THE KING บ. MORGAN. DENNISON, J.-The cause alleged in the writ is always imaginary and fictitious. Morton replied,-But, Sir, some cause ought to be assigned on the face of the writ.-To which no answer was given. Ashhurst, also for the plaintiff in the original cause, cited Finch's Law, 144, and objected, that the writ was misdirected, [ *398 ] *for that it was directed to the steward, and not to the sheriff's summoning bailiff, according to the precedent in Rastall's Ent. 245(c); or, at least, that it ought to have been directed to the suitors, who are properly the judges in a Court Baron. Norton replied, that the writ of tolt and the writ of pone are of one and the same nature, but applicable to different courts, and that the pone lies as well for the defendant as for the plaintiff. That the cause usually assigned in these writs is mere surplusage, and the direction is so too; for if the writ is properly executed, it is sufficient: and, that there are two sorts of Courts Baron; in the one, the suitors are the judges; in the other, the steward is, as it were, a judge together with the suitors. After these arguments, Lord MANSFIELD, C. J., said---This motion is a motion of spirit and vexation. I am not satisfied, that this writ is a good writ. But there is no necessity to give a precise opinion; for, if the regularity of the writ is only doubtful, the court will not inflict any punishment. DENNISON, J.-I will not give a precise opinion. By the common law, the suitors are the judges in a Court Baron: by a special custom, the steward may be judge (d). In the case at bar out of the Lord's Court into the County It is a (c) There the proceedings were com- Re (d) "The Court Baron is of two na tures. The first is by the common law, and is called a Court Baron, as some have said, for that it is the freeholder's or freeman's court, (for barons in one sense signifie freemen), and this may be kept from three weekes to three weekes. The second is a Customary Court, and that doth concerne copiholders, and therein the lord or his steward is the judge. Now as there can be no Court Baron without freeholders, so there cannot be this Customary Court without copiholders or customary holders. And as there may be a Court Baron only of freeholders without copiholders, and then is the steward the register; so there may be a Customary Court of copiholders onely without freeholders, and then is the lord or his steward the judge;" Co. Lit. 58 a; 4 Inst. 268, acc. That the suitors are the judges, whether the plea be by force of a writ of right or by plaint, see Bro. Abr. Judges, pl. 15; Jentleman's Ca., 6 Rep. 11 b; Pill v. Towers, Cro. Eliz. 791; Noy, 20, S. C.; Armyn v. Appletoft, Cro. Jac. 582; Eure v. Wells, T. Jon. 22; Lovel v. Golston, Godb. 68; Baldwin v. Tudge, 2 Wils. 20. "A common-law Court baron can only be held before two free suitors at the least, and not before the lord and his steward:" per Ld. Kenyon, C. J., in Bradshaw v. Lawson, 4 T. K. 446. So where in an action on a judgment recover I know not whether the suitors or the steward are the judge: The rule was discharged, but not with costs; on account of the doubt concerning the validity of the writ. ed in a Court Baron, it appeared to have been holden before the steward, the plaintiff was nonsuited; Rumsey v. Walton, cited ibid. And see the cases referred to in Bac. Abr. Court Baron. (e) As to the office and responsibility of the steward, see Holroyd v. Breare, 2 B. & A. 473. GLOVER V. BLACK. THE case being specially reserved, was argued, by Yates, for the plaintiff, and Harvey, for the defendant. Yates argued (with whom Lord Mansfield, C. J., seemed to agree) that the not expressing the insurance to be on respondentia, was indeed for the benefit of the insurer; because the insurer, if goods are specified, is liable to pay general average; but nothing upon respondentia, unless upon a total loss. And the insured upon goods must prove an actual interest on board to recover against the insurer; whereas, upon respondentia, he proves his interest, by only proving the bond, by virtue of a special clause for that purpose in every insurance on respondentia bonds. Harvey insisted, that if an insurance on goods entitled the insurer to recover on a respondentia interest, the insurer was liable to be defrauded. For suppose Captain Glover had lent money on respondentia:-He insures as for goods only. Now, if no goods are shipped on his account, but the ship comes home without any cargo consigned to him, he may (as no risk GLOVER บ. BLACK. [ *400 ] was apparently run) demand back his premium. But if the ship be lost, as in fact it was, he may demand (as he now does) the insurance money on his respondentia. So that, by specifying [goods] (f) only, he has a chance to have his premium returned, and runs no hazard of losing his property in the respondentia bond, if what is now contended for be law. *Lord MANSFIELD directed the case to stand over for farther argument, and desired the counsel to apply themselves particularly to the case of insurances on mortgages, and other liens upon goods. [See post, p. 405, 422, S. C.] (f) In the former edition this passage is, "by specifying respondentia_only;" but the sense requires that the word should be "goods," and so it is in 3 Burr. 1398. cutor, pleading a false plea, after issued, is liable to execution for the commission costs, [notwithstanding he had obtained his certificate.] HOWARD V. JEMMET, Executor. S. C. 3 Burr. 1368. A bankrupt exe- JEMMET was executor of I. S. (who owed to Howard 2201. on bond) and administered all his effects, except about 231. Afterwards, on 13th October, 1760, Jemmet became a bankrupt, and the effects, thus unadministered, fell into the hands of his assignees. In January, 1761, Howard brought this action of debt against Jemmet the executor. After which, Jemmet obtained his certificate, 6th March, 1761, which was confirmed the 9th of April following. But in the mean time he pleads non est factum to the bond, and at the Assizes subsequent to the certificate, but previous to the confirmation, the execution. of the bond was proved, and a verdict for the plaintiff: Whereupon a judgment was entered up de bonis testatoris for the debt, and de bonis propriis, si non, &c. for the costs and damages. On the 27th of November, 1762, a fieri facias was sued out, and Jemmet's goods taken in execution. And now it was moved by Norton, Solicitor-General, to set aside the fieri facias and all proceedings thereon, as being irregular, and contrary to the stat. 5 Geo. 2, c. 30, s. 7, for the protection and indemnification of bankrupts (g). He argued, that the principle upon which the statute discharges a bankrupt is, because he has then nothing to pay; and the law will not check his future industry by making his new acquired property liable. That the words in the statute are very general, "All debts owing when he became a bankrupt." There is an exception for those who have been bankrupt once before, but no other exception can be grafted upon the statute but that one which the Legislature has expressly specified. He acknowledged, that the plea of non est factum was ill advised, being upon a foolish notion, that the special matter might have been given in evidence; and perhaps was also calculated to gain time for procuring the certificate. (g) By which it is enacted, that every bankrupt conforming shall be discharged from all debts by him due or owing at the time that he did become bankrupt. *Morton and Yates shewed for cause, that this was a debt en auter droit, for which the plaintiff could not have come upon the bankrupt's effects, and that the statute only discharges such debts as might have been recovered against the bankrupt himself. Lord MANSFIELD, C. J.-The statutes of bankrupts do not extend to effects, which the bankrupt may have en auter droit (h). The assignees have no right to interfere with them, if they can be specifically distinguished. The creditors of the testator cannot come in under the commission against the executor in the usual summary way; because their demand must depend upon the account to be taken of the assets. But they may come in by a more solemn method; by a bill in equity (¿), stating the conversion of the assets to the bankrupt's use: And, in such case, the Court will order any specific assets to be distributed among the testator's creditors. In the present case, here is a full administration of all but 231., which the assignees took too, among the rest of the defendant's property. He should have pleaded this, and disclosed the whole truth; not have pleaded a false plea, which it is, that gives the foundation of costs; and this plea being subsequent to the commission issued, there is therefore no colour for this rule. FOSTER, DENNISON, Js., absent. WILMOT, J.-At the time when the action was brought, the defendant was no debtor to Howard. He became so by the false plea; which amounts to contracting a new debt subsequent to the commission. Rule to shew cause discharged (k). (h) S. P. Ex parte Ellis, 1 Atk. 101; Ex parte Marsh, Id. 158; Bennet v. Davis, 2 P. Wms. 316; Ex parte Llewellyn, 1 Co. B. L. [137]; see also R. v. Egginton, 1 T. R. 369. (i) See Ex parte Leek, 2 Bro. C. C. 596, and Ex parte Tupper, 1 Rose, 179. A legatee may prove a vested legacy under the commission; Walcot v. Hall, 2 Bro. C. C. 305. (k) As to the cases, wherein a bankrupt remains liable to costs, notwithstanding his certificate, see Ex parte Hill, 11 Ves. Jun. 646; Walker v. Barnes, 5 Taunt. 778, 1 Marsh. 346, S. C.; Phillips v. Brown, 6 T. R. 282; Dinsdale v. Eames, 2 Brod. & B. 8; S. C. 4 B. Mo. 350, where the cases are collected; and Aylett v. Harford, post, 1317. HOWARD v. JEMMET. THE KING V. PARSONS and Others. S. C. Ante, 392. THE defendants received judgment, viz. Richard Parsons Judgment for (the father of the child, who was the principal agent in the imposture and pretended communication with a spirit, by supernatural noises, conspiracy. impossible in themselves to be interpreted, unless previously contrived and directed) to stand thrice in the pillory, and be imprisoned two years:-Elizabeth Parsons, the mother, to be imprisoned for one year:-and Mary Frazer, a servant, who was aiding and assisting, to be sent to the House of Correction, to hard labour, for six months:-Moore, the curate of [ *402 ] the parish, and one James, who were found guilty at the trial, were discharged, on paying the prosecutor 3007., and his costs, VOL. I. * Y THE KING V. PARSONS. which amounted to near as much more.-Browne, who had published a narrative, and one Say, the printer of a newspaper, had previously made their peace with the prosecutor. EASTER TERM,-3 GEO. III. 1762.-K. B. MONCASTER v. WATSON. S. C. 3 Burr. 1375. A new inclosed SPECIAL case from the last Assizes at York. Plaintiff was not be exempted impropriator of A.-defendant's lands in A., called Swarland common shall from specific tithes, from which the lands to which it was appurtenant Demesne, had been immemorially exempt from paying tithes of corn, grain, and hay. In 1753, an act passed for inclosing a common, in which the defendant had common of pasture, appurtenant to Swarland Demesne; in lieu of which, he had sevewere exempted ral allotments of ground, which he now claimed to be exempted from said tithes, as partaking of the nature of the original estate, to which the common was appurtenant. before the in closure. Wallace, for the defendant, cited Stockwell and Terry (a), in Chancery, 15 July, 1748, wherein Lord Hardwicke allowed such an exemption to take place, in certain new inclosed lands at Dummer in Hants. Thurlow, for the plaintiff, observed, that in that case the exemption claimed was from all tithe; in the present, for certain specific tithes. All other tithes are to be paid in kind; as for lambs, wool, agistments, &c.; at least it must be so [ *403 ] *presumed, as no exemption is claimed for them. These were the natural tithes of the common, and the inclosure shall not confer an exemption which the land had not before. Lord Hardwicke's decree was founded on the private act of Parliament for inclosure, to which the parson was a party, which was equivalent to the agreement of the parties. The impropriator is no party to the act for inclosing the common now in question. Lord MANSFIELD, C. J.-In Stockwell and Terry, the prescription was, to be exempted from all tithes of Grange Farm and its appurtenances, in consideration of a modus of 15s. The appurtenances were therefore covered by the modus, when uninclosed; and afterwards, when they came to be inclosed and ploughed, they were covered still. But here the prescription is for tithe of corn, grain, and hay on a certain spot of land called Swarland Demesne. There is no prescription for any exemption from other tithes. The common therefore always was unexempted, and continues unexempted still (b). (a) 1 Ves. Sen. 115. (b) By a grant of all tithes "arising out of or in respect of farms, lands," &c. the tithes arising out of and in respect of rights of common appurtenant to such farms or lands will pass; Lord Gwydir v. Foakes, 7 T. R. 641; S. C. 2 Eagle & Y. 470. So, where A. had purchased an estate free from rectorial tithes, with a right of common thereto annexed, which common |