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beneficial act. Interest Reipublicce ut sit finis litium. There The Kino

Walker.

is no sucli kingdom as England now. Plaintiff, therefore, while

in Scotland, was not out of this realm. Besides, that is not

now the phrase: [the] Legislature, by altering it to beyond the seas

at such a critical juncture, seem to have pointed at this very

case, of dwelling in Scotland. It is a great question, and very

doubtful, whether the statute of non-claim does not now extend

to residents in Scotland. As at present advised, I should rather

think it does. It is true, that since the Union, a writ of ne

exeas regno has been issued from the Court of Chancery to

prevent a man's going to Scotland; Dune's Case, 1 P. W.

268 (w). But the condition of the recognizance was a special

one; not to go out of this realm, or to Scotland. Had these

*words been omitted, going to Scotland would not have for- [ *288 ]

feited the recognizance (#).

Judgment for the defendant, nisi.

(w) But see Hunter v. Maccray, Ca. or any place in Ireland, is beyond the seas,

temp. Talb. 196, and 15 Vin. Abr. Ne within the meaning of 21 Jac. I; Anon,

eucu Regno (B). See also Baker v. Du- 1 Show. 91; Smith v. Hill, 1 Wils. 134,

marttque, 2 Atk. 66; Bernal v. Marquis S. P. And see Strithorst v, Grceme, post,

vl Donegal, 11 Ves. Jun. 43. 723.

(x) So Holt, C. ]., held, that Dublin,

Lessee of Luoas V. Fulford.

S. C. 2 Burr. 1177.

IN ejectment, the plaintiff offered to give in evidence, an exa- Close copies of mined copy of a bill in Chancery, contained in two close sheets Pro«edings in of paper, each stamped with treble sixpenny stamps; but the be'giYenine'vimatter was equal in quantity to forty office copy sheets: and dence in another also, an examined copy of an amended bill, in three close Court' wj'hout sheets, each stamped with treble sixpenny stamps, the matter common stamps. whereof would have extended to sixty office sheets. By the Stamp Acts, 9 & 10 W. 3, c. 25, sect. 64', &c. every copy of proceedings in Chancery is charged with a duty of three penny stamps on each sheet; otherwise, cannot be given in evidence. And it is also provided, that all proceedings in any Court shall be written in the usual manner {y). Verdict for the plaintiff, subject to the opinion of B. R. whether or no this evidence ought to have been admitted.

Stowe, for the plaintiff, cited the Kinq and Bishop of Chester, 8 Mod. [364]; and argued, that the evidence ought to have been received; because this was not a copy made out by the clerks of the Court, but delivered from attorney to client. That, the act does not define the number of words that shall be in a sheet, but leaves it to usage; and this is the usual practice between attorney and client.

(y) The duties are now regulated by stamped sheet of paper, an office copy so 55 G. 3, c 184, Sched. P. II. 3. It seems written would be irregular; Champneys v. that where it has not been the practice to Hamlin, 12 East, 294. "rite such copies on both sides of the

Lccas Aston, for the defendant, insisted, that the revenue being

"• concerned, the statute must be construed strictly. That no

< v '- copy is properly such a one as the statute meant, but an office

copy; and that it was time that a practice contrary to law, if any such there was, should be abolished.

Lord Mansfield, C. J.—The whole question is, whether it [ 289 ] js necessary to give office copies in evidence in all * Courts whatsoever. In causes depending before the Court of Chancery, office copies of proceedings therein are the very records of the Court, and prove themselves. No other copy can be there produced. In other Courts, even office copies of Chancery proceedings must be proved to be genuine, by parol evidence. Two clauses of the Stamp Acts are the only ones to be considered. It must first be observed, that when stamps were originally imposed, there were two kinds of copies in common use:—one an office copy, to be made use of in the Court to which the cause belonged. This contained only a stated number of words, by immemorial custom, probably introduced to enlarge the fees of the officers:—the other a common close copy, to be used, when proved, in any other Court or place. Then comes the act, and lays (in one clause) a duty upon every sheet of copy; and the next clause directs all proceedings in any Court to be written in the same manner as before. Is this latter clause a legislative provision, that office copies only shall be used in evidence, where they were not used before? It is not to be conceived, that in order to raise so small a duty (for originally it was only Id. per sheet), the Legislature intended to put the parties to the expence of 60/. to take office copies, merely to give in evidence. The Stamp Acts have not always been construed strictly. It has been determined, that the stamp-duties do not extend to any proceedings before either House of Parliament.

It is a question of pretty general importance, and therefore proper to be well considered, before it is finally determined. But, for my own part, I have no doubt at present.

N. B—" It appeared, that some cautious practicers had been

"used to stamp their close copies with as many stamps as

"would have been required to an office copy."

Afterwards, in Trinity Term, the Court declared, it was too

clear a question to enter into again, and therefore ordered the

postea to be delivered to the plaintiff(#).

(*) Lady Dartmouth*. Roberts, 16East, 334; Sallerv. Turner, 2 Camp. 87; Hodgkissm v. Willis, 3 Camp. 101.

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Jans qui tarn v. Hutton.

W INN moved to set aside proceedings for irregularity. Action on a penal statute. Plaintiff had taken out five rules for time to declare (a), and served none of them on the defendant, till the last was taken out; and then served them altogether, and, at the same time, also delivered a declaration to the defendant. It was urged, that the rules, not being served in time, were expired; and that therefore the defendant was out of Court, and could not be served with a declaration. But, per Cur.—You might have signed a nonpros, for not declaring in time (b); but, having omitted that, and the plaintiff having now served his rules, he redeems his irregularity, and you cannot now take advantage of it.

(a) If the plaintiff be not ready to declare, before the end of the next Terra, after the return of process, be may obtain a side-bar, or Treasury rule for time to declare, until the first day of the ensuing Term: and if he be then unprepared, he may obtain rules for further time to declare from the beginning to the end of the Term, and from the end of one Term to the beginning of another, alternately, as often as may be necessary. But after several rules have been obtained, the Courts will make a peremptory one for him to declare, before the end of the Term in which the motion is made. And in C. P. where he dues not declare, after having obtained time for that purpose, the defendant may sign judgment of mm. pros. without giving a rule to declare; Tuwert v. Powel, 1 H. Bla. 87—Tidd's Pr. 426 (tit. 1821); and see post, 759.

[!>) " Upon all process returnable the

Though a rule
for time be not
served, yet if
no advantage be
taken of it, the
irregularity may
be saved by a
subsequent ser-
vice.

first, or any other return in any Term,
the plaintiff shall have liberty, to the end
of the next ensuing Term, to deliver his
declaration to the defendant's attorney, or
leave the same in the office; and the de-
fendant's attorney having entered his ap-
pearance with the proper officer, as of that
Term in which the process is returnable,
and in C. P. given a rule to declare in the
proper office, at the end of the ensuing
Term, or in four days after the end there-
of, and called on the plaintiff's attorney or
clerk in Court, if he can be found; the
defendant may, at any time in the vaca-
tion of such ensuing Term, after the rule
for declaring is out, sign his mm. pros, for
want of a declaration, and not afterwards:
and the plaintiff shall not, without leave of
the Court, have any longer time to de-
clare, other than the time to be limited by
the defendant's rule." Tidd's Pr. 425—
468.

Lessee of Methold V. Noright.

ASHURST moved (on the authority of Lessee of Hollings Service of ejectand Dunch, Hil. 1 Geo. 3), that service of a declaration in mentM&e ejectment at the house of the tenant in possession, on 13th of m^g^d Dy a May last past, might be good service; it having formerly been subsequent rule usual to grant such rules, with respect only to future service, of Court, and not with any retrospect. But that, in the case relied upon, this rule was first altered in the King's Bench, it having before been the course of Common Pleas (c).

Rule to shew cause; and that service of this rule at the house might be good service. N. B.—This motion went off afterwards, upon terms of compromise (d).

(c) Fern v. Dean, Barnes, 192.

(<0 See Gulliver v. Wagstaff, post, 317.

Yates V. Carlile et al\

S. C. Ante, 270.

Vexatious plain- J. HIS cause went down to trial on the feigned issue, Carlile being plaintiff, and Robinson defendant. But the defendant Robinson made default at the assizes, and a verdict was had against him. And now, upon motion and solemn argument, the Court directed this verdict to be entered of record, and all the costs incurred in every stage of proceedings (which amounted, it was said, to near 1,000£) to be paid by Robinson.

tiff, how censured

Qu. I. Whether an acquittal of all but two, in case of riot, is an acquittal of all? 2. Whether an acquittal of a riot is also an acquittal of an assault laid in same indictment?

The King V. Scott, &c.

S. C. 3 Burr. 1262.

JVlORTON moved in arrest of judgment. Five persons were indicted for a riot and assault (e). Another count against three only. The Jury acquitted all but two: whereupon he insisted, that it was an acquittal of all; because two cannot make a riot: Poph. 202, Harrison and Errington, Obj. 2; Salk. 593, K. and Heaps; Lord Raym. 484, K. and Sudbury, S. C. (,/"); 3 Mod. 72, K. and Colson (g); which shews, that if a battery (and more reasonably if only an assault) be joined with a riot in an indictment (A), an acquittal of one is an acquittal of both. Shew cause. See S. C. post, p. 350.

(?) It appears from 3 Burr., that six persons were indicted: that the first count charged, that six riotously and routously did follow one A. B. along the street, insulting, abusing, menacing, and hollowing afttr him j the second count charged, that three riotously and routously burnt the said A. B. in effigy: and that two were convicted, two acquitted, and two had died untried.

(/) 12 Mod. 262, S. C; R. v. Soley, Salk. 594, S. P. See 1 Hawk. P. C, c. 65, s. 1; Uuss. Cr. & Misd. 385.

(g) That was an information against the defendants, that they with others did riotously assemble and set up a bank to divert a water-course. The Jury found

them all guilty quoad /actionem riptr, and not guilty quoad rioium: on,which judgment was arrested, because they were acquitted of the riot, and setting up the bank was only a civil injury.

(A) That is, in the same count. In R. v. Heaps <y Sudbury, where two only of several were convicted, the riot and battery were charged in the same count, and Holt, C. J., said, "The battery is but part of the riot, and the defendants, being acquitted of the riot, are acquitted of the whole of which they are indicted: but if it had been charged, that they with divers others had committed this riot and battery, the King might have had judgment."

Hume V. East India Company. East India char- ACTION of covenant (») on the charter-party of afrreightfrcightmcnt.* * ment constantly used in this behalf, between Hume and others and the East India Company (k), whereby the plaintiffs agreed to let the ship Winchelsea to the Company, for an East India Hume voyage, on certain rates and terms of freight and demorage. _ .*■ The Company covenanted to load her homewards, within three „

(i) Lord C. J. Abbott, in his Treatise on Shipping, says, "But query, whether the form of action was properly adapted

to the case;" p. 218, n.

(/<) As to which, see 53 G. 3, c. 155.

months after her arrival in India; with a proviso, that the Company were at liberty to detain her in their service for one other year, at certain rates of demorage therein specified. And there is also a proviso, that " if the ship did not arrive in safety in "the river Thames, and deliver her whole cargo there, the "Company should not be liable to pay * any of the sums agreed [ * 292 ] "to be paid for freight or for demorage, nor should the Com"pany be liable to any demands for the ship's earnings, or any "other employment."

The ship sailed from London 16th February, 1746-7. Arrived in the East Indies 30th of September following. The Company did not lade her homewards within the first year and three months, which expired 30th of January, 1748-9, but employed her in their service, and towards the end of the year sent her with stores to Fort St. David's, where she arrived 17th February, 1748-9; and on the 22d of February following, the Master wrote to the President at Fort St. David's, declaring, that unless the Company would allow demorage, after the rates of the charter-party, he protested against the Company for iill damages, loss of time, or other accidents. Whereupon the President and Council agreed in writing, that the owners should he allowed demorage for so long time as she should be detained in the Company's service in India. She was detained till the 12th April, 1749; on which clay, before she was dispatched, or had any loading for England, she was wrecked and lost in a storm.

The plaintiffs applied to the East India Company; insisting upon demorage from the 31st of January, 1747-8, to the loss of the ship, and for a satisfaction for the loss of the ship, and for freight. The defendants insist, that as the ship never returned to England, they were not liable to the payment of any of these demands.

Hereupon this action was brought, and four breaches assigned: whereof the first and principal was, for not loading the ship homewards, on or before the 31st of January, 1748-9, but detaining her till lost, whereby she lost all her earnings and the profits of her voyage. The defendants pleaded, that she was detained with consent of the Master. Issue. Tried at sittings after Hil. 1757, before Lord Mansfield, C. J. Verdict for the plaintiffs, with 20,000/. damages; subject to the opinion of the Court, on the foregoing case and the following questions— •

1. Whether plaintiffs are entitled to recover in this action, by reason of the said ship not being dispatched or laden homewards? If so, then 13,269/. 6*. 8d. due to plaintiffs.

*2dly, If not so entitled, Whether the plaintiff's are entitled [ *293 1 to demorage? If so, then 7,166/. 10s. 3d. due.

After several arguments, in which Moore and East India

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