dumb man put a pistol and his hand
into a coach. The assault must also be with an offensive
weapon, and it must be proved to be of the same kind as
laid (z).
fy) Trapbhaw's Case, Cases in Crown Law, 364. {) f Hawk. 350.
CHAP
54t Of Malicious Mischief.
CHAP. IX.
Of Malicious Mischief.
MALICIOUS mischief or damage, is a species of injury
to private property, which the law considers as a public
crime (a,.
Cattle.
By 22 and G3 Car. 2, c. 7, if any person shall in the night-
time, maliciously, unlawfully, and willingly kill or destroy
any horses, sheep, or other cattle, he shall be guilty of fe-
lony; or if he shall in the night-time, maliciously, unlaw-
fully, and willingly, maim, wound, or otherwise hurt any
horses, sheep, or other cattle, whereby the same shall not
be killed or utterly destro)ed, he shall forfeit treble damages.
Also by the y Geo. 1, c- 1, any person \\ho shall unlau fully
and maliciously kill, maim, or wound any cattle, w hether by night
or by day, shall be guilty of felony without benefit of clergy.
It has been decided, that to bring the ohcmler within the
penalty of this act, the malice must be conceived against the
owner of the cattle ; for if it appear to be against the cattle
only, and not against the owner, the offender is not within the
act (6).
Horses, mares, colts, are included under Uie word " cattle,"
in this act (c).
By 37 lien. 8, c. 6, to cut out, or cause to be cut out,
the tongue of any tame beast alive, belonging to another per-
son, incurs treble damages to the parly, and a tine of teu
pounds to the king.
Slaughtering Horses.
l>y Cf> Geo.Sj c. 71, no person shall use any place for
slaughtt -ring cattle, not to be killed for butchers' meat, with-
out a lii elite from the quarter sessions, or a certificate from
the- minister and elunx -h wardens, that the party is a tit j>
t<> hi Ineii.-td: and it such a person slaughtt r any cattle
\viil i -nt Mich licence, or giving notice as the act directs, he
shall be guilty of felony. And if he destroy, burn, or rub
with lime or other conosiu- matter, thr skin or hide ot any
beast slaujjitcicd In him, he is guilty of a misdemeanour.
(a) 4 Bl. Com. 243. (A) Pearce'i Cac, Gloucester Ajiizcs,
Heath, Justice. (r) Leach, 66.
Destroying
7
Of Malicious Mischief. 541
Destroying Timber, Trees, fyc.
By 22 and 23 Car. 2, c. 7, if any persou shall in the night
time, maliciously, unlawfully, and willingly destroy any plan-
tations of trees, or throw down any inclosures, he shall forfeit
to the party grieved treble damages.
By 9 Ge o. 1 , c. 22, whoever shall cut down or otherwise
destroy, any trees planted in any avenue, or growing in any
garden, orchard, or plantation, for ornament, shelter, or profit,
shall suffer death without benefit of clergy.
And by 1 Geo. 1, st. 2, c. 48, if any person shall maliciously
set on fire, or burn, or cause to be burnt, any wood, under-
wood, or coppice, or any part thereof, he shall be guilty of
felony.
Burning Barns, Granaries, Grain, Hay, fyc.
By 43 Eliz. c. 13, whoever shall wilfully and of malice,
burn or cause to be burnt, or aid, procure, and consent to the
burning of any barn, or stack of corn or grain, within any of
the counties of Cumberland, Northumberland, Westmoreland,
and Durham, shall be guilty of felony without benefit of
clergy.
By 9 Gco. 1, c. 22, if any person shall set fire to any
house, barn, or out house; or to any hovel, cock, mow, of
stack of corn, straw, hay, or wood, &c. he shall be guilty of
felony, without benefit of clergy.
By 22 and 23 Car. 2, maliciously, unlawfully, and willingly,
in the night time, to burn, or cajuse to be burnt or destroyed,
any ricks or stacks of corn, hay, or grain, barns, houses, build-
ings, or kilns, is felony ; but die offender may make his elec-
tion to be transported for seven years.
By 1 1 Geo. 2, c. 2'2, if any person shall maliciously or wil-
fully pull down, or otherwise destroy any store house or gra-
nary, or other place where corn shall be there kept in order to be
exported ; or shall unlawfully enter such store house, granary,
or other place, and take and carry away any corn, flour, meal,
or grain therefrom, or shall throw abroad or spoil the same,
or any part thereof ; or shall unlawfully enter on board any
ship or vessel, and wilfully and maliciously take and carry
away, cast out therefrom, or otherwise spoil or damage any
meal, flour, wheat, or grain therein, intended for exportation,
he shall be guilty of felony, and transported for seven years.
And
Of MaUcious Mischief.
And by 9 Gen. 1, c. C'J, if any person shall send any letter,
without any name subscribed ther to, or signed with a ficti-
tious name, threatening to burn a iv In use, out-house, barn,
stack of corn or pain, hay or stra.v, he shall be guilty of fe-
lony without benefit of clergy.
Unlawfully ta'.hn Corn.
By 11 GCQ. 0, c. C ., wilfully and maliciously to beaf,
wound, or use any other violence to any person, with intent
to deter or hinder him from buying of corn in any market or
other place; or unlawfully to slop or seize upon any wa^ou,
cart, or other carriage, or horse, loaded \vith wheat, flour,
meal, malt, or other grain, in the way to or from any city,
market town, or sea port, and wilfully and maliciously to br.
cut, separate, or destroy the same, or any pp.rt thereof, or the
lirirnos of the horses; or unlawfully to take off, drive away,
kill or wound any of such horses; or unlawfully to beat or
wound the drivers, in order to stop the same ; or to scatter
such wheat, &.c. or to take or damage the same, or any p.irt
thereof; subjects the offender to imprisonment in the house of
correction for any time not exceeding three months, nor less
than one ; and to be owe publicly whipped during the tim*.
For the second offence, the offender is liable t-> bo transported
for seven years.
And by the 43 Eliz. c. 7, every person who shall unlawfully
cut or take away any com or grain growing, shall, on con-
viction, for the first offence, pay such damages as the justice
shall appoint, or on default thereof be whipped; and for eury
other offence, he shall in like manner be whipped.
Jiut if the person shall cut it at one time, and come ajaia
at another time and take it away, it is felony (d).
Burning Coal Alines, Mine Engines,
I\v 10 Gen. 2, c. 3_, to srt lire to a coal mine is fel<my
witliout benefit of clergy. And by 9 Geo. 3, c. 2Q, to d str-.y
or damage any rui'mr or machine for drawing coals from
coal mines, or for ilia\\inr water from any mine of ma!, It.nf,
tin, copper, or other mineral ; or any bridge, Wig ->r
trunk, belonging to the same, is felony auii transportation for
even years. The same statute cnacte, that il au\ person shall
(</) i Hawk. 93.
bum
Of Malicious Mischief. 543
burn or set fire to any wind saw-n, 11, or othr wind or water-
mill, or any of the works thereunto belonging, he shall be
guilty of felony without benefit of clergy.
Sinting Ships.
By 1 Ann. st. 2, c. 9, captains and mariners belonging
to ships, and destroying the same, to the prejudice of the
owners, are guilty of felony without benefit of clergy.
By 43 vreo. 3, c. 113, it is enacted, that if any person
shall cast away, burn or destroy any ship, or shall counsel or
direct the same to be done, with intent to defraud the insurers,
he shall be guilty of felony without benefit of clergy.
And by 12 Ann. st. 2, c. 18, making any rule in a ship
in distress, or stealing tur pum; s, or aiding or abetting such
offence, or wilfully doing any thing to the immediate loss of
such ship, is felony without benefit of clergy.
Destroying Turnpikes.
By 1 Geo. 2, c. 19, and 8 Geo. 2, c. 20, to break down,
cut down, pluck up, level, or destroy any turnpike gate, or
any posts, rails, wall, or other fence theieto belonging, or
any chain, bar, or fence of any kind whatsoever, set up or
erected by act of parliament, to prevent passengers passing
without paying toll, is felony without benefit of clergy.
But by 13 Geo. 3, c. 84, s. 42, to commit any of the of-
fences aforesaid, or to destroy any crane, or machine, or en-
gine erected on any turnpike road by authority of parlia-
ment for weighing carriages, is transportation for seven years.
Levying Dykes.
By 13 Edvt. 1, c. 46, to overthrow a hedge or dyke in
the night time, subjects the offender by 3 and 4 E>dw. 6, c. 6',
to treble damages.
And 9 Geo. 3, c. 29. to destroy or damage any fence for
dividing or enclosing any common, waste, or other lands
or grounds, divided by authority of parliament, is felony.
Destroying Bridges.
By 9 Geo. 1, c. 29, to damage or dertroy Westminster
bridge, or any part thereof, is felo;iy without benefit of
clergy. And tUe saice is enacted by 31 Geo. 2, c. 10, re-
specting
544 Of Malicious Mischief.
specting London Bridge. But by 29 Geo. 2, c. 1 6, to da
mage or destroy Black friars Bridge is single felony, within
the benefit of clergy. The same is enacted by various other
statutes of other bridges.
Ojwning sluices and destroying Banks.
By 1 Geo. 1, c. ]Q, and 8 Geo. 2, c. CO, to pull down,
pluck up, level, or destroy, any lock, sluice, floodgate, or
other works, on any river made navigable by authority of par-
liament, is felony without benefit of clerL
By 8 Geo. 2, c. CO, made perpetual by 27 Geo. C, c. 16,
if any person shall by night or by day, wilfully and maliciously
level or destroy any floodgate, lock, sluice, or other works ou
any navigable river, for preserving the navigation thereof, he is
guilty of felony without benefit of clergy ; and the hundred
liable to a penalty of twenty pounds.
By 10 Geo. 2, c. .T2, unlawfully to remove or carry away
any piles, chalk, or other materials, driven into the ground,
or used for securing any marsh , or sea-walls or banks, to pre-
vent the lands from being overflowed, incurs a penalty of
CO/, and on default of payment, to be committed to the
house of correction, and there to be kept to haul labour for MX
months.
By 6 Geo. 2, c. 37, unlawfully and maliciously to break
down the banks of any river, or any sea hank, whereby the
lands are overflowed or damaged, is felony without benefit of
clergy.
And by \ Geo. 3, c. 12, after stating that the laws in
force were not sulln lent to prevent the<e mischiefs, rn
that whoever shall wilfully and maliciously damage or do troy
any banks, Boodgatttj sluices, or other works, or shall op-n or
draw up any floodgate, or do any other wilful hurt or mischief to
any navigation erected by authority of parliament, so a>> to
obstruet or hinder the carrying ou such navigation, may be
transported for seven y.
Cutting Garments.
By 6 Geo. 1, c. 23, if any person shall wilfullv and ma-
liciously tear, spoil, cut, burn or deface tin garni-, nts or
clothes of any person pas^ng in the public r lu-jli-
fra\-* \\ith intent 30 to Jo, be shall be guiltj of felony ami tran*-
porltd tor seven years.
Injuring
Of Forgery. 545
Injuring Looms.
By 4 Ceo. 3, c. 37, and 22 Geo. 3, c. 40, to break or
enter with force into any house, shop, or place, with intent
to cut or destroy any linen yarn, linen cloth, serge, or other
woollen goods, velvet, wrought silk, or -other silk manufacture,
cotton callico, or other cotton or linen manufacture, or any of
the tools, implements, or utensils used in manufacturing the
same, is felony without beneiit of clergy.
Spoiling Hop Binds.
By 6 Geo. 2, c. 37, to cut any hop binds, growing upon
poles, in any plantation of hops, is felony without benefit of
clergy.
CHAP. IX.
Of Forgery.
FORGERY, or the crimen fold, is " the fraudulent
making or altering of a writing, to the prejudice of another
man's right;" for which by the common law, the offender
may surfer fine, imprisonment and pillory (e). By 5 Eliz.
c. 14, to forge or make, or knowingly to publish or give in
evidence, any forged deed, or will, with intent to affect the
right of real property, either freehold or copyhold, is punished
by a forfeiture to the party grieved of double costs and da-
mages ; by standing in the pillory, and having both his ears cut
off, and his nostrils slit and seared; by forfeiture to the crown
of the profits of his lands, and by perpetual imprisonment.
For any forgery relating to a term of years, or annuity, bond,
obligation, acquittance, release, or discharge of any debt or
demand of any personal chattels, the same forfeiture is given
to the party grieved; and on the offender is inflicted the
pillory, loss of one of his ears, and a year's imprisonment:
the second offence in both cases being felony without benefit
of clergy.
(e} 4 Bl. Cora. 347,
N a Besides
540" Of Forgery.
Besides this general act, u multitude of others, since the
Revolution, NX lien paper credit \vas first cstahlUhtd, have in-
flictfd capital puui.hincnt on tin- form r. , altering, or uttering
us true, when forged, of any bank bill* or notes, or other M -
curities (8 and 9 /f". 3, c. <2O. 1 1 (*a>. 1, c. [). 1C (,Y<>. 1,
c'.S<2. V) (m>. <2, c. 13. l.i f" ?, p. 79); "i hills of
credit issued fiuin the lv\clu<;.
(9 ./;/, c. '21. () ffto. }, c. 4, J 1, 1-2 Ci't-o. I, c. 3C); of
lottery tickets or orders ; of 'anny or navy debeutun . 1.
c. 14. 9 (jfo. 1, c. .-)); of Ka>t India IK nU (12 ( ;,-.>. 1.
c. oSJ); of v\riting> under seal of the London, or Uoyal Ex-
change AsMitance (() (ico. 1, c. 16); cf the hand of the re-
ceiver of the |>ie-fnus (:;<2 ^'co. '2, c. 14 "); or of the account-
ant gt-wnd and certain other otlicers of the court of chan-
cery (1 '2 (it'o. 1, c. :)'jj; of a letter of attorney or other j>o\\ir
to receive or transfer .<tock or BfUtiilties; and on personating
u proprietor thereof, to receive or transit r such aimu/
stock, or dividends p (n,.. ], c. ( J'2. 9 ('('<>. 1, c. 1.', 31.
. c. '22); al.-o on personating, or procuring to be per-
sonated, any >e;::nan or other person entithd to \\:j-t.> or
other na\al emoluments, or any of his personal repr senla-
tives; and the taking or procuring to be lal.cn, any fulsu oath
in order to obtain a psoliate. or litteis of adininisliation, in
onler to reeeixe such pa\ incuts; and the furling, or procur-
ing to be forged, and likeui^e tin, utu nil-:, or publishing, a^
tni. > -omiti i!t 'iled >c-anan's will or power (13 (/eo. C.
c. 10. 9 Cic.'i. 3, c. 3O); to which may be added, the coim-
terfeitinn of Mi (iiierrant an passes', uiuler the hands of the
lords of the .\dinirally, to protect one from the piratical .-tah s
of liarbary (4 (.if<>. J, c. IS); the forcing or imitating; (jf any
stamps to defraud the public revenue; and the f
any marriage register or licence (C(i (it<>. 'J, c. 3'j); all v
are by the distinct acts of parliament in the ca--es pio,,
inaile telonit s without Intielit of (lcrp\. By statute I.] (
;!, c. .V2 ainl ')<), and 24 (ieu. 3, st. r ci>uiv-
terfeiting any stamp or mark to (K-note ihe standard of u!d
and silver plate, and certain other offences of the like t n-
dcncy, are considered ait capital felonies. |\ >tatute fc ;
ituin frauds o;i the st: nip duties therein de-
, ;!ird, principallx by u^mir the stamps more than OIK < , an
niadK single feliinNj and liable to transportation for finuticn
is. 1 lu 1 -aim- piiiii-luiui!! i- inflicted by klntnlc 'J4 '
ILT the MipeiM-riptiou oi any
. avoid !b payment of the po.-tnge.
'Iheie
Of Forgery* 547
There are also several other general laves, tvifh regard to for-
gery. By 2 Geo. 2, c. 25, the first offence of forging, or pro-
curing to be forged, acting or assisting therein, or uttering or
publishing as true any forged, will, bond, writing obligatory, bill
of exchange, promissory note, indorsement or assignment
thereof, or any acquittance or receipt for money or goods, with;
intention to defraud any person (or corporation 3 I Geo. 2, c. 22),
is made felony without benefit of clergy. And by statute
7 Geo. 2, c. 22, and 18 Geo. 3, c. 18, it is equally penal to
forge or cause to be forged, or utter as true a counterfeit ac-
ceptance of a bill of exchange, or the number or principal
sum of any accountable receipt for any note, bill, or any other
security for money; or any warrant or order for the payment
of money, or delivery of goods.
It has been decided, that an order to a shopkeeper in a
forged name to deliver goods to the bearer is not a forgery
within the statute, 7 Geo. 2, c. 22, for a warrant or order
within that act must import that the persons giving such war-
rant or order has, or at least claims, an interest in the money
or goods which are the subject matter of that warrant or
order ; that he has, or at least assumes, a disposing power
over such money or goods, and takes upon himself to transfer
the property, or custody of them to the person in whose
favour such warrant or order is made (f). And it must be
directed to the person who has the custody of the goods (g).
But a draft upon a banker in the name of a person who kept
no cash at the banker's shop, is a forgery within the statute,
as it assumes that there was cash kept at the house which the
drawer had authority to dispose of (//.).
.It has also frequently been determined, that the draw-*
ing, indorsing, or accepting a bill of exchange in a fictitious
name is a forgery (/). It is also forgery to fabricate a will
by counterfeiting the name of a pretended testator, who b
still living (J),
So if a person puts his own name to an instrument, re-
presenting himself to be a different person of that name
with an entent to defraud, he is guilty of forgery (/c).
But where a bill of exchange is indorsed by a person in
his own name, and another represents himself to be that
(/) Foster, 120. (g) Leach. 437. (b) Ibid. 89. () Ibi<J,
78, 159, 192. i Hen, Bl. 588. Foster, u6. (j) Ibid, 3$;. (k) 4
T. R. 28,
N u
Of the Lairs, affecting Fanners.
person, hi- is iv>t guilty of forgery, but it is a misdemean-
our (/).
1 > prevent tin.' forgery of bank notes, it is provided by the
41 ' .4!, tint if any one shall knowncU have in his
:i, or in his house, ;u: !,nowin
tli/j same to be forged, \\ilhout lawful excuse, (the j i
thereof to lie upon ihe per-on accused,) he shall be guilty
of felony, am! shall be Iran -ported for feurteeq Mars.
And if any pel sou shall make any plate or ilMtnvneot for
forging bank notis, or a:iy part of a bank note, or shall know-
ingly have them in his p.>se--io,i without authority from thr
governor and company of ilu iSank of England, he shall bf
guilty of felony, and ahull be transported for seven \ears.
CHAP. X.
Of the Larrs affecting Farmers.
HAVING been obliged in several of the prececdini: di-
visions of our subject, to treat of many of the Matntory eatqfc
inents and judicial decisions respecting this neful cla-^ .f
society, \ve shall, in this place, merely collect those statute*
uhich, for the sake of preserving distinctness and perspicuity
in our plan, we have omitti
Butter ami C'/i
i
'o, tho 1., and 14 Cnr. L\
! i <>t" the 4 /I'. .'. 7, as di>< hinges |>ersoiiB
from :!ie eilrct of any part of the 13 and 14 (
.'.tinj: frauds in the sellers alter the factor or buyer has
contracted for the >am-, are repealed; and new
arc* i' . weight, and sale of butter,
as f<.!!
i \vlio shall make any vessel
fnrt!,. of Imtter shall make the same of good and
timber, w\ tiirlit, and not leaky, and shall
in the heads ;ui.l bottoms tin i.'ui"; and every such vend
shall be a tub, liikin, or half lirkin, and uo other, \\hieh
(/) Ixach, 168.
hall,
Of 'the. Laics affecting Farmers. 549
shall, when delivered by such cooper or person making the
same, be of the weight and proportion, and capable of con-
taining the several quantities of butter hereinafter mentioned,
(viz.) every tub shall weigh of itself, including the top and
bottom, not less than lllb. nor more than 15lb. avoirdupois
weight, and neither such top or bottom shall be more than
five-eighths of an inch tiiick in any part thereof, and shall be
capable of containing 84lb. of butter, and not : less ; every
firkin shall weigh of itself, including the top and bottom, not
less than 7lb. nor more than lllb. and neither the top or
bottom shall be more than four-eighths of an inch thick in any
part, and shall be capable of containing not less than 56lb.
of butter; and every half firkin shall weigh of itself, includ-
ing the top and bottom, not less than 4lfo. nor more than 61b.
and neither the top or bottom shall be more than three-eighths
of an inch thick in any part, and shall be capable of con-
taining not less than 28lb. of butter, on pain of forfeiting by
the cooper or other person making the same, U)s. for every
such vessel, s. 1. -
And every such maker, before such vessel shall go out of his
possession, shall, on the outside of the bottom, with ''an Iron,
brand his name at full length, in permanent and legible letters,
together with the exact weight or tare thereof, OH the like
penalty, s. 2.
And every such maker shall moreover mark in like manner
on the bottom of every such vessel, in addition to his name,
his place of abode or dwelling, in the following manner;
(viz.) if he dwell in a city or market town, then the nauie
thereof; if in a village, township, or other division of a parish,
then the- name of the parish wherein the same is situate ; and
if in a extra-parochial place then the name of the next ad-
joining parish ; on pain of forfeiting 10s. for every such of"
fence. 38 Geo. 3, c. 73-, s. 1.
And every factor or agent for buying or selling butter for
others, who shall buy, sell, or offer to sale, or have in his
custody for sale, or shall order, consign, forward, or send,
any vessel containing butter for sale, which shall not be made,
and externally marked, and have the butter therein imprinted,
according to the directions of this and the above act, shall
forfeit 20s. for every such offence, s. 2.
And every cheesemonger> or seller or dealer in butter on
his own account, who shall offer for sale, or have in his pos-
iession for sale, any vessel containing such butter, which shall
Hv
5 JO Of the La:cs affecting Farmer*.
not be externally marked as aforesaid, shall forfeit 105. for
every such ofteiice. s. 3.
And every dairyman, farmer, or seller of butter, or other
person who shall pack any butter for sale, shall pack the same
in such u-'sst-ls as aforesaid and no other, and shall properly
soak and season such vessels before such packing therein, and
when so seasoned shall on the bottom thereof on the inside,
and on the top on the outside, with an iron, brand his name
at full length in like letters; and also on the outside of the
top, and on the bonge or body thereof, the tine \\eidit or
tare of such empty vessel whm -< srav.ued, and also his name
in like manner on the bou^e or body across two different Haves
at least, to prevent tlie same bein taken out and changed ;
and shall distinctly and at full length imprint his name upon
the top of fhe butter in Mich vessel when filled, on pain of for-
feiting d/. for every such offence. :"tf) (ico. 3, c. |i
And every dairyman, farmer, or seller of butter, or other
pi ison packing butter for s.ile, shall (exclusive of the tare of
such ' 'Ck in every tub not less than Hilb. lirkin .">'>ib.
and half firkin liSlb. of good and merchantable butter; and
lio butter which is ojd or corrupt shall be mi.xtd or packed
up into any such vessel with that which is iu-\\ au.i -omul.
nor shall any wht-y butter be packed or mixed with that
which is made of cream, but every such \c>.- 1 shall be of one
sort and goodness throughout; and no butter shall be suited
yith great salt, but \\ith tine small salt, and not intermixed
with more than is needful for its preservation; on pain of
forfeiting 5/. s. 4.
And ev monger, dealer in butter, or other p
\\ho shall sell any tub, firkin, or half lirkin, shall deliver ih re-
in the full quantity, aforesaid, and in default shall be li.ible lit
an action f<T rccovny of >aiisifuctioii, \\itli io>ts. s. (}.
And if any change, alteration, fianc.. or deceit shall In. u- !
or practised, either in the vt*scl nhete.in the butt, r i- packed
for sple as aforesaid, or in the butter it*tlf, \\helher iti quan-
tity, quality, \\ei^ht, or otherwise, ^r in any such brai.
mark 1 - sid, or in tin -.\hereon the same sh.nl 1
be placed, or in ay otln r manner ho\\>oever after the
15ig thereof f'>r >:ilf -^ afoi. -a;,!; ev-ry p. IHI concirued ti.
ehall forfeit .')(/. for every such oil. n t .
And n<> elm r, (ii<l''r, t>i <!). > shall re-
pacl for >ali- :i|iy butter in ..ny Mich \c-<cl ;i^ :<Uf< -;iul : < i.
pain of foit" iiiu^; .W. foi r iiult JirXin so rc-
j)y:kid. S. 7.
Providcdj
Of the Lares affecting Farmers. 55 1
Provided, lhat no person shall be liable to any of the penal-
ties of this act for using any such vessel as aforesaid after the
British butter packed therein hath been taken thereout, for
the repacking for sale any foreign butter, and who shall first
entirely cut out or efface the names of the original dairyman,
fanner, or seller, leaving the name and tare of the cooper,
and the fare of the original dairyman, fanner, or seller there-
on, and shall afterwards with an iron brand his name in words
at length, and the words foreign butter in permanent and le-
gible letters, upon the bouge or body of every such vessel across
two staves at the least, to denote that such butter is foreign
butter, s. 8.
And if any person shall hereafter be convicted of counter-
feiting or forging any name or mark of any such owner, far-
mer, or dairyman as aforesaid, or any part thereof, or cause the
same to be done; he shall forfeit 40/. s. 9-
All penalties above 5/. are to be recovered in the courts
at Westminster. And all offences against this act, the .mode
of determining which is not herein before prescribed, and
where the penalty shall not exceed 5/. may be heard and de-
termined by one justice, who on proof upon oath by one \vit-
n<'ss may levy such penalties by distress and sale of the
offender's goods, (returning the overplus, after deducting the
costs,) to be applied to the use of the informer ; and for
want of sufficient distress, or if such penalty be not forthwith
paid, such offender may be committed to the gaol or house of
correction, without bail, for not exceeding three calendar mouths,
nor less than 28 days, unless such penalty and reasonable charges
be sooner paid. 3(j Geo. 3, c. 8(3, s. 10, 14. 3d Geo. 3,
c, 73, S._4.
.And if any person shall think himself aggrieved by the judg-
ment of the said justice,. -he may appeal to the next sessions,
who, upon receiving such conviction drawn up as aforesaid,
may hear and determine the same, and may award costs to
either party, as to them shall seem meet. s. 1 1, 12.
And no such conviction shall be set aside by such sessions
for want of form, if the material facts alleged therein be
proved to iheir satisfaction ; nor shall the same be removed by
certiorari into any other court, s. 13
Provided, that nothing herein shall extend to the. parking
of imtter in any pot or other vessel not capable of containing
more than 14lb, s. 1C.
Provided also, that every information, prosecution., or >wt
stroll
,552 Of the Laws affecting fanner*.
shall be commenced within four months after the ofi.
committed, s. 1?.
x
Cattle.
For tlie encouragement of farms, and to prevent the ac-
cumulation of faim* in u few hands, it is unacted by the 8
Hen. 8, c. 1:1, t! at . .1 shall I e than ai
two thousand simp, at si lo the hundred, over and
above what '.. ,\ for his household, t \ctpt it be u]
his own inheritance pain <! f. rfeitiu^ Ss. 4<L f>r
every sheep above that number. Provided that lambs shall
not be accounted sheep tiJl the st.cond ^Jidoummtr after
they are yeaned.
.And if any person by reason of being executor or ad-
ministrator shall happen lo have more, he shall sell off witUin
a year the surplus above two thousand (/)
By 3 and 4 IMK. G, c. 1 ( J, no person shall buy or sell any
ox, steer, runt, cow, heifer, or calf, and sell the same alive
again in the same market, or fair, on pain of forfeiting double
yalue, half to the king and half to him that shall sue.
Corn.
To buy or sell corn in the sheaf, before it is threshed anrl
measure^, is a-.rainsl the common law of Kupland ; In cause
bv such salt- the market is in effect forestalled u/)-
J>y .'2 ('fir. 2, c. 8, if any person shall sell corn otherwise
thin bv Winchester measure, soaled and stricken by the brim,
he shall for ft it 4O>\ to the use of the poor; and in default of
payment, be imprisoned till paid.
And moreover every person who shall sell or buy corn with-
out measuring, bein-j th< reunlo requiivd, or in any other man-
ner than C. 8j directed, and that without
the shaking of the measure bv the buyer, shall, besides the
penalty of that act, forfeit all the coin so bought or sold, ni-
tric value thereof to the parly complaining. -J
C. 12.
And no ci^tom or prescription shall prevail a-jainst the
uniformity of mea ding such custom ma\ c
>'-., teach, 16*. :97-
bt yond
Of the Laws affecting Farmers. ,553
beyond all memory, and has been used without any visible
interruption (o).
Gleaning.
O
Tt has been said, that by the common law and custom of
England the poor are allowed to enter and glean upon another's
ground-after the harvest, without being guilty of trespass (;;) ; but
it is now positively settled, that a right to glean in the harvest-
field cannot be claimed !>y any person at common law; neither
jiave the poor of the parish, legally settled, such a right (</).
Sale of Horses in Fairs.
-
By the 2 and 5 P. and M. c. 7, and 31 EUz. e. 11, the
keeper of every fair or market shall yearly appoint a certain
special and open place, where horses shall be sold in any fair
or market overt ;
And shall appoint one or more persons to take toll there,
and to keep the same place from ten in the forenoon till sun-
set;
And the sale or exchange in any fair or market overt of any
stolen horse shall not alter the property, Unless the sunie shall
be in the time of die said fair or market openly ridden, led,
walked, driven, or kept standing for one hour, together at least,
between ten of the clock and sun-set, in the open place of the
fair or market, wherein horses are commonly used to be sold,
and not within any house, yard, backside, or other privy or
secret place ;
Nor unless all the parties to the bargain shall come toge-
ther, and bring the horse to the open place appointed for the
toll-taker, or for the book keeper where no toll is due ;
Nor unless such toll- taker there, or (where no toll is paid)
the book-keeper or chief officer .of the fair or market, shall
take upon him perfect knowledge of tne seller, and of his true
Christian name and surname, and place of abode, and shall
enter all the same to his knowledge, in a book to be kept for that
purpose, or else that the seller shall bring to the toll-taker or
Other officer aforesaid one credible person, that shall testify
that he-knovys the .seller," ajad his true name, surname, mys-
(c)sT.R,353. ' (/) 3 Bl.Com. 212. (j) i Hen. BI. j-r.
tery,
554 Of the Lavs affecting Farmers.
tery, and dwelling-place, and there enter the same, and also
the name, surname, mystery, and dwelling-place of him that
so avouches his knowledge;
Nor unless he also cause to be entered the very true price ;
And also the colour, and one special mark at least;
And also the buyer to pay the toll, if any is due ; if not,
then to give \d. for the entry.
Which done, the person entering the same shall give to the
buyer, requiring and payinu; -'/ for the same, a note in writing
of all the contents of such entry, subscribed with his hand.
Every person offending in any of the premises shall forfeit
5/., half to the king, and half to him that shall sue before the
justices in sessions, or in any ordinary court of record ; and
the sale shall be void; and tho owner may seize and take his
horse again, or have an action of detinue or replevin lor the
Same.
And if any horse shall be stolen, and after shall be sold in
open fair or market, and the .sale shall be used in all points as
aforesaid, yet nevertheless surh sale in six months after the
felony done shall not take away the owner's property, so as the
claim be made within six months, where the horse shall be
found, before the mayor if in a town corporate, or else bffoie
a justice near the place where found, and so as proof be made
before such magistrate in 4() days next ensuing by two wit-
I that the property of .such hoise WHS in the party claim-
ing, and was stolen from him within six months next before
Mich claim; but the party from whom the same was stolen
ma\ at all times after, notwithstanding Mich sale, take again the
j'lid horse, on payment, or n adiness to offer, to the party \\ho
hath po^srsMon, so much as he shall swear before, such ma-
gistrate that he paid for the sume.
CHAP. XT.
Of Ketif/it Club*.
An* number of persons irny form themselves ami establish
one or in-. n- MV.iel\ or sonetn-s of good fellowship, for rais-
in:, lu st.b-rnption of the member* thereof, or by voluntary
contribution) u fund for the mutual relief or maintenance "t
their numbers yi old age, sickmv, and infirmity, or for the
1 r lief
Of Benefit Clubs. 555
relief of the widows and children of deceased members; and
such members, or such member of them as shall be appointed
a committee for that purpose, may assemble together, and
make such rules, orders, and regulations for the government of
the same, as to a majority of such society, or committee
thereof so assembled, shall seem meet, so as the arne be not
contrary to law, nor to this act. And they may impose such
reasonable fines and forfeitures upon the members who shall
offend against such rules, orders, and regulations, as shall be
just and necessary for duly enforcing the same, to be paid
for the use of such society, as they shall by such rules, orders,
or regulations direct; and they may alter and amend such
rules, orders, and regulations as occasion shall require, or an-
nul and repeal the same, and make new ones in lieu thereof.
33 Geo. 3, c. 54, s. 1.
Provided, that all such rules, orders, and regulations, with
^ill convenient speed after the same shall be made, altered, or
amended, and also after every making, altering, or amending
thereof, shall be exhibited in writing to the justices at the
sessions, or adjournment thereof, for the county or place
where such society shall be established ; and such mles, orders,
and regulations shall be subject to the review of such justices,
who may, after due examination, at the then or the next sub-
sequent sessions, annul and make void all such rules, orders,
and regulations as shall be repugnant to this act, and shall
allow and confirm such as shall be conformable thereto ; and
after having been so confirmed, shall be signed by the clerk of
t'he peace at such sessions, and a duplicate thereof on parch-
ment shall be deposited with and filed by the clerk of the peace
at such sessions without fee, and the same shall be binding upon
all parties, s. 2. And such society who shall have exhibited
the rules, Stc. made for government thereof, at any general
or quarter sessions having peculiar jurisdiction for the place
where such society is established, and not to the sessions for
the county, &c. at large, may exhibit the rules, &c. of such
society at the general quarter sessions, or at any adjournment
thereof, to be holden -for the county, ike. where such society
is established ; such rules, &c. bearing the certificate of the
town clerk or other proper oflicer, of the time when such
rules, &.c. were respectively first exhibited as aforesaid; or may
exhibit in like manner a duplicate or a true copy of such rules,
&c. with an affidavit annexed, to be taken before any justice
of the county where such society is established, of the time
when
Of Benefit Clubs.
v,'l.eu such ruies, &c. so lir-t exhibited, subject to the like
tjunatiup, review, allowance, and confirmation of such last-
in <ijournment thereof , ;n
. s. fc; ami si;
being coniiuned by Mich lust- mentioned aenciat quarter sec-
.:<.'Mt thtTe<>t, in the manner directed by
- il ai MIC li .sessions, and
cttial from the tune th. \lu-
bii< i; prculiar jmiMiiction
said, a> if the same had been originally exhibited and tiled at
the sessions held for the said county, riding, division, or ."-hire,
43 Gi'o. 3, c. 111.
l'io\;cifd, that no rule, order, or regulation, confirmed in
niuiuicr aforesaid, shall, bo alt ..led, un-
less at a general meeting of the members of ucii society, con-
doned b\ j.'iiolie notice in VMJ; stcreiary or
; a ie(|ui?:Uon by thiet^ or four men:!.
and uubliciv rt ad at lite luo n.sual meeting! ttf such si
hei'.. tore such gent-raj nn < imir for ll.at purpose, unless
a cor.uiMiUc of Midi - shall luue bun nominated for
tint purpose, ill \\huh (uite .-udi committee shall be convened
)n hke t!i;imt( i-, and tl*a such alteration or rtixial shall n
binding, unltss made with the approbate u ot thiee Jourih'- oi
cuwiMiiU< lilt u prtMiil, ami aii'n. ( ii lo ;nid
the ja.- 1 ich sessions or adjournment, a>
-. may at a general mtetttigj
. < I.N as sliall be necet-
sary for cajrrving into the j.urjwses oi' Mich iu-tit-
tution, nod may muiiie i-f tiiem steunty for the faithful dis-
likes. J Jut no boud or other security iiiveu
in ' ict shall be chargeable with stamp di
l.\< -:,; ii lecl any number of tin- numbers
thnii, but not lest. ll::.n ik-vcn, to be a committee, i\hoe
acts shad have as much force as if done at a<geaeaLmr ( t
I in the nU>s
of the - i the sessions aforesaid, :uul of par-
ticular < >i which will at le:i>t br
>ary to con( in m any act of such committee) to be entered. in
a book by ;!' -.5.
v liimittecu are controulable by the society: MM! treasurers
trustees niKiv, \\ith tiie consent of .such s.n-n t\. Ia\ out th<>
>u;: .th oiitiibutions as the exigences of the society
do not call for, either upon private eecuiity, or may u-st tin-
>;tinr
Of Benefit Clubs. 557
same in the public funds, in either case in the name of such
treasurer or trustee; and with the consent of the society may
alter and transfer such securities and funds, and make sale
thereof respectively, bringing the proceeds, dividends, and in-
terest thereof to account for the use of the society, s. (j,
7, 8.
Treasurers are to render accounts, and to pay over the ba-
lances remaining in their hands, and in default thereof, the so.-
riety may exhibit a petition in chancery, without paying any
lees or stamp duties, s. 8, 9-
If any person appointed to any office by any such society,
and having in his hands any money, effects, or securities be-
longing to the same, shall die, or become bankrupt, or insol-
vent, his creditors, administrators, or assigns, shall, within forty
days, after demand made by the order of the society, or the
major part of them assembled at any meeting, deliver all things
belonging to such society to such person as they shall appoint,
and shall pay out of the assets or effects all money remaining
due, before any of his other debts, s, 10.
All the effects belonging to such societies shall be vested in
the treasurer, or trustee for the time being, for the benefit of
tl>e society, and after his death or removal, shall, without any
transfer or assignment whatever, vest in his successor, who
may bring and defend actions, which shall not be discontinued
by the death or removal of such person, s. 1 1 .
Before any of the rules, &c. of such societies shall be al-
lowed it shall be declared by one or more of the general rules,
&c. of sqch society, for what intent and purpose it is intended
to be established, and it shall be therein specified to what uses
and purposes the money which shall be subscribed, paid, or
given, for the benefit thereof, &c. shall be applied, and under
' what circumstances any member or other person shall become
entitled to the same, or any part thereof, s. 12. And by the
same section it is provided, that it shall not be lawful for any
such society to dissolve or determine the same, or direct the
division or distribution of such stock, or any part thereof, so
long as the intents and purposes declared by them remain to
be carried into effect, without the consent of five-sixths of the
then existing members, and also of all persons then receiving
or entitled to receive relief, testified under their hands.
All rules, orders, &c. to be entered in a book, and signed by
the members, who may at all reasonable times inspect the
same ; and are to be received in evidence in all courts, s. 13.
Societies
5JB Of Benefit Clubs.
Societies may receive donations, which shall be applied
in like manner as the contributions of the several members.
s. 14.
Members thinking themselves aggrieved may, on oath, com-
plain to two justices, who may hear and determine the same
without nppeal. s. 15.
Where general rules direct disputes to be settled by arbitra-
tion, whatever award, order, or determination such arbitrators,
or the major part of them, make according to the true purport
and meaning of the rules of such society, shall be binding and
conclusive without appeal, s. 16.
And by the statute 49 Geo. 3, c. 125, s. I, if any person,
having been admitted a member of any society estaUt-htd
under the authority of the 33 Geo. 3, c. 54, shall oflVnd
against any of the rules, orders, and regulations of such so-
ciety, it shall be lawful for any two justices, residing \\ithin
the county, riding, division, shire, stewartry, city, liberty, or
place, within which such society shall be held, upon complaint
made, on oath, by any member, to summon such person against
>\hom such complaint shall be made; and upon his appear-
ance, or in default thereof, upon due proof, upon oath, of the
service of such summons, such justices shall proceed to hear
and determine the said complaint according to the rules, &,c.
of the said society, confirmed as directed by the said act, and
shall make such order thereon as to them shall seem just; and
in case the aid justices snail adjudge any sum of money to be
paid by such person .iiruust whom such complaint shall be
made, and such person shall not, on notice of such order,
forthwith pay the sum of money so adjudged to the person or
persons, and in the manner directed by this act, such justices
shall, by warrant under their hands and seals, cause the same
to be levied by distress and sale of the goods of such person
on whom such order shall have been made, toother \\ith
such costs as shall be awarded by the said justices, and aUo
the cosls and charges attending such distress and <ale.
CHAP.
Of Pawnbrokers, 559
CHAP. XII.
Of Pawnbrokers.
BY the 25 Ceo. 3, c. 48, every person exercising the
trade of a pawnbroker, shall take out a licence, for which he
shall pay, if within the bills of mortality (or by the 44 Geo.
3, c. 98, within the cities of London or Westminster, or
within the limits of the twopenny-post), 10/.; elsewhere a/. ;
and shall renew the same annually, ten days at least before
the end of the year, on pain of forfeiting 50/. ; to be recovered
in the courts at Westminster, s. 1. 3. 4. 12.
Every pawnbroker shall cause his name, and the word
pawnbroker to be put up in large legible characters over the
door of his shop, or other place used by him for carrying on
such business, on pain of forfeiting 10/. for every shop or
place made use of for one vveok without having the same
put up; to be recovered on confession, or oath of one wit-
ness, by distress, by warrant under the hands and seals of two
justices, half to the informer, and half to the poor ; and for
want of sufficient distress, the offender to be committed to
gaol or house of correction, not exceeding three calendar
months, nor less than fourteen days, unless such penalty and
reasonable charges shall be sooner paid. 39 and 40 Geo. 3,
c. 99, s. 23. 2().
The 36 Geo. 3, c. 87, being in force only for three years,
and till the end of the then next session of parliament, the
99 and 40 Geo. 3, c. 99> was substituted in lieu thereof; and
thereby it is enacted, that every pawn broker may demand and take
the following rates over and above the principal sum advanced,
before he shall be obliged to deliver the goods pawned, viz.
For every pledge upon which there shall have been lent
not exceeding 2s. 6d. one halfpenny, for any time not ex-
ceeding one calendar month,, and the same for every month
afterwards, including the current month in which such plediif
shall be redeemed, although such month shall not be expired ;
Jf 5s. shall have been lent thereon, Id.
7. Qd. ditto l\(L
105. ditto 2d.
12s. Qd. * ditto 2.U/.
15s. ditto 3d.
17. 6J. ditto 3dk.
\t, ditto 4d~
And
1 560 Of Pawnbrokers.
And so on progressively and in proportion for any sum not
exceeding 4()s. ; and if exceeding 4(K and not exceeding
42s. 3d. ; and if exceeding 4'2. and not exceeding 10/. after
the rate of 3d. for c\( i \ ( ju>. by the calendar month, includ-
ing the current month, and so in proportion for any tVactional
sum; \\hich said several sums shall be in lieu ol" and tak.
a satisfaction for all interest due, and charges for \\arehouse
room. .S?> ;m<l : . c. fjf). s. 2.
.And where an\ intermediate s'nm lent upon pawn '-hall ex-
ceed 2s. (}J. and not amount to 40/ the person lending ilie same
may take a profit as aforesaid of 4'/. and no more, for the
of 0s. by the calendar month, including the current month as
aforesaid. >
l>nt the party intitled to and applying for the redemption
of goods pawned within seven da\s after the end of the fust
calendar month after tin- >ame h :>vi be< -n pledged, ni:r.
the same without paying an\ thing by way of prolh to the
broker for the said seven da\s or Mich part th !;u!I
then have clap-id; and after the expiration of the first seven
clays, and before the expiration () f the first four'.et n days of the
second calendar month, he may redeem such goods upon j
ing the profit payable for one calendar month and a half; but
but if after the expiration of the Hist fourteen d.ivs, ami I'ufore
the end of the said second calendar month, th. ;n:iy take
a profit of the \\hole second calendar month ; and the I.
. lation and restriction shall take place in every snbsc(|iieui
lendar month, \\herein application shall be made for redeeming
goods pawned, s. 5.
In all cases, where the lowest fraction of the sum to
be received by any pawnbroker from persons utluing to
redeem goods shall be a farthing, and siu-!i ] -l.all
liave j)aid the sum due except the la>t farthing, and shall uot
I ioduce a current fartliing, but in li'n thereof shall tem (
halfpenny, such pawnbroker shall in exchange deliver to .such
| i -',11 redrt-ming such g< < . .>od and lawful farthing,
in default therof shall abate the remaining farthing from the
tnm total, s
\ pawwbroker shall caiue to be painted or printed in
large legible characters the rate of profit allowed by this
act to be taken, and also the various pi ices of the n-.t, s or
memorandums to be given according to the r;... ud,
and an account of such as are to be given gratis, and of the
rxpence of obtaining a second note or memorandum, \\\.
th former one has been lo*t, nri-hiid, e!i-.;oyed, or frandn-
..Uy
S
Of Parcnlrofars. 561
lently obtained, and place the same ii> some conspicuous
part- of the shop or place where such business is carried on, so
as to be visible to the persons pledging or redeeming goods,
s. 22.
Every person \vho shall fake any goods by way of pawn,
pledge, or exchange, whereon shall be lent above 5s. shall
before he advance or lend any money thereon, enter in a
fair and regular manner in a book to be kept for that pur-
pose a description of such goods, and the sum lent thereon,
with the day and year, and the name of the person by whom
they were pawned, and the name of the street, and number
of the house, if numbered, where such person shall abide, and
whether he be a lodger in or keeper of such house, by using
the letter L. if a lodger, and the letter H. if a housekeeper,
and also the name and place of abode of the owner, accord-
ing to the information of the person so pawning the same ;
into all which circumstances he is required to enquire of the
party before any money shall be advanced, and if the sum lent
shall not exceed 5s. such entry shall be made within four hours
after the said goods shall Iiave been pawned ; and every pledge
upon which shall be lent above 105. shall be entered in a
book to be kept for that purpose, separate from all other
pledges ; and every such entry shall be numbered in such book
progressively as tley are pawned, in the following manner,
viz. the first pledge that is received in pawn in September
next, No. 1, the second, No. 2, and so on progressively un-
til the end of the month ; and the first pledge in the next
month shall be numbered 1 , and the second 2, and so on pro-
gressively in like manner until the end of the mouth, and so
on in every succeeding mouth throughout the year; and upon
every note respecting such pledge shall be written the number
of entry of such pledge so entered in such book as aforesaid.
And at the time of taking every pawn, a note or memoran- 1
dum, written or printed, shall be given to the person pawning
the same, containing a description of such goods received in
pawn, aud also the money advanced thereon, with the day
and year, with names and places of abode, and numbers of the
houses of the parties, and whether lodgers or housekeepers, by
using the letters aforesaid ; and upon such note or memorandum,
or on the back thereof, shall be written or printed the name
and place of abode of siich broker, which note or memoran-'
dum the party pawning such goods is required to take, and
he shall take the same, such broker shall not receive and
O o retaiu
Of Pcftenbrokers.
retain such pledge : and such note where the sum lent is under
5s. shall be given gratis.
If the sum lent is o*. and under 10*. such broker nay take \tl.
itto ]<>. ditto 508. ditto If/.
J .. ditto ,W. ditto _N/.
Ditto ,f)/. and upwards ditto 4f/.
^'hich note shall be produced to the broker before he shall
1>e obliged, to redehver MI-!I uoods, except as hereafter is
cepted.
And in all cases v\hne goods pawned shall be redeen-.td,
the pawnbroker shall write or iudor.se upoil every duplicate the,
profit taken In him, and sliall keep such duplicate iu his cus-
tody fur one year next following, s. 7.
If any person >!udl knowingly and designed! v pawn, or ex-
change, or unlawfully dispose >f the goods of any oihrr per-
son. ,/loud or authorized by tin: owner so to do,
one justice may };rant his warrant to appic-heml such offen-
der; and if he shall be tl nvieted by the oath (/(' oin:
, or on confession, before such justice, he shall forfeit
not more than .}/. nor less tl an UO.s. and also the value of the
!-S and if not forthwith paid, the said justice shall com-
mit him to the house >f correction or some other public prison
of the place where he shall reside or be convicted, then' to re-
n and be kept to hard labour for not more than three
cul' .. 'lar months, unless the forfeiture shall be sooner paid ;
and if within three daya before the exp'ualion of the. said
i! of eoiumitiiui.t the forfeiture shall not bo paid, tho
r H.--h pel sou to be pnbliely whipped in
fcue. i, or in si. me open public
c of the county, city, division, town, ; eiu
tin olVenee shall have been eo'nmiKed. as he shall think
proper. The said lorfeituie-> when nvo\ercd, to be ap-
plied towaids making satislaetion thereout to the party in-
jured, :iiii! dt.'ia'. ini; '.he tns;> of the prosceutioi), as shall be
ad; ,i-.onabie by such ju.-tiiv ; but H th paily iujurtd
shall -decline to accept of sn< h .-rni-fjct,oii and i-o>t-, or if t.
be anv ofiplus of the s;mie, then such forfeitures or ov< rplu*
shall be paid to the c lor the use of the pom <: ,MU b
pan-li or place. 8. 8.
If any peison shall counterfeit, fcnjre, or alter am su. h
note, or memorandum, or procure the same t > lie done .
or shall utter, vend, or sell Mich note, knowing the sam
Irut iirtu eonnteileifd, toiled, or altered, v\ith intuit to
defraud any person i .such offender shall be punished as h
far
Of
563
after mentioned; and any person or his servant or agent, to
M'liom such note shall be uttered or offered, which he shall
have reason to suspect has been counterfeited, forged, or al-
tered, may seize the person offering the same, and deliver him
to a constable, who shall convey him before some justice, of
the place where such offence is supposed to have been com-
mitted; and if upon examination it shall appear to the satis-
faction of such justice, that such person is guilty, he shall
commit him to the gaol or house of correction of the county
or place where such offence was committed, for any time not
exceeding three calendar months, s. 9-
If any person who shall offer by way of pawn, pledge,
exchange, or sale, any goods, shall not be able, or shall re-
fuse to give a satisfactory account of himself, or of the means
by which he became possessed thereof, or shall wilfully give
any false information as to whether such goods are his own
property or not, or of his name and place of abode, or the
name and place of abode of the owner of such goods, or if
there shall be any other reason to suspect that such goods are
stolen, or otherwise illegally or clandestinely obtained ; or if
any person not entitled, nor having any colour of title by
law to redeem such goods, shall attempt to redeem the same,
it shall be lawful for any person, his servant, or agent, to
whom the same shall be offered, to seize and detain such per-
son, and the said goods, and to deliver him immediately mto
the custody of a constable, who shall, as soon as may be
convey such person and the said goods before a justice; and
if such justice shall, upon examination and enquiry, have cause
to suspect that the said goods were stolen, or illegally or clan-
destinely obtained, or that the person offering to redeem thft
same hath not any pretence or colour of right so to do, he
shall commit such person into sate custody for such reasonable
time as shall be necessary for obtaining proper information, in
order to be further examined ; and if upon either examination
it shall appear to the satisfaction of such justice, that the said
goods were stolen, or illegally or clandestinely obtained, or
that the person offering to redeem the same hath not any pre-
tence or right so to do, he shall commit such offender to the
gaol or house of correction of the county or place where the
offence was committed, to be dealt with according to law ;
where the nature of the offence shall authorize such com-
mitment by any other law, then the same shall be for any time
not exceeding three calendar months, at the discretion of such
justice, a. 10.
o 2 It
564- Of Pawnbrokers.
If any person shall knowingly buy or lake in pawn, or ex-
change, any goods of any manufacture, either mixed or sepa-
parate, or any materials, plainly intended for manufacture, or
put into a state or course of manufacture, before such good*
are finished for the purpose of wear; or any linen or apparel,
which are intrusted to any person to wash, scour, iron, mend,
manufacture, work up, finish, or make up, and shall bo con-
victed thereof, upon confession, or on the oath of one witness,
before one justice, he shall forfeit double tlie sum giv n for
or lent on the same, to be paid to the poor, and to he reco-
vered in like manner as other penalties are by this act directed,
and such goods and materials shall also be restored to ^he o\vnr
in the presence of such jiutice. s. 1 1.
If the owner of any goods of any manufacture, either
jnixed or separate, or any materials plainly intended, or put
into a state for manufacturing, and before the same is com-
pleted for wear, or any linen or apparel so intrusted to wash,
&c. as aforesaid, which shall be unla\\ fully pawned or ex-
changed, shall make out either on his oath or the eath of
one witness before one justice, that there is just cause to
uspect, that any person hath taken in j>awn or exchange anr
such goods vithout his knowledge, and shall make appear
probable grounds for such suspicion, such justice may issue liia
varrant for searching within the hours of business the house,
trarehouse, or olber place of any such person, who shall l>e
charged on oath as suspected of having received the same with-
out the privity of the owner ; and if the occupier of any such
place shall, upon request being made to him by any peace-
officer authorized to search, refuse te open such place, and
permit such search to be made, such peace-office r may break.
open any such hou.se, warehouse, or place, within llie hou.
business, and ?carch a* lu> .'-hall think fit for Lhe goods suspected
to be there, doing no wilful damag* ; and if upon such .scan h
any such goods so pawned or exchanged shall be found, and the
property of the owner shall be made out to the satisfaction of
such justice, by the oath of one witness, or by the confession of
the person charged, such justice shall caujf the goods so fouud
to be forthwith restored to the owner, s 1C.
And if the owner of any goods unlawfully pawned, pledged,
or exchanged, shall make out either on his oath or by th
oath of one witness before one justice that such own< r hath
iiad his goods unlawfully obtained or taken tim him,
that tbt-ra M just cause to >i.^>ct that uuy person
within
Of Pawnbrokers. .
within the jurisdiction of such justice hath knowingly and
unlawfully taken to pawn, r by way of pledge, or in ex-
change, any goods of such owner, and without his privity or
authority, and shall make appear to the satisfaction of such
justice, probable grounds for such the owner's suspicion ; he
may issue his wan-ant for searching] within the hours of busi-
ness the house, warehouse, or other place of any such person
so charged as aforesaid ; and if the occupier thereof shall, on
request to him made to open the same by any peace-officer
authorized to search there by warrant of such justice, refuse
to open and permit the same to be searched,, it shall be lawful
for such peace-officer to break open any such house, ware-
house, or other place, within the hours of business, and to
search as he shall think fit therein for the goods suspected to
be there, doing no wilful damage ; and no person shall oppose
or hinder any such search ; and if upon search any of the goo^s
shall be found, and the property of the owner shall be made
out to the satisfaction of such justice by the oath of one wit-
ness, or confession, such justice shall thereupon cause the same
to be forthwith restored to the owner, s. 13.
If any goods shall be pawned or pledged for securing any
money lent thereon, not exceeding in the whole the principal
sum of 10/. and the profit thereof, and if within one year after
the pawning thereof, (proof having been made on oath by one
witness, and by producing the note or memorandum directed
to be given by this act as aforesaid, before any such justice,
of the pawning of such goods within the said space of one
year, or one year and three months, as the case may be,)
any such pawner who was the real owner of such goods at
the time of the pawning thereof shall tender to the person
who lent on security of the said goods the principal money
borrowed thereon, and profit according to the rates by this act
established ; and if the person who took the goods in pawn
shall thereupon neglect or refuse to deliver back the goods so
pawned for any sum not exceeding the said principal sum of
10/. to the person who borrowed the money thereon, in
such case, on oath thereof made by the pawner, or some
other credible person, any justice of the place where the
person who took such pawn shall dwell, on the application of
the borrower, shall cause such person to come before him and
shall examine on oath the parties themselves, and such other
credible persons as shall appear before him, touching the pre-
mises ; and if tender of the [principal money due and all profit
thereon shall be proved by oath to have beqn made within the
said
366 Of Pawnbrokers.
said space of one year, or one year and three mdnths, as
tin- case may be ; then on payment by the borrower of such
principal money and the profit due thereon as aforesaid to the
lender, and in case the letder shall refuse to accept thereof
on tender before such justice, he shall thereupon, by order
under his band, direct the goods so pawned forthwith to be
delivered to the pawner ; and if the lender shall neglect or re-
fuse to deliver up or make satisfaction for such goods as afore-
said us Midi justice shall order, then he shall commit the
party refusing to the house of correction, or some other public
prison, until he shall deliver up the said goods according to
the order of such justice, or make satisfaction for the value
thereof to the party entitled to the redemption, s. 14.
And whereas* inconveniences have arisen to pawnbrokers
from several different persons claiming a propeity in the same
goods, for remedy whereof it is enacted, that the person
who shall produce such note or memorandum as af>rcviid, and
require a delivery of the goods mentioned therein, shall be
deemed the owner; and such pawnbroker after receiving
satisfaction respecting principal arid profit as aforesaid, shall
deliver such goods to the person producing such note or me-
morandum, and he shall be indemnified ; unless he shall have
had previous notice from the real owner not to deliver such
goods; or notice that the same are suspected to have been
fraudulenty or feloniously taken or obtained ; anil unless the
real owner proceed in manner hereafter mentioned for i -
deeming goods pledged, where such note or memorandum hath
been lost, mislaid, destroyed, or fraudulently obtained from the
owner thereof, s. 15.
In case such pawnbroker shall have had such notice as
aforesaid, or if any such note or memorandum shall be lost,
mislaid, destroyed, or fraudulently obtained from the owner,
and the goods mentioned therein shall remain unredecimM, the
broker \\ilh whom Mich goods w. re pledged, at the request of
any peron who shall rcpu sent hiuiM ll us the owner thereof,
shall deliver to such person a copy of such note or memo-
randum, with the form of an affidavit of the pailirular circuin-
.stam < attending the case written iheieoii, as the. same >hall
be stated to him by the party appluni:; foi which copy and
affidavit, in case the money lent shall not exceed .Vs. the broker
shall receive one halfpenny, and if above 5s. and n-<i exceeding
KK he shall receive I <l. and if above 10\. he shall i
the like stun as he i* entitled to take <.n LUIII- tin original note
>r nuuiuramlmi), to bt paid by the JHIMHI applying: and the.
Of Pawnbrokers. 567
person having obtained such copy and form of an affidavit
shall thereupon prove his property in such goods to the sa-
tisfaction of' some justice, and also verify on oath the truth of
the particular circumstances attending the case mentioned in such
affidavit ; the caption of such oath to be authenticated by the
hand-writing of such justice; whereupon the broker shall suffer
the person proving such property to redeem such goods, on
leaving such note or memorandum and affidavit with such
broker, s. 16.
And all pawned goods shall be deemed forfeited, and may
be sold at the expiration of one year from the time of
pawning the same, and where the sum lent thereon shall be
above 10s. and not exceeding 10/. shall be sold by public
auction, but not otherwise, by the broker; and the same
shall be exposed to public view, and a catalogue thereof
published, and an advertisement giving notice of such sale,
and containing the name of such broker, shall be inserted on
two several days in some public newspaper, two days at least
before the first day of sale, o pain of forfeiting to the owner
JO/, s. 17.
But if any person entitled to redeem such goods shall,
before the end of the year, give notice in writing, or in
the presence of one witness, to the person who has the same
in pawn, or leave such notice at his usual place of abode, not
to sell such goods at the end of the said year, the same
shall not be sold until three calendar months from the end
of the said year, during which three months the owner
shall have liberty to redeem the said goods on the terms afore-
said, s. 19.
Provided that all pictures, prints, books, bronzes, statues,
busts, carvings in ivory and marble, cameos, intaglios, mu-
sical, mathematical, and philosophical instruments, and china,
which shall be sold by public auction, as directed by the act
in 'cases of other pawns, shall be sold by themselves, and
without any other goods being sold at such sale, four times
only in every yeaar: viz. on the first Monday in the months
of January, April, July, and October yearly, and on the fol-
lowing days, if the sale shall exceed one day, and at no
other time; and the auctioneer shall cause the same to be
exposed to public view, and catalogues thereof to be published,
and an advertisement giving notice of such sale, and contain-
ing the name of the pawnbroker, which shall be inserted in
some public newspaper two several days, three days at the
}east before the day of .sale, upou. pain of forfeiting to the
owner
568 Of Pawnbrokers.
owner of such goods auy sum not exceeding 5L nor les< than
40s. s. 18.
Every pawnbroker shall enter into a book to be kept for
that purpose a just account of the sale of such goods, expu
in tin day when and the money for which the same v.-
sold, together with the name and place of abode of the auc-
t; -neer and purchaser; and if such goods are sold for up-
wards of 10s. or for more than is dm thereon, the overplus
shall be paid ou demand to the person by whom or on \\1
account such goods were pauuctl, if Mich dtmand be maiie
within three years after such .sale, the necessary costs and
charge of such sale being first deducted; and the person \\lio
p:i\\ncd such goods, or for whom they were so pawned, shall,
for his satisfaction, be permitted to inspect the entry made of
such sale, paying for such inspection iJ. and no more. And
if any person shall refuse the person who pawned Mich goods
to inspect such entry, or if he be an executor, administrator,
or assignee, at such time producing his letters testamentary,
letters of administration or assignment; or if the goods
Bold for more than the sum entered in such book ; or if sin h
person shall not have made such entry; or shall not have I mini
Jide sold the goods for the best price, and according to the di-
rections of this act; or shall relume to pay such overplus on
demand as aforesaid ; he shall forfeit Id/, and treble the Mini
such goods were originally pawned lor, to the person by \\hom
or on whose account they were pawned; to be levied by-
distress bj two justices where the offence shall be committed.
0.20.
No person having goods in pawn shall, either by himself
or other person, purchase am such goods during the time
they .shall remain in his custody upon sueh pawn (except at
such public auction); nor shall suffer the *amc to he redeemed
with a view or intention of purchasing thereof; nor make any
contract with any person offering to pawn the same, v with
the owner of the pawn, for the purchase, sale, or disposition,
f the said goods, bel'oie flu- end of one year t'lom the time <-\
pawning the .same; nor shall purchase, receiye, or take any
goods in pawn from auy person who shall appear to lie under
tin- age of twelve years; or to be intoxicated with liquor ; <>i
purchase or take in pawn or exchange the note or memoran-
dum aforesaid of any other broker; nor buy any goods in the
course of his trade before eight o'clock in the morning, nor
after si ven in the evening: nor employ any M r\aul or ap-
prentice, or other pcrsuu under l(j ycoji of a^-j to take in
Of Pawnbrokers. 569
any pawn ; nor receive any goods by way ef pawn or exchange
before eight in the morning, nor alter nine in the evening be-
tween Michaelmas-day and Lady-day ; nor before seven in
the morning and after ten in the evening the remainder of the
year, except only on the evenings of Saturdays throughout
the year, and the evenings preceding Good-friday and Christ-
mas-day, and every fast, or thanksgiving-day appointed by his
majesty; on which days, and on Sundays, no person shall carry
on the trade of a pawnbroker, s. 21.
And if it shall appear, or be proved upon oath before a jus-
tice, that the goods pawned as aforesaid have been sold before
the time limited, or embezzled, or lost, or become of less
value than when pawned, through the neglect or wilful mis-
behaviour of the person to whom they were pawned, such
justice shall award a reasonable satisfaction to the owner in
respect of such damage ; and the sum so awarded, in case the
same shall not amount to the principal and profit due to such
broker, shall be deducted thereout and it shall be sufficient
Tor the pawner to pay or tender the balance, and upon so do-
ing, such justice shall proceed as if the pawner had paid or
tendered the whole money due for principal and profit as afore-
said : And if such satisfaction to be allowed shall be equal
to or exceed the principal and profit as aforesaid, then such,
broker shall deliver the goods so pledged to the owner, with-
out being paid lny thing for principal or profit; and shall also
pay such excess, (if any,) on penalty of 10/. to be recovered
in manner hereafter mentioned, s. 24.
And on every occasion where such justice shall think the
production of any book, note, voucher, memorandum, du-
plicate, or other paper necessary which shall or ought to be in
the hands or power of any broker, he shall summon him to
attend with the same, which he is required to produce in
the state the same was made at the time the pawn was re-
ceded, without any alteration, erasement, or obliteration what-
soever; and in case he shall neglect to attend, or to produce
the same in its true and perfect state, he shall, unless he shew
good cause to the satisfaction of such justice, forfeit not ex-
ceeding 10/. nor less than 5/. to be levied as hereafter men-
tioned, s. 25.
But no person shall be liable to any prosecution before
any justice, unless information be given within twelve calendar
months next after the offence was committed ; and such pro-
secutiou shall be before some neighbouring justice, where the
shall have beeu committed., except ia London, s. 27.
Aad
5/0 Of Pawnbrokers.
And the churchwardens and overseers of the parish or place
where any offence shall be supposed to have been committed,
or some one of them, at the discretion of such justice, on
Having notice from him for that purpose, shall prosecute such
offender at the expence of such parish or place, s. CS.
But nothing herein shall extend to any person \\lio shall
lend money upon pawn or pledge at the rate of 5/. per cent.
interest, without taking any greater profit for the loan thereof,
s. 25.
And no person who has been convicted of any fraud, or
of obtaining money by false pretences, or of any felon v, shall
.nte or inform against any person for any offence a.
this act. s. 29.
And all the provisions of this act shall extend to, anil in-
clude the executors, administrators, and assigns, of
deceased pawnbroker, as if he were living, except that no
such execntor or administrator shall be answerable tor n;
rally ipersonally, or out of his own estate, unless forfeited l>
his own act. s. 3 1 .
In case any pawnbroker shall offend against this act in ne-
glecting to make in a fair and regular manner in such book
as aforesaid any such entry as is hereby required, he .-lull
forfeit for each offence not exceeding 10/. as to such justice
shall seem reasonable and lit; and for every other oiiriiee,
where no other penalty is imposed, not more than !()/. nor loss
than 40*. ; the same respectively to be levied by distress and
sale, half to the person complaining, and half to the poor, if
not herein otherwise disposed of and applied, s. 2().
Any justice unto whom complaint upon oath shall ho
made of any offence committed against this act shall issuo
\i\> \\aiianl for bringing before him, or some other jn-ticc
of such place, the person charged with the offence: and the
justice before whom he is brought shall he:ir and determine
the matter, and proceed to judgment and conviction: ami
if it shall appear upon oath, to the satisfaction of sm-h jn-ticu,
that any person within his jurisdiction can give matin. 1
r\i(ience (*!i In-half of the prosecutor, or .f tin- person ac-
cused, and who will not voluntarily appear; he shall
his summons to convene him to give his evidi me ; ami if he
shall neglect or refuse to appeal mi such summons, and no
just excuse shall be offered, then ion proof upon oath of the
Munitions having I e<! upon him) he shall ISMH-
irrant l> brin^ such \\iln. >; Intuit- him; rind on hii
appearance, if he shall refi/-. to U < nimicu 1 on oath, nith-
Ut
Of Pawnbrokers. 571
out offering just cause for such refusal, the justice shall com-
mit him to the public prison for any time not exceeding
three months; and if on such examination the justice shall
deem the evidence of any such witness to be material, he
may bind over such witness unless a feme-covert, or under
the age of 2 1 years, by recognizance in a reasonable penalty
to appear and give evidence at the next sessions or assizes. 3O
Gto. 2, c. 24. s. 16.
And in all proceedings on these acts, any person may be a
witness notwithstanding his being an inhabitant of the place
wherein the offence shall have been committed, s. 33.
No fee or gratuity shall be taken for any summons or war-
rant of any justice, so far as the same relates to goods pawned,
pledged, taken in exchange, or unlawfully disposed of. 30
Geo. '2, c. 24, s. 13.
No person charged on oath with being guilty of any of
the offences punishable by this act, and which shall require
' bail, shall be admitted to bail before 24 hours notice at
least shall be proved by oath to have been given in writing
to the prosecutor of the names and places of abode of the per-
sons proposed to be bail for any such offender, unless the bail
offered shall be well known to the justice, and he shall approve
of them. And every such offender who shall be bound over
to the sessions or assizes shall be tried at the next sessions or
assizes to be held after his being apprehended, unless the
court shall think fit to put off the trial on just cause made
out to them. 30 Geo. 1, c. 24, s. 16.
AN-
[ 572 ]
AN
EXPLANATION
? THK MOST COMMON
\ATlEYANCE is derived from the French word leyer, (
expect, and signifies that the fee or freehold of land is not
Tested in any one, but stands, in consideration of lav* , in Mait-
ing or expectation of an owner or proprietor; for although there
be no person m case in whom it can vest and abide, yet the
law considers it as always potentially existing, anil ready to vest
whenever a proper owner appears.
Addition signifies in law the adding of the estate, degree, or
mystery, vthich any person is of, to his Christian and sur-
names; for by the statute 1 Hen. 5, c. 5, all persons shall in
law proceedings be styled by their name and addition.
Adrinptinn signifies the taking away of a legacy; as if a man
had bequeathed to another a bond, oil which money was due
by a third person, and before the will takes effect, he calls in
the money from the obligee.
Adnichiled is derived from the Titin word ;//////, written
of old iiicliil, and signifies, as appears by the statute '23 lien. t>,
annulled, cancelled, made void.
Age-Prior is where an action is brought against an infant
for lands which he has by descent, IK ly petition, plea, <>i mo-
tion, shows his infancy UK the court, and prays that the action
may stay, or, according to the more technical phrase, that the
parol may demur until he is of full age.
Aistmcnt t from the French gistf, a bed or resting-place,
."ULMnlics to take in or feed the cattle of strangers, at a certain
rate vt r week,
Allodial
An Explanation of Zo Terms. $73
Allodial signifies an inheritance held without any acknow-
ledgment to any lord or superior, as contradistinguished from
an inheritance iu fee, which iu its general acceptation signifies
land held.
Amenable, from the French umener, to bring or lead unto^
in a modern sense signifies to be responsible, or subject tQ
answer, in a court of justice.
Amicus Curia, a friend of the Court. Thus, if a judg<*
is doubtful or mistaken iu a point of law, a stranger may speak
to the subject, and offer his sentiments as an anticus curias,
Anatocismsigu'i&es the taking of usurious interest for the loaa
of money, when the lender extorts compound interest, or
joins and accumulates together the interest of several years,
and requires a new interest to be paid for them as for the first
and true principal.
Apportionment signifies the dividing of a rent into parts,
according as the land out of which it issues is divided amongst
one or more proprietors. Thus, where a lessor recovers part
of the land, or enters for a forfeiture iuto part of the land, th
rent shall be apportioned.
Approvement is where a man has common in the lord's
waste, and the lord makes an enclosure of part of the waste
for himself, leaving sufficient common, with egress and regres*
for the commoners,
Attachment is a custom in many places abroad, and particu-
larly in London, whereby a creditor may attach the goods of
his debtor iu any hands where he finds them, privileged persons
and places only excepted.
Attornment signifies the tenant's acknowledgment of a new
lord, on the sale of lands, &c. As where there is a tenant for
life, and he in the reversion grants hia right to another, it is
necessary the tenant for life should agree to it, which is called
attornment.
Averment is, in pleading, the positive assertion of some
fact, or an offer to do some act.
Autre Droit is where a person does or suffers a thing in the
right of another. Thus, executors, administrators, &c. act ia
autre droit, that is, in right of their testator or intestate, and
juot in their own right.
Bar, in a legal sense, is a plea or peremptory exception of
4efendant sufficient to destroy the plaintiff's action.
$rtce Court is an iuferior court that is not of recojd, as the
court baron, &c.
'"" - Besaih,
An Explanation of Law Terms.
.', hi say tnl t proavus, the father of the grandfather*}
and at common law it sigmfus :i writ that lies where the _
grandfather was seized, the day that he died, of any land* <r
tenements in fee.-*>implo; and after his death a stranger enter*
the same clay, and keeps out the lit -ir.
ttona NatabiKd is where a person dies, bavins at the time
of his death, goods in any other diocese, besid, s ln> .j.-.ods in
the di >c< <e where he dies amounting to the value of live pounds.
Calling the is the ceremonv which t:ikes pla<~
\\hen the pi ".inMff is nonsuited. It is usual for a plaintiff,
when IK: or his counsel perceives that he has not given evidence
sufficient to maintain his issue, to be voluntarily nonsuited, or
withdraw himself, whereupon the crier is ordered to call the
plaintiff; and if neither he nor any one for hi-.n appears ho is
nonsuited, the jurors are dvcharged, the action is at an end,
and the d- fendjunt shall recover his costs. I'm this i* not, like
a rctrni'if or a M rdict, a bar to another action.
L'nptinn is where a commission is executed, the commis-
sioners subscribe their names to a certificate when and where
the commission was executed, which in law is called a caption,
or taking of the thing ordered to be done.
- is \\lure any particular thing is omitted out
of or not provided for by a statute, Sic.
:s a return made by the sheriff upon a capias
or other process to the like purpose, that he has taken the body
of the party.
ic trn.<t is he who has the trust of lands or tcne-
committed to him for the benefit of another.
L'fstni f/ne NSC si^uifn s him to whose use any other man is
>f lauds or tenement-.
Cestni rjue lie is he for whose life any lands or tenements
are -^raiileil.
( oii artinnfin i- where a defendant -\< -kno\vledes or
mist him to be just and true.
und. t ither lu-tore or al'tt utfcK jud-jmenl to be eiit<-i .1
a-ain-t dim \\ithout trial. And ill this case the eon;
ilk exteud> '. no more than is contained in the dec la-
ration, but the defendant may confess more if he will.
Congcai- ! permission, and sitrnili"< m our law, that
a thing is lawful, or lawfully done, or done with permi ion.
Contimuindti is :i ^oid ir-rd in n special declaration of tres-
pa^s, when the plaintiff would recover damages for M
trespasscv in the same action.
Coram
An Explanation of Law Terms. 575
Coram non Judice is where a cause is brought and deter-
tniued in a court, of which cause the judges have no juris-
diction.
Covin is a compact between two or more to deceive or pre-
judice others; as if tenant for life or in tail conspire with
another that he shall recover the land which he, the tenant,
holds, in prejudice to him in reversion.
Curia advisare vult is the entry made when the court take
time to deliberate upon any point of difficulty before they give
judgment in a cause.
l)amnum absquc, Injuria signifies that sort of loss or damage
which a man may sustain without thereby receiving a legal
injury.
De bene esse is a phrase which signifies to accept or allow
any thing as well done for the present, but when it comes to be-
tried or more fully examined, to stand or fall according to the
merit of the thing in its own nature. Thus, on all process
returnable before the last return of any term, when no affida-
vit is made or filed of the cause of action, the plaintiff may
file or deliver a declaration de bene tsse, or conditionally.
Dedimus Potestatem is a writ or commission given to one
or more private persons, for speeding some act appertaining to
a judge, or to some court. Jt is granted, most commonly,
upon suggestion that the party who is to do the act is so weak
that he cannot travel ; as where a person lives in the country,
to take an answer in chancery, to examine witnesses, to levy a
fine, to swear in a justice of the peace, &c. &c.
Duccs Tecum is a writ commanding a person to appear on a
certain day in the court of chancery, and to bring with him
such writings, evidences, or other things as the court would
view. So also, subpoenas dttces tecunt are often sued out at
common law, to compel witnesses to produce, on trials at nisi
ptius, deeds, bonds, bills, notes, books, and memorandums, in
their power or custody, relating to the issue in question. But
if the document required be in the power of the opposite
party, or his attorney, it is usual to give them notice to pro-
duce them, and on proof of such notice, the court will, if
necessary, compel the production.
Mmblements signify properly the profits of lands sown, but
the word is sometimes used more largely for any products that
arise naturally from the ground, as grass, fruit, &c.
Enure signifies, in law, to take place or be available, and is
as much as affect urn. Thus, a release made to a tenant for
life
i
57^ An Explanation of Law Terms.
life shall enure, and be of force and effect to him in rever-
sion.
IbcroK is an instrument delivered to a third person, to be
the deed of the party making it upon a future condition, when-
ever that condition shall be performed, and then it is to be de-
livered to the party to rchoni it /> mnde. Therefore, t deliver
an tsiTozi' .signifies that the deed delivered shall be considered
only as a scroK'f, or writing, until the condition be performed,
and then, and not till then, it shall take effect as a dcul.
EipUet are the products which hereditaments, corporeal or
incorporeal, \irld; as the hay of meadows, the herbage of
pasture, and the corn of arable lands; tin rents and services of
tenures, the tithes in gross of advowsons, the timber and
brushes of wood*, the fruits of an orchard, the toll or dish
fcerviee of a mill, &c. all which, and such like issues, are
termed o'/v/.rs; and in a writ of right, it mu>t be averred that
the parly claiming, or the ancestor under whom he claims, took
thetop/Mfj for this writ cannot be maintained without shewing
actual seisin, by taking the espii'fs, either in the demandant or
his ancestor.
Estovers signify to supply with necessaries, and is generally-
used in law for allowance of wood madr 1 I" compre-
hending house-bote, hedge-bote, cart-bote, plottgn-bote, Jk.c.
fur repairs.
F^trepemfiit is where any spoil or rrv/s/c is made by a tenant
on lands, to the prejudice of him in reversion; a^ l>y continual
ploughing and drawing away the hcrtrt of the land, and tit gli:ct-
ing to manure it, or not using it with good husbandry, whereby
it is impaired.
J-'..r merv inotu are words used in the king's charters and
letters patent, to signify that he grants them </' his m; >i r;ill
and motion, without petition o; ion of any other; and
the intent and etVect of these words is, t<> bar all exceptions
that might be taken to the charters or letters patent, by alleg-
ing that llie king in granting them was abused or misled by
faJM "on-; therefore, whenever the words ei man ,,,
are used in any royal grant, they shall be, taken most strongly
against the king.
I', i ( </',-> i- a phrase used to signify the power which any
. by virtue of an ofh'ce, to do certain act*, of
Iii-,n\\i 1 without application to him for the pin j
Thu, a ju^tici- of the peace may not only grant MIH t\ ot" tho
peace upon the complaint or request of any person, but he
may
An Explanation of Law Terms. 577
may demand and take it ex officio. Thus, also, the attorney
general may, by virtue of his office, file informations at the suit
of the king, without applying to the court, as every other per-
son must do, for leave so to do.
Ex Parts signifies an act done or proceeding had by on
party only.
Ex post Facto is used in law to signify something done after
another thing that was committed before.
Extinguishment signifies a consolidation. Thus, if a man
hath a yearly rent out of lands, and afterwards purchase thd
land out of which the rent issues, so that he hath as good am
estate in the land as he hath in the rent; the land and rent are
then consolidated or united iti one possessor, and therefore the
rent is said to be extinguished. So also, by purchasing lands
wherein a person hath common appendant, the common is ex-
tinguished. Thus, also, if feme sole debtee take the debtor
to husband; or if there be two joint obligors in a bond, and
the obligee marries one of them ; in these cases the debt will
be extinguished.
Feigned Issue. If in a suit in equity any matter of fact be
strongly contested, the court usually direct* it to be tried f>y a
jury ; as whether A. is heir at law to B., or the existence of a
modus decimaudi, or real and immemorial composition for
tithes. But as a jury cannot be summoned to attend a court
of equity, the fact is usually directed to be tried at the bar of
the court of king's bench, or at the assizes, upon a feigned
issue. For this purpose a feigned action is brought, wherein
the pretended plaintiff declares that he laid a wager of tive
pounds with the defendant, that A. was heir at law CO B., and
then averring that ho is so, brings his action to recover the rive
pounds. The defendant allows the wager, but avers ,that A. is
not heir at law to B., and thereupon the issue, which is directed
out of the court of chancery to be tried, is joined. And thtw
the verdict of jurors in a court of law determines the factrin a
court of equity.
Flotsam is where a ship is sunk or cast away, and the goods
are floating on the sea. Flotsam, jetsam, and ligan, are ge-
nerally mentioned together ; jetsam being the things throicn
out of a ship to prevent her sinking ; and ligan are those goods
which, so thrown overboard, sink to the bottom.
Forma Pauperis is where any person has just cause of suit,
and is so poor that he is not worth five pounds after all hU
debts are paid, and excepting the property in question ; on oath
made of this fact, and a certificate from some lawyer, that hf
Pp hath
*7S An .i\)lanat'isu r>J Late Terms.
hath gotxl cause of action, the court will permit him to sue .
fonna ptniperis, \\ithoul pacing any fees to counsel, attorney,
or clerks in comt.
Garnishment. If an action of d-tinix- of rrnrtcrs be
brought agaimt one, and tin- tK-f ndant aith iliat UK y \M i*.
delivered to him by tlie plaintiff and nnotlu r JHI.-O\). upon cer-
tain conditions, and prays that the other may he earned to
plead with the plaintiff, the writ of Ktnfaciat which goes
against him is called garnishment : and vihrn h- tomes, he
shall plead wilh the plaintiff, which is called the interpleader.
Glebe are funds of which a rector or vicar is seized in jure
Jlerfift'jr and Paniwpr. Herbage is the green pasture and
fruit of the faith, provided by nntnre for the bile or food of
attic; and p'nnuigt i." that food \\hieh the s\\ine fe-d on the
*oods, as the masts of beech, acorns, &c.
Jeofuil is a word derived from the French jai' faille, that
is, ego lapsus fuw, and sijjnities an oversight in pleadinir. or
other law proceedings. But the allowance of these mistake*
being found to interrupt and retard the comse of justice, the
legislature has, l.y the statutes S'i JJcn. S, c. .SO; IS Eliz.
e.~14; 21 .lac. 1 , c. IS; 16 and 1? Cat. C, c. S ; 4 and 5
4nn, c. 10; and 5 Geo. 1, c. 13 ; prevented them from taking
effi ( t whenever they are mere matter of form, after a verdict
has established on whiih side, in the opinion of the jm\. the
right in question lies.
In (*vf signifies any thing in bein?. Things are in law d>-
tiniiuishtd into those that are in < ' , and tho.ie that are only
inpofse. Thus, any thing that is not in m-tual bt in;_', hut mat
by possihility r.\i>t, is said to be /// /'os.c, or in potcntia ; hut
^vhat if apparent and visible i allr-iied to ; actual
being. A child, for instance, before it is horn is /// jwsac; after
it i.i horn it i^ /// t!>r, or actual ben
I H HUC n flu is a vord used in law procediftgl to a-i-eitain
the meaning of anv doubtful \vord or expulsion, l>\ <iV(rrni
that the srin*- appropriated t it i< the tin* 1 meaning. Thus.
for instance, in an action of -dandn . l>\ spcaknm of A. to l>.
" lie is a tiaitor," it must !> d, under nu innii-.-ndo in
tbe declaration, that the pronoun // JTHMIIS the p -\*<>\\ A . and
t|iat tniitor means that the '-aid A. had been nj|t\ o| :m of-
inst the duty of his allegiance; but an , : min<-ni'
not >o eidarjze the meanm<r of dn/>ffu/ \\ords a< to lender that
si'ittnn which was unentaiti. Thu-, it a - . .f another,
*' lie hath buiaed my barn," the innuendo cannot explain it
An Explanation of Law Terms. 579
to mean, " my barn full of corn " for that is adding a new
term, and making the import of the words quite different from
those that were in fact spoken.
Journies Accounts, dietee compuiatte, is a term in law thus
understood : if a writ abates by the death of the plaintiff or
defendant, or by any defect of form, the surviving party shall
have a new writ within as little time as he possibly can after
the abatement of the first writ; and this is called having a
writ by jountics accounts.
Levant et couctiant are terms in law for cattle that have been
so long in the ground of another, that they have lain down,
and are risen again to feed. The usual time in which cattle
are said to have been levant et couchant is supposed to be a
day and a night.
Mainour, in a legal sense, denotes the thing that a thief
taketh away or stealeth ; so that when it is said that a thief is
taken in the mainour, it means that he is taken with the thing
stolen in his hands or possession.
Negative pregnant is a term in special pleading signifying a
negative'proposition including an implied affirmative. Thus,
if a declaration charge the defendant with having done an act
on a particular day, or in a particular place, and he plead that
he did not do it niodo et forma, in the manner and form, as
stated in the declaration, it may be implied affirmatively, that
he did in some other manner or form than that stated. Thus,
also, if a man be charged with having aliened land, and he re-
ply, that he hath not aliened in fee, this is a negative preg-
nant, for he may have aliened in tail. This mode of pleading
is faulty, but there must be a special demurrer to a negative
pregnant ; for the court will intend every plea to be good until
the contrary appear.
Nomine Poencc is the penalty incurred for not paying rent,
&c. at the day appointed by the lease or agreement for the
payment thereof.
Nude Contract is a bare naked contract without a consi-
deration ; it is also called nudum pactum. A consideration is
the material cause of every contract or agreement, or that thing
in expectation of which each party is induced to give his con-
sent to what is stipulated reciprocally between both parties.
Thus, if one buy of me a house or other thing for money, and no
money be paid, nor earnest given, nor day set for payment, nor
the thing delivered ; here no action lies for the money or the
thing sold, but the owner may sell it to another if he will; for
ch provisions or contracts are deemed ntida pnatu, there
p p <2 being
.530 An Explanation of Law Terms'.
being no consideration or cause for them hut the covenant*
themselves, which will not yield an action: and thi* ;< .M . -
with the definition of nitduni piichrm as given by ihe civilian-,
namely, mtdum pact urn est vbi //// subcst causa prttlcr
Parap/unnilia signifies in law those goods which a wife
challenges over and above her dorw or jointu
husband's death; as furniture for tur ehantlM -j>a-
rel, and jewels, which are not to be put into tin- iuu-ntoiy of
her husband's eft*
Pdnrrrril signifies the lowest tenant of the fee, or he who
' immediate tenant to one who holds over another; and he in
iilletl tenant parrniiil, because it is perceived that he liath
profit and arttil by the land.
Pern fin>' i/, from the French verb prcftrlr, , 1< t-Ae, -i-iiifu-s
a taking or receiving; as tithes in jtcrn'nici/ arc 1,11 h-^ taken,
or that may be taken in kiivl. Ihu-, ::!-o, the nevs'.in \\lio
ives or takes the profits of lands is culled the^rrw
piojits.
J J o.s , Co/nttafNf, the |m\\er of the county, Mlieh includes
lh aid and attendance of all knights, and otlu r im-n above the
age of fifteen, within the county; hut errlf.vja>iical ,
and >iu li as labour under any infirmity, are not compelhible to
attetul. 'Jliis poorer is in the hands of the ho may
call it forth to enable them to execute the }>i ih< law,
mid to do other acts for the furtherance of justice.
Y'o.s.vWo Fhitris is \vhere a man hath a sow ami u daughter
one woman or vriitcr, and a >/;/ by another woman or
'cr, and dies; if the first son enter n.nm the estate of his
father, and die seined without ine,tlu-r/ H^htci -shall have the
land as htir to her brother, although tin- son by the sr
writer is heir tt> the father; frutri* </>_/
Sintjifici fhcit sororcm <>%< lutrcilcm ; but if the eldest son
\\ithout issue, not having made an actual entry and seisin, tlie
'her by the second \\ife, as heir to the father,
shall rt!_! ,nd, and not ti
::fd to be, " nit i nhich
may or may not hajipen; an<l a possibility is eithei n. <tr or
remote. Thus, for instance, \\h-ie :MI bunted to
after the dcalli of another, thiN is n n^n possibility; but ft
limitation h> a man it l, --liall in:';-. \.. and i . alh
hall many !., i- a |)n->-iliil]t\ so 7 ninfc. that the law pa\ no
aid to it. It \\as fi.rmeih held that a posibihl\. more
rijjht, or chot in actiun, cowld not be- granted over; but it ha
been
An Explanation of Law Terms. 581
been lately determined, that a possibility coupled with an in-
terest is d(- -able.
Posted is a term in law signifying the return of the judge,
made u-.-oi; (he record, of what was done in the cause after the
issue bet.ueu the parties is joined.
Prender is the power or right to take a thing before it is
offered.
Privies is a term signifying the situation of those who are
pariakers, or have any interest in any action or thing, or who
stand in a certain reltition to another. Of privies there are
five kinds: 1. Privies in blood; as the heirs, whether general
or special', to the Ancestor. 2. Privies in representation; as
the executor to liie t'-.slator, or the administrator to the in^
testate. 3. Privies in estates; as joint tenants ; the donor to
tl-e donee; the L-ssor to the lessee, &c So if n fine be levied,
the heirs of him who levies it are privies. 4. Privies in con-
t,:..l; as y. ben the lessee assigns all his interest. 5. Privies of
t >iu' :i tract ; as \t ben the lessee assigns his interest, and
the k'*sor has not acc p ed the assignee.
Proctnift Amy is used iu law for him who is the next friend,
or next ot kin to a child in his nonage, and is therefore allowed
to interpose in favour of the infant in the management of his
afi tn\s.
Qne Estate signifies n'liich estate, and is a plea where one
man mtithng another to land, &c. says that the same estate
such other had, he lias from him. Thus, in quare impedit f
t!/e plaintiff may allege that two persons were seised of the
lands to which the advowson was appendant in fee, and pre-
sented to the church, which afterwards became void; whick
estate of the said two persons he now has, and by virtue thereof
presented, &c.
Quoad /toe is often used in law pleadings and arguments to
signify, as to the thing named the law is so and so, Sec.
Realty is the abstract of real, as distinguished from per-
sanaltij.
Recoupe signifies the keeping back or stopping something
which is due, and in law it is used for defalk or discount.
Thus, if a person hath a rent of ten pounds issuing out of
certain lands, and he disseises the tenant of the land, if the
disseisee recover the land and damages, the disseisor shall re-
coupe the rent in damages.
Scilicet, an adverb, signifying that is to say, to wit. It is
not a direct and separate clause, nor a direct and entire clause,
but intermedia : neither is it a substantive clause of itself, but
582 An Explanation of Lcr* Terms.
is made use of to usher in the sentence of another, and t
particularize that which was too general before, or to explain
that \\hich was doubtful and obscure. But it must neither in-
crease nor diminish, for it gives nothing of itself. It may,
however, make a restriction, where the precedent words are
not so very express but that they may be restrained.
Tantamount is \\here one thing amounts to another, and
then it is all one as if it were the same. Thus, a U-asc and
release amount to a feojjmrnt.
Variance signifits any ;iltt-iation of a thing before laid in a
plea, or where a declaration in a cause differs from the writ, or
from the deed on which it is founded.
/ urore Print is a plea in the nature of a plea in bar. Thus,
in an action of debt on bond, the defendant may plead that he
tendered the money at the day and place, and that then- \\ at
nobody there to receive it, and that he is also at ill ready to pay
the same.
/ oir Dire is the name of a particular oath administered to
a witness, that he shall say the truth, whether he is so far in-
terested in the cause that he shall get or lose any thing by the
event.
Withernam is the taking or driving a distress to a hold, or
out of the county, so that the sheriff cannot upon trplt-vin
make delivery thereof to the party distrained.
APPENDIX.
APPENDIX.
An Agreement between a Man and his Creditors, for Payment of
Debts by Instalments.
ARTICLES of agreement made, &c. between A. B. of London
tailor of the one part and C. D. E. F. and G. H. &c. creditors
of the said A. B. of the other part.. Whereas the said A. B
on the day of the date of these presents stands indebted to
his said creditors in the several sums of money following (that
is to say) to the said C. D. in the sum of to the said
K. F. in the sum of and to the said G. H. in the sum
of amounting in the whole to the sum of which said -
several sums of money the said several creditors at the request
of the said A. B. do hereby respectively agree to accept
and receive in the manner and proportions hereinafter men-
tioned. Now these presents Kit ness, that the said A. B. for
himself, his heirs, executors, and administrators, doth hereby
covenant, promise, and agree to aud with his said several
creditors above named, their respective executors and ad-
ministrators, that he the said A. B, his heirs, executors and
administrators, or some or one of them, shall and will well and
truly pay or cause to be paid unto the said C. D, his executors
or administrators, the full sum of on the day of next
ensuing the day of the date hereof, or within three days there-
after, and the further sum of . monthly, on, &c. then next
successively following, or within three days thereafter, until
the sum of part of the said sum of be thereby paid
and satibfied, and shall and will likewise pay or cause to be
paid unto the said C. D. his executors or administrators, the
further sum of on, &c. next and immediately following
the last payment of the said sum of and of all other sum
and sums of money now due or owing to the said creditors
abovenamed, or any of them respectively; upon trust and
confidence nevertheless, and to the intent and purpose, that
he the said C. D. his executors 'and adminstrators, shall and
will upon demand pay and satisfy to each and every of them
the. said creditors abovenamed, a just, due, and equal part
584- Appendix.
and share of all such sum and sums of money, as shall from
time to time be so paid by him the said A. B. And the said
C. D. E. F. and G. H, ore. for themselves severally and re-
spectively, and for their several and respective executors, ad-
ministrators and assigns, and not the one tir ihe other, do and
each of them doth ht-reby covenant and decl.-trt. with and to
the said A. B. his ex em to is and administrators, thru unless
And uiuil some default shall happen to b-- made by ih<> suid A. B.
his executors of adaiini-tv t -s I <-r in payment cf the s;-.id
xnonc' hrn inbefore covenanted to be pud, or of some part
thereof, contrary to the true intent and me -ning ol the said
covenant, they the said executors abuvenau.d, or any of them,
tlici T any of their executors or admini^trp.tois respectively,
shdi i uot nor will sue, uirest, imp. i -on, ii:i| lead, au
seize, ir , or prosecute the said A. B. his I
executors or a^i ' = or any of them, or I. is or i
lands or tenement;-, goods or chattels, or any pan th^rf ,
or on account of the said sums of money, n"v% due or O\MI)
to them or any of them res] ctivi : l), ii> .^nywisp h'n\c\er.
And in case the stid creditor?, or ai.y or t.i.!rr ; M th< m, or
their executors or admii.Mratorc, or any or either of them
res-pi ctivrlv, shall before snt h default made, act, or do
trary to the said covenant, he the - .'< .\. B. shiili 1..
hereby for ever acquitted and rel'-a^-rd ol
of money, bills, bond?, reckoning, account* and d< m.-uds
whatsoever, due, owing, or bel< , <>r which m.iv or m
be claimed or demanded by sudi of the said creditors
spectivelv, so acting or doing contrary lo the s.iid co\-t:mt,
wp to the day of the date of these presents. And the.. said
A. B. doth hereby covenant and promise to nn-i with the
said C. D. his executors and administrators, and the rest oC
the creditors abovenamed, that within hc spafe of thrrt- (lays
next after he the said C. D. and the r<--t of the -
abovenamed, bhall have signed and M ai< -I \\n-n- prftnnU, lie
the said A. B. shall and will deliver to and leave \\ali him the
said C. D. a true account of all his stock or quantity of, &o.
which he had by him on the c\-r. And alto a tuic list or ac-
count of all the goods and debts now due, owing or be-
longing to him from any person or persons whomsoever, to-
gether with an account of their n imes and places of abode,
who have or owe the same. In witnek, <$-c.
Jgrtemtnf
Appendix.
Agrt-cment betiseen a Person who is retiring from the acl'nc Pirt
of a Basinets, and another who is to conduct tht ,-a .* Jar iktir
mutual
ARTICLES of agreement made, &c. between I. L. afore*
said of the o i: e part, and T. E. of, &c. en the other part.
\Vher- i , !. xiid 1' K. hath condu. ird and inaua. t-cl for some
tin]-- :, ti.e trade or business of the said I. L. and in cou-
sid-T in of the assiduity and attention of the said T E.
thfii unlo, he, the said I. L. is willing to continue him in the
_<^inrr-t the ret, f, under the covenants, rv-tncuons, and
;'._ o-:nents, hereinafter contained; and inconsequence thereof,
sin inventory and appraisement hath been made and taken of
the stork, and entered into two receipt books, one of which
is to remain in the custody of each of them, the said p;n i<:s
to these presents, and is subscribed by both of them and the
value of the MIK) stock in the whol^ , appears to the amount
of the suii of . Now THE st. PRESENTS WITNESS, tnat
for iirl '.! (ui-i'ieration of the covenants and agreements here-
inafter con' -lined on UK put of the said T. E. to be performed,
the &aid J. L. for hi.nself, his executors and administrators,
d')tii h;-:-ebv covenant, piomise, and agree to and with the
s-ud T. E. ihat it shall and may be lawful to and for the said
T. E-. from tiine to time during the term of 11 years, to be
com .iti-d from the day of the date of these presents, if they,
til" - -.id I. L. and T. E. shall jointly so lou^ live, to trade with
Hi -.iid stock, and to manage a id improve the sanv in such
manner as tlie said T. E. under the direction of huu the said
I. L. shall seem meet, upon trust nevertheless, and to the in-
tent and purpose that the said T. E. shall and do, by and out, of
the money which shall arise by sale of any part or parts of the
said stock, buy such goods as shall be requisite to k<-ep up and
continue the present quality and value thereof, and by and
out of the profits which thall arise from the trade and dealing:
in the first place, yearly and every year, pay the whole rent
of the said house and shop, and pay and discharge all taxes
and parochial duties which now, are, or shall hereafter be,
assessed or imposed on him, the said I. L. or the said T. E.
on account of tiie said house and trade, and in the next place
to pay to him, the said I. L. or his assigns, yearly and every
year during the said term of 11 yerrs, if they the said I. L.
and T. E. shall so long live, one clear annuity or yearly sum
of - by equal half yearly payments, on the day of
and the day of, without any deduction or abatement
whatsoever, and subject thereto to retain the residue and
overplus of the profits which shall arise from his trade and
dealing to and for his owa sole use and benefit as a recompence
3 and
Appendix.
and satisfaction for his care and trouble in fhe sale and manage-
ment of the said stock. And the said T. E. in considers:
the premises of the covenant and agreement hereinbefore, on
the part of the said I. L. contained, doth for himself, his exe-
cutors and administrators, covenant, declare and agree, that he,
the said T. E. shall and will, from time to time, and at all times
for and during the said term of eleven years, if they, the paid ,
I. L. and T. E. shall so long jointly live, diligently apply
himself to the care and management of the said stock, trade,
and business, according to his best skill, abilities, and discre-
tion, and apply and dispose of the money which shall nrit-e
from the sale thereof, and all the profits of his trade and deal-
ing*, to answer and discharge the trusts hereby reposed in him,
in such manner as hereinbefore is directed, declared, or ex-
pressed. And also shall or will write true and perfect entries
in proper books of account of all such goods as shall be sold,
and of all monies which shall be paid and received by him, and
permit the same, from time to time to be inspected by him,
the said I. L. or such person or persons as he shall appoint.
AND FURTHKR, that he, the said T. E. shall not, nor will at anj
time during the continuance of the said term of 1 1 years, bur,
or sell, or in anywise trade or deal in his own name, but in the
name only of him, the said I. L. upon the trusts aforesaid; nor
do any act whatsoever whereby the said stock, or any part
thereof, may be attached, entered, or taken in execution. And
also, that at Christmas next, and so at every succeeding Christ-
mas, during the continuance of the said tenn of 1 1 years, or
oft en IT, if thereto required, by the said I. L. he, the said T. K.
shall and will take a full account, and rest in writing of the
aid stock, then remaining in the said trade, and of the profit*
thereof, and deliver the same to the- said I. I., in order to mani-
fest to him a true state thereof, and of his proceedings in th
trade by him carried on therewith. And that at the expiration
or other sooner determination of the said term of 1 1 years, he
the said T E. !iis executors or administrators, shall and will
deliver up to him, the said 1. L. his executors or administrators,
tlu- *t<>ck tin n n-'-.K'.'iiing fur his or their own use and benefit,
to the value of the sum of , losses by bad debtb,
of goods, and other inevitable casuultieu excepted. IB
witn ,
Ark
Appendix. 587
An Agreement between tivo Tradesmen. One leaving off" Trade
agrees to assign the Lease of his House, &c. to the other ', to-
gether "with the Stock, &c. &c. with other special Matters.
ARTICLES of agreement indented, fyc. between, fyc.
WHEKEAS, &c. Now the said C. D. doth hereby covenant,
promise and agree to and with the said E. F. that he the said
C. D. shall and will on or before make and execute an
assignment of a lease free from all incurnbrances, with the usual
and other proper covenants, unto the said E. F. of the messuage
or tenement with all and singular the appurtenances thereto,
for and during all the rest and residue of the said term of
years in the said lease mentioned yet to come and unexpired,
at and under the said yearly rent of per annum, payable
on the four most usual feasts or days of payment in the year,
the first payment to commence on next . . And
the said E. F. doth hereby covenant, promise and agree to ac-
cept of the said assignment on the terms aforesaid, and that he
will duly seal and execute a counterpart thereof, and pay the
said yearly sum of at the times and in manner before
mentioned. And also that as soon as he the said C. D. shall
have executed a legal assignment of the said premises, he the
said E. F. will pay or cause to be paid to the said C. D. the
the sum of for good-will of the said premises. And further^
that the said E. F. shall and will purchase and take of the said
C. D. all his stock in trade in and upon the said premises, toge-
ther with all the fixtures, and utensils thereto belonging, at a fair
appraisement to be made by two regular appraisers, one of whom
to be chosen by the said C. D. and the other by the said E. F.
And the said C. D. in consideration of the said sum of
good-will, doth hereby covenant and agree with the said E. F.
that he the said C. D. shall not nor will exercise the trade of
a ; which he now useth, during the residue of the said
term of years within the parish of . And for the
true performance of this agreement, each party bindeth him-
self unto the other in the penal sum of of lawful money.
of Great Britain, to be recovered by virtue of these presents
In idtncss, &c.
Assignment of personal Estate for the Benefit of Creditors.
INDENTURE of three parts, made. &c. Between, C. T.
of, &c. of the first part; L. I. of, &c. and D. I. of, &c. cre-
ditors of the said C. 'T. of the second part; and the several
ther persons whose namt s aad seals are hereunto subscribed
and
588 . Appendix.
an.l fixed, creditors also of the said C. T. of the third part.
"Whereas the said C. T. is indebted unto the said several persons
parties hereto, of the second and third parts, and in the si
sums of money set opposite to their respective names, and being
unable to pay the whole of such debts, he ha* proposed and agn-cil
to assign all his estate and effects unto the s-iid L. I. and D. I. upon
trust, for the benefit of themselves "and, the rest of his said
creditors, in the manner hereinafter mentioned. Now THIS IN-
DENTURE wiTNrsbKTir, that in pursuance an.l performance of
the said proposal and agreement, and in consideration of the
urn of 5s. of lawful money of Great Britain to tho sain (.'. T. in
hand, at or before the sealing f nd delivery of these
well and truly puid by the said L. I. and D. I. the receipt w!i
of is hereby acknowledged; and in consideration of th' release
hereiiu'ittr contained, he the said C. T. hath bargained, sold,
assigned, transferred, and set over, and by these presents doth
bargain, sell, assign, transfer, and set over unto the said L. I.
and D. I. their executors, administrators, and assigns, all and
singular the stock in trade, household goods, furniture, in
ments, debts, sums and sum of money, books of account ami
other tilings due and owing to the said C. T. and all the personal
estate end effects whatsoever, of him the said (\ T. and all his
estate and interest therein, to luve, hold, receive, perceive, and
take the same unto the said L. I. and 1). I. their exccii'
administrators, and assigns, upon trust, tlu't they, or tin survi-
vor of them, his executors or administrators, do and shall as
soon as conveniently may be, make sale, and dispose of so
much, and such part thereof, as are in their nature saleable, for
the best price or prices, in money, that can be reasonably
h;id or obtained for the same ; and do and shall collect and get
in so much thereof as are outstanding, and not in their nature
saleable And it is hereby declared and agreed, that the saul
L. I. and I). I. and the survivor of them, and the executors
and adminstrators of such survivor -hall stand possessed of
and interested in the monies to arise by such sale or sales,
and to be called in and received as :. upon tr,
and to the intent that they or lie shall nnd do in the rir^f
place pay, and retain to, and reimburse themselves or hiniM-lf
all costs, charges, and expences, as they respectively shall or
may pay, sustain, or expend, in or about such sale or sales, so
to be made as aforesaid, or collecting or getting in the debts
and sums of money mentioned to be hereby assigned as afore-
said, and do and shall thereout also pay tlu < \pcnce of pre-
paring and executing th< :.ts and all other costs,
charges, and . . incident to, or which may be incurred
or sustained in or about the execution of the trusts herein
pressed, or any of them, and then in tm-*, tlmt thythr said
L. I. ii ;1 1). I. and the survivor of them, his executors ::nH ad-
ministrators,
Appendix.
mmistrators, do and sliall apply the residue of the said trust
monies in or towards the payment and satisfaction of the several
debts and suras of money due to themselves and the said several
persons parties hereto, part passu, and without any preference
or priority of payment. And after payment or satisfaction of
the whole of such debts, and of such costs, charges, and ex-
pences as aforesaid, flien, in trust, that they, the said L. I. and
D. I. or the survivor of them, his executors or administrators,
do and shall pay the surplus of the said trust monies, (if any,)
unto the said C. T. his executors, administrators, or assigns,
and for the considerations and purposes aforesaid, the said C. T.
hath made, constituted, and appointed, and by these presents
doth make, ordain, constitute and appoint, and in his the said C.
T.'s place and stead put and depute the said L. I. and D. I. and
the survivor of them, his executors and administrators, his true
lawful attornies and attorney, jointly and severally, in the name
of him the said C. T. or otherwise to adjust, settle, and liquidate
all accounts, as well relating to the premises, and from time to
time to collect, get in, and use, and take all or any legal or
equitable means, course, or expedient, for the recovery and
receipt of all the debts and sums of money mentioned to be
hereby assigned as aforesaid, and upon receipt thereof, or of
any part thereof, receipts, acquittances, and other effectual dis-
charges for the same, or so much thereof respectively, as Shalt
be then acknowledged, or expressed to have been received, td
make, sign, and deliver, and to compound for any bad, desperate,
er dubious debt or debts, and one or more attorney or attornies,
agent or agents, under them, or either of them, for all er any
ef the purposes aforesaid, from time to time, to appoint, and
again at his or their pleasure to displace, and further to do and
execute all and every other act and acts requisite or expedient
to be done in or about the premises, as fully and amply, to all
intents and purposes, as he the said C. T. might or could do, or
have done, in his own proper person, if these presents had not
been made. And the said C. T. for himself, his heirs, execu-
tors, and administrators doth covenant, promise, and agree to
and with the said L. I. and D. I. their executors and admini-
strators, by these presents in manner following, viz. that he the
said C. T. his executors and administrators, shall and will, at
all times hereafter, justify and allow, ratity and confirm, all
and whatsoever the said L. I. and D. I. and the survivor of
them, and the executors or administrators of such survivor
shall lawfully do, or cause to be done in or about the premises,
and shall not nor will revoke or make void, all or any of the
powers hereby given, or in pursuance of these presents to be
given to the said L. I. and D. I. or the survivor of them, his
executors or administrators, nor release, discharge, or com-
pound for all or any .of the debts and sums of money mentioned
Appendix.
and intended to he hereby assigned as aforesaid, nor lur for or
intermeddle with the sanie or any part thereof, nor do any
thing whereby the recovery thereof or any of them, or of any
part or parts thereof, nor otherwise act or interfere in or about
the premises, further or other than the said L. I. and D. I. or
the survivor of them, his executors- or administrators shall
desire or require. PHOVIUFD always, and it is hereby declared
and agreed by and between all the said parties, n> tht sp
presents; that it shall and may be lawful to and for the .;iid
L. I. and D. I. their respective executors, and administrators, by
and out of all or any of the monies which bv virtue of any of
these presents shall come to their or any of their hands, to
deduct, retain, and reimburse themselves respectively, and
the respective co-trustees, all such costs, charges, or cxpei <
riff they shall or may respectively sustain or be put unto, in or
about the execution of all or any of the trusts hereby in them
reposed. AND ALSO, that they the said L.I. and D.I. and
their respective executors and administrators shall be charged
and chargeable every of them for and with his own respective
receipts, payments, acts, and wilful defaults, and not otherv
and slmll not be charged or chargeable with or for any sum or
smns of money, other than sueh as Khali actually and respec-
tively com?' to his or their hands, nor with or for any loss or
dmu:ij*r which shall or may happen in or about the execution of
all or any of the trusts aforesaid, without their respective wilful
deTuult. AND this indenture further witnessoth, that in <
nideration of the several premises, the several persons of the
second and third parts, have and every of them hath remised,
released and for ever quitted claim, and by these presents do,
and t-nry of them doth remise, release, and for ever quit claim
unto the said H. I. his heir-, t .< ut.irs, and administrators, the
several debt< and :-ums of money mentioned and hereunder written
opposite to their respective id all actions, suits-, claims,
and demands whatsoever, in respect or ou account thereof. In
An Agreement fan Estate Ly Private Contract.
-ARTICLES of agreement made and entered into this daj
of ,1 tor himself, his heirs, executors,
and administrators, of the one part: and H. of, &c- for him-
tk-lf, his heirs, executors, and administrators, of the other part, u
follows: viz.
The said A doth hereby agree with the said B. to cll to him
Appendix.
the messuages, &c. (parcels) with their appurtenances, nt or
for the price or sum of ; and that he the said A. will
within one month from the date hereof, at his own expence,
make and deliver unto the said B., or his solicitor, an abstract
of the title of him the said A. to the said messuages and pre-
mises; and will also, at his owil expence, deduce a clear title
thereto. And also that the said A. or his heirs, and all other ne-
cessary parties, shall and will, on or before the day of
next, on receiving of and from the said B, his executors, or
administrators, the said sum of f. , at the costs and charges
of him the said B. his heirs, executors, administrators, or as-
signs, execute a proper conveyance, for conveying and securing
the fee-simple and inheritance of and in all the said messuages
and premises, with their appurtenances, unto the said B, hi*
heirs, or assigns, free from all incumbrances.
And the said B, hereby agrees with the said A, that he, the
said B. his heirs, executors, administrators, or assigns, shall and
will, on the execution of such conveyance as aforesaid, pay
the sum of unto the said A. his executors or admini-
strators.
And it is hereby further agreed by and between the said A.
and B. as follows; viz.
That the conveyance shall be prepared by and at the expence
of the said B. and that the time shall be settled and approved
of on the parts of the said A. and B. by their respective counsel,
and that each of them the said A. and B. shall pay the fees of
his own counsel.
And that all rates, taxes, and outgoings payable for or in
respect of the premises to the day of , shall be paid
and discharged by the said A, his executors or administrators.
And lastly, that if the said A. shall not deliver an abstract
- ef his title to the said B. or his solicitor, before the expiration
of one calendar month from the date hereof; or shall not deduce
a good and marketable title to the said messuages and premises,
before the said day of then and in either of the said
cases, immediately after the expiration of the said one calendar
month, or the said -day of (as the case may be)
this present agreement shall be utterly void to all intents and
purposes whatsoever, and tlve jurisdiction of equity wholly
barred ; it being the true intent and meaning of the parties here-
to, that in the event aforesaid, execution of this agreement,
shall not be enforced by any court of equity, notwithstanding
any rule (if such there be) that time cannot be made of the
essence of a contract or any other rule or maxim whatsoever.
In witness, &c.
A provision may also be inserted in agreements, making time of
the essence of the contract in case the purchase money is not jiaiJ
tt the t(ay eppointed ; but clauses making agreements void if a.
title
.Appendix.
title i* not made* or the purchase money paid by a stated time,
thoufd nr.fr be inserted unless at the express intention of the
parties. Where time is not deemed mater iaf, clauses to ihejoUvut-
iag r//t\ 't *Loidd be inserted.
: the said B. and his heirs shall have, rec\ -ive, and take
the rents und profits of the said messuages aixl premises, froiu
the day ot* next, for his or their p.
Ami th:it if the said conveyance shall not 1. J by
::L-co.s.sary parties, and the said purd; . paid on or
the said day of then and in the said
heirs, executors, or administrator.-, i-linl! from the same
pay interest lor the said purchase^inoney unto the
..cutors or admlnistr.^ .
. Agreement for a Lease nf a HQI ,
MEMORANDUM made this fnth day f January, in the
your of our Lord one thousand eight hundred und elewn, Uc-
twet-n A. 1). of UichriivrM, ia the county of .^//^-y, [,
a ibiio\..-. .-ay, '1'he
tzid A. B. in consideration of the rent and agreements he;
liter mentioned, doth a^ree to demise and let by a good and
suffieient lease in the law thereof, unto the >.<;d L. 1 . on or
before thu day of no^ \i.). that, &e. To hold
tiie yame for tin: term of five years from Lady-Uay last past, at
nnd under the yearly rent of twenty pounds payable quarterly ;
first payment tlu-M-of to be ; .Midsummer now ni-xt
ensuing the date tiiereol; and by the said l-.-a.se full and :
1 . .\-.\\\ be grunted unto the said E. I . to lop and plash tlu-
trees and hedges on the said demiM.-d ]>ixmi.<es, at seasonable
and convenient tina-s, und also liberty to erect upon the same
any shtxl or^hedK t buildings during the MM|
, he the said K. F. iVoin time to time scouring and cleaa-
inp the ditcht-s and r. pnirinj and making good the fences*
hedges nnd <:;it'-s, upon and belonging to the said premtaee.
Am! \\>. -:<! 1 . !'. dotii a-jn-e to ; . pnemMet
frrthe said tt-nn, and B ', payablr iu mam.
sai^, mid to execute a counterpart of the lease to be thereof
grant .-i. In \\ . -
Ayrtttntnt
Agreement for Lodgings.
MEMORANDUM of an agreement entered into this
day of 1804-, by and between E. F. of, &c. and G. H.
of, &c. whereby the said E. F. agrees to let, and the said G. H.
agrees to take, the rooms or apartments following: that is to say,
an entire first floor, and one room in the attic story or garrets,
and a back kitchen and cellar opposite, with the use of the yard
for drying linen or beating carpets or clothes, being part of a
house and premises in which the said E. F. now resides, situate
arid being in To have and to hold the said rooms or
apartments, and the use of the said yard as aforesaid, for and
during the term of half a year, to commence from next
after the date hereof, at and for the yearly rent of pounds
of lawful money of Great Britain, payable quarterly, by even
and equal portions; the first quarterly payment to be made ort
next ensuing the date hereof: And it is further agreed,
that at the expiration of the said term of half a year, the said
G. H. may hold, occupy, and enjoy the said rooms or apartments,
and have the use of the said yard as aforesaid, from quarter to
quarter, for so long a time as the said G. H. and E. F. may and
shall agree, at the rent of for each quarter, and
that each party be at liberty quit possession, on giving to the
other a quarter's notice in writing or warning. And it is also
further agreed between the said parties, that when the said G. H.
shall quit the premises, he shall leave them in as good condition
and repair as they shall be in on his taking possession thereof,
reasonable wear excepted.
As witness, &c.
An Agreement to let a ready-furnished Lodging.
MEMORANDUM of an agreement entered into this
day of in the year of our Lord by and betweeri
J. K. of, &c. of the one part, and L. M. of, &c. of the other
part, by which the said J. K. agrees to let the said L. M. a room,
or apartment up paur of stairs forwards in his the said
J. K.'s house, situate in street, in the parish and county,
aforesaid, ready furnished ; together with the use and attendance
of his servant, in common with the other lodgers, at
such hours and times when he himself can spare And
also the use of a cellar, at the rent of pounds of lawfui
'money of Grtat Britain per quarter, t and the said L. M, agrees
o4 Appendix.
to take the said room or apartment, with the use of the servant
and cellar as aforesaid, at the rent aforesaid, iind also to find and
provide for himself all manner of linen and china or croc i
ware whatsoever that he shall have ore.. -ion for, aiV.i that if he
shall break or damage any part of the furniture of the said J. K.
he will make good or repair the tame, or pay her sufficient to
enkbie her to put the same in the same plight and condition as
y now are in. And it is further agreed, that if either jwirty
shall quit or leave the premises, he or s>he shall respectively give
or take a quarter's notice or warning.
As witness, &c.
Note. These agreements must he on an agreement stamp;
hut it is not necessary that they should be stamped before they
are signed by the parties; it will be sufficient to be done within
twenty-one days after.
Lease of a House.
JHIS Indenturc,made, &c.bclwecn A. A. of, &c. of the one part,
and H. H. of, &c. of the other part, wi: that for and
iu consideration of the yearly rent, and of the covenants, provi-
, and agreements, hereinafter r< ml contained, by
and on the part and behalf of the .siiii 11. II. his executors, ad-
mir.. us, to In- paid, observed, and performed,
he the s;iid A. A. hath demised and lea.sed, and by ti
doth demise and lease unto the said II. H. his executors, admi-
nistrators, and assigns, all;' .tage or tenement and dwel-
ling-house, situate and being on the side or part of
street, in the parish of in the city of London, together
with [here dcacriLc the particulars of the premifex~\\ And also all
way?, p:iss:i::-s, lights, casements, numb, vaults, cellars, areas,
yan profits, convt i ents, and
appurtenances what.-oeu r, to the said messuage or pm:
herehv demised, ' n ing, 91
grated 6r known to be part, panvl or ineinI;Lr tlu uvf : all and
Jugular which sai
rn the occupation <
to hold the said messuage or tern mint and ] with the
apt ..t:om-d i ilie
iid H. H. Is -, administrators, and the
,i il'iy of Deci-r:; her la>-t past,
i'ty-one yi
and ended, dctcrmiuublc .
fir.-l
Appendix.
&rst seven or fourteen years thereof, upon such conditions as are
hereinafter mentioned: he the said H. H. his executors, admi-
nistrators, and assigns, yielding and , paying yearly and every
year during the said term, unto the said 'A. A. his executors,
administrators, and assigns, the yearly rent or sum of
pounds, of lawful money of the united kingdom of .Great Britain
and Ireland, current in Great Britain, the same to be paid by
equal quarterly payments on the respective days following:
namely, on the 25th day of March, the 24-th day of June, the
29th day of September, and the 25th day of December, in every
year, (save and except, at all times during the said term, such
proportionable part of the said yearly rent of pounds
as shall or may grow due during such time, or the messuage qr
tenement hereby demised, shall without the hindrance of the
said H. H. his executors, &c. be and remain uninhabitable by
reason of accidental fire, ) and to be clear of all and all manner
of parliamentary, parochial, and other taxes, assessments, rateg,
and deductions whatsoever; the first quarterly payment thereof
to commence and be made on the 2tth day of June next ensuing
the date of these presents. And the said H. H. doth hereby for
himself, his executors, &c. covenant, promise, and agree to and
with the said A. A. his executors, &c. that he the said H. H. his
executors, <Src. shall and will yearly and every year during the
continuance of the said term hereby demised (save and except
as aforesaid, ) well and truly pay, or cause to be paid, unto the
said A. A. his executors, &c. the said yearly sum or rent qf
pounds, of lawful money of the united kingdom qf
Great Britain and Ireland, current in Great Britain, on the re-
spective days, and in the manner the same is hereinbefore made
payable. And also shall and will well and truly pay, or cause tp
be paid, all and all manner of taxes, assessments, rates, and im-
positions whatsoever, parliamentary, parochial or otherwise, ( the
land-tax only excepted,)- which now are, or shall at any time
during the continuance of the said term hereby demised, be
assessed, rated, or imposed on the said demised messuage or
tenement, and premises, or any part thereof, or on the said yearly
rent hereby reserved, or any part thereof, or da the said H. If,
his executors, &c. on account thereof. And also he the said
H. H. his executors, &c. shall and will, at his and their own pro/*
per costs and charges, cause to be well and sufficiently painted,
all the outside wood and iron work belonging to the said mes-
suage or tenement and premises hereby demised, every third year
during the continuance of the said term, and at his and their like
proper costs and charges, shall and will at all times during the
continuance of the said term, keep in A good, sufficient, an^
tenantable state of repair, as well all and singular the glass and
other windows, wainscots, rooms, floors, partitions, ceilings,
Q q 2 tilings,
Appendix.
tilings, walls, rails, fences, pavements, grates, sinks, privies,
drains, wells, and water-courses, as also all and every other thr
parts and appurtenances of the said messuage or tenements and
premises hereby demised, (damage happening by casual fire only
excepted). And further, that it shall be lawful for the said A. A.
his executors, &c. either alone or with others, twice in every yt-ar
during the said term hereby granted, at such times of the year
as to him or them shall seem meet, to enter at seasonable times
of the day into and upon the said messuage or tenement and pre-
mises hereby demised, and every part thereof, and there to view
and examine the state and condition thereof, notice of such in-
tention to view being at all times previously given unto the said
H. H. his executors, &c. one day at least before th same shall
take place; and in case any decay or want of reparation be found
on such view, rhe said H. H. for himself, executors, &c. doth
hereby covenant, promise, and agree, to and with the said A. A.
his executors, &c. to cause the same to be well and sufficiently
repaired and amended within the space of six months alter notice
thereof in writing shall have been given to him or them' for that
purpose. And the said H. H. doth for himself, his executors
&c. promise, covenant, and agree, to and with the said A. A. his
executors, &c. that he the said H. H. his executors, Ac. at the
end or earlier determination of the said term hereby granted,
shall and will leave and yield up unto the said A. A. his execu-
tors, &c. all and singular the said messuage or tenement and pre-
mises, with their appurtenances, in such good, sufficient, and
tenantablc state of repair ns aforesaid, together with all and every
the. doors, locks, keys, bolts, bars, chimney-pieces, dressers,
helves water-pipes, and other things mentioned in an inventory
or schedule*, hereunder written or hereunto annexed, in as good
plight and condition as the same now are, (reasonable use and
e.:r thereof and casualties happening by fire only exeepted,)
provided always and these presents are upon this express condi-
tion, that if the said yearly rent hereby reserved, or any part of
thereof, shall be in arrears and unpaid for the space of
days next after any of the days whereon the same is hereinbefore
covenanted to be paid as aforesaid, (it being first lawfully de-
manded,) or if the said II . H. his executors, &c. shall not well
and truly observe and keep, according to their true intent and
meaning, all and every the covenants, clauses, provisoes, and
agreements by him and them to be observed and kept, then and
from thenceforth in either of thv said eases, it shall 'ne lawful
for the said A. A. his executors, &c. to re-enter into and upon
the said hereby demised metsuage or tenement and premises, or
any part thereof, in the name of the whole, and the same u<
This inventory must be stamped,
hvt
Appendix. 597
have again, re-possess, retain, and enjoy, as his and their former
estate; and the said H. H. his executors, &*c. and all other te-
nants and occupiers of the said premises, thereout utterly to eject
and remove, and that from and after such re-entry made, this
lease, and every clause and thing herein contained, shall deter-
mine, and be utterly void to all intents and purposes, any thing
herein contained to the contrary notwithstanding. And the sard
A. A. for himself, his executors, &*c. doth covenant, promise, and
agree, to and with the said H. H. his executors, &c. by these
presents, in manner following, that is to say, that he the said
H. H. his executors, vc. paying the rent hereby reierved in
manner aforesaid, and performing the covenants and agreements,
herein contained, and by him and them to be performed, shall
and lawfully may peaceably and quietly hold, occupy, and en-
joy the messuage or tenement, and all other the premises hereby
demised, for and during the said term of twenty-one years
hereby granted, without any lawful action, suit, or interruption
of the said A. A. his executors, &c. or any other person lawfully
claiming by, from, or under hin>, or any of them; and that freed
and discharged, or otherwise by the said A. A. his executors, &c,
saved harmless and indemnified from the rents and covenants re-
served and contained in a certain indenture of lease, bearing
date the day of in the year of our Lord
whereby the said A. A. holdeth the said messuage or
tenement and premises hereby demised, from the date hereof
for the term of sixty-one years, and from *1J claims
and demands whatsoever in respect thereof. And the said A. A.
doth hereby further covenant, promise, and agree to and with
the said H. H. his executors, &c. that the said A. A. his execu-
tors, &c. shall and will, before the expiration of this present lease,
on the request, and at the costs and charges of the said H. H.
his executors, &c. grant and execute unto him and them, a new
and fresh lease of the messuage or tenement and all other the
premises hereby demised, with their rppurtenances, for the fur-
ther term of years, to commence from the expiration of
the term hereby granted, the same to be at the same yearly rent,
payable in like manner, and under and subject to the like cove-
nants, provisoes, and agreements, (except a covenant for the
renewal thereof at the end of such further term,) as are con-
tained in these presents, such new lease however to be granted
and be valid, only on condition that the said H. H. his executors,
&c. do execute a counter-part thereof, and also pay unto the said
A. A. his executors, &c. the sum oif pounds of lawful
money, &c. at the time of executing the said lease, as and by
way of fine or premium for the renewal thereof. And also, -thut
if the said H. H. his executors, &c. shall be desirous to quit the-
said rntSKuyge or tenement and premises hereby demised, at the
593 dppeudiv.
expiration of the first seven or first fourteen years of the term of
twentv-one years hereby granted thereof; and of such his or
their desire, shall give notice in writing to the said A. A. his exe-
cutors, &c. six calendar months before the expiration of the said
fir>t seven or fourteen years, (as the case may he,) then and in
such case, (all arrears of rent beiii'4, duly paid, and the said
messuage or tenement, and all other the premises hereby demised,
being in such repair as they are hereinbefore covenanted to be
maintained and left in,) this lease and every clause and thing
herein contained, shall, at the expiration of the first seven or
fourteen years of the said term of twenty-one years hereby
granted, (whichever be in the said notice expressed,) determine
and be utterly void to all intents and purposes, in like manner as
if the whole term of twenty-one years had run out and expired,
any thing in these presents contained to the contrary notwith-
standing. In witness whereof the said parties have hereunto set
their hands and seals, the day and year, first above written.
A. A. (Seal.)
H.'H. (Seal.)
Sealed and delivered in the presence of
B. B. of
G. G. of
Assignment of Lease and Premises by Indorsement.
K NOW all men by these presents, that I, the within named
A. In for the consideration hereinafter mentioned, have ;
M over unto N. O. now or late servant to Klizaheth Long,
of Krvile-row, in the county of Middlesex, widow, his executors,
administrators, and assigns, the within mentioned m
tenement and premises. Now U'- its \\itness, that in
pursuance of the said agreement, and for and in consideration of
the sum of five pounds of lawful money of (u't.it Britain to the
*<;'.iil A. B. in hand, paid by the said N. O. at or before the sealing
and delivery of these presents, tiie receipt whereof is hereby ac-
knowledged, he, tin *-.;;d .^ H. hath granted, bargained, sold,
assigned, transferred, and set over, and by these presents doth
grant, bargain, sell, assign, trailer, and set over unto t!:
'.tors, administrators, and ; ..'1 that the
metSUiige, tenement, and all and singular other the ;
and by the within written indenti . or nun-
v it.li their and every of their appur-
nid all the estate, right, title, interest, term of years
to < ome and uuexpired, property, claim, ;-nd demand v
fcver, of tiie uithia named A. B. of, in, to, or out of the same
prei
Appendix. 599
-premises, every or any part thereof, together with the said in-
denture of lease. To have and to hold the said piece or parcel
of ground, and all and singular other the premises hereby^ or
mentioned to be hereby assigned, with their and every of their
appurtenances, unto the said N. O. his executors, administrators,
and assigns, from the feast-day of St. Michael the Archangel now-
next ensuing the day of the date hereof, for and during all the
rest, residue, and remainder, which shall be then to come and
unexpired of the term of twenty-one years, in and by the within
written indenture of lease granted thereof, (determinable, never-
theless, at the option of the said N. O. his executors, admini-
strators, and assigns, at the end of the first seven or fourteen
years of the term of twenty-one years within granted, upon the
said N. O. his executors, administrators, or assigns, giving such
notice to the said A. B. his executors, administrators, and assigns,
as the said A. B. is required to give in and by the within written
indenture, ) subject, nevertheless, to the payment of the rent and
performance of the covenants, in the same indenture of lease re-
served and contained on the tenant or lessee's part, from hence-
forth to be paid, done, and performed. \_Here may be added
covenants for quiet enjoyment, for further assurance, and for in-
demmti/.~]
In witness whereof the said parties have hereunto set their
hands and seals, this eighth day of January, one thousand seven
hundred and ninety^two.
Witness,
W. C. A, B. (Seal.)
J. W, N. O. (Seal.)
Note. This will require a deed stamp, besides the stamp oa
the deed.
Notice from the Landlord to the Tenant,
SIR,
I Hereby give you notice to quit and deliver up the premises
which you now hold of me, situate at in the parish of
in the county of on next or
at the expiration of the current year of your tenancy; or in
failure whereof, for such time as you shall hereafter continue in
possession, I shall, according to the statute in such case made and
provided, require and insist upon the net yearly rent cr sum of
being double the value of the premises. Dated,
this day of
G, H. Landlord,
To A. B. Tenant,
600 Appendix.
Another Form.
MR. C. D.
J Hereby give you notice to quit and deliver up to me, en Christ-
mas-day next, or at the end of your tenancy, which shall expire
next after the end of half a year from the date hereof, the
peaceable and quiet possession of all those two messuages, tene-
ments, and dwelling-houses, with their appurtenances, situate
in the parish of in the city, county, or borough
of which you lately held under Messrs. and
which you now hold of me, as tenant fram year to year, provided
your tenancy originally commenced at Christmas or otherwise.
Dated this day of 18
A. B.
Notice to quit by the Tenant.
Six,
I Hereby give you notice thtt on the day of
I shall quit possession of the messuage or tenement and premises
which I now hold of you, situate at in the parish of
in the county of
Dated thit day of IS
A. B. Tenant.
To G. M. Landlord.
Notice to repair.
SIR,
YOU are hereby required to put in good and tcnantable repair
H and singular the messuage or tenement and premises which
you now hold of me, situate at, &c. particularly [specifying the
rtpair* necessary.']
Witness my hand, this day of
X. C. Landlord.
To P. K. Tenant.
Appendix. 01
Bill of Sale of Goods and Chattels*
all men by these presents, that I G. II. of in
consideration of the sum of to me in hand paid by P. N.
of at and before the sealing and delivery of these pre-
sents, the receipt whereof I do hereby acknowledge, have bar-
gained, sold, released, granted, and confirmed, and by these
presents do bargain, sell, release, grant, and confirm unto the
said P. N. all the goods, houshold-stuff, and implements of hous-
hold, and all other goods and chattels whatsoever, mentioned
and expressed in the schedule hereunto annexed, now remaining
and being in To have and to hold all and singular the
said goods, houshold-stuff, and implements of houshold, and every
of them, by these presents, bargained, sold, released, granted,
and confirmed unto the said P. N. to the only proper use and be-
hoof of the said P. N. his executors, administrators, and assigns
ever. And I the said G. H. for myself, my executors, and ad-
ministrators, all and singular the said goods and houshold-stufF,
unto the said P. N. his executors, administrators, and assigns,
against me the said G. H. my executors, administrators,, and
assigns, and against all and every other person or persons what*
soever, shall and will warrant, and for ever defend by these pre-
sents; of which goods, houshold-stuff, and implements of hus-
bandry, I the said P. N. have put the said G. H. in full posses-
sion by delivering to him one silver cup in the name of all the
said goods and chattels, at the sealing and delivery thereof. In
witness, &c.
Bond for Payment of Money fy Instalments.
K.NOW all men by these presents, that we D. I. the younger*
of , in the county of , esq. P. W. of ,
in the said county, and L. M. of , in the county of
, widow, are held and firmly bound to D. I. the elder,
of , aforesaid, in the sum of of good and
lawful money of Great Britain, to be paid to the said
D. J. the elder, or his certain attorney, executors, administra-
tors, or assigns, for which payment, well and truly to be made,
we bind ourselves, and each ofi us bind himself, our heirs, execu-
tors, and administrators, of each of us, firmly by these presents,
sealed with our seals, dated this day of , in the
year of our Lord . Whereas the above-named D. I. the
elder, and D. I. the younger, have hitherto carried on the business
ef
of stockbrokers, in copartnership: and whereas the said D. I.
the ekler is about to retire from business, and assign over his
share, property, and effects therein, onto the said D. I. the
younger, which has accordingly been done by indenture, bearing
even date with the above written obligation ; in coiiMdcration
whereof the said D. I. the younger lias agreed to pay, and secure
to be paid, unto the said D. I. the sum of , in such manner
as in the same indenture is expressed, and the further sum of
(making in all the sum of ,) by the above written obligation.
Now the condition of the above written obligation is such, that if the
above named D. I. the younger, P. \V. and L. M. or any or either
of them, their heirs, executors, or administrators, or the heirs,
executors, or administrators, of any or either of them, or some
or one of them, do and shall well and truly pay, or cause to be
paid unto the above named D. I. the elder, his executors, ad-
ministrators, or assigns, the full sum of of lawful money
of Great Britain, with interest for the same after the rate, days,
place, and times, and in the manner following, that is to
the sum of part thereof on or before the day of
, which will be in the year of our Lord , t
ther with interest for the same sum of , after the rate of
for every -* , by the year, in the mean time by
equally quarterly payments, on the day of , the
day of , the day of , and
the day of , in each said year ; and the furtlu i
sum of of like lawful money, the remaining part of the
said sum of , on the d; 1 . , which \\ill
be in the year of our Lord , together with interest for
the same after the rate, and in the days aforesaid, in the said
year; all which payments arc to be ma. , in the
county of , between the hours of twelve and two o'clock
in the afternoon, the above written obligation shall be void;
but if default shall at any time be made in payment of all, cither,
or any part of the said principal sums of and ,
or of the interest for the same, or for either of them, or any part
of the said inten >t, at any or either of the days and time.- above
.tioncd, for payment thereof respect; the said obli-.
gation shall remain and be in full force and efficacy.
Condition to TnLstecs, iti consideration of a Marriage and Afrrr-
-Portion to leave the IV.y'c and her Issue a competent For-
tit lie.
condition of this obligation is suc!i, that whereas a mar-
: uul :>mi/ed between the
B. D. anJ '?ter, daughter of ^- II. of ,
with
Appendix. 603
with whom the said B. D. is to receive as a marriage-portion the
sum of to be applied in manner herein-after mentioned;
if therefore the said marriage shall take effect, and the said B. D.
shall die in the life^time of the said. E. F. then if the heirs, exe-
cutors, or administrators of him the said B. D. do and shall,
within six months after his death, pay or cause to be paid into
the hands of the above-named M. N. O. O. and R. S. the sum of
to be by them applied upon the trusts and for the ends
and purposes following, (that is to say) That the said trustees,
and the survivors and survivor of them, shall pay pounds,
parcel of the said pounds, to the said E. F. for her sole
use and benefit; and in case the said B. D. shall leave any
child or children of his body on the body of the said E. F.
begotten, which shall live to be married or attain the age of
twenty-one years, the said trustees shall pay pounds, re-
sidue of the said pounds, to such child or children
equally among them, share and share alike, as and when they
shall severally be married, or attain the age of twenty-one years
respectively, and the interest thereof in the mean time to be
applied for their maintenance: And in case the said B. D. shall
leave no issue of his body on the body of the said E. F. begotten,
or leaving issue, and such issue shall all happen to die before their
marriage er age of twenty-one years, then the said last-men-
tioned sum of pounds to be likewise paid to the said E. F.
her executors and administrators ; then, &c. or else, &c.
Condition of a Bond from ftco Persons impoivered by the Letter
of Attorney of a Tradesman to get in his Estate, duly ac-
count, 4"
the above-named A. B. by his deed poll or writing
under his hand and seal, bearing even date herewith, hath con-
stituted and appointed the above-bounden C. D. and E. F. his
attorney and attorn-ies, jointly and severally for him the said
A. B. and in his name and to his use, to risk, demand, sue for*
recover, and receive all such sum and sums of money, debts and
demands whatsoever, which now are, or at Christmas now next
ensuing shall be due and owing to the said A. B. or his estate,
from any person or persons, or customers, of him the said A. B.
in the way of his late trade of a grocer, and to do such other law-
ful and necessary acts, for the purposes aforesaid, as in such deed
poll or writing are in that behalf mentioned, as by the same deed
poll or writing may appear: Now the condition of the above-
written obligation is such, that if the said C. D. and E. F. their
executors
604 Appendix.
executors or administrators, do and shall, from time to time, well
and truly pay or cause to be paid over unto the said A. B. his
executors, administrators, or assigns, upon demand, all such sum
and sums of money, debts and demands, as they the said C.D. and
E. F. shall from time to time receive by virtue of the said letter
of attorney, or otherwise, to the use of the said A. B. or his
estate, from any person or persons whatsoever, debtors to the
aid A. B. or hrs estate, in the way of his said late trade as afore-
Hid, without fraud or delay, then the above-written obligation to
be void, or else to be and remain in full force.
A gtrcral Letter rf Attorney to receive Debts.
men by these presents, that I, C. D. of
fcave made, ordained, authorized, constituted, and appointed, and
by these presents do make, ordain, authorize, constitute, and ap-
point K. S. of my true and lawful attorney, for me and
in my name, and to my u.se (or, but to the use of him the said
R. S.) to ask, demand, sue for, recover, and receive of T. V.
of all such sum and sums of money, debts and de-
mands whatsoever, which now are due or owing unto me the said
C. D. by and from the said T. V. and in default of payment
thereof, to have, use, and take nil lawful ways and -means in my
name or otherwise, for the recovery thereof by attachment,
distress, re-entry, or otherwise, and compound acd agree for
the mmr, and on receipt thereof, acquittances or other sufficient
dijchnrgfs for the fame, for me and in my narae to make, seal,
and deliver, and to do all lawful acts and things whatsoever,
concerning the premises, as fully in every respect as I myself
night or could do if I were personally present, and an attorney
or tton>ies under him for the purposes aforesaid, t> make an.l at
his pleasure to revoke: hereby ratifying and confirming all and
whatsoever my said attorney shall in my narae lawfully do or cause
to be done in and about the premises, by virtue of these presents.
In witness, dec.
Articles of C<rpcrttertkip Jor carrying on a joint Trade.
of ap-pi-ment indmtcd, 4t. between A. B. of
'he one part, and C. D. of of the other
port.
Jt The
Appendix* 605
1st. The said A. B. and C. p. have joined, and by these pre-
sents do join themselves to be copartners together in the art or
trade of and all things thereto belonging; and also in
buying, selling, vending, and retailing all sorts of wares, goods,
and commodities belonging to the said trade of which
said copartnership is to continue from for and during,
and unto the full end and term of from thence next en-
suing, and fully to be complete and ended. And to that end
and purpose, he the said A. B. hath, the day of the date of these
presents, delivered in as stock the and the said C. D. the
gum of to be used, laid out, and employed in common
between them, for the management of the said trade of
to their mutual benefit and advantage. And it is agreed between
the said parties to these presents, and the said copartners each
for himself respectively, and for his own particular part, and for
his executors and administrators, doth severally and not jointly
covenant, promise, and agree, to and wich the other partner, his
executors and administrators, by these presents, in manner and
form following (that is to say) that they the said copartners^ shall
not nor will at any time hereafter use, exercise, or follow the
trade of aforesaid, or any other trade whatsoever, during
the said term, to their private benefit or advantage, but shall and
will from time to time, and at all times during the said term (if
they shall so long live) do their and each of their best endea-
vours in and by all means possible to the utmost of their skill,
power, and cunning, for their joint interest, profit, benefit, and
advantage, and truly employ, buy, sell, and merchandize with
the stock aforesaid, and the increase thereof, in the trade of
aforesaid, without any sinister intentions or fraudulent
endeavours whatsoever. And also that they the said copartners
shall and will from time to time, and at all times hereafter during
the said term, pay, bear, and discharge equally between them
the rent of the shop which they the said copartners shall rent
or hire for the joint exercising or managing the trade aforesaid.
And that all such gain, profit, and increase that shall come,
grow, or arise for or by reason of the said trade, and joint occu-
pying as aforesaid, shall be from time to time during the said terra
equally and proportionably divided between them the said co-
partners, share and share alike. And also that all such loss as
shall happen to the said joint trade by bad debts, ill commodities,
or otherwise, without fraud or covfn, shall be paid and borne
equally and proportionably between them. And further it is
agreed by and between the s'.iid copartners, parties to these pre-
sents that there shall be hud and kept from time to time, and at
all times during the said term, and joint occupying and copart-
nership together as Aforesaid, perfect, just, and true books of
account, wherein each of the said copartners shall duly enter
and
606 Appendix.
and set $own, a* well all money by them received, paid, ex-
pended, and laid out in and about the management of the said
trade, as also all wares, goods, commodities, and merchandizes
by them or either of them bought and sold, by reason, or means,
or upon account of the said copartnership, and all other matters
and things whatsoever, to the said joint trade, and the man:
ment thereof, in any wise belonging or appertaining ; which
said books shall be used in common between the said copartners,
so that either of them may have access thereto without any inter-
ruption of the other. And also that they the said copartners,
once in three months, or oftener if need shafl require, upon the
reasonable request of one of them, sh:tll make, yield, and render
"each to the other, or to the executors of each other, a true, just,
and perfect account of all profits and increase by them or either
of them made; and of all losses by them or cither of them MI^-
tained; and also of all payments, receipts, disbursements, and
all other things whatsoever by them made, received, disbursed,
acted, done, or suffered in their said copartnership and joint
occupying as aforesaid, and the same accounts so made, shall and
will clear, adjust, pay, and deliver each unto the other at the
time of making such account their equal shares of the profits
so made as aforesaid. And at the end of the term of or
other sooner determination of these presents (be it by the death
of one of the said copartners or otherwise,) they the said co-
partners each to the other, or in case of the death of either of
them, the surviving party to the executors or administrators of
the party deceased, shall and will make a true, just, and final ac-
count of all things as aforesaid, and divide the profits aforesaid,
and in all things well and trulv adjust the same, and that they
also upon the making gf such a final account and all and every
the stock and stocks as well as the gains and increase thereof
which shall appear to be remaining, whether consisting (if n<r
wares, debts, &c. shall be equally divided between them the said
copartners, their executors or administrators, share and share
alike. In witness, &c.
A Deed of Dissolution of a Partnership,
indenture, made, t [7IV-
citing the articles of copnrtnci -ship.] Andwhir. A.B.
and I'. 1). have mutually agreed, and do then bv mutually agree,
to determn. -olve the :tnership, and t:
by these presents absolute Iv t! f.lved in manner
us hereinafter if mentioned: the said (M>. for and in consideration
4 of
of the covenant and" agreement hereir&ft&* contained, on the
part and behalf of the said A. B. his heirs," executors, and admP-
nistrators, to be done and performed,* doth hereby, rovenant,
promise, and agree, to and with the said A. B. his executors and
administrators, that he the said A. B. his heirs, administrators,
and assigns, shall from henceforth be entitled to have, receive,
and take all and every the messuages, luncls, tenements, heredi-
taments, and premises, with the appurtenances, and all and every
the stock in trade, cash, debts, sum and sums of money, goods,
-chattels, estate and effects whatsoever, wheresoever, and of what
nature and kind soever, against him the said C. D. his executors
and administrators, to and for the absolute use and behoof of
of the said A. B. his heirs, executors, administrators, and assigns,
subject, nevertheless, to the debts due, owing from and by the
said copartnership, between the said A.B. and the saidC.D. And
also at the expence of him the said A. B. his executors and admi-
nistrators, the name of him the said C. D. shall at all times here-
after be made use of for the recovery of all or any part of the
copartnership debt and stock in trade, with the interest and in-
crease thereof, subject as aforesaid to the absolute use and behoof
of the said A. B. his executors, administrators, and assigns, as
by his or their counsel learned in the law shall be advised. And
also that the said C. D. his executors and administrators, shall
and will at all and every time and times hereafter, upon the re-
quest and at the costs of the said A. B. his executors and ad-
ministrators, both in and out of any court of law or equity, do
all and every such act and acts, as by the said A. B. his execu-
tors and administrators, or any of their counsel learned in the
law shall be reasonably advised and required for fulfilling and
accomplishing these presents. And the said A. B. for and in
consideration of the covenant and agreement herein contained,
on the part and behalf of the said C. D. his executors and ad-
ministrators to be observed and performed, doth hereby covenant
and agree to and with the said C. D. his executors and admi-
nistrators, in manner and form following, that is to say, that he
the said A. B; his executors and administrators, shall and will on
request, seal, deliver, and execute, to the said C. D. his, execu-
tors, administrators, and assigns, one bond or obiligation in the
penal sum of . , with a condition to be therein inserted
for payment to the said C. D. his executors, administrators, and
assigns, of all and every sum and sums of money as any two
persons, to be indifferently named by them the said A. B. and
C. D. conversable and acquainted with the business of the
trade, shall by their award in writing, under their hands and
seals, and at the time and place therein for that purpose to be
mentioned, award, order, and direct to be paid by the said A. B,
iris executors or administrators, to the said C. D. his executors,
administrators,
Appendix.
dministrater*, and uugm. And if such arbitrators shall net
moke such their award in writing within one month from the
time of such nomination, that then the said arbitrators shall
within the space of six days after the expiration of the said one
mo:. t!i, elect, nominate, and appoint a third person by way of*
umpire for the purpose aforesaid, and which said umpire shall
within fifteen clayi alter he shall be so nominated and appointed,
make and deliver award or umpirage in writing, under his hand
and seal, of and concerning all and every such sum and sums of
money as he shall therein direct to be paid by the said A. B. his
executors, administrators, and assigns; and the said award or um-
pirage, when so made, shall he duly observed, kept, and per-
formed by the said parties hereto, their executors and admi-
nistritors, according to the true intent and meaning thereof: and
further, that they the said parties hereto, and each of them,
both in and out of any court or courts of law or equity, respect-
ing the measures aforesaid, and at the costs and charges of the
said A. B. shall and will do all and every act and acts u* l>y tin -ir
or either of their counsel shall he advised and required i'yr the
fulfilling and accomplishing of these presents.
In witness, &c*
An Indenture of Apprenticeship.
THIS indenture witncspcth, that A. B. doth put himself ap-
prentice to (\ }). to learn his art and with him (after the manner
of an apprentice) to serve from the unto the full
end and term of seven years, from thence next following to be
fully complete and ended. Dtirlng which term the said appren-
tice his master faithfully shall serve, his secrets keep, his luu -
ful commands every where gladly do; he shall do no damage
to his said master, nor see it be done by others, but to hid
power shall let or forthwith give warning to his master of the
same; lie .shall not waste the goods of hi* said master, nor It . 1
them unlawful';,' to any; he shall not commit fornication nor
contract matrimony within the said term ; he .shall not play at
card.--, dire, tables ; or any other unlawful games, whereby
.vi id nuiMer may have any loss, with his own goods or ut:.
during the said term without licence of his master; he shall
neither buy nor sell ; he shall not haunt taverns or playhouses,
nor absent himself from his said muster's service day or night
unlawfully, but in all things as a faithful apprentice he shall be-
have him-* If towards hi-! said mri'-ter and nit his, during the said
term. And the stud A. B. his said apprentice, in the art of
1 1 which
which he xisethV^y the best means 'that he "can, shall teach aiij
insfruct, or cause to be" taught arid instructed, limiting unto 'the
said" apprentice sufficient ineat, 'drink, lodging, and all other ne-
cessaries during the said tel-m; And for the 'true .performance
of all arid every the said covenants and agreements either" of 'the
said parties bindeth himself 1 Unto the 'other by these presents.
In witness whereof the parties above named to these indentures
interchangeably have put their hands and seals, the day
of and in the year of our sovereign lord
by the grace of God of the United Kingdom of Great Britain
and Ireland, King, Defender of the Faith, and in the year of
our Lord one thousand eight hundred and
Observations on the Making of Wills.
.A Will is to be written on paper or parchment without a
stamp, and whether it be begun with these words, " In the name
of God, Amen," or with these, " This is the last will and testa-
ment," is immaterial. The testator should be careful to make
such a description of himself as may avoid any confusion or un-
certainty. This description is in law called his addition, and
means the allegation of his Christian and surname, his place of
abode, trade, and occupation. Women who have never been
married use the addition of spinster; widows, that of toidoiv;
which are sufficient without mentioning any trade or business,
though they may exercise such.
Legatees should also be properly described, and the will should
be dated on the day and year when the testator signed it, and
his seal and name should be added.
The words " of sound and disposing mind," &c. though not
absolutely necessary, any more than the solemn introduction,
" In the name of God, Amen," yet had better be noticed and
acknowledged in every will by the testator ; for the want of it
may be a plea in courts of judicature to invalidate the force and
efficacy of the designations.
When a will contains devises of lands only, there is no occa-
sion, as in the case of personal estates, for the appointment of an
executor.
Though all the devises of lands and tenements are by 29 Car.
2, c. 3, required to be not only in writing, but signed by the
testator, or eome other person in his presence and by his ex-
press direction, and be subscribed in his presence by three
or four credible witnesses ; yet it is not necessary that a will
should be sealed, or that the witnesses should sign in each
R r other's
6 10 Apptndlr.
oth rV presence, but all the other solemnities mentioned in
the attestation mnst be strictly complied with. Neither is if
necessary that the us^al solemnities should he inserted in the
-tion, it being sufficient if they subscribe thus, Witnes*
A. B. C. It is, however, prudent that such solemnities should
be inserted.
form of a lost Will and Tttfament, ditprtsin^ nf Goods,
and personal Effects, and not containing any Devise of
Lands.
IN THE NAME OF GOD, AMEiv. I John Mills, of Cheapsidc,
in the parish of St. Mary le Bow, in the city of London, linen-
draper, being of sound and disposing mind, memory and under-
standing, but mindful of my mortality, do this 10th day of March,
in the year of our Lord 17S5, make and publish this my last
will and testament, in manner and form following: That is
to say, First, I desire to- be decently and privately buried in
the church-yard belonging to the parish in which I shall happen
to die, without any funeral pomp, and with as little cxpence as
may be; and I give and bequeath unto the poor of such parish
the sum of 10/. to he distributed in such proportions and manner
as my executrix, hereinafter named, shall think fit. Also I
pive and bequeath unto my eldest son, John Mills, the sum of
.500/. Also, I give and bequeath unto my second son, William
Mills, the like sum of 000* Also, I give and beque:*h unto
my daughter, Mary Roe, the like sum of 500/. T vi>-
ral and respective legacies to be paid unto them severally and
respectively, immediately after the cxpirati</n of one \<
my decease. Also, I give to my three grand-dr.ughters, Sarah,
Catherine, and Mary, children of my second daughter, Mary
Iloe, the sum of 100/. each. And I do desire that the -,r<i sc
fun/s of KM)/, shall, within the space of one month tie-
cease, be placed and invested in some or one of the public
funds of this kingdom, at the disentinir of my executrix,
herein after named; and that the said several sums of 100/.
or the funds or securities to be purchased therewith, shall be
paM and tranferred to my saitl gnad*dMlghterf ropi-rt"
when and as they .-hall > tt4 r. .-pt ctively attain their
several and reftpn . d.iy or day
of marriage, which shall first happen; and that the im.
teeming and arising therefrom, i:t tlie mean time, shall be ap-
plied towards their fVuieation and maintenance M -]>< ct
uttl tltey shall severally and respectively attain their said ages,
or
Appendix. 611
cr day or clays of marriage as aforesaid; and in case any or
either of them the said Sarah, Catherine*, and Mary, shall
happen to die before her or their attaining their said age of
twenty-one years, and unmarried, than I give the share of her
or them so dying, unto the survivprs or survivor of them; and
if all my grand-daughters shall happen to die before the attain-
ing the age of twenty-one years, and unmarried, then I give
and bequeath the whole of the said several sums of 100/.
making in the whole the sum of 300/. unto my said daughter-
Mary, if she shall be then living. And whereas John Doe,
of Fleet-street, London, barber, is indebted to me in the sam
of 200/. principal money, upon bond; now I do hereby give,
forgive, and release unto the said John Doe, the sum of 100/.
part of the said sum of 200/. and do hereby will and direct
that my executrix, herein after named, do excuse and release
the said sum of lOQl. to him. Also, I give to my wife, Mary
Mills, the use of all my plate, household goods, and furniture
whatsoever, which shall be in my dwelling-house at the time
of my death, during her life-time; and after her decease, I
give the same to my son J. Mills, his executors, administra-
tors, and assigns. And as to all the rest, residue, and re-
mainder of my estate whatsoever and wheresoever, and of
what nature, kind, and quality soever, the same may be, and
not herein before given and disposed of, after payment of my
debts, legacies, funeral expences, and the expence of proving
this my will, I do hereby give and bequeath the same,
being all personal, unto my dear wife, the said Mary Mills,
her executors, administrators, and assigns, to and for her and
their own use and benefit absolutely; and I do hereby make,
ordain, constitute, and appoint my said wife, Mary, Mills, sole
executrix of this my last will and testament, hereby re-
voking all former and other wills and testaments by me at any
time heretofore made. In witness whereof I have to this my
last will and testament set and subscribed my hand and seal,
the day and year first above written.
Signed, sealed, published, and declared
by the said testator, John Mills, as and
for his last Will and Testament, in
the presence of us, who at his request, John Mills.
in his presence, and in the presence
1 of each other, have hereunto sub- ~>
scribed our names as witnesses thereto.
C. P.
L. M.
R r 2 Form
Appendix*
Form of a Will disposing of Lands only
THIS is the last will and testament of me John Doe, of Fkrf-
Mree't in the city of London, gentleman, being of sound and
posing mind, memory, and understanding, lirst, I give, de-
vise, and bequeath unto Richard Hoc the younger of 1
street aforesaid, gentleman, all those my freehold messr.
lands, tenements, hereditaments, and prtnrisep, with the ap-
purtenances whereof I am seized in fee, situate, lying, and
being at Cheshunt, in the county of Hertford, and now or
In the several tenures or occupations of John Mills, &c. (men-
tioning the names of the tenants of the premises) or some or one
of them, their or some or one of their under-tenants or assigns,
to have and to hold all and every the said lands, tenen:
and hereditaments, with the appurtenances, situate as afore-
said, to him the said Kichard Hoe, his heirs and assigns for
ever. Also I give, devise, and bequeath to my second son,
"William Doc, all that my freehold farm, lands, and pren.
situate at Cheshunt aforesaid, and now in the possession of
Kichard Fenn, as tenant thereof to me, to hold the same farm,
lands, and premises, unto my said son, William Doe, for and
during the term of his natural life; and from and imnu diately
after his decease, I give, device, and bequeath the said farm,
lands and premises, to my grand-daughter, Mary Doe, her
heirs and assigns for ever. Also, I give and bequeath unto
"William Thomas, of Islington, in the county of Middlesex,
/aire, all those my copyhold lands, messuages, tenements,
and hereditaments, (and which I have surrendered to the iur
of my will) situate, lying and being at Enrield, in the county
of Middlesex, and which now are, or lately were, in the tenure or
occupation of Kdward Reeves, his under-tenants or assigns, to
iave HIH! to hold the said copyhold Ian Is, messuages, and tene-
ments, to the said William Thomas, his heirs and assigns, for
ever, according to the custom of the manor of which the same
are holden. And 1 do hereby also give, devise, and bequeath
unto my said son, "William Doe, all those my four freehold
> or dwelling-houses, situate in Fleet-street, London,
aforesaid, being Nos. 106, 107, 108, and 10<, and now being in
the several tenures or iv-cupatiuns of, !vc. (mentioning the te-
nants names) to have and to hold die same to rr -on,
William Doe, and to the heirs of his body, lawfully begot:
or to be begotten ; and for default wf such heirs, then to
right heirs of me the s.-.kl John Doe, tor ever. Also, I give,
.-, and bequeath unto John Dcnn, of Theapside, London,
mercer,
4
Appendix. 613
majcer, and Richard Fenn, of Fleet-Street, London, aforesaid
linen-draper, all that my freehold estate, farm, lands, and premises,
whereof I am seized in fee, situate, laying, and beiag at Hackney,
in the county of Middlesex, and now in the tenure or occupation
of Henry Roberts, as tenant to me of the same, under a lease of
twenty-one years, from Lady-day, 1783, to have and to hold
the same estate, farm, land*, and premises, with the appurten-
ances, unto the said John Denn and Richard Fenn, [their heirs
and assigns for ever, as tenants in common and not as joint-
tenants]. If it is intended to make the -devisees joint-tenants,
ths ivords of the devise are to be exactly similar till the beginning
of the brackets, and then, instead of the "words inserted between
them, say, [and the survivor of them, his heirs and assigns for
ever, as joint-tenants and not as tenants in common.] And as
to all the rest residue, and remainder of my real and copyhold
estates whatsoever, and wheresoever the same may be situate,
laying, and being, I do hereby give, devise, and bequeath the
same to my said son, William Doe, to have and to hold the
same to my said son, William Doe, his heirs and assigns, for
ever. In witness whereof I the said John Doe have, to this
my last will and testament, set and subscribed my hand and
seal, the 20th day of March, in the year of our Lord 1783.
Signed, sealed, $c. (as in r~"~i
the attestation to No. I. )
To be executed in the John Doe. p g
the presence of and signed E, o
bv three witnesses.
Republication of the foregoing Will.
\V HEREAS since the making and publishing of the above
last will and testament of me the said John Doe, I have pur-
chased divers freehold hinds, messuages, tenements, heredita-
ments, and premises, situate in the several counties of Hert-
ford and Middlesex: Now I do hereby republish my said last
will and testament, and do hereby declare that it is my desire
and intention, that the said will and testament shall be good and
valid, to all intents and purposes, as if the same had this day
been originally made and published; any act, deed, matter, or
thing whatsoever, by me heretofore done, committed, or omit-
ted, to the contrary hereof in any wise notwithstanding. In wit-
ness
6 1 4 Appendix.
ness wjiereof I have hereunto set and subscribed my hand end
seal, tliis first day of May, in the year of our Lord 1784.
Signed and sealed by the
said Testator, John Doe,
in the prcst nee of us, who
at his request, in his pre- c. 3
sence, and in die presence u i>
,. , r John Doe. > 2
of each other, have sub- f
scribed our nanu s us wit- ?~ ~j
nes.- ub-
licution of his saul last
Yull and Testament.
To be executed in the presence of, and signed by throe wit-
nesses, in the manner as the original will.
.-I Will of Freehold, Copyhold, Leasehold, and Personal Estates ;
the Testator devises the name to Trustees to secure an Annuity
to his Wife, and also to provide Jbr any Children thr.t he mi lit
have by Her, and in Default of Issue he devisr* the name, .-
to the Annuity, Sfc. to the eldest Son of his Uncle; charged
with the Payment of Monies,
._ >
JN THE NAME OF Goo AMEN. I James Jones, of Charles
Street, in the county of Middlesex, Esquire, being of sound
and disposing mind and memory, do make this my last will and
testament, in manner following; First and principally I commend
my soul to God who gave it, and my body I commit to tin-
earth, to be decently interred at the discretion of my executors
hereinafter named; and as to such worldly estate as God of his
hath bestowed ""upon me, I give and dispose thereof
a* follov.s: tlvit is to say, I give- and devise i.:it-> ai'il to the U8Q
of my dear wi-'V, Mary Jones, Ntthaniel N> .(t:s of \c. and O/i-^r.
'c of, Ac. 1 their heirs and assigns, all and < 'old
and copyhohi upon the trusts i n-inafti'r
^eclarcv 1 .nicerning tht <. , devise, and
betiueath all my leasehold estatc-s as well for lives as for years,
tla-r with all my per.< v, of wliar luitiin- or kind
soever, unto the paid .Mai
Orni", and their hfirs, r\ . a.luiini>ti
resjiectively (according to the nature of the sowr.il estate-,)
upon the trusts nevertheless, and to uiul
and pur])oset hereinafter i-xprt-sscd and declared of and
cerning
Appendix. 615
fttrnmg the 'same (that Is to say) upon trust, by and out of the
rents, issues, dividends, interest and profits of all my said estates,
to pay an annuity or yearly sum of five hundred pounds clear
of all taxes and deductions whatsoever, into the proper hands of
my said dear wife Mary Jones, during her natural life, for her
oM r n use and benefit, in addition to all other provisions made for her,
upon, or previous to our intermarriage, and also by the ways
and means aforesaid to pay one other annuity or yearly sum
of pounds, clear of all taxes and other deductions, into
the proper hands of my dear sister Sarah Howel, the wife of
Mr. Giles Howel, during her natural life, or to such person or
persons as she shall from time to time, half yearly, and not
otherwise, by any note or writing signed with her hand, direct
or appoint to receive the same, and so as that the said last-
- mentioned annuity shall not, nor shall any part thereof, be
subject, or liable to the debts, engagements, management, or
controul of her husband, nor in or either of their power tO fc
sell, anticipate, assign, or any way to dispose of -or incumber
the same, the said annuities respectively tj be paid and payable
by half-yearly payments, on the feast days of St. Michael the
Archangel, and the birth of our Lord Christ in each year," by
even and equal portions, the first payment of the same respec-
tively to begin and be made on such of the said feast days as
shall first happen after my decease, and upon further trust, that
the said Nathaniel Nokes and Oliver Orme shall and may retain
the sum of pounds each, for their trouble in performing the
the trusts of this my will, and upon this further trust that they the
said Mary Jones, Nathaniel Nokes, and Oliver Orme, and the
survivors and survivor of them, his or her heivs, executors, ad
niinistrators, or assigns, do and shall at the end of one year next
after my decease, if there shall be any child or children of my
body, by the said Mary my wife then living, convey, assign,
and transfer, in such manner us counsel shall advise, all the rest
and residue of my freehold, copyhold, and leasehold estates,
money in the funds, and all other my personal estate and effects
of what nature or kind soever the same may be, subject to, and
.charged with the payment of the said several annuities of five
hundred pounds, and pounds as aforesaid, or such of
them as shall be then subsisting, unto my eldest or only child,
his or her heirs, executors, administrators, and assigns, abso-
lutely for ever; but in case there shall not be any child living
at the end of one year next after my decease, shall and do con-
vey, assign and transfer by such advice as aforesaid, all such
rest and residue of my freehold, copyhold, and leasehold estates,
money in the funds, and all other my said personal effects, sub-
ject and chargeable as herein before is mentioned, unto the
eldest son then living, of my uncle John Jones, of esquire,
bis heirs, executors, administrators, and assigns, absolutely for
ever,
6lS Jppendh.
ever, such eldest son nevertheless paying thereout, or to the
good liking of my said trustees, securing to be paid thereout
unto each and every of his younger brothers, the sum of three
thousand pounds; and I do hereby constitute and appoint my
?aid dear wife Mary Jones, the said Nathaniel Nokes, and
Oliver Orme, executors of this my lust will and testament,
hereby revoking and annulling all former and other wills by
me at any time heretofore made. And my will is, and I do
hereby direct, that my said executors and trustees shall each
of them be answerable for her and his act and receipts only and
not the one of them for the other of them ; and that they shall
not be answerable for any loss or miscarriage by any security
or securities that may happen in my estate ; and also that they
shall retain all their costs, charges, damages, and expcnces out
of the estates and effects in them respectively vested in and
by this my will, and the trust therein contained. IN
whereof, &c.
SIGXED, sealed, ) T T
* JAMLS JONES.
To be signed by three witnesses.
A Devise of Freehold, Capi/hold, Leasehold, and
to Trustees Jiir securing an Annuity to the Testator's
Wife.
IN THE v.Avr OK (ioo, A.MH.v. I Arthur Green, of
, i:i tin- county of , gentlemen, being of sound
and disposing mind and memory, do make and publish tliis my
l;ist will .aid t'-stament in manner following; first and principally
I commend my soul to Almightv (iod, and my body I desire
inn- be d-M- -ntlj interred :.t tin- discretion of my executors here-
inafter n.micJ ; and as to such worldly estate :;< vnxl of his
ss hath be-tounl upon me, I give and dispose theivof :i*
follows: that is to say, 1 give and devise nil my freehold and
copyhold estates wheresoever situated, and which copyhold*
duly surre'idered to the us of my will, unto John
Coles, of , in the county of , gen-
tleiu in, and Hit hard Price, of , in the city of
London, >iiv.-r;initii: npwn the trusts nevertheless, and to the
intents :uul purposes hercinaftt I of and concerning the
sums-, nM'l a.! n U well for lives as for
together with ull my personal estate, of what nature or kind
soever,
Appendix. 617
soever, I likewise give, devise, and bequeath unto the said Jolm
Coles, and Richard Price, and their heirs, executors, admini-
strators, and assigns respectively ( according to the nature of the
several estates) upon the trusts nevertheless, and to and for the
several intents itnd purposes hereinafter expressed and declared
of and concerning the same, (that is to say) upon trust, by and
out of the reuts, issues, dividends, interest, and profits of all
my said estates, to pay an annuity or yearly sum of two hundred
pounds clear of all taxes and deductions whatsoever, into the
proper hands of my dear wife Mary Green, during her natural
life, for her own proper use and benefit, in addition to all other
provisions made for her upon or previous to our intermarriage ;
and so as that the said annuity, or any part thereof, shall not
be subject or liable to the debts, engagements, management,
controul, or disposition of any future husband; the said annuity
to be paid and payable by half-yearly payments on the twenty-
fif'th day of March and the twenty-ninth day of September, in
every year, by even and equal proportions, the first payment
of the same to begin and be made on such of the said days as
shall first happen after my decease; and upon further trust, that
the said John Coles and Richard Price shall and may retain the
sum of fifty pounds each for their trouble in performing the
trust of this my will. And I do hereby constitute and appoint
my said dear wife Mary Green, the said John Coles and Richard
Price, executrix and executors of this my last will and testa-
ment, hereby revoking and annulling all former and other wills,
by me at any time heretofore made; and my will is, and I
do hereby direct that my said executors and trustees shall each
of them be answerable for their own separate acts and receipts
respectively only, and not the one of them for the acts or re-
ceipts of the other of them, and that they shall not be account-
able for any loss which may happen in my estates, by the rea-
son of the failure of any security or securities, whereon the
same may depend, so that the same do not happen through
any negligence or default f them the said trustees, or either
ef them; and lastly I will and direct that my said trustees do
p'ld may retain all the costs, charges, and expenccs which
they or either of them may sustain, in and about the execution
of this my will, out of the estates and effects hereby in them
respectively vested.
IN WITNESS whereof, &c.
Arthur Green, [place of seal.}
Signed, sealed, published, $c.
618 Appendix.
Will of personal Property to Executors for Payment of Debts,
tw'/A Powers for them to compound, Sfc.
THIS is the last will and testament of me, George Young, of,
Ac. whereby I gi.'c and bequeath unto John and Edward
Yates, both of, &c. whom I appoint executors of this my will,
all my ready money, and all such sums of money as shall
be owing to me at the time of my decease, upon mortgages,
by specialty or simple contract, and all and singular other
nay personal estate and effects whatsoever, and whereso-
ever, not hereinafter by me otherwise disposed of upon trust,
that they the said John and Edward Yatcs, or the survivor
of them, or the executors, administrators, or assigns of such
survivor, do and shall, with all convenient speed after my de-
cease, call in and compel payment of all such part of my per-
sonal estate as shall consist of money owing upon securities hr
otherwise, and do and shall sell and dispose of and convert
into money all such part or parts thereof as shall not (
money; and my mind and will is, that it shall and may be '.
ful to and for the said John ;ind Edward Yatcs, and the |
of them, and the executors, administrators, and assigrs of
such survivor, to compromise or comj>ound . ny MUM or sue
money owing to me at the time of my decease, and to ad
settle, and compromise all accounts which at the time of my
decease shall he depending between me and any other pi
or persons whomsoever, and to give or allow such reason
time or indulgences for the payment of the same respect;
and in the mean time to accept and take such secum..
surances for the ] lercof as they or he shall in their or
his discretion think fit: and my mind and will is, that the said
John and Edward Yates, and the survivor of them, and the
editors, administrators, and assigns of such survivor, do and
shall, by, with, and out of the money so raised by the ways
and means last herein before mentioned, satisfy and discharge
all such debts a shall be due and owing by rue to any prison or
persons whomsoever, by specialty, simple contract, or other.
howsoever at the time of my d :ul the interest of such
of the said dehfs as shall carry interest, with full power to admit
uc?i evidence of or debts a.s to him or them shall -
suffU-ieiit : and i.i the next place, do and shall sat My and dis-
cli.i icies and bequosls of this my will, or which
I K bequeath by anv codicils thereto, (lias
insert the /< . *tf.}
Inwitiu- Cieorge Young.
e of
iteed, of.
i
Introductory
Appendix. 619
Introductory Part of a Will, or other testamentary Appointment
by a Feme Covert.
THIS is the last will and testament, or writing in nature of
the last will and testament, of Mary Baker, the wife of John
Baker, of, &c. being or intended to be also an appointment
made pursuant to and by force and virtue, and in exercise and
execution of the power and authority to me for this purpose
given in and by certain indentures of lease and release bearing
date respectively the ninth and tenth days of May, 1811, the
release being of four parts, and made or expressed to be made be-
tween John Baker, the elder, of the first part, the said John
Baker, my husband of the second part, of me the said Mary Ba-
ker, of the third part, and James Hill, of, &c. of the fourth part,
and every other power and authority whatsoever, enabling me
in this behalf, do by this writing, signed and sealed by me in the
presence of three credible witnesses, whose names are, or are
intended to be written and endorsed hereon as witnesses to my
having signed and sealed the same, and which writing I hereby
declare to be and contain my last will and testament, limit, di-
rect, and appoint that all that and those my messuages and tene-
ments, lands, and hereditaments herein after particularly men-
tioned and described, that is to say, (here describe the estates)
shall, from and immediately after my decease, go, continue, and
be unto James and Alexander Ingold, both of, &c. esqrs. and
their heirs, to and for the several uses, estates, intents, and
ses herein after limited, expressed, and declared concern-
same, (that is to say) to the use and behoof, &c. &c
(as in Q ViilLj
Directions in a Will, that if by bad Debts or otherwise the Tes-
tators Estate shall become insufficient to pay Children's Legacies,
they shall sustain the Loss equally.
.AND my will further is, that in case the said several legacies
or sums of two hundred pounds a-piece herein-before given
and made payable to my said three children in manner aforesaid,
shall by reason or on account of any debt or debts due and
owing, or which hereafter may grow due and owing to my per-
sonal estate, or by any other losses, misfortunes, or means what-
soever my said estate shall prove or become insufficient to an-
swer and pay to my said three children, or any of them their
respective
620
respective full legacies of two hundred pounds a-piece, at the
times and in the manner herein before directed and appointed
for payment thereof, then and in such case I do hereby order,
will, direct, and appoint, that all such losses or deficiences so
happening to my said estate, fihail be borne and sustained by nil
and every my said three children, who shall then be entitled
to the said legacies of two hundred pounds a-picce, and that
in equal proportions, share and share alike, any thing in tluV
my will contained to the contrary thereof in any wise notwith-
standing.
Form of a Codicil.
Although by a Codicil any Bennetts nr Dispositions of a Will may
be altered, new Legacies ^/tr/i, and other Executors appointed
in the room of those named in the Will, yet where the Altera-
tion is of considerable Import min\ it is much better to make a
new Will ; which is a/wuyx less liable to Suspicion, or Misinter-
pretation. If any real Estate is disposed of by the Codicil, it
must, as well as a Will, be attested by three Witnesses.
WHEREAS I, Richard Roe, of Fleet-street, London, liiuir
draper, have made and duly executed niv la.-.t will and t
ment in writing, bearing date t!ie l()th day of March, 1"
now I do hereby declare this present writing to be a codicil to
my said will, and I do direct tlu- same to be annexed thereto,
and to be tak:jn as a p:irt thereof; and I do hereby give and be-
queath to my son, Kich'.ird Roc, in my s:tid will nam.-il, t!u*
further sum of 2001. in addition to what J have given him in
my said will ; and whereas I did in and by my said will, give and
bequeath unto John Fer.n, the' sum of 100/; now I do hereby re-
voke the said legacy, and do give unto him, the said .John I'eim,
the sum of 10/. and no more ; and I do hereby ratify and con-
firm my said will, in all tin- other particular.-, thereof. In witness
Tvhrrcuf I the said RicharJ. , to this codicil, set my
hand and seal, this Kith day of August, in the year of our
Lord :
figncd, scaled, published, and
:i\ d. In the s ml totator,
Richard Roe. ;;.s and for a
codicil, to be annexed to his Richard Roe.
l:j>t will and testament, and to
be taken as part thereof, in the r J?
presence of u>.
Two witnesses. .
A Codicil
Appendix.
A Codicil to devise Lands purchased since tlie Testator's Will 1
to the Uses of such Will, to add a new Trustee thereof, and ap-
point Guardians to his Children.
WHEREAS /, G. M, of, &c. have by my last will and testa-
ment, bearing date the 17th day of April, 1811, given and de-
vised all rny lands and hereditaments situated in the county of
Middlesex, unto C. P. and L. S. their heirs and assigns, upon
such trusts, intents, and purposes as are therein declared con-
cerning the same. And whereas since the making and publish^
ing this my said will, I have purchased certain other messuages,
lands, and hereditaments, situated in or near Ealing in the said
county of Middlesex. Now I do hereby give and devise all the
said lands and hereditaments situated at or near Ealing aforesaid,
which I have purchased since the execution of my said will, as
also the messuages, lands, and hereditaments in my said will
heretofore given and devised as aforesaid, unto and for the use
of the said C. P. and L. S. and unto H. R. of, &c. their heirs
and assigns for ever, upon such trusts, nevertheless, and to and
for such ends, intents, and purposes as in and by my said will
are expressed and declared of and concerning the said messuages,
lands, and hereditaments thereby devised unto the said C. P.
and L. S. their heirs and assigns as before mentioned. And I
do hereby also appoint the said H. R. one of the executors of
my said will, together with the said C. P. and L. S. already
thereby appointed executors thereof. And I also appoint them
the said C. P. L. S. and H. R,. guardians of the persons and
estates, rights and interests of my said three children James,
George, and Mary, until they shall severally attain their respec-
tive ages of twenty-one years. And I do hereby declare this
present writing to be by me intended to be a codicil to my said
last will acd testament, and the same shall be deemed and taken
as part thereof, as fully and effectually to all intents and pur-
poses as if the contents thereof had been actually inserted and
comprised in the said will. In witness whereof, I, the said G. M.
have hereunto set my hand and seal this 28th day of April,
1811.
G. M. (L. S.)
Signed, sealed, published, &c.
P. O. of, &c.
R. M. of, &c.
Form
622 Appendix.
Form of a Codicil, aftere several Legacies are revoked.
WHEREAS 7, A. B. of Richmond, in the county of Surry,
Gent, have by my last will and testament, in writing, duly exe-
cuted, bearing date the 6th day of Sept. 1 804-, given and be-
queathed, &c. Now I the said A. B. being desirous of alter-
ing my said will in respect to the said legacies, do therefore
make this present writing, which I will and direct to be an-
nexed rfs a codicil to my said will, and taken as part therof ;
and I do hereby revoke the said legacies by my said will given
to , and I do give to each of them the sum of ,
and to the sum of only ; and I give unto,
&c. And I do ratify and confirm my said will in every thing,
except where -the same is hereby revoked and altered as afore-
said. In witness whereof, &c.
A Nuncupative
following is the last will and testament of A. B. late of
, in the county of , Gent, declared
to us whose names are hereunto subscribed, desiring it might be
considered and taken as his last will and testament, and re-
questing that we would bear witness thereto. (Here insert the
word* of the testator.)
C. F.
G.L.
T. P.
A Confirmation of a Will.
(Indorted on the back thereof.)
\\ HEREAS, since the making of my last will and testament,
as within mentioned, I have taken to myself a wife, by which
the same, or part thereof, might be deemed void in law: now I
do, notwithstanding the said circum>Uiun , in all
firm and re-establish my aforesaid will, and desire the K
may still be deemed and taken to be my last will and testament.
As witness my hand and seal this day of
Signed, sealed, published, &c. I.. P.
.T. C.
L. S.
M. G.
Form
Appendix. 623
Form of a common Receipt for a Legacy.
RECEIVED the lOth clay of December, 1811, of James
Wilson and Thomas Bell, gentleman, executors of the last
will and testament of William Brooke, late of Broad-street,
London, merchant, deceased, the sum of 80/. being in full
for a legacy to that amount given to me in and by the said will
of the said William Brooke, bearing date the 9th day of No-
vember, 1810.
As witness my hand,
JAMES HOWELL.
Witness,
ROBERT HILI*
^The Form of an Inventory to be exhibited to the Ordinary by the
Executor or Administrator of the Goods and personal Estate of
the deceased ', pursuant to the Oath and Bond entered into at
the Time of obtaining Probate or Administration.
.A TRUE and perfect inventory of all and every the goods, chat-
tels, wares, and merchandizes, as well moveable as not, debts,
credits, and other personal estate and effects of William Beard,
late of the parish of , in the county of , in
the diocese of , gentleman, deceased, made by us
whose names are hereunto subscribed, the tenth day of October,
in the year of our Lord one thousand eight hundred and ten.
. s. d.
Money in the house the property of the deceased 80
4001. 3 per cent., consolidated Bank annuities, in the
books of the bank of England, in the name of the
said deceased, at ILL 231 10
Money on mortgage to John Woollet of Reading 260
3 Horses and harness - - - 65 O
Horned cattle, viz. 5 cows and 3 oxen. - 75 O
30 Sheep, at per average, \L 30
3 Swine ditto I/. 105. - 4- 10
Poultry ... 3 O
Corn growing at the time of his death - 95
Corn and hay in barns and outhouse* 30
.874
Brought
624 Appendix.
f. s. d,
Bronght forward - - 874-
Ploughs, cart, waggons, and other implements of
husbandry - - - 46
Wearing apparel 1600
Plate - 12
Household goods and furniture - 1.50
Hooks - 6
Lease for 21 years, from Lady-day, 1799, of the
testator's house of residence - - 7.5
Kent in arrear due to the deceased at the time of
his death, from the tenants of sundry houses, si-
tuate, &c. (describing them) 63 10
Other debts due to the deceased, supposed to be
recoverable - - - - 179180
. H'2'2 8 O
Debts due to the deceased, but supposed to be ir-
recoverable - 98 1 1
Debts owing by the deceased at the time of his death 11310
Taken and appraised by us, the year and Jay first above written.
JAMES HOCKi \ Of , sworn
THOMAS GILL J appraisers
The inventory pursuant to several acts of parliament must be
written upon stamped paper or parchment.
STAMP DUTIES.
bills of exchange, drafts, or orders, for the payment to
the bearer, or to order, either on demand or otherwise, of any
sum of money, the following duties are payable:
Amounting to 10s. and not exceeding 51. 5s 010
Exceeding 51. 5s 301 1 f
301 501 '2
501 1001 080
1001 J.'.o! 4 O
L'OOl 5001 5 O
5ooi looor 010 o
loool 30001 i o o
30001.
Bill,
Appendix. $25
Bill, draft, Or order for the payment of money, though not
payable to the bearer or to order, if the same shall be delivered.
to the payee, or some person oa his behalf, the same duty as if
payable to bearer or order.
Bill, draft, or order for the payment of any money, weekly,
monthly, or at any other stated periods^ if made payable to the
bearer, or to order, or if delivered to the payee; where the
total amount of the money shall be specified therein, the same duty
as on a bill payable to bearer or order, for such total amount.
And where the total amount shall be indefinite, the same duty
as on a bill for the sum therein expressed only.
And the following instruments shall be deemed to be inland
bills, drafts, or orders^ viz.
All drafts or orders for the payment of any money, by a biU.
or promissory note< or for the delivery of any such bill or note,
in payment or satisfaction of any sum of money ; where such
drafts or orders shall require the payment or delivery to be made
to the bearer, or to order, or shall be delivered to the payee, or
some person on his behalf.
All receipts given by any banker, or other person, for money
received, which shall entitle the person paying the money, or
the bearer of such receipts, to receive the like sum from any
third person;
And all bills, drafts, or orders fbr the payment of any money;
out of any particular fund, which may or may not be available;
or upon any Condition or contingency, which may or may not be
performed or happen ; if the same shall be made payable to the
bearer or to order, or if the same shall be delivered to the payee
or some person on his behalf.
Foreign bill of exchange* (or bill of exchange drawn in but
payable out of Great Britain) if drawn singly, and not in a set,
the same tluty as on an inland bill.
Foreign bills of exchange^ drawn in sets according to the .cus-
tom of merchants ; for every bill of each set ; -where the sum
made payable thereby shall not exceed 1001. - 010
Exceeding 1001. and not exceeding 2001. ...... 6 2
2001 5001.
SOOI. 10001
10001. .,....; 30001
30001. - - -
Exemptionsfrom the preceding Duties. AH bills Of exchange,
er bank post bills, issued by the Bank of England^
All bills, orders, remittance-bills, remittance-certificates,
drawn by cornmissioned-oflicers, masters aijd furgeons iu thtf
jmavy> or by any commissioner of the navy.
' S * All
, Ippcndn .
:\]\ bills drawn by (ho commissioners of the navv, \icfiulling,
transport, and sick and hurt offices, upon die treasurer of the
navy.
Ail drafts or orders for the payment of money to the bearer
on demand, rind drawn upon any banker, ey person acting as u
. banker, who .shall rc.-idc or transact the business of u banker,
within ten miles of the place where such drafts or orders shall
be drawn ; provided such phire shall be specified in such drafts
or orders ; and provided the same shall bear date on or before
the day on which the same shall be issued ; and provided the
same do not direct the payment to be made by bills or promissory
rot
All bills, for the pay and allowances to, or on accmr.it of the
forces, except such as shall be drawn in favour of rontrut
or others, who furnished bread or forage, and who by their eon-
tract, shall be liable to pay the st;:mp duties.
ml Regulations. \\\ .". ! (Uo. M, c. 2/>, nil p t
shall write or sign, or cause to be written or signed, or who shall
accept or pay, or cause to be accepted or paid, any bill,
without being first stamped with a proper stump, or upon which
there shall not be some stamp resembling the same, shall forfeit
L 1 ')!. Increased by 4-8 Geo. \ c. 1 If), to .301.
No bill, &c. shall be available in law or equity, unless stamped
with the lawful stamp; and it shall not be lawful for the eum-
missioners to stamp any paper, &C. after any bill, k S,c. sh.iil lu>
written thereon, under any prctt
.But, by :->7 Cieo. 3, e. . it skill be lawful for am
person who shall be tl:-- hHdi : -iraf't, n- order
made after July '2(\ 17^7, wbiih shall be .-tamped with a ^f;:mp
of n different denomination than required, if the 1 in.-
equal or superior in value t- -,ip reqnir.-d, to prrciuci- rhe
same within the times hereinafter inentumed to the J>ad olHcer,
or such officer as l\<- nnu; ';..!! appoint ; and the <
mission, ii-imt the proper off'et-r, upon payiuent nt'tiie
duty, and such penalty as is after-roentjonea, <\e.- and above
the diitv, to r'h bill. '!'!. , draft, or order, >
j>roj) i -ta))>; a rcx'eipt fm- thr duty am: i
id, on tin back of MH-!I bill, note, draft, or ordi r.
h Itnl, i fr<ier, .li.ill I..- prodticed
me sh ill be p iv.iblr, llir xiim- h;ill U' st.niijnd 0:1
.unit of the sail! duty, and tin- penally <>f in,., | )u t if tlu-
>il hi pa\able bt-for? 1 the production tin n of t- the <
, tin n 1 1. tamped, unlc-son piivnifni
of the duty and 101. I'm the penalty .
The
Appendix. 627
.The following duties are payable on' Promissory Notes for th&
Payment of Money to the Bearer on Demand,
For any sum not exceeding one pound one shilling 004
Exceeding ll. Is* and not exceeding 21. 2s 008
21. 2s 51. 5s 1
51. 5s 201. 016
201 301 030
301 501 ,.. 046
501 ~ 1001 076
which notes, for not exceeding 21. 2s. may re-issued after pay-
ment, as often as thought fit, and the said notes exceeding 21.
2s. and not exceeding 1001. may be re-issued for three years
from the date thereof, but not afterwards.
Promissory note for the payment in any other manner than
to the bearer on demand of any sum of money amounting to 40s.
and not exceeding 51. 5s 010
Exceeding 51. 5s. and not exceeding 301 016
301 501 020
501 1001 030
These notes are not to be re-issued after being once paid.
Promissory note, for the payment, either to the bearer on
demand or in any other manner than to the "bearer on demand
of any sum of money
Exceeding 1001. and not exceeding 2001. 040
2001 5001 050
5001 10001 076
1,0001 3,0001 0100
3,0001. 100
These notes are not to be re-issued after being once paids
Prqmisory note, for payment of money by instalments or
for the payments of the several sums, at different times, so that
the whole shall be certain. The same duty as on a promissory
note, payable after date, for any equal sum.
And the following instruments shall be deemed to be promis-
sory notes ; viz.
All notes promising the payment of any money, out of any
particular fund, which may or may not be available, or upon
any condition, which may or may not be performed or happen;
if made payable to the bearer, or to order, and if the same shall
'be certain, ami not amount in the whole to twenty pounds ;
and all receipts for money deposited in any bank, or in the
hands of any banker, whieh shall contain any agreement or
s s 2 memorandum,
G-2& Appendix.
memorandum, importing that interest shall be paid For the
money deposited.
Exemptions from the Duties on Promissory Notes*
AM notes, promising the payment of mone^, out of any par-
ticular fund, which may or may not be available; or upon any
condition or contingency, which may or may not be performed
or happen ; where the same shall not be made payable to the
bearer, or to order; and also where the same shall l)e made
piyable to the bearer or to order, if the same shall amount to
twenty pounds, or be indefinite.
And all other instruments, bearing in any degree the form
of promissory notes, but which in law shall bo deemed special
agreements, except those expressly directed to be deemed pro-
roiwory notes.
But such of the notes here exempted from duty, shall never-
theless be liable to duty as agreements.
'ptiota. All promissory notes issued by the Bank of
England.
Protest of any bill of exchange, or promissory note, of any
sum of money, not amounting to L'< 1 020
Amounting to 201. and not 1 001 030
I../...... 1001. .5001 050
. .1001. or upwards ]0
Protest of any other kind 5
And for every sheet upon which the same sluill be written,
after the first, a further duty of 050
On receipt or discharge given, for or upon the payment of money
amounting to 21. and not ICl 2
Amounting to 101. and not 201 004
201 501 008
.-.oi 1001 o i o
KK'l -'001 020
2001 5001 030
5001. or upwards o ;.
And where any mm shall be therein expressed or acknowledged
to be received. in full of all demands O ~,
And any note, memorandum, or writing r or upou
the payment of money, wheroby any sun* of money,
demand, or any part of any debt or demand therein .-
and amounting to two pounds or upwards, shall be t xpusbed to
hav.- hern ]>. .!, Imlanceil, ,:;. h.irged or
satisfied, or wlii li shall import i> :<Ji atknov. itd^-
, and whether the same Khali or *kiil nut be signed by the
name of any person, shall be deemed to be a receipt,
d with a duty accordingly.
And any receipt r discharge, iiute, memorandum, r v
Appendix. 629
whatever, given for or upon the payment of money, which shall
contain, import, or signify any general acknowledgment of any
debt, account, claim, or demand, therein not specified having
been paid, settled, balanced, or othenvi.se discharged or satisfied,
or whereby any sum therein mentioned shall be acknowledged
to be received, in full, in discharge or satismction of any such
demands, and whether the same shall or shall not be signed with
the name of any person, shall be deemed to be a receipt for 500l f
or upwards, and charged with the duty of five shillings.
And all receipts, discharge?, auknowledgments, of the de-
scription aforesaid, given for or upon payments, made with any
bills of exchange, drafts, promissory notes-, or other securities
for money, shall be deemed to be recejpts given upon the pay?
meat of money,
Exemptions J "row the preceding Duties on Receipts,
Receipts exempted by the assessed tax acts.
Receipts given by the treasurer of the navy.
Receipts given .by any agent of tho pay of the army or
ordnance.
Receipts given by any officer, seaman, marine, or soldier, of
their representatives, for any wages, pay, or pension.
Receipts given for the purchase in the public funds, or stock
of the Bank, East India, or South Sea Company, or any dividend
thereon.
Receipts given for money, deposited in the Bank of England
or Scotland, or in the hands of any banker to be accounted for
on demand. If not expressed to be received of a third person.
But if with interest, see Promissory Notes.
Receipts written upon promissory notes, bills of exchange,
drafts or orders.
Letters by the general post, acknowledging the safe arrival of
bills, notes, or other securities for money.
Receipts indorsed upon, or contained in, any bond, mortgage,
or other security, or any conveyance or other deed.
Releases or discharges for money, by deeds duly stamped.
Receipts given for drawbacks or bounties, upon exporta-
tion.
Receipts or discharges for. the return of duties of customs,
Upon over entry.
Receipts or, acknowledgments of payment indorsed upon any
bills, orders, remittance bills, or remittance certificates, drawn by
commissioned officers 1 , masters, and surgeons of the navy, or by
any commissioner of the. navy.
Receipts or acknowledgments of payment, indorsed upon any
bills drawn by the commissioners of the navy, victualling, the
transport "service, and suck and hurt,
By
6 f jO Appendix.
By 43 Gen. 3, c. 126, the respective stamp duties on receipt*
given upon the payment ot % money, hhall be paid by the persons
giving such receipts and discharges, or acquittances, except
where they are given upon payment of money in respect of anv
debt payable to his Majesty, or to any persona for his use, in
tyhich cage the duty shall be paid by the persons by whom or on
whose behalf such receipt shall be required.
Any pc rson, or any agent of any person from, whom any sum
shall be due, and who shall have paid such gum, may provide
ft piece of paper, vellum, or parchment duly stamped, and de-
mand of the person entitled to such, or any agent to whom the
same shall have been paid, a receipt for such sum, and also tho
amount of the duty ; and if any person to whom any sum of
money shall have been paid, shall refuse to give such receipt
upon demand, or pay the amount thereof, such person shall
forfeit 101.
No receipt liable to the duties shall be pleaded or given in
evidence in any court, or admitted in any court to be good,
useful, or available in law or equity, unless stamped with a law-
ful stamp, or denote the rate of duty by this act directed, or some
higher rate of duty.
By 35 G>0. '?, c, 55, every person who shall write or sign,
or cause to be written or signed, any receipt, discharge, or ac-
quittance liable to duty, without the same being first duly
stamped, or upon which there shall be a stamp of lower deno-
mination than is charged in respect thereof, shall forfeit 101. if
the sum paid shall not amount to 1001. ; and 201. if it amounts
to 1001. or upwards, s.
Aud every person wlix> shall give any receipt, discharge, or
acquittance, or any note, memorandum, or writting acknow-
ledging the payment of money, in which a less sum shall bo
expressed than the sum actually paid, or who shall separate tliu
sum into divers sums, with intent to evade the duties, or shall,
with the like intent, write off any part of the debt, claim, or
demand, or who shall be guilty of, concerned in, any fraudulent
contrivance whatever, with intent to defraud his Majesty of any
of the duties, shall forfeit .101. s. !.
Receipts on unstamped paper brought to tho stamp office
within 1- days after given, may be stamped on payment of .-"I.
qver the duty; and if brought to be stumped alter II- days
and within one calendar month after given, may be stamped
on payment of 101. above the duty; and in ti .it i ,uc the parties
are not to be liable to any of the penalties abovc-im .. tinned.
One moiety of all penalties shall, if sued for within three
month* he to his .Majesty; and tb< with full costs, to
tke persons who rhall inform, ftc. iiml \yji<li ma\ be recovered
c ai>y of the courts at Westmiirtt r, within England ; and ir
the Exchequer of Edinburgh, within Scotland. But one justice
ipay
Appendix. 63 1
may hear and determine any offence which subjects the offender
to any pecuniary penalties: and persons aggrieved may ap-
peal to the quarter sessions. The justice may mitigate penal-'
ties, not Jess than one moiety besides cost. Witnesses refusing
to attend the justice, c. to forfeit 40s. ; and if the penalties
are not prosecuted for within the limited time, they are only
recoverable by the crown ; and if the whole penalty is recovered
by the crown, the informer is to be rewarded by the com-
missioners of stamps, at their discretion, not exceeding oue
moiety.
Bank Tokens.
(51 Geo. Ill, c. 110.)
IF any person shall make, coin, or counterfeit, or cause or
procure to be made, coined, m- counterfeited, or willingly act
or assist in the making, coining, or counterfeiting any token
resembling, or made with intent to resemble or look like any of
the tokens, stamped and issued, and circulated by the Bank of
England, or with intent to pass as such, every person so offend-
ing, shall be guilty of felony, and transported for not exceed-
ing 7 years. As also persons bringing such counterfeit tokens
into the kingdom.
And if any person shall utter, tender in payment, give in
exchange, pay, or put off to any person any such false or
t'OUHterfeit token, knowing the same to be false or counterfeited,
every person so offending shall suffer six months imprisonment,
and find sureties for good behaviour six months more; and if
afterwards convicted, shall for such second offence suffer
two years imprisonment, and find sureties for two years morti:
.and if he shall afterward offend a third time he shall be guilty -of
felony, and transported for fourteen years.
If any person shall have in his custody, without lawful excuse
(the proof whereof shall lie upon the party accused, ) any greater
.'lumber than five of such false or counterfeit tokens, such person
.being thereof convicted before one justice, shall forfeit all su^h
tokens, which shall be cut in pieces, and also forfeit not exceeil-
. ing five pounds, nor less than forty shillings, for every iVse- or
counterfeit token found in his custody, one moiefy to tin;, in-
former, and the other to the poor of the parish, which -if KOt
forthwith paid, such justice may commit the party to the corn-
c nion goal or house of correction^ to hard labour for three ca-
* Jendar months.
L<)rd
32 Jppcndir.
Lord Stanhope's Act.
(51 Geo. 3, cap. 127.)
FROM and after the 24th of July, iSll, no person shall re-
ceiveor pay for any gold coin lawfully t.iTn.nt virhin the realm,
anymore in value, benefit, profit, or a^ ! . than the true
lawful value of such coin, wat-tlu-r such valui', ben. fit, profit,
or advantage be paid, made, or taken in lav.ful n:.'-m y, or in
ary note or notes, bill or bills of the Hank of England, or in
a-.:y silver token or tokens issued by them, or b" ai y or all of
the said means wholly or partly, or by any other nv >, device,
shift, or contrivance whatsoever; and every person who shall
ofieivl herein shall be guilty of a 'misdemeanor.
And no person shall by means, device, shift, or contrivance
whatsoever, receive or pay any note or bill of the Bank of Eng-
If.nd, for less than the amount of lawful money expressed there-
in, except only lawful discount on such note of biii as shall not
be expressed to be payable on demand ; and every person wh*
offend herein shall be guilty of a misdemeanor.
INDEX.
INDEX.
A.
A EDUCTION of
of women
Abjuration, oath < :
Page
513
512
40
510
'276
142
Abcmto'n, attcinpL to cause
Acc.ptanceof hills
of rent
Accessaries - - 432
Accomplices - - - 4 3
At of bankruptcy - - 305
Adherence to the king's enemies 435
Administration - - H'9
Administrator - 107 If 3
Advertising stolen goods - 452
Adultery - - 97, 418
Ailrays - - ' 461
Age, action suspended by - 136
Age 'full, Uow computed - 123
Age of consent to marriage - 123
Agents - - 241
Alehouses - 152
Aliens - - - 48
Allegiance - - 39*
Ambassadors - - 431
Apostacy ... 4^3
Appeal of robbery - - 520
Apprentice T - 86 90
-- , parish - 71
Approvers, compelling prisoners
to become - - 450
Arbitrators - - 218230
Armed, being unusually - 462
Arrest - - - 413417
Arson - ' - 514
Artificers, combinations among 473
i i , transporting them - 474
Assault - - 414, 506, 539
, with intent to rob - 559
Assembly, riotous and unlawful 458
4,sserubiies, "seditious. - 440
Assignees of bankrupt - 321
Assignment of goods - ^62
- of bankrupts' estate oi-'S
Attainder - - 441
A.oiduiice and alte:^:ion of a
contract - - i?fi0
Auctioneers - - 175 178
Award - - 218 '.>3tt
Bail, maliciously holding to 413
< , personating - - 449
Bailiffs - - - (S3
Bankrupts 30 1 353
.-, of the commission 513
1 1 -, of the acts of bank-
ruptcy ... SQj
'-, of the petitioning cre-
ditor's debt - 311
-, of the assignees - 321
i. -, of the assignment 326
' , of proof ot debts 335
. , of set-off - - 347
.. i -, of the dividend - 351
' , of the certificate - 353
. -, of superseding a com-
mission - -' - 364
Banks, destroymg - - 544
Banns, publishing of 476
Bark, stealing of - - 525
Barratry - - 4;>2
Karns, burning - - 641
Bastard - - JM 103
Billeting soldiers - 158
Battery - - - 41-t
Bawdy-houfes 482
Beadks - 80
Beueae
1NDLX.
Page
Benefit ef clergy - 4M
Ik-quests, mistake and uncer-
tainty in - - 4OO
Bigamy - - - 478
Bidders at auctions - - 179
Bill* of exchange - - 268
. , acceptance V6
, indoiceraent
and transfer - - 286
. , presentment
for payment - 191
Bill of Kit'hts - 42
Black lead Mealing - - 528
Blasphemy - - 477
Blenching-grounds, stealing from 546
Blood, corruption of - 441 *43
Booth, robbing - - 538
Bribery at elections - - i. 1 , 1 , '-':'>
-- in magistrates
Bridges, dtstrosuig
,iry . - Mi
Coin, treasons rciatin
Butter
- o-W
C.
Page
41^, 47:1
OMrnendaififl - in*
(Jimiin>iuii of bankrupt - ."1.l
Corainit.nent of bankrupt - ;i.>7
Coinmonx - - 2.SO-
Cortunons, lt<oe of - - i i
Coin|>;)wing i IK- kind's death 29, 45.^
Compcteui witnesses
Compound larceny - - 531
Compounding informations - 454
Conies, taking, killing, or steal-
ing - - 495
Conjuration - - 427
Cansort, queen
Constable - - 77
Conspiracy
ContrtUts for the sale aod pur-
chase of goods
Contiactois disqualified to .-sit m
tbe huube of parliituiiv..
C*p|icr coin, counterl'iiOg^ -*-44*
Corn
Corn, gtain, meal,
Cofody. - -
Calling the plaintjff - - .S~< 4
Coroner
Candidates, bill to prevent ex-
Corporation
pence* of - 8
Corporation and Ten Ac in .
Capacity of guilt - 513
Carnal knowledge of infants - ibid.
CuuntcrteilHiptlx* kiu^'a coin
- 4-ic
4.W
Carner - 146-
Credible \viinp>se>
Caule, woiuidinc
, ui..i;
, n aiieiou>!y tilling - ibi-.l.
CtltOIU
- :^-^f
, stealing
Curate
-r~!^T .
C.ir-.ini: and'sweflriog
of settlement - 7i>
L'lMUli:., and itabbuig
M^
friallrnge "f jury - 166- 170
to light - - 4&t
C'Karnprrtj
D.
Ctepbioi - 58
.
xble mscs - .~>7'J
Deacon*
- A4
nine of 411
Chastity, homicide ui defence of .'rti.'i
Deer-stealiiiL;
1 Iri.i.. hiding, In
rUeaiin-
l>eiii/.-ns - t9i ' '
(":ii-e- ...
Umdand
.''4
Chihlr.n
ry of got>d
Clinrrb, stealing from
- <4t.
:iwaiden. - 66 ."(>
i--lilll!; the i<*i,i
)," I-!..
- -
iJttahlin^ a- nmn't Innbji
-' ;i 1 1
, in .it MI; ilwiu - 1 1.'
iring
.'i 1 'J
('Ii|,p:ii4 tlir coin - 4J7 V1J>
-
> -H7
;(ji)Uly lt '
IklMntMrs, |iroK--t.n.i
- 4-.-J
' Ixtli, ttftttaffftf^
^<^^ kir If III - IK.
1-mM-. rybbni,' of ..
-
$+
i Uiu^ lir to
-
ALi
.1-
Ifectrine* U4epa^r flMMi^p*
(Join, laUifyiqg
-
- 4'JU
- 4Jfk>4J6 4*0
l)og, slraliu^ of .,-:
Donation tauaA tn:s
INDEX.
Page
DCW<T - - '27
Drunkenness 43O
Ducks, wild, killing of 498
Duel - 46*
Duress of imprisonment 460
Dwelling-house, robbing 537539
Page
Forestalling < 461
Forfeiture r - 441507
Forgery ... 545
Fortune-tellers- - - 427'
Fox-hunting- over another's
grounds - - 505
Fraudulent sale of goods 442
Friendly Societies - 554
fruit, stealing of 5^8
O.
Game - - 489*
Dykes, levying - 543
E.
Eaves-droppers - ---84
Effigy, libel by an - 40<f
Ejectment ... - 144
Elections - 18 go
Electors > Ifr 20
Emblements - - 135
Embezzlement - - 445
Embracery - 467
Engines, destroying 542
Entry, forcible - 462
Escape- v. - 45O
Escheats - - 36
inquires - - 61', 490
Estray*. - - - 36
Evidence 163-
Executor - 107" 123-
, assent of to legacies 40 1
, when entitled, or not
to the residue - ibid.
-Executory contracts. - - 23-7
"Sixpences of prosecution - 481
i. of witnesses - - >64
Explanation of law term* - 572
Exportation of wool - - 463
- , destroying at improper
seasons - 49
-, destroying in the night
time, on a Sunday, or Christ-
mas-day ... 500
j< , baying and selling of 502
-, committing trespass in
pursuit of - ibid
Gaming - 48-t
- In alehouses 154, 15*i
Gaming-houses - - 484
Geftse, wild, tilling of - 498
Gaolers - 3, 450
Gardens, robbing * - 52U
Garments, cutting - - 541
Gleaning - 553
God and religion, offences against 422
Good* sold on sale or return. 243
Grain, burning - - 541
Granaries, destroying - ibid.
Guardian - 103 107
Gunpowder - - 483
Gypsies * 427
H.
Habeas Corpus 4S
Hares, stealing them - - 495
Hay, burning - 541
Hawks, stealing them - - 49<>
Heath-fowl, killing of 4W>
Health, offences against public 477>
Hearsay evidence - - 163
Hedge stealing - - 52*
Heiress stealing - 513
Helping to stolen goods for re-
ward - - 452
Hereby - - 4t?l
Herons, killing of - 499
High treason - 432
Highways, robbery in or near 53*
ttoljr oriiefi - - 64?
fcttprtion ... 457
F.
False imprisonment - - 416
pretences r - 469
Falsifying the coin - - 437
Farmers, laws atfecling - 548
Favour, challenge to - t- 170
Pear, putting in - - 532
Felo de se - 5U7
i'olonious hcn.icide - - 504
JTelony- - - 4'il
Jfeme covert - ibid.
Firework.', throwicg - - 4R3
gish, stediu^ - - 5*9, 530
Fishpond, destroying - - 530
Flood-gates,- destroying of - 41
Force, when repeliabla by death -505
/'ocubie ab(hiction and marriage 513
J?weign coin, fring it - 437
Homicide
INDEX.
Pap* K.
. .vu r -'
..u, destroying - 546 Kin, next of, who . .- ii'.'
ices - - - 485 King -
Mot- stealing - . .SJi *-, r. impaling or imagining
, Uuughtcring - - :J1O hi.sdtaili
, salt- of - . ;S.S3 , or that of his counsel-
- lo. 5 loii - 436445
HOUMV larceny Irum - - .\S~ , eneinie;. adhering to - 43 j
Huu.^4'rcakii>g . - . 538 , govcrnimia, contempt
Hue and cry - - 533 ag:.. - - - -1)9
Hundred, action against for rub. , money, cmintnrieiting
bcry - 148, 554 , pe,
, action against lor , power anil pr<-n
- 4:>P, 460 -l , *iomr. 8p*inst
Hunt. in; of ioxes - - 503 , hi> >i-ui> o iiKtcrteiting : <
-- in the night or- in dis- , kv\ ntg war agauast
- 460 ,
wife - - 94 y8
I..
tenant l".i-
I. Lam!, v. iuu d<.\i>:iblc
1 <!. I M\ - - 517-
Le*ri, tca ing - - ."'
Idiot - '.'.' ...
; the king's death - 43.t ]; . - . 1
thf kin;:'.'* armour or , pertinjarj
M- ... J 1 , _ , .., K ^
Imbrizlint or vacating rcr',rd. 4! l .
Inipieiaculs i< r C"Uiing, m<>kuig , n|m conrfttion
! ; -, payment nud appro.
Impeding agnn di, crosses, i\c. 417 pi - - 395
lol^oOam, rctigtous - - 4. '8 -it and refund.
. t - 4o, 414, 450 iug .*i . : T
lncr>gihi - - 4KO -, .-. iriai u-n of rii !n^
88 d portion-, by
larUctnient, pniMTi:ii:i ibixrly 413 . )u' - - ibid.
lnd<ii -t-mcnt ) bills ami not< tfB/". -, of the roiutructitm o . 4TOk
Induction - - '.fs - - - 393
Infanious viknr - : , sending n
Imanl* - - 1*^3, 4. -1 living war agdinjt the ling 4. '4
Inftrii:--r>n, compounding < ' - . 1 '
4',''
: - 151 161, 4*IJ Liberty 40 4H
-
bMfest of money - - 4(>6 l.iini:,<.ii<>n (>i ..c:i. ;ui
tin l)ii'i,rujit' debt* - ;i4f> Lu
on k-gucie* - !. t
txmi-. injuong
]0Bktiiir>, iln'ir dcht nd r '. Lorteru-s
IflMtltwrt Of UlrlrCi-aK.-u'3 tf- ' I>M) - .
Joornr^nu-n, coiubi.<atian I - . 1. 1
1 - - .!.>} 475
In*, stealing - -
lc 1 !?S
V - - 171
Juipre f tl* peace - - .4 IMMMwefc dotrp\inc - - .V;^
-1 M^.uCImn*
MagistrattM
INBI:X.
JtaP'stratcj .
M ii, robbing of
Maintenance, whut
Maintenance of children
of parents
of suits
Page
(.1
- 99
- ibid.
- 453
Malice - - 508, 413
Malicious prosecution - 412
.Mansio.i-house - 515
Manslaughter - * 507
Manufacturers, seducing them
abroad - . - 474
Miaiaers, wandering - - 481
Marque and reprisal
Marriage
, clandestine or irre
guiar
, .forcible
, licences and registers
forging or destroying
, of the royal
Master and serrant
Mayhem
Medietate, jury de
Meetings, seditious
Mines, destroying their works
, stealing ore out of
Misadventure, homicide by
Mischief, malicious
-, by tame animal*, when
the owner is liable for
Misdemeanors, what -
Misprisions against the govern-
ment . -
Monopolies
Mortgages
Murder
N.
Natural-born subjects
Naturalization
Nature, crime ugainst
INiews, lalse .
.Night, burglary
? on-confovmity
Non-payment of rent
Notice to quit
Nuncupative wills
Nuisance
Page
Cflic^rj, killicg them in cxe-
bi log i> ' ir office - - 509
Orchards, lobun.g - - 5*8
Ordinaiioi. 57, 42tl
Overseers of tiif poor - 7O
Overt act of treason - - 433
Outhouses, robbing - 5*9 537
Owimg . . 463
P.
O.
Oath* to the government, refusal
or neglect .to take them
Obstructing of process
GSice, sale of .
31
Paddock, robbing - - 530
94 123
Panel of jurors - 165
irre-
Papists, children of - - 10(>
- 476
Parent and child - 99 101
- M\>
Parental poner - 100
Uters
Patents, their consent to mar-
- 477
riage - 477
,ly 27,44-8
Parish-apprentices - - 71
- 86
Parish-clerk - 79
- 511
Parks, robbing . - 53d
- 167
Parliament - 13 25
- 440
Partnership - - 128 135
rks 542
Partridges, killing of - - 497
- 528
Passports - 4,31
506
Patents of peerage - 59
- 540
Pawns 559, 520
ivhen
Payment OI " ji*ods sold - i;57
- 483
of deceased's debls 117
- 421
Peerage, benefit of in offences 60
,'ern-
Peers , . - L'tf
-. 449
'" . privileges of - 17
- 470
Pendente lite, administration of 107
186193
Pensioners excluded from tke
- 508
house ut commons SJl
Peremptory challenge - 173
Perjury - , - 454
Person, larceny from - - 531
Personating others in courts- 449
- 39
Petit treason - . 51 1
- 50
Petition of right - 41
- 505
Pe*ter, stealing of - -.452
- 462
Petitioning, right of - - 41
^1 <;
t ii niTiltiinm A e O
cMi>
- 424
Pheasants, killing of - - 497
- 141
Physicians' - . - 510
136, 141
Piracy - 4tft
- 365
Placemen excluded front the
- 4ai
house of commons - 20
Plantations, destroying of * 541
Plants, destroying of - 537
, stealing of - ibid.
Poisoning - -509
fusal 40
Polygamy - - 478
.
Poor - 71
- 450
laws . . - 73
. - 456
Fosse comitatus - - 458
P<isthuuiou
!Nt)EX.
Pare
.nus children. rigntof 39i
I'rt r ency ' 6t
FRI r Di NTS.
Agreement between drbror
tod credit .r - - 584
&.- .'.,snt for retiring from
- - 58.5587
Assignment of personal etat
lor the hem-fit of creditors
Agreement tor the gale of an
estate
Agreement for the lease of a
house
Agreement for lodgings
Lease ot a houv
Assignment of a lease
Notice to quit
Hill of sale of goods
Hond for payment of money
Letter of attorney
Articles of copartnership
Deed of dissolution of part-
nership
Indenture of apprenticeship
^ ill of persouul effects
"Will of lands
Re;>ub!icationof a will
ttill of freehold, copyhold,
Iiold, and personal pro-
perty
Form of a codicil
Confirmation f a will
Form of a receipt for a I
Prison, broukiug of
I'ruilege
Prom. - 1 J
Promuisory notes
i'r.rniunirc
Prophecies, false
Prosecution, expcncc. of
. , malicious
Printing-prices to be r.
Vrnte.t (,!' ddli and noli'-,
<l\-~ ntrrs
i-in
-, denying
, treason against
selling unwholesome
age of
Pulling down houses, churcbrs,
-
Pni-.iOiment in high treason
Putting ui fear
Quli8eatin ef jurr
. ..... justices of the pwre b^f
. . of members of par.
liarncut - *&
Quarantine - - 4?.">
Quartering of soldiers - 15H
Queen - - 26, '.'7
iac^
ors 587
ing her drath - 27,
4M
an
, violating her - 27,
tw
- 590
>f a
- 592
- 59^
R,
- .VJ t
Rape - -
513-
- 598
Ravishment of children - i
ibid.
KQ<> fj\n
J;";7, Uwlf
- (iOl
Redemption of Mortgages
i'.o
ley ibid.
Reeei\ ing stolen goods
431
- fil'l
Re-entry
Ml
ibid.
ter of marriages
477
iart-
Rej;ntti:i^ - -
J(il
- 606
Religion, offences against
lip 608
Religious impostures
610
Rent
14'.'
- 61'2
K< (i.-iir> -
ISi*
- 613
Replevy of goods
ioM,
Reprisals . - -
.1i
pro-
Republication of wiilj
"H.
- 614
Rescue -
45u
6'.'0 6J-J
Residence - - -
-
Residuary estates
401
acv iliid.
Restitution - - 1.S7,
- -150
Retainer of serrants by ano-
j'l
ther
424
;iue -
598301
K'-\ilin^ churtli -ordina:
416. 7
Rerocalion *f wilN
- 4d?
li>".:nh for apprehending of-
- -181
fenders
r.v>
- -11. i
Ri^hi, petition of
41
cred 4.'>,i
RiL-lilf, bill uf
- -o.i
Riot
4.V
Rioi act -
- 4.1>
Riotous o; v rmt)Iies -
ibid.
* in
4;-
, banks of, destroyinc;
544
some 476
' ' , sluice^ on, di Mr.
461
. 123
ry
53*
cbrs.
v, nicorngihle
I .,"?
IC'S
4W
Hoots, destroying of
532
-. , itealiui; <>t
linn.
R"Uis
4.S7
Q.
aent
for killing ^nm*
of electors of p:u-
18, 19,
48S
' 1 ' -
Sucraacnt, rcvjiin of
- 4-: 4
Stf-
IN-DFJC.
Page
-Safe-conducts ... . - . ....431, Si
- isalc aud.jMircbase of goods . .236 24 1
r '. estates 178186
.Scripture, scoffing at 424
Scandalum magnatuia - 411
Sea-banks, destroying - 544
Sels, counterfeiting - 4.35
Sea-marks, destroying . - 514
-Sedition 440 147
Seduction of women-children 513
SMueing artificers - - 474
Self-defence, homicide in - 506
Self murder - - 507
Servants - .. - - 86
, battery of . - i)l
, embezzling their mas-
ters' goods - - 521
, firing bouses by negli-
gence - 92, 514
i ' , larceny by - - 521
, master, when answer-
able - - 92
Settlements - 7176
Sextons - - 80
Sheep, exportation of - 463
Sheriff ' 62
Ships in distress, plundering
them - 35, 528
, maliciously destroying 44.5, 543
Suing in fictitious names
Sunday no judicial day
,, profanation of
Supremacy, oath of -
" , refusing it
Surveyors of highways
Swans, stealing of -
Swearing, profane -
Shooting at another
Shoplifting
Shrubs, destroying of
-, .stealing of
- 512
- 537
- 527
- ibid.
- 435
- 428
- 410
SJuices on rivers, destroying 461
Smuggling 464, 450
.Societies, illegal - 458
Sodomy - 505
Soldiers, wandering - - 481
.Sorcery - 427
Sign-manual, forging it
Simony
Slander
Pag?
- 45$
- 4'_'9
- 448
- 80
- 497
- 427
T.
Tales, what
Tender of rent
Tenters, stealing from
Test and Corporation Acts
Testaments
Testamentary guardian
Theft hot e
Threatening letters, sending of
'!!
- 170
.. J42
- 53(1
- 3<J.>
- 103
- 4.52
_ .. 4fiO
Threats to extort money - ibid.
Timber-trees, stealing - 52*
, destroying - 541
Tithes - - 193 218
Titles - - - 59
Tools, exporting of, prohibited 474.
Trades, exercising without an
apprenticeship
Travelling on Sundays
Transportation, returning from
Treason
Treasure trove
Trees, destroying of -
-, stealing -
Trespass
' -, wilful and malicious
Trinity, denial of
Truce-breakers
Trustees
Tumultuous petitioning
Turnips, stealing
ft- i i
472
4*9
451
432
| - 35
515, 541
- 524
503
416
42-i
431
127
V. U.
ipecial juries - - 166 . Turnpikes, destroying
Spiriting away men and cliil-
". dren - - 1-L5, 446
[lortsruen. See Game Laws.
- 483
Slabbing - 512
, Stables, robbing ' - - ;>:>;
Stealing an heiress - - 513
from tenters - - 530
Vacating records
Vagabonds
Vagrants
- 527
462, 5kJ
119
43O
479
. Stolen goods, receiving .of ,- M^,.
Stoppage of goods in transJtu
'216257
Storehouses, destroying - 541
Stores, embezzling - - 445
Striking in the king's palace or
courts of justice - - 449
. Subornation of perjury ... - .454
Subscriptions', y lawful 418, 459
Vegetables, stealing of
Verdict , - l?-v
Vestry-clerk - - .80
Vicar - - - 54
Victuallers, combinations among 473
Under-sheriti' - 63
Unwholesome provisions, felling
. of . . - - 47u~
voluntary escape - 450
Usury . - , - 46& 469
Wager
INDEX.
W.
Pnge Wills, coastni."
- 4H<> v -ration of
.; i -- '
^".MUi-ri. - olditr and mariners 41 \Vi!c'w .
.md peace, right of nwltin-: .! V .1
, robbing
Warranty of
it CUlUiUOU
10:5 -107 t.i.
M7 .' '0 for pii-
1 - . t:i:ntviii! with
- V.il ' , t'"
-?<{
V ills and te?tsmrnt -
m . cxrcutiba and attrst.uiuii
of - -
, tfktanicrUnry capacity
-- , Mlllj U -if <i
of
of
l> \>
- 4-7
c.-
- loi
- Id*
- ibid.
- ;>n
S^7 VI'.M--' >\>, il ice of -JiM
XVouinhiie - - '>!*
;?(5 - :
38a \ N . . ' ^iiignf
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