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rant (A). Verdict for the plaintiff, damages 20/., subject to Bim the opinion of the Court. "•

*Ashhurst, for the defendant, argued, that the action would

not he, there being no injury to the plaintiff: that Burford [ *374 ] had a right to leave the plaintiff's service; and if so, it was no wrong in the defendant to seduce him. By inserting a penalty in the articles, each party has estimated the injury which might accrue by the breach of the agreement. Burford might have tendered the penalty, and left the service. Had he left the service first, and the plaintiff had received the 100/. afterwards, that would have been a waiver of the injury. A recovery by judgment, as in the present case, amounts to the same thing, being equivalent to tender and acceptance. The plaintiff is therefore satisfied for whatever damage and injury he sustained by the loss of Burford. What the case would have been, if he had brought his action against Burford on the covenant, and not for the penalty, is now immaterial. But having made his election, he is now bound by it, and can bring no action to recover any farther satisfaction.

Stowe, for the plaintiff.—This defence, being res inter alios acta, ought to have been pleaded. The articles still subsist. It is not said, that on payment of the 100/., the articles should be void.

Lord Mansfield, C. J.—The true question is, whether the penalty was intended as a stipulated alternative for the whole of the covenant, in the nature of stated damages. I desire to hear another argument.

Dennison, J.—At common law, if a plaintiff recovers for a penalty, he can't maintain an action of covenant afterwards. The question is, if judgment be recovered for the penalty, whether it is not an entire satisfaction for the whole articles; or whether the plaintiff can have two satisfactions for the same injury («). Suppose an action on debt on bond, and judgment for the plaintiff; and a rescue or escape happens; and afterwards the debt and costs are paid: no action lies for the rescue or escape, for the plaintiff has received a satisfaction.

Foster, J.—Suppose a recovery had on an action of covenant, for ploughing up meadow ground, at so much per acre, as is usual in leases; can an action of waste be afterwards brought for the same injury?

•wilmot, J.—The plaintiff had his election, to bring cove- [ *3~5 ] nant or debt for the penalty (tc). He has chosen to bring debt, and cannot now resort back to the covenant. My doubt is this: the action against Burford, taken either way, is an action upon contract: but the present action is upon a tort ex de

(A) So an action lies against a person Lightly v. Clouston, 1 Taunt 112; Foster

for continuing to employ the servant of v. Stewart, 3 M. & S. 191. See a note of

another, after notice, without enticing him Mr. Margrave's on this subject, Co. Lit.

away; Blake v. Lanym, 6 T. R. 221. 117a, n. (1).

And the master may waive the tort, and (i) See Com. Dig. Actum, (I, K, L),

bring an action of assumpsit for the work and llitchin v. Campbell, post, 831. and labour done by his apprentice against (*•) S. P. Winter v. Trimmer, post, 395.

the person wrongfully employing him;

Bird

Randall.

licto, vel ex quasi delicto. It was formerly held, that an indictment would lie for the seduction, but the contrary is now settled (I). Yet still the action lies for the wrong done. For this wrong there was an action vested in the plaint iff, at the time of the seduction committed: what has now taken it out of him?

Dennison, J.—This action is for damages brought by the same plaintiff, who has already had a satisfaction for those damages against a third person (m).

Wilmot, J.—Though it be the same person, yet he has received satisfaction diverso intuitu; for breach of contract, not as an atonement for the offence.

[Pott, 387, S. C]

(/) Reg. v. Daniel, 1 Salk. 380, 6 Mod. 99, 182; cited also in 2 Ld. Kay Mi. 1116; sec R.\. Uiggins, 2 East, 7, 8, 13, arguendo.

(m) In an action on the case for a deceitful representation of the credit of A., in consequence of which the plaintiffs furnished him goods, it was objected to the competency of A., when offered as a witness for the plaintiffs, that if they recovered, they would receive satisfaction for the debt due to them from A., and as, in consequence of the verdict, he would not be liable to an action for the price of the goods, he would be swearing in his own

discharge. But Lord Ellenborough, C. 1., observed—" How can this record be evidence for him in another action? I am aware of the case of Bird v. Randall; but I do not think that A. has any interest in the event of this suit;" Richardson v. Smith, 1 Camp. 277. In an action against A. B. for adultery committed with the plaintiff's wife, it is no bar, that the plaintiff has also sued C. D., and charged him in execution, for adultery committed with her about the same period; Gregson v. M'Taggart, Id. 415. This latter case indeed is distinguishable, for there there were two distinct injuries.

In replevin, no judgment as in case of a nonsuit for not trying the cause.

Eggleton v. Smart.

S. C. Say. Costs, 168.

AN replevin: M'Phedris moved for judgment as in case of a nonsuit («), for not proceeding to trial. Eyre shewed for cause, that as both plaintiff and defendant in replevin are considered as actors, either of them may carry down the cause to trial; and that if defendant gives notice and does not go on to trial, the rule of the Court is to give costs against him. That, in the present case, no notice has been given by the plaintiff; and that there is no instance of this act of Parliament being carried into practice in actions of replevin. In reply, a case out of Barnes (o), was cited on behalf of the defendant. But by the whole Court: The statute has never yet been extended to actions of replevin in this Court, and therefore

Let the rule be discharged (p).

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Heron V. Heron. DEFENDANT obtained a rule for time to plead, pleading A judgment in issuably, rejoining gratis, and taking short notice of trial.— J^TM^"^ Afterwards, the defendant pleaded a judgment in the Court of (wi,en false in Common Pleas, upon which the plaintiff signed judgment: and fact), within the now defendant moved to set aside this judgment for irregularity, ""j8?"^* But it being proved by affidavit, that the plea was in fact a false plea, the Court held, that this was not an issuable plea, within the meaning of the rule for time; and therefore discharged the rule for setting aside the judgment, with costs (q).

(q) S. P. LowfieU v. Jackson, 2 Wils. 117; Cave v. Aaron, 3 Wils. 33: see also Hartley v. Hudson, 1 B. Mo. 431.

Molyneux v. Scott.

TRESPASS, for taking the plaintiff's cattle. The defendant Devise of an justifies, as being a distress for the arrears of an annuity of 251. ""UTdirecti'on per annum, devised to him by Thomas Molyneux, Esq. de- that the annuiceased, and charged on lands in Lancashire. The defendant tant shall rewas many years a menial servant to Mr. Molyneux, who, in a "'^thete^tocodicil to his will, dated 20th May, 1755, devised the said an- tor-s death, do nuity to him and his assigns for the term of his natural life, with not imply a cona power of distress for non-payment. And then, after several * n^dtanfshaU other bequests, he gives to the said defendant all his wearing continue in serapparel, and then adds, "And I do hereby direct, that the said vice. "William Scott shall not have any wages for his service for the "time he shall serve my said son or my wife after my death, by "reason of the said annuity herein before given him." The plaintiff replies, that after Mr. Molyneux's death the defendant continued in the service of his wife and son for a sho rt time only, and then departed of his own accord without their consent. To which replication the defendant demurred, and plaintiff joined in demurrer.

Wallace, for the defendant, insisted, that this was an absolute annuity in the former part of the codicil, and that there is nothing in the latter clause to make it conditional. No uervice is imposed on the annuitant; the testator only meant, that *he [ *377 J should not enjoy the annuity and wages too; for being a yearly servant he must continue in the family to the end of his year, and would thereby be entitled to wages: to prevent which the testator directs, that he shall have no wages for the time that shall elapse after his death. Any other construction would impose a servitude for life. And it is remarkable, that many other bequests intervene between the gift of the annuity, and the supposed condition.

Yates, for the plaintiff, argued, that in wills no precise formality is requisite to create a condition; it is sufficient, if the intent of the testator appears; and then the Court will enforce the condition, however unconnected the clauses from which* it

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Scott.

is collected. The words "by reason of the said annuity" in the second clause create a conditional hequest. An annuity to one, quodprcestaret consilium, held to be conditional; Co. Litt. 204 a. Devise to A. "and that he should be chaplain" held to create a condition; Plowden, 412, Schola-stica's Case. If the defendant does not perform the direction, he fails in the condition, for which the annuity was granted; vis. that he should serve without any wages.

Lord Mansfield, C. J.—I had no doubt upon the first reading of this codicil, nor have any now. The intent of wills is cjrtainly to be gathered from the whole taken together. No precise form of words is necessary ; but the intent of the testator must be carried into execution, if found to be agreeable to law. This intent must be collected from what are called necessary implications, or, more properly, from such as are probable. The true construction of wills is the same in a Court of law and a Court of equity. In all wills, there is a tacit condition annexed, both in law and equity, that whoever would derive {i benefit under a will, must acquiesce in the whole of it, however disjointed the parts(r). Having laid down these general rules, let us now consider the present case. If from the words of the will or codicil any intent should appear, that the defendant should live on with the testator's wife and son, I [ * 378 ] should hold it to be clearly * conditional. But no such intention appears. The codicil is drawn with legal assistance and advice, as plainly appears on the face of it. The annuity is a gift to his own old servant; not one who was about the person of his son, which might have been an inducement for

Rules for the construction of wills.

(r) An object of the testator's bounty shall not acquiesce in and admit the validity of the will by taking a benefit to himself under a disposition contained in it, and at the same time insist upon a claim adverse to and inconsistent with the intention of the testator, but to which he may have a legal right: he shall not adopt it as to that part, which is beneficial to himself, and repudiate it as to other parts, but shall make his election, whether he will take under the will and relinquish his claim adverse to it, or do the contrary. Where the testator disposes of the estate of another person, who has some interest given him by the will, such person shall not take that interest, unless he gives up his estate to the same amount. See Whistler v. Webster, 2 Vei. J. 3G7; Ward v. Baugh, 4 Ves. J. 623; Wollen v. Tamier, 5 Vcs. J. 218. The doctrine of election was very much discussed in the case of Thellusson v. Woodford, 13 Ves. J. 209. There Lord Erskine, C. (p. 220), clearly lays down the principle of it—" The jurisdiction exercised by the Court of Chancery, compelling election, may be thus described:— A person shall not claim an interest under an instrument without giving full effect to that instrument as far as he can. If, there

fore, a testator, intending to dispose of his property, and making all his arrangements under the impression that he has the power to dispose of all that is the subject of his will, mixes in his disposition property that belongs to another person, or property as to which another person has a right to defeat his disposition, giving to that person an interest by his will, that person shall not be permitted to defeat the disposition, where it is in his power, and yet take under the will. The reason is the implied condition, that he shall not take both; and the consequence follows, that there must be an election; for though the mistake of testator cannot affect the property of another person, yet that person shall not take the testator's property, unless in the manner intended by the testator.'

So though a devise to the heir is inoperative, for he takes by his better title, that is, by descent (ante, pp. 22, 187), yet it shall put him to his election between the property so devised to him and his claims adverse to the will; Welby v. Welby, 2 Ves. 8c Beam. 187.

See also Blake v. Btmbury, 4 Bra C. C. 21, and Mr. Eden's note there, wherein all the modern cases on the subject of election arc referred to.

V.

Scott.

the testator's desiring him to stay there. The gift is to him Molvkeux and his assigns, to enable him to sell it if he pleased, which it would be impossible to do, if it were defeasible, whenever he absented himself. The words, "for the time lie shall serve" prove to me, that the servant had his option, and was not compellable to stay, under pain of forfeiting his annuity. Besides, 251. per annum is not an equivalent for wages, board-wages, and clothes; all which might be withheld under this direction, of the codicil. On these circumstances of the case, and a full consideration of the whole of the codicil, I ground my opinion; and not on the want of any technical words, or formal arrangement of clauses.

Dennison, Foster, Wilmot, Js., of the same opinion.

■ Judgment for the defendant.

The King V. Harris, Alderman of Gloucester, and Others.

S.C. 3 Bur^. 1330.

AN information was filed against the defendants, for mal- Evidence of practices relating to the admission of freemen in the city of {^extremely8' Gloucester, previous to the late general election in 1761. The strong, to prosecutors now moved to enter a suggestion (*) on the roll, change the place that a fair trial could not be had in the county of the city of ^^51,^" Gloucester, and for an award thereupon, that the trial should tion. be had in a neighbouring county, viz. the county of Gloucester at large. Affidavits we're read to prove, that all the aldermen, sheriffs, and coroners, were interested on the one side or the other, so that a fair jury could not be returned. On the other hand a list was produced (verified by affidavit), of near six hundred persons qualified to serve as jurors, above eighty of which were non-freemen; and a special jury was already moved for in this cause, and granted.

* For the defendant was cited the King and Burton, Trin. [ * 379 ] 27 and 28 Geo. 2, in which, the Court would not change the venue from the town to the county of Nottingham for the trial of an information for a false return to a mandamus for filling up the corporation; notwithstanding an affidavit made by the defendant, that all the burgesses were interested in the question of civil right, and that forty-eight Jurors could not be impanelled without including some of the burgesses.

For the prosecutors were cited, the Mayor of Poole and Bennet, Trin. 4 Geo. 2, Stra. 874(f), where the venue was changed, because the corporation was interested in the cause: and the King and Norwich, Clift's Entr. 741, where such a suggestion was entered on the roll, as now moved for, which is the more regular way: and the motion was rejected in the King and Burton, because it was to change the venue and not to enter a suggestion. And in the King and 6'anion, about

(s) See the form of such suggestion in 1 Wils. 298; R. v. St. Mary on the Hill, R. v. Henry Hunt, 3 B. 8e A. 448. 7 T. R. 735, and Mylock v. Saladine, pott,

(0 Sec also Mayor of Bristol v. Procter, 480.

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