-

of the Term.--3rdly, If it does not bear either of these relations,
but must be considered as subsequent to the will, yet, as the use
*is instantly served on the tenant in tail himself, who did not
die till after its completion, it only marks the time when an [
use, which before was executory, becomes actually executed.
1st, The recovery relates to the deed of bargain and sale; so
that the whole makes only one conveyance. Cases cited:-
Lord Bath and Montague (f), Holt's argument: Ferrars and
Curzon, Cro. Jac. 643(g); I Mod. 108; Sir W. Pelham's Case,
1 Rep. 14 b, which is the first case, which clearly considered re-
coveries in the light of common assurances. 2dly, The recovery
has relation to the first day of the Term. The Court cannot,
ought not, to consider any thing but the record. The whole
Term is but one day in law. Objection. The return of the
præcipe is on the third return of Trinity Term, and judgment
cannot be intended to be before the day of appearance. But
parties if they please may appear gratis, before the return.
Therefore, the only question is, if there are continuances on
the roll, of which, and which only, the Court is bound to take
notice. Standford and Cooper, Hetl.; Hutt.; Cro. Car. 102.
The case excepted in the statute of frauds proves the general
rule. There is a distinction between the continuance of pro-
cess, and the continuance of the plea or suit. If the parties
appear before the return of the writ, the plea may then go on
without notice taken on the roll; but process must always be
continued on the roll, from one return to another. Rainbow
and Worrall, 2 Lutw. 1177; 1 Leon. 291. Entry of the re-
turn on the record is a mere marginal memorandum, and has
no business in the body of the roll. 1 Lev. 130; 1 Sid. 213.
Wynn and Wynn differs from this case in four points: but
principally, because, as the party appeared by attorney, it was
there necessary to set out the writ of summons on the record,
which determined the time on the face of it. *This relation [
can work no wrong, it being incident to tenant in tail to suffer
a recovery, as much as to tenant in fee to make a feoffment (h).
Sdly, It is objected to this doctrine (viz. that the recovery
only executes an old executory use) that this is a new use
vested in the testator by the completion of the recovery.
But
it is not so considered in Hudson and Benson, 2 Lev. 28,
1 Mod. 108. It is also said to arise out of another seisin, and
therefore is a new use. But the seisin of the recoveror is not

(f) 3 Ch. Ca. 106.

(g) Sir John Ferrers and Sir John Curson v. Sir Rich. Farmer and others: it is reported in 2 Burr. that the Court repeatedly expressed their approbation of this case.

(h) When the vouchee in a common recovery appears in person at the return day of the writ of entry, there the judg ment relates to the return day of that writ: but if the vouchee appear at the VOL. I.

N

return day of the summoneas ad warran-
tizandum, there the judgment relates to
the day of the return of that writ. And
if the parties are alive at any time of the
return day, the recovery will be good;
Shelley's Case, and Wynn v. Wynn; see
5 Crui. Dig. 346, et seq.; Coventry's Rec.
114. But the judgment cannot relate
back to a Sunday; see Swann v. Broome,
post, 496, 526.

actual, but fictitious; not so much as a seisin for an instant. Were it a real seisin, I concede, that it must be a new use. Vid. Montagu and Jefferies, Roll. Abr. (i). [The case stood] over for farther argument, [but] the Court seemed to incline strongly for the defendant, on the footing of the double relation of the recovery, viz. to the bargain and sale, so as to make one conveyance, in point of substance; and to the first day of the Term, so as to become prior to the will, in point of date. But, in Trinity Term following, the Chief Justice declared, that the Court, as at present advised, could not consider the judgment in the recovery as prior to the return of the writ of entry, and directed another peremptory argument, on the first paper day of next Michaelmas Term:-(which see after, Michaelmas,-1 Geo. 3, 1760, pa. 251).

(i) 1 Roll. Abr. 615, pl. 4.

[ 229

TRINITY TERM,-33 & 34 GEO. II.-K. B.

OLDKNOW v. WAINWRIGHT.

sent from the

election of J. S.,

S. C. 2 Burr. 1017.

A majority dis- ON a special verdict, the question was, whether Segrave, the town-clerk of Nottingham, was legally elected. There were twenty-one electors present; nine of whom voted for Segrave; eleven protested against him, without voting for any one else, and one other said, that "he suspended doing any thing."

but vote for nobody else: the

election of J. S.

by the minority is good.

It was argued by Mr. Caldecot, that this was such a negative upon Segrave, that his election was invalid. Serjeant Hewit, contra, in Easter Term last: and now, per tot. Cur. The election is clearly good. The eleven protestant dissenters, having voted for nobody, could not put a negative upon the only man put in nomination: and Wilmot, J., cited K. and Withers (a), H. 8 Geo. 2; K. and Boscawen (a), P. 13 Anne; and Taylor and the Mayor of Bath (b), temp. Lee, C. J., to shew, that, where a majority do nothing, but merely dissent, they lose their votes (c).

(a) Cited also in 2 Cowp. 537, and
10 East, 217.

(b) Ibid. and 14 East, 558, n. (a).
(c) See R. v. Monday, 2 Cowp. 530.

Votes given for a candidate after notice of his incapacity, are thrown away; R. v. Hawkins, 10 East, 211; R. v. Bridge, 1 M. & S. 76.

CRAWFORD V. POWEL.

S. C. 2 Burr. 1013.

the onus probandi lies on the

person elected?

A MANDAMUS had gone to Powel, to deliver over to Craw- Qu. If, on the ford the insignia (d) of the office of steward of Harwich, Corporation Act, Crawford being chosen his successor. Powel returns, that Crawford had not received the sacrament within a year before his election, according to the corporation act of Charles the 2d (e). Crawford brings this action against Powel for a false return. Verdict for the plaintiff, subject to the opinion of the Court. *It appeared, that, by a subsequent statute, 5 Geo. 1 (f), the [230 ] office, in such case, is made only voidable, and not void; and that only by a prosecution commenced within six months after the election; and no such prosecution was had in this case. Therefore the Court held the return to be frivolous and immaterial, and that no action would lie upon such a return; but that a peremptory mandamus should have been moved for. And therefore, the main question, viz. Whether the onus probandi lies upon the person elected, never was argued in this case (g).

(d) R. v. Owen, 5 Mod. 314; R. v. Ingram, ante, 50.

(e) 13 Car. 2, st. 2, c. 1, s. 12. See R. v. Smith, 3 T. R. 573; R. v. Brown, Ib. n. (b).

(ƒ) C. 6, s. 3, and see Marten v. Jenkin, 2 Stra. 1145, and 2 Cowp. 539, per Lord Mansfield.

(g) But it appears from the report in 2 Burr. 1013, that judgment was given for the plaintiff, thereby shewing it was not necessary for him to prove that he had taken the sacrament within the time prescribed: and Lord Mansfield said, that

since 5 G. 1, the election being not void,
but voidable, in case of a removal or pro-
secution within six months, which had not
been in this case, the plaintiff's election
stood confirmed and became absolute: and
he distinguished it from the case of Tufton
v. Nevinson, 2 Ld. Raym. 1354, where the
plaintiff, being out of possession, brought
a mandamus to swear him into office, and
it was held to be incumbent on him to
prove, that he had received the sacrament
as required. See Powell v. Milbank, post,
851, and next case.

THE KING V. PEMBERTON.

S. C. 2 Burr. 1035.

may be given in

MOTION to quash an indictment for exercising the trade of Exemptions a tanner, contrary to the 5th of Elizabeth (h). There is a sta- from a penal law tute, 1 Jac. 1, c. 22, which exempts tanners from this prosecu- evidence on Not tion, in several circumstances; and this motion was grounded Guilty; and the on the omission in the indictment, to set forth the negative of negative need those several circumstances; as in convictions on the game in the indictlaws it is necessary to set forth, that the defendant had not ment. 100l. per annum ;;-was not the eldest son, &c. (i). The Court

(h) C. 4, s. 31, which act, Lord Ellenborough said, was to a considerable degree defunct; 3 M. & S. 190: and this section is now expressly repealed by 54 Geo. 3, c. 96, s. 1.

(i) Though it is necessary to negative in the conviction the several qualifications, yet it is not necessary to disprove them by evidence; but the onus probandi lies on the defendant, to prove, if he can, that he

not be set forth

THE KING

บ.

PEMBERTON.

held, that exceptions of this kind are to be taken advantage of in evidence on Not Guilty, and therefore refused to quash the indictment (k).

is qualified; R. v. Turner, 5 M. & S. 206.
The same rule applies to actions on the
game laws; the plaintiff must aver the
want of qualification in his declaration;
per Lord Mansfield, 1 T. R. 144; per
Heath, J., 1 B. & P. 468. On a convic-
tion for selling ale without a license, the
informer is not bound to produce evidence
to negative the existence of a license; the

defendant must shew his license, if he has one; R. v. Hanson, 1 Paley on Convictions, by Dowling, 45, from the Editor's MS. note. See also R. v. Marsh, 4 D. & R. 260, 2 B. & C. 717.

(k) See 2 Hawk. P. C. c. 25, s. 115; and R. v. St. George's, Hanover Sqaare, 3 Camp. 222; and the preceding case.

Defendant removing an in

dictment by certiorari without good cause, cannot be admitted

in formá pauperis.

THE KING V. REYNALDS.

DEFENDANT was indicted at Hick's Hall, and removed the indictment, by certiorari, into the King's Bench; and now moved to be admitted to defend in formá pauperis, on the usual affidavit. But the Court held, that this was not within the statute (l), but was merely a case at common law, and therefore discretionary in the Court:-that there might be instances in which a certiorari might be necessary, as for an impartial trial, and then there could be no objections to admitting the defendant in formá pauperis. But where he voluntarily removes it himself, without any cause shewn, he shall not put the prosecutor to an extraordinary expence, and keep himself clear by being admitted a pauper (m). He shall not be vexatious, merely because he is poor. Serjeant Hewit, who made the motion, withdrew it.

(2) 11 H. 7, c. 12.

(m) But the Court in its discretion will allow a defendant in a misdemeanor to defend in formâ pauperis, where the indictment has not been removed by certiorari: because, if the defendant be convicted, he is not liable to pay costs to the prosecutor; R. v. Wright, Ca. temp. Hardw. 211, 253, 2 Str. 1041. But in civil actions, he is never permitted to defend in forma pauperis, because he is liable to the plaintiff for costs, and the provision of 11 H. 7, c. 12, only extends

to plaintiffs; Anon. Barnes, 328 (8vo. ed.); Hull. Costs, 229 (ed. 1810). It may be therefore inferred, that a defendant on an indictment removed by him by certiorari would not be allowed to defend in formá pauperis, inasmuch as he is obliged by 5 W. & M. c. 11, to enter into a recognizance to pay costs to the prosecutor.

A defendant may plead a pardon in formá pauperis; R. v. Morgan, 2 Str. 1214; but will not be admitted so to defend on an attachment for contempt; R. v. Pearson, 2 Burr. 1039.

[ 231 ]

Attorney, sued

in a foreign

Court, and lying

by for a long

time, waives his privilege.

HERN v. HOWARD.

DEFENDANT was an attorney of Common Pleas, and was sued in King's Bench, by bill of privilege, supposing him an attorney of this Court, which his son actually was. The plaintiff, after serving him with notice of a declaration, and signing judgment by default, found out his mistake; but defendant's son, in order to gain time, assured the plaintiff, that his father

would take no advantage of it; which induced the plaintiff to stay two Terms, in hopes of receiving his debt. But now, on the plaintiff's giving notice to execute a writ of enquiry, defendant moved to set aside the judgment for irregularity. And upon shewing this whole matter for cause, the Court thought that, by lying by so long, the defendant had waived his privilege (n); and therefore discharged the rule for shewing cause, with costs.

S Oliphant's Case, about ten years ago,

{

was cited for the defendant.

(n) For he ought to have taken advantage of that by plea in abatement; the rule at that time being, that where a defendant, attorney of one Court, is sued by process out of another Court, he must plead his privilege in abatement, and if arrested, must put in special bail; Lane v. Saltmarsh, 2 Salk. 544; Mayor of Basingstoke v. Bonner, 2 Stra. 864; Snee v. Humphreys, 1 Wils. 306; Crossley v. Shaw, post, 1085: but if he be arrested by process issuing out of his own Court, then he may be discharged upon motion, and if arrested, upon filing common bail; Redman's Ca., 1 Mod. 10; Wheeler's Ca., 1 Wils. 298.

But that distinction does not now exist for if an attorney be sued in a foreign Court, such Court will stay proceedings, or discharge him on entering a common appearance, without putting him to plead his privilege; Tidd's Pr. 219 (ed.

1821). An attorney defendant waives his
privilege, when he is sued, by not claim-
ing it in due time; Crossley v. Shaw, post,
1085 and loses it when sued en auter
droit; Gage's Ca., Hob. 177; Newton v.
Rowland, 1 Salk. 2, 1 Ld. Raym. 533;
or jointly with his wife; Robarts v. Mason,
1 Taunt. 254; or indeed with any other
person not having privilege; Branthwaite
v. Blackerby, 2 Salk. 544; even though
the nature of the action be several, as
trespass; Pratt v. Salt, 5 Bac. Abr. 619,
Privilege, (B) 3. But he does not lose it,
if he be sued by bill jointly with a person
having privilege of Parliament; Ramsbot-
tom v. Harcourt, 4 M. & S. 585: nor when
sued as acceptor of a bill of exchange;
Comerford v. Price, 1 Doug. 312; nor
when sued as a magistrate; Duffy v. Oakes,
3 Taunt. 166.

THE KING V. REEVE, MORRIS, OSBORNE, et al.

S. C. 2 Burr. 1040.

MOTION for a certiorari to remove convictions before Mr. Moneypenny, a Kentish justice, on the statute 22 Car. 2 (0), against conventicles (the defendants being methodists) and also the proceedings on the appeal to the Quarter-Sessions, pursuant to the directions of the statute, which orders such peal to be final, and that no other Court shall interpose.

ap

Norton, Stowe, and R. Leigh, argued, that the power of this Court to grant a certiorari was not taken away by these words. That all inferior jurisdictions are under the inspection of this Court, whose power can't be taken away, but by express negative words: Dr. Foster's Case, 11 Rep. (p); Smith's Case, Ĭ Vent. 68 (q).—That, the objects of this act being only persons above sixteen, and natural born subjects of this kingdom, if the defendants should prove not to be such, they are not the

(0) C. 1; now repealed by 52 Geo. 3, c. 155, s. 1, which contains the several regulations touching dissenters and conventicles now in force.

(p) 64 b.

(2) 1 Mod. 44, S. C.; Cates q. t. v. Knight, 3 T. R. 442, S. P.

Certiorari cannot be taken away by any general, but only by express, negative words.