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 - : 
 
 
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