HILARY TERM,-2 GEO. III. 1762.-K. B. THE KING v. HEYDON. furnish evidence from their books ON an information for election bribery, the prosecutor moved Rule to compel for a rule to inspect, and take copies of the books of the cor- a corporation to poration of Evesham, in order to prove one Robins, who was to be produced as an evidence for the prosecutor, to be a free- in a criminal man of Evesham. But, being an attempt to make the corpo- prosecution deration furnish evidence in a criminal prosecution, the Court re- nied. fused it, on the authority of the King and Purnell, Mich. 22 Geo. 2, page 37 (a). [S. C. post, 356, 404.] (a) See also Young v. Lynch, ante, 27, and Allan v. Tapp, post, 850. CHURCHWARDENS OF ST. SAVIOUR'S, Southwark, v. SMITH. S. C. 3 Burr. 1271. A LEASE was granted to I. S., with covenant on his part to Assignee of a pull down certain old houses, and to rebuild others within seven lease after a years; lessee neglects to do this, and after the expiration of the breach of coveseven years assigns his lease to Smith, against whom the lessors lessee, not liable bring action of covenant. Lord MANSFIELD, C. J., et tot. Cur.-The only question is, whether, when a breach of covenant is complete, and an assignment afterwards made, the assignee is liable for a breach, which he never committed. The case is already settled in Moor, Salkeld, &c. (b). Judgment for the defendant. (b) Grescot v. Green, 1 Salk. 199, where Holt, C. J., said, that a covenant shall not bind the assignee, if it be broke before the assignment: aliter, if broke after, as if lessee had assigned before the time expired. As to what covenants run with the land, and for breach of which the assignee is liable, see Spencer's Case, 5 Rep. 16 a, which is the leading case on that subject: nant by the for the breach. THE KING v. BARKER and Others. S. C. Ante, 300. [ 352 ] MR. Dunning, in last Michaelmas Term, shewed for cause, Mandamus to that a writ of mandamus is a mere legal remedy, applicable trustees to admit a Dissenting only to legal rights; that Mence's right (if any) is only an teacher. equitable right, the whole being vested in trustees. The remedy lies in Chancery, if at all, this being the first application of the kind in a Court of law. And also, in point of fact, an THE KING BARKER. Extent of the writ of manda mus. other person (one Hanmer) was actually chosen by, what we say is, the legal power of the congregation. Lord MANSFIELD, C. J.-I think I have seen it in the books, that the first instance of a mandamus in the case of a corporator, was Baggs's Case (c). And yet, that was no objection to the granting it. A mandamus is certainly a prerogative writ, flowing from the King himself, sitting in this Court, superintending the police, and preserving the peace of this country; and will be granted wherever a man is entitled to an office or a function, and there is no other adequate legal remedy for it (d). Therefore, it is not grantable for a living, because there the law has provided a specific remedy; but for a lectureship, where a profit or endowment is annexed to it, it is (e). Since the Act of Toleration, Dissenters are entitled to all manner of legal protection. Charities to their mode of worship have been established since the Revolution, though held to be superstitious before. However, there appearing to be strong objections to the elections of both Mence and Hanmer, the Court recommended it then to stand over; to see, whether they would not either proceed to a new election, or put the validity of Hanmer's election in a mode of trial. And now in this Term, the Presbyterian trustees having refused to come into any agreement, a [ *353 ] mandamus to admit Mence was granted. * But his * But his party, finding their election was not maintainable in point of law, gave it up, and proceeded more regularly to a new election of him: and, as the trustees still refused him admission, a new rule for a mandamus was applied for, and granted in Easter Term (ƒ). (c) 11 Rep. 93 b. (d) See R. v. Bishop of Chester, 1 T. R. 396; R. v. Marquis of Stafford, 3 T. R. 646; 4 Bac. Abr. Mandamus (C) 2; and post, 552, 708. (e) But not for a lectureship, the stipend of which depends solely upon voluntary contributions, for the rector may refuse the use of the pulpit, the fee of the church being in him; unless there be a contrary immemorial custom; R. v. Bp. of London, 1 Wils. 11, 2 Stra. 1192; R. v. Eundem, 1 T. R. 331; R. v. Field, 4 T. R. 125. And see R. v. Bp. of Exeter, 2 East, 462; R. v. Bp. of London, 13 East, 419; R. v. Abp. of Canterbury, 15 East, 117; R. v. Bp. of Carlisle, 2 Burn's Ecc. L. 113 (ed. 1809); R. v. Bp. of Litchfield & Coventry, 2 Barnard. 365, 428, as to licensing a schoolmaster. (f) A peremptory mandamus afterwards went by consent; 3 Burr. 1379. See also R. v. Jotham, 3 T. R. 575; R. v. Bp. of Chester, ante, 22; R. v. Justices of Derbyshire, post, 606. An agreement by will need not be in writing, IN case; declaration states, that May hired Fenton as a to leave money housekeeper, at 67. a year, so long as both parties pleased, and was to leave her 167. a year for her life, by his will. This was a parol agreement. May dies, and leaves her nothing; whereupon she brought her action against the executors. The Jury time of perform- found a verdict for the plaintiff, subject to the opinion of the Court on these questions:- 1st. Whether the agreement should though uncertain as to the ance. not have been in writing, under the statute of frauds (g): 2d. Whether evidence of hiring for a year (as was the fact) was proof of a hiring for so long as both parties pleased (as laid in the declaration). Hall, for the defendant, cited 5 Viner, Contract, pa. 524, Reynolds and Spencer Cowper, 1726, in Scacch.; bill for specific performance of a promise to make plaintiff deputy clerk of the House of Lords in consideration of procuring a reversionary grant of the principal office for the defendant's son. Defendant pleads, 1st, Statute of Frauds; because the promise was not in writing, nor to be performed within a year; and 2dly, Statute of Limitations; because the promise was made above six years before the bill filed. Allowed in both respects; for, by the Court:-A promise by parol to be performed upon a contingency, which may or may not happen within a year, is void: and, 2dly, if made above six years before suit, it is barred by the Statute of Limitations, though the contingency, or time of performance, may happen within the six years. And he observed the danger that might ensue from this method of making a parol testament. FENTON v. EMBLERS. *Stowe, for the plaintiff, insisted, that all contracts for [ *354 ] marriage at an indefinite time, which are allowed to be good, though not in writing, depend upon the very same principle; and he cited 1 Salk. 280; a promise by parol to pay money on the return of such a ship, which did not in fact return till two years after, held by all the Judges not to be within the Statute of Frauds, as the ship might by possibility return within the year; and the statute extends only to such promises, where, by the express appointment of the party, the thing is not to be performed within the year. Also Lord Raym. 316(h), a promise to pay money on a marriage at a time indefinite. Lord MANSFIELD, C. J.-The case in Viner, so far as it respects the Statute of Limitations, is clearly erroneous; for it says, the statute does not run from the time of the contingency happening, but from the making of the promise; whereas the statute proceeds upon the presumption of laches, which can never happen till after the contingency is determined (i). (g) 29 C. 2, c. 3, s. 4, by which it is enacted, "That no action shall be brought whereby to charge any person upon any agreement, that is not to be performed within the space of one year from the making thereof, unless the agreement, or some memorandum or note thereof, shall be in writing, and signed by the party to be charged therewith, or some other person thereunto by him lawfully authorized." And such memorandum must contain the consideration for the promise; see Saunders v. Wakefield, 4 B. & A. 595, and cases there cited; confirmed in Jenkins v. Reynolds, 3 Brod. & B. 14; Russell v. Moseley, Id. 211. (k) Where the case of Peter v. Compton, Skin. 353, is alluded to, in which case it was resolved by a majority of the Judges, (Holt, C. J., dissent.), that, "where the (i) Shutford v. Borough, Godb. 437; 322. Statute of Limitations in case of a contingency does not run from the time of making, but from the contingency happening. FENTON v. EMBLERS. In the case at bar I have no doubt. As to the variance, which is the second question, it is immaterial. And, as to the first; had it been intended as an evasion of the Statute of Frauds, it might have been considered at the time of trial; for it is no testamentary contract, but a matter to be weighed in all its circumstances by a Jury. DENNISON, J.-The Statute of Frauds expressly mentions cases, that are not to be performed within the space of a a year. This confines it to such as are specifically so, at the time of making. WILMOT, J.-I have no doubt. The rule laid down in Salkeld is the true rule (k). Postea delivered to the plaintiff. (k) Anon. 1 Salk. 280, cited supra.— The principal case was referred to in Boydell v. Drummond, 11 East, 142. There it was decided, that if it appear to have been the understanding of the parties to a contract, at the time of making it, that it was not to be completed within a year, though it might be, and was in fact, in part performed within that time, it is within the Statute of Frauds; and if not in writing, signed by the party to be charged, &c. it cannot be enforced against him. Per Lord Ellenborough ;-" It has been argued that an inchoate performance within a year is sufficient to take the case out of the statute; but the word used in the clause of the statute is performed, which, ex vi termini, must mean the complete performance or consummation of the work and that is confirmed by another part of the statute (s. 17), requiring only part performance of an agreement, to supersede the necessity of reducing it into writing; which shews, that, when the Legislature used the word 'performed,' they meant a complete, not a partial, performance;" 2 Camp. 157, S. C., but not S. P. See also Bull. N. P. 280, and Simon v. Metivier, post, 599. INGLES V. WADWORTH and Another. S. C. 3 Burr. 1284, Sayer's Costs, 215. IN replevin, one defendant was found guilty, and the other acquitted. The question was, whether the latter could have his costs under the statute, 8 & 9 W. 3, c. 11, sect. 1. Lord MANSFIELD, C. J.-The Court, upon the principles of natural justice, has a strong bias to entitle the defendant to costs: But the case is too fully settled. It is said, that a replevin is an action of trespass, and as such is within the statute. But the trespass mentioned in the statute has always been construed to be trespass vi et armis. The cases are too strong to permit us at present to consider that statute with a latitude: The Court has uniformly construed it strictly, and therefore trover was never allowed to be within it (7). The Case of Dibbins and Cooke, Stra. 1005, is not fully reported there. Lord Hardwicke took it to be settled, that the statute must be construed strictly: and therefore, though that was an action of trespass on the case, being for a nusance; yet, not being an action of trespass vi et armis, it was held not to be within the statute. This is a much stronger case than the present. For replevin is by no means any kind of trespass. The statute 27 Eliz. c. 8, which creates the Court of Ex (1) Poole v. Boulton, Barnes, 139. chequer Chamber for error out of this Court, mentions divers actions, and among others trespass. But in 2 Roll. Rep. 434, it is held, that replevin was not an action of trespass, and therefore, error in replevin would not lie in that Court. It was observed in Dibbins and Cooke, that the word trespass, in the statute of limitations, was held to signify all actions of trespass. But that statute is always construed liberally, this statute strictly. Rule for taxing costs for the defendant discharged (m). (m) As to the costs in replevin, see 6 Vin. Ab. Costs (C), and Supp. 1b. ; 2 Bac. Abr. Costs (F), pa. 52; 11 G. 2, c. 19, s. INGLES V. WADWORTH. The KING v. HEYDON, et al. S. C. 3 Burr. 1304. [ 356 ] Costs to be paid for not trying an cording to no information ac INFORMATION against the defendants, for bribery at the last election for Evesham. Prosecutor gave notice of trial, but did not proceed according to the notice, whereupon the defendant obtained a rule for the master to tax costs: Which rule tice, though not Morton moved to discharge, supported by Norton, Solicitor- filed a whole General; because, 1st, The information had not been filed a year. year; 2dly, Philips, the defendant's agent, had secreted the corporation books, which were material evidence for the prosecutor; though the Court had before refused in this Term (v. page 351) to make a rule on the corporation to produce them, as being in a criminal suit. Stowe and Ashhurst shewed for cause, that Philips being town-clerk, had the books in trust, and was not bound to disclose them; or, if bound, that he never received a proper and legal notice. That, if the prosecutor's evidence was defective, he must stand to the consequences. That the statute (n) which gives costs only if the information be not tried within twelve months, relates to the whole merits of the cause, and not to costs for not going on to trial after notice given, which are payable without the aid of the statute; payable on indictments (o), payable by executors (p), &c. Norton, Solicitor-General, replied, That Philips, from day to day, flattered the prosecutor that the books should be produced. So sworn in his affidavit. That the town-clerk was not the proper officer for the custody of the books, but the chamberlain, who demanded them in Court, and was refused. Lord MANSFIELD, C. J.-By the constant course of the Court, and universal practice, costs must be given wherever the prosecutor gives notice, and does not proceed to trial: No instance to the contrary (q). An exception is contended for in (n) 4 & 5 W. & M. c. 18, s. 2. 865. But they are not liable, unless they have been guilty of a wilful default; Ogle v. Moffat, Barnes 133: see also Creake v. Pitcarne, Cas. Pr. C. P. 158, P. Reg. 119. (q) This position is confirmed by Lord Ellenborough in R. v. Bartrum, 8 East, 269; where upon an indictment for perjury, removed into K. B. by certiorari, the prosecutor having given notice of trial fo |