WILMOT, J.-My only doubt is, whether (as by this act of Parliament the new allotments are made liable to all the same charges and incumbrances as the old land was) such new allotments will not, by this construction, be made liable to the modus (viz. the repairs of the church, which are chargeable on Swarland Demesne) and the tithe too (c). DENNISON, J.-I should much doubt, whether the act, by the word "charge," could mean to include such a burthen as this: if it should, it is by the defendant's own agreement. WILMOT, J.-Perhaps the word "charges," being coupled with incumbrances, is only equivalent to it, and means no more than debts, jointures, mortgages, &c. But this is my only doubt, and indeed of no great weight. The principal question is extremely plain. It differs from Stockwell and Terry materially: there, the new inclosed lands were always exempted; here, never exempted before. Lord Hardwicke therefore properly determined, that the exemption should continue after inclosure; and upon the same principle we must determine, that he lands now in question shall continue liable.. was afterwards inclosed under an act of Parliament, and certain land was allotted to A. in lieu of his said right of common; it was held, that no tithe was payable in respect of the allotted land. Abbott, C. J." This case is very distinguishable from Moncaster v. Watson; for the land, in respect of which the allotment was there made, was not wholly free from the payment of tithe: the exemption claimed was merely from the tithe of corn, grain, and Judgment for the plaintiff. hay, neither of which the common, while (c) "The modus was confined to the MONCAster น. WATSON. THE KING v. HEYDON. (Ante, 351, 356.) S. C. 3 Burr. 1387. THE defendant was convicted at the Assizes for bribery; and it was now moved to postpone judgment, till an indictment, which he had preferred against one Burbage, for perjury in his evidence, was determined. Norton, Solicitor-General, and Morton shewed for cause, that this was a motion of the first impression, and of very dangerous consequence, merely to delay justice: that the perjury assigned in the indictment is not in respect of the fact for which Heydon is convicted, but a collateral circumstance: that Burbage offered to take his trial immediately after the indictment found, but the defendant refused to consent to it: that the witnesses on this indictment for perjury were all examined (one only excepted) on the information for bribery. Lord MANSFIELD, C. J.-I am clear, that Heydon can be no witness in this case, if they mean by this indictment to alleviate the judgment of the Court for the bribery; because he is swearing in his own cause. And the witnesses on the indictment having all been previously examined at the former trial makes [ 404 ] Witness indicted for perjury not a reason to postpone judgment against the per son convicted. THE KING v. HEYDON. Judgment for bribery. an end of this motion; for their credit has already been weighed by a jury, and found wanting. Therefore let the defendant stand committed till Saturday, April 30. Afterwards, the Court gave judgment on him, to be imprisoned three months, and pay a fine of 2001. ROWE v. HASLAND. IN ejectment, evidence was given, that one James Hasland, a poor labouring man, was living at Liverpool about sixty years ago, whose title, or that of his issue (if living), would supersede the title of the plaintiff's lessor. Five witnesses deposed that they believed he was dead without issue, but knew nothing for certain. The plaintiff produced the register of * Waltham, to shew one James Hasland buried in 1707; but this plainly appeared to have been altered from Harrox, but by whom, or where, did not appear. Clive, J., who tried it at the last Northern Assizes, left it to the jury, whether Hasland was dead without issue. The jury thought so, and gave a verdict for the plaintiff, with which the Judge reported himself satisfied. Defendant now moved for a new trial, as contrary to evidence. Lord MANSFIELD, C. J.-In establishing a title upon a pedigree, where it may be necessary to lay a branch of the family out of the case, it is sufficient to shew, that the person has not been heard of for many years, to put the opposite party upon proof that he still exists. Many persons go to the East and West Indies, and are never heard of again. What is done on such a trial is no injury to the man or to his issue, if he should afterwards appear and claim the estate. and claim the estate. I am therefore satisfied with the Judge's direction, and with the verdict, upon the reason of it, as well as upon the Judge's authority (d). (d)" According to the statute 19 C. 2, c. 6, with respect to leases dependent on lives, and also according to the statute of bigamy, 1 J. 1, c. 11, the presumption of the duration of life, with respect to persons of whom no account can be given, ends at the expiration of seven years from the time when they were last known to be living;" per Lord Ellenborough in Doe v. Jesson, 6 East, 85; which principle is recognized in Doe dem. Lloyd v. Deakin, 4 B. & A. 433, where it was decided, that the fact of a tenant for life not having been seen or heard of for fourteen years by a person residing near the estate, although not a member of his family, is prima facie evidence of his death. See also Doe dem. Banning v. Griffin, 15 East, 293. Under a plea of coverture, where it appeared that the defendant's husband went abroad twelve Rule discharged. years ago; it was held, that the defendant was bound to prove that he was alive within seven years: but the production of letters written by him to his friends within that period, was held sufficient proof; Hopewell v. De Pinna, 2 Camp. 113.There the fact of the party not having been heard of for seven years raised a presumption, that he was dead, which it is for the other party to rebut. But if it appear, that he has been heard of within that period, and the issue is on the life or death of the person, the proof lies on the party asserting the death; for the presumption is, that the party continues alive, till the contrary be shewn, either by direct proof, or by facts which raise the presumption of his being dead; Wilson v. Hodges, 2 East, 312. See Vin. Abr. Absence (B); Evidence (T. b. 87); Stark. Evid. P. iv, 1120. GLOVER v. BLACK. S. C. Ante, 399. THIS case was again argued by Morton, for the plaintiff, and Morton insisted, that the respondentia creditor has an interest in the goods: a pledge without a deposit:-pecunia trajectitia, as called by Maleyne, Lex Mercat. c. 31. He trades at the peril of the sea; the voyage is an adventure at his hazard. The respondentia interest is therefore a merchandize, and the insurance is upon goods and merchandize. As to frauds that are suggested to be consequent on this doctrine, the Court will not adopt the supposition of a possible fraud, where none has actually happened. And as to the case put of * demanding a return of premium, (in the last argument), it [406 ] cannot happen in this case; because no person can ship goods in the India trade, but on the Company's account. By stat. 19 Geo. 2, c. 37, s. 5, no insurer on respondentia shall be answerable for more than the value of the insured's interest in the ship or goods; and if the goods, &c. do not amount to the value of the sum lent thereon, the borrower shall be responsible to the lender for so much of the money lent, as he hath not laid out on the ship and merchandize, together with the insurance, &c., notwithstanding the said ship, &c. be totally lost. Hence I argue, that respondentia interest is insurable, eo nomine, as goods; because one is made the measure of the other. And the insurer always considers respondentia as goods, because he allows the bond itself to be the only proof of interest necessary, and never enquires after the value of the goods on board. Norton, Solicitor-General, observed, that in every India ship there is always a private adventure; and Captain Glover had certainly one in the case at bar. Respondentia interest must always be insured nominatim and specifically; because it is in itself no general or special property, no interest in the goods at all. The contract does not enable the lender to proceed against any part of those goods; he cannot attach them, if the borrower be insolvent; he has no remedy in rem, but in personam only. This distinguishes this case from a mortgage; for in mortgages the thing is bound to pay the debt. As to fraud;— he who underwrites for respondentia does it for the whole voyage; he who underwrites for goods, runs no risk any longer than the goods remain undisposed of. But, whether more or less advantageous, is not the question: the underwriter should know what he insures; the insured should name it at the time, not upon after-thought, as he may like best. If respondentia cannot be insured so cheap as goods, that argument is decisive for us; if it can, then, in the name of honesty, why not name it? In all commercial countries there is a special form for insuring respondentia, nominatim. Would such a custom have *prevailed, unless the merchants had seen good reason for it? [ *407 ] GLOVER v. BLACK. In no case before, has a policy for the one been allowed as valid for the other. And, as it never has been, so it never ought to be. You might, with equal propriety, confound an insurance on the ship and her freight, or with greater; that being more nearly allied than the present instance, it being the earnings of the ship. As to the argument drawn from the act of Parliament, the substantial purpose of it was, to prevent a gaming policy, as far as possible. Therefore it enacts, that the fund shall be equal to what is pretended in the respondentia bond. The admitting the bond to be sufficient proof of the interest is by private agreement, by a special clause in the policy, whereby the lender, who is insured, is not to contest this matter with the fraudulent borrower, but leaves the insurer to do it for him. [See S. C. post, 422.] Qu. If the attestation of a BOND. SEAWELL. S. C. 3 Burr. 1773. ISSUE to try the validity of Sir Thomas Chitty's will. On will of lands be the trial, this special case was made: valid, when the Sir Thomas Chitty made his will, 20th March, 1762, all of his own hand-writing, upon two sheets of paper, wrote in folio pages on all sides, and signed at the bottom of each page. The sentences and words were so connected, from the bottom of each page to the top of the next (and particularly from the fourth side of the first sheet to the first side of the second sheet), that they were imperfect and nonsensical, if read apart, but clear and intelligible, when read together. He also made a codicil in like manner, on a single sheet. The testator then called in Francis Harding, shewed him both sheets of the will, and his signature to every page, told him that was his will, and also shewed him the codicil, and desired him to attest both, which he did on the last sheet of the will, and on the codicil, in the presence of the testator, and then left the room. John [ *408 ] Vaughan and John Leyland came in immediately afterwards; the testator shewed them the codicil and the last sheet of the will, and sealed them in their presence, took each of them up, and severally delivered them as his act and deed. These witnesses then attested the same in the testator's presence, but never saw the first sheet of the will, nor was it produced to them, nor was the same or any other paper on the table. After the testator's death, both sheets were found in his bureau, not pinned together, but (with the codicil) wrapped up in one piece of paper. Quære, Whether this was a will duly executed, according to the statute to prevent frauds and perjuries? Morton, for the plaintiff, argued in support of the will:That in the last sheet there are no lands devised; therefore to that alone, no formal attestation was necessary; so that the testator must intend, that the attestation should relate to the first sheet: That no witness is expected to know the number BOND บ. SEAWELL. of sheets or skins in a will; the statute gives no direction for that purpose. It is allowed, that the last sheet is well executed: the question is, what does that extend to? All is of the testator's writing, the context runs from one sheet to another; therefore he meant to publish his whole will; and declares that his intention in the last sheet. The last sheet is clearly valid; shall the first be bad? Suppose the mansion-house devised in the first sheet, and the out-houses in the second; would the Court separate them by this nicety of construction? In all trials, a witness is only shewn the last sheet upon which his attestation is signed, and by which only he knows the identity of the instrument. Lea and Libb, 3 Mod. 262, 1 Show. 68, 88, Comb. 174, Carth. 35; Reports temp. Holt, 742; Reports in Equ. 263, (relied on by the other side), [was] a will attested by two witnesses, [and] a codicil, reciting the will, attested by two witnesses also, one of whom was also a witness to the will: held not to be well executed. But that was the case of one complete instrument attested by an incompetent number, and of a codicil subsequent many months in date. [ *409 ] We have three witnesses, who all attested the whole, that Sir Thomas Chitty meant to publish as his will at the same time. Suppose a will is made without any attestation; and afterwards, by a codicil, the testator refers to it, and confirms it, and has three witnesses to the codicil: this would be a good will (e). [In] Molineux and Molineux, Cro. Jac. 144, the question was, whether a man had made a good will in writing, under the statute of wills. He devised to his sons, 66 accord"ing to the intent expressed in certain other writings, therein "mentioned." Court held it to be good by way of reference. By the same rule I now contend, that the first sheet of Sir Thomas Chitty's will is well attested, being in like manner referred to by the last, which is allowed to be indisputably good. Yates, for the defendant, observed, that the question is not, (e) It would not be a good will since the Statute of Frauds. The original will referred to by the codicil, must have been properly executed, for if it be bad in its inception, no codicil, though properly executed, can give effect to it. As where a testator devised lands by a will written in his own hand, but which had no witnesses, and then by a codicil, duly executed and subscribed by four witnesses, recited and took notice of it, it was held that the will was void; Att.-Gen. v. Barnes, 2 Vern. 597, Prec. in Ch. 270. In a leading case on the subject, this doctrine has been laid down, viz. that every codicil, referring to a previous duly executed will, unless confined in expression, is a republication of such will, though the codicil relate only to personal property; Barnes v. Crowe, 1 Ves. Jun. 486, confirming the case of Acherley v. Vernon, 1 Com. R. 381; Piggott v. Waller, 7 Ves. Jun. 98, S. P. Lord Hardwicke seems to have been of the same opinion in Gibson v. Lord Montford, 1 |