THE KING V. WEYHILL. ties themselves, it being equally good if made by the parent for his child. But without hearing the counsel in reply, the Court, DENNISON, FOSTER, and WILMOT, Js. (absente Chief Justice), agreed to quash the order, there being evidently no proof of a contract (d). (d) It is to be observed, that it was ex- sent to a barber to learn shaving, &c. and lived with him above a year; R. v. Walton, Carth. 400;-where a boy lived with his uncle as a relation, receiving meat, &c. but no wages; R. v. Stokesley, 6 T. R. 757; -where the pauper came to assist the waiter at an inn, at his request, when he was ill; R. v. St. Matthew's, Ipswich, 3 T. R. 449. And see R. v. Pendleton, 15 East, 449; R. v. Sow, 1 B. & A. 178; Trinity v. St. Peter's, Dorchester, post, 443. And if the Sessions have expressly found the fact of a hiring and service for a year, the Court of King's Bench will consider themselves bound by it, though they entertain a different opinion; R. v. Tyrley, 4 B. & A. 624. to discourage trifling actions. ANONYMOUS. Court inclined MR. Dunning obtained a rule to shew cause, why, on payment of 3s. 9d. to the plaintiff, all proceedings should not stay, on an affidavit that there had been only one transaction between the plaintiff and defendant, on which there was a balance due to the plaintiff of 3s. 9d. for horse-keeping, for which this action was brought, and 107. damages laid. Afterwards, Mr. Hussey shewed for cause, that the debt was really 19s., for which the cause of action arose in Dorset, but that the defendant lived in Somerset, and therefore was not amesnable to any inferior Court. Whereupon the Court recommended to stay all proceedings on payment of the 19s., to which both parties consented. The statute of limitations shall run from the actual suing out of the writ, and not from the teste. [Post, 215.] [*208 JOHNSON, Assignee of a Bankrupt, v. SMITH, an Executor. S. C. 2 Burr. 950. ASSUMPSIT for goods sold and delivered to Smith's testator by the bankrupt. Plea, Non assumpsit infra sex annos, before the exhibiting of the bill. Replication, that on 28th November, 32 Geo. 2, the latitat was sued out, and the undertaking of the defendant was within six years preceding. Rejoinder, that by the custom of the King's Bench, a latitat sued out after the end of the Term is supposed to have issued within the ] Term preceding, and that the latitat in this cause was *not sued out till the 8th December, 32 Geo. 2, and that the undertaking was not within six years before such actual suing out. Plaintiff demurs, and defendant joins in demurrer. Serjeant Poole, for the plaintiff, argued, that the statutes of limitation should take place from the teste of the latitat, and not from the actual suing out, and cited 1 Lev. 273; Cro. Car. 264; 1 Ro. Abr. 538; I Sid. 53; Sty. 156; Carth. 233; Sir T. Jo. 150; 1 Lutw. 333; Jones and Burnet, Hoare and Gates; Cases King's Bench, temp. Lord Hardwicke, 73, 95, 183; Medcalf and Burroughs, P. 14 Geo. 2. He observed also, that in fines and recoveries, the dedimus and other formal parts are usually sued out before the original, though that is tested first (e); and if averments be allowed against the times of their teste, all the assurances of the kingdom would be shaken. Mr. Yates for the defendant argued, that the Court has frequently taken notice of the true time of suing out a writ, in opposition to the teste of it. 1 Ventr. 262; 2 Keb. 173, 198, 213; 2 Salk. 650; 2 Rol. Abr. 554, pl. 4, 5; 1 Sid. 432. So too, the statute of frauds determines that the true time of signing judgment shall be looked upon as the only material one (ƒ). And there is a similar provision in the Stamp Acts. 2. This is a case in which it may and ought to be done. The statute of limitations is a plain, sensible, remedial act; Salk. 421; (1 Lutw. 333, contra, when inspected, is no very weighty authority). There are negative words in it, which expressly prohibit the present action; "within six years, and not after." No fiction or relation of law ought therefore to be admitted to elude this statute. Lord MANSFIELD, C. J.-This point has been already argued seven times in different suits, without ever coming to judgment. It is high time it should be settled. The Court will consider of it and deliver their opinion soon. S. C. post, p. 215. JOHNSON V. SMITH. (e) See Swann v. Broome, post, 526. (ƒ) 29 C. 2, c. 3, s. 14. THE KING V. SPRAGGS. S. C. 2 Burr. 930. [ 209 ] certiorari, no motion can be in arrest of judgment, un THE defendant was convicted on an indictment for a con- When conviction spiracy. Serjeant Davy moved in arrest of judgment. Mr. is removed by Gould objected to the regularity of this motion, the defendant not being in Court, on the authority of 2 Stra. 1227. Serjeant Davy endeavoured to make a distinction between persons convicted of felony and other misdemesnors; and, if the clerk in Court would undertake for the defendant's appear- ally present. ance in the case of misdemesnors, he argued that it was equally beneficial to the public. But the constant practice being, that the defendant should be personally present, whenever he moves to arrest a judgment on a conviction removed by certiorari, because otherwise it may be an expence to the prosecutor afterwards to bring him up by habeas corpus; the Court refused to hear the motion, and directed the Serjeant now to move for a habeas corpus, on less the defendant be person. THE KING V. SPRAGGS. behalf of the defendant, to bring him up the second day of next Term; which was granted (g). (g) See R. v. Gibson, 2 Stra. 968; R. v. Opie, 1 Saund. 301. So the Court will not entertain a motion for a new trial for a misdemeanor, unless all the defendants be in Court; R. v. Teale, 11 East, 307; [210] EASTER TERM,--33 GEO. II. 1760.-K. B. rial plea in debt on bond. FLETCHER V. HENNINGTON. S. C. 2 Burr. 944. Solvit ante diem ACTION of debt on bond. Defendant craves oyer of the not an immate- condition, which was to pay money, on or before the 30th day of April, and then pleads, that he paid the money on the 13th of April preceding. To this the plaintiff demurs, as being frivolous, and tendering an immaterial issue. Aspinal, for the defendant, argued it to be a good plea, on the authority of Tryon and Carter, T. 8 Geo. 2 (a). DENNISON, J.-This is a good plea. The plaintiff may make it material or immaterial, by his replication. If he traverses the plea, as it now stands, it will be immaterial; because, if the money be paid on the day, it will satisfy the bond: he should reply, that the defendant did not pay it on the 13th, nor at any time before the 30th, nor on the 30th; which would put the matter on the proper issue. Leave given to the plaintiff to withdraw his demurrer and reply (b). (a) 2 Stra. 994, Cunn. 71, 106; cited also 1 Burr. 302. (b) Anon. 2 Wils. 173, occ. Cited as an authority in 2 Wms. Saund. 48 a, n. and Willes' R. 587, n. (a). Trustees of a lecture to be preached at a convenient hour, may appoint any hour they please; and THE KING V. BATHURST and Others. MOTION for a mandamus to the churchwardens, &c. of St. Dunstan in the West, to admit William Romaine to Dr. White's [ *211 ] lectureship in that parish. Dr. White, in 1622, *by will, devised an annuity, for the support of a lecturer in St. Dunstan's, to prevent the increase of the doctrine of the Church of Rome, or other straggling opinions; who should "preach every Sunday and Thursday, from the beginning of Michaelmas, to "the end of Trinity Term, at a convenient hour in the afternoon (to be appointed by the churchwardens and officers of "the parish) for the benefit of children and servants." About ten years ago Romaine was elected lecturer, and preached for many years, at the usual hour of three, till Michaelmas Term, 1759, when he was prevented by the vicar and churchwardens, vary their appointment. 66 the vicar preaching instead of him; which was the foundation of this motion. Morton shewed for cause, that Romaine was become a very popular methodist preacher, which so crowded the church, that the parishioners could not repair to their seats. Whereupon the churchwardens, at the request of the parish, in Michaelmas, 1759, appointed the Sunday's lecture to be preached at seven in the evening and the vicar himself undertook to preach at three. That this was in the breast of the churchwardens, and better for the parish, who have now three sermons instead of two. That the churchwardens have varied the hour at three several times, and once on the opinion and authority of Serjeant Pemberton. Norton, Serjeant Davy, and Knowler, argued in support of the rule, that the only offence charged on Romaine was, being too good a preacher, and crowding the church; to cure which evil, the vicar was desired to preach himself. That the word afternoon, ex vi termini, excludes every hour in the morning, evening, and night. Otherwise, it might be appointed for midnight. That the sermon ought to be preached immediately after divine service; being originally substituted in lieu of catechetical lectures, which were appropriated to the afternoon; but as the puritan doctrine prevailed, and sermons became fashionable, the sermon got the better of the catechism. That the hour of three is more convenient, especially for children, than seven at night in the winter. THE KING v. BATHURST. * Per Cur.'-Romaine has applied to the Court under false [ *212 ] colours. He has suppressed a material fact, that of changing the hour from three to seven, only stating the refusal at three, and not the new appointment at seven. Had this been disclosed, the Court would never have granted a rule to shew cause. We chuse to avoid the question, Whether Dr. White has a power to erect a lecture, so as to bind the minister of the parish. But supposing him to have that power, he has directed his lecture to be preached at a convenient hour. His trustees stand in his place; they have determined, in conjunction with the rest of the parish, what is the proper hour; and shall the lecturer dispute it with them? Rule discharged per tot. Cur. with costs (c). (c) See R. v. Barker, post, 352, n. (e). THE KING V. Vandevåld. S. C. 2 Burr. 991. SAMUEL Vandevald, Esq., lord of the manor of Aldenham Quit-rents and in Hertfordshire, was charged to the poor's rate, for the manor casual profits of a itself (exclusive of the demesne lands, &c.) consisting, as was stated specially, of quit-rents, fines for renewal of copyholds, rate. and other casual fruits and profits, the whole amounting com manor, not liable to the poor's THE KING v. VANDEVALD. munibus annis to 130l. per annum; the said Samuel Vandevald occupying nothing else in the parish. On appeal to the Sessions, the Justices confirmed the rate, setting out this special case. The order being removed by certiorari, it was objected, that the lord was not an inhabitant, nor were the rents and profits of the manor rateable under stat. 43 Eliz. c. 2, being neither lands, houses, tithes, nor any of the things recounted in that statute. Mr. Gould, and Mr. Knowler, in support of the rate and order, argued, that these words were only put as examples;-that the statute has not determined what species of property is or is not taxable, but that has been fixed by the resolutions of the Courts; that personal estate is taxable, though not mentioned in the statute (d);-that the lord is an inhabitant [ *213] according to Sir Edward Coke's derivation, ab habendo; 5 Rep. 67; 2 Inst. 702 (e);—or if not an inhabitant, yet the statute mentions; " inhabitants, parsons, vicars, and others;"-that tradesmen are rateable for their stock in trade; Ld. Raym. 1280 (ƒ);—that a toll of a market is taxable, 3 Keb. 540 (g);that ground-rents are taxable, Comb. 62, and also quit-rents, Carth. 14; Comb. 264. (Mansfield, C. J., observed, that these authorities were only scraps and strange stuff: quod Gould concessit)—that though manors never have been taxed, it is no argument that they never shall: It is high time they should be. The clergy once claimed the like exemption by custom; but when it came to be debated, their plea of custom was overruled. Mr. Norton and Mr. Fielde, on the other side observed, that the argument drawn from custom was not contrary to the express words of the statute, as in the case of the clergy, but that it shewed the uniform interpretation of the statute, in excusing manors: That quit-rents issue out of lands, which have already been fully rated in the hands of the occupier, and therefore are not liable to be rated again;-that casual profits are of the same nature; they are part of the profits of the land, which has already been fully rated;-that it is impossible to be law, that ground-rents are rateable; they are of the nature of all other reserved rents on leases for years;-that tolls (if rateable) are only so, because not rated in any other shape;that few mines are ever rated, though expressly named in the statute, because their profits are casual; and you can't assess by an average in a monthly assessment, since the present owner may be no gainer by his mines (or other casual profits) though his predecessor and successor may gain a great deal (h). (d) See R. v. Canterbury, post, 667, where the cases on this point are referred to. (e) 2 Rolle's Abr. 289, (H); Hollege's Ca., 2 Roll. R. 238; Att. Gen. v. Parker, 3 Atk. 577; R. v. Jones, 8 East, 451; R. v. Nicholson, 12 East, 330; R. v. Tunstead, 3 T. R. 523. (f) R. v. Hill, 2 Cowp. 613; R. v. Mast, 6 T. R. 154; R. v. Ambleside, 16 East, 380; and R. v. Canterbury, post, 667. (g) But the lessee of market tolls in gross, not incident to the soil, is not rateable to the poor in respect of his occupancy thereof; R. v. Bell, 5 M. & S. 221. (h) See Lead Comp. v. Richardson, post, 389. |