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which amounted to near as much more.—Browne, who had published a narrative, and one Say, the printer of a newspaper, had previously made their peace with the prosecutor.
MONCASTER V. Watson.
►SPECIAL case from the last Assizes at York. Plaintiff was
Wallace, for the defendant, cited Stockwell and Terry (a), in Chancery, 15 July, 1748, wherein Lord Hardwicke allowed such an exemption to take place, in certain new inclosed lands at Dummer in Hants.
Thurlow, for the plaintiff, observed, that in that case the exemption claimed was from all tithe; in the present, for certain specific tithes. All other tithes are to be paid in kind; as for lambs, wool, agistments, &c.; at least it must be so * presumed, as no exemption is claimed for them. These were the natural tithes of the common, and the inclosure shall not confer an exemption which the land had not before. Lord Hardwicke's decree was founded on the private act of Parliament for inclosure, to which the parson was a party, which was equivalent to the agreement of the parties. The impropriator is no party to the act for inclosing the common now in question.
Lord Mansfield, C. J.—In Stockwell and Terry, the prescription was, to be exempted from all tithes of Grange Farm and its appurtenances, in consideration of a modus of 15*. The appurtenances were therefore covered by the modus, when uninclosed; and afterwards, when they came to be inclosed and ploughed, they were covered still. But here the prescription is for tithe of corn, grain, and hay on a certain spot of land called Swarland Demesne. There is no prescription for any exemption from other tithes. The common therefore always was unexempted, and continues unexempted still (b).
(o) 1 Ves. Sen. 115.
(6) By a grant of all tithes "arising out of or in respect of farms, lands," Sec. the tithes arising out of and in respect of rights of common appurtenant to such farms or
lands will pass; Lord Gwydir v. Foakes, 7 T. R. 641; S. C. 2 Eagle & Y. 470. So, where A. had purchased an estate free from rectorial tithes, with a right of common thereto annexed, which common
Wilmot, J.—My only doubt is, whether (as by this act of Moxcaster Parliament the new allotments are made liable to all the same "•
charges and incumbrances as the old land was) such new allot- ■
merits will not, by this construction, be made liable to the modus (viz. the repairs of the church, which are chargeable oa Swarland Demesne) and the tithe too (c).
Dennison, J.—I should much doubt, whether the act, by the word " charge," could mean to include such a burthen as this: if it should, it is by the defendant's own agreement.
Wilmot, J.—Perhaps the word " charges," being coupled with incumbrances, is only equivalent to it, and means no more than debts, jointures, mortgages, &c. But this is my only doubt, and indeed of no great weight. The principal question is extremely plain. It differs from Stockwell and Terry materially: there, the new inclosed lands were always exempted; here, never exempted before. Lord Hardwicke therefore properly determined, that the exemption should continue after mclosure; and upon the same principle we must determine, that he lands now in question shall continue liable.
Judgment for the plaintiff.
wai afterwards inclosed under an act of hay, neither of which the common, while
Parliament, and certain land was allotted uninclosed, wai capable of producing. The
to A. 1b lieu of his said right Of common; tithe of agistment would therefore remain
it was held, that no tithe was payable payable notwithstanding the exemption;"
in respect of the allotted land. Abbott, Steele v. Manna, 5 B. & A. 22; S. C. 3
C. 1.—" This case is very distinguishable' Eagle & Y. 1065.
from Moneoster v. Watson; for the land, (c) "The modus was confined to the
to respect of which the allotment was there demesne lands, and did not extend or af
made, was not wholly free from the pay- feet to extend to the common;" per Lord
ment of tithe: the exemption claimed was Kenyon, 7 T. It. G51. merely from the tithe of corn, grain, and
The King », Heydon. (Ante, 351, 356.) [ 40* ]
S. C. 3 Burr. 1387.
1HE defendant was convicted at the Assizes for bribery; and Witness indicted it was now moved to postpone judgment, till an indictment, for PerJury not which he had preferred against one Burbage, for perjury in his p^* judgmmt" evidence, was determined. against the per
Norton, Solicitor-General, and Morton shewed for cause, 8on convicted, that this was a motion of the first impression, and of very dangerous consequence, merely to delay justice: that the perjury assigned in the indictment is not in respect of the fact for which Heydon is convicted, but a collateral circumstance: that Burbage offered to take his trial immediately after the indictment found, but the defendant refused to consent to it: that the witnesses on this indictment for perjury were all examined (one only excepted) on the information for bribery.
Lord Mansfield, C. J.—I am clear, that Heydon can be no witness in this case, if they mean by this indictment to alleviate the judgment of the Court for the bribery; because he is swearing in his own cause. And the witnesses on the indictment having all been previously examined at the former trial makes
Judgment for bribery.
an end of this motion; for their credit has already been weighed by a jury, and found wanting. Therefore let the defendant stand committed till Saturday, April 30.
Afterwards, the Court gave judgment on him, to be imprisoned three months, and pay a fine of 200/.
In making a [title by] pedigree! evidence that a man has not been heard of many yean is sufficient evi
[ *405 ]
dence pritnd facie to prove him dead without issue.
Rowe v. Hasland.
IN ejectment, evidence was given, that one James Hasland, a poor labouring man, was living at Liverpool about sixty years ago, whose title, or that of his issue (if living), would supersede the title of the plaintiff's lessor. Five witnesses deposed that they believed he was dead without issue, but knew nothing for certain. The plaintiff produced the register of * Waltham, to shew one James Hasland buried in 1707; but this plainly appeared to have been altered from Harrox, but by whom, or where, did not appear. Clive, J., who tried it at the last Northern Assizes, left it to the jury, whether Hasland was dead without issue. The jury thought so, and gave a verdict for the plaintiff, with which the Judge reported himself satisfied.
Defendant now moved for a new trial, as contrary to evidence.
Lord Mansfield, C. J.—In establishing a title upon a pedigree, where it may be necessary to lay a branch of the family out of the case, it is sufficient to shew, that the person has not been heard of for many years, to put the opposite party upon proof that he still exists. Many persons go to the East and West Indies, and are never heard of again. What is done on such a trial is no injury to the man or to his issue, if he should afterwards appear and claim the estate. I am therefore satisfied with the Judge's direction, and with the verdict, upon the reason of it, as well as upon the Judge's authority (d).
(rf) "According to the statute 10 C. 2, c. 6, with respect to leases dependent on lives, and also according to the statute of bigamy, 1 J. 1, c. 11, the presumption of the duration of life, with respect to persons of whom no account can be given, ends at the expiration of seven years from the time when they were last known to be living;" per Lord EUenborough in Doe v. Jetton, 6 East, 85; which principle is recognized in Doe dem. Lloyd v. Deakin, 4 B. & A. 433, where it was decided, that the fact of a tenant for life not having been seen or heard of for fourteen years by a person residing near the estate, although not a member of his family, UprimA facie evidence of his death. See also Doe dem. Banning v. Griffin, 15 East, 293. Under a plea of coverture, where it appeared that the defendant's husband went abroad twelve
years ago; it was held, that the defendant was bound to prove that he was alive within seven years: but the production of letters written by him to his friends within that period, was held sufficient proof; Hopewell v. De Pinna, 2 Camp. 113.— There the fact of the party not having been heard of for seven years raised a presumption, that he was dead, which it is for the other party to rebut. But if it appear, that he has been heard of within that period, and the issue is on the life or death of the person, the proof lies on the party asserting the death; for the presumption is, that the party continues alive, till the contrary be shewn, either by direct proof, or by fiscts which raise the presumption of his being dead; Wilton v. Hodges, 2 East, 312. See Vin. Abr. Absence (B); Evidence (T. b. 87); Stark. Evid. P. iv, 1120.
Glover V. Black.
S. C. Ante, 399.
lHIS case was again argued by Morton, for the plaintiff, and Norton, Solicitor-General, for the defendant.
Morton insisted, that the respondentia creditor has an interest in the goods: a pledge without a deposit:—pecunia trajectitia, as called by Maleyne, Lex Mercat. c. 31. He trades at the peril of the sea; the voyage is an adventure at his hazard. The respondentia interest is therefore a merchandize, and the insurance is upon goods and merchandize. As to frauds that are suggested to be consequent on this doctrine, the Court will not adopt the supposition of a possible fraud, where none has actually happened. And as to the case put of •demanding a return of premium, (in the last argument), it [ *406 ] cannot happen in this case; because no person can ship goods in the India trade, but on the Company's account. By stat. 19 Geo. 2, c. 37, s. 5, no insurer on respondentia shall be answerable for more than the value of the insured's interest in the ship or goods; and if the goods, &c. do not amount to the value of the sum lent thereon, the borrower shall be responsible to the lender for so much of the money lent, as he hath not laid out on the ship and merchandize, together with the insurance, &c, notwithstanding the said ship, &c. be totally lost. Hence I argue, that respondentia interest is insurable, eo nomine, as goods; because one is made the measure of the other. And the insurer always considers respondentia as goods, because he allows the bond itself to be the only proof of interest necessary, and never enquires after the value of the goods on board.
Norton, Solicitor-General, observed, that in every India ship there is always a private adventure; and Captain Glover had certainly one in the case at bar. Respondentia interest must always be insured nominatim and specifically; because it is in itself no general or special property, no interest in the goods at all. The contract does not enable the lender to proceed against any part of those goods; he cannot attach them, if the borrower be insolvent; he has no remedy in rem, but in personam only. This distinguishes this case from a mortgage; for in mortgages the thing is bound to pay the debt. As to fraud;— he who underwrites for respondentia does it for the whole voyage; he who underwrites for goods, runs no risk any longer than the goods remain undisposed of. But, whether more or less advantageous, is not the question: the underwriter should know what he insures; the insured should name it at the time, not upon after-thought, as he may like best. If respondentia cannot be insured so cheap as goods, that argument is decisive for us; if it can, then, in the name of honesty, why not name it? In all commercial countries there is a special form for insuring respondentia, nominatim. Would such a custom have . ♦prevailed, unless the merchants had seen good reason for it? L »407 ]
In no case before, has a policy for the one been allowed as valid for the other. And, as it never has been, so it never ought to be. You might, with' equal propriety, confound an insurance on the ship and her freight, or with greater; that being more nearly allied than the present instance, it being the earnings of the ship. As to the argument drawn from the act of Parliament, the substantial purpose of it was, to prevent a gaming policy, as far as possible. Therefore it enacts, that the fund shall be equal to what is pretended in the respondentia bond. The admitting the bond to be sufficient proof of the interest is by private agreement, by a special clause in the policy, whereby the lender, who is insured, is not to contest this matter with the fraudulent borrower, but leaves the insurer to do it for him.
[See S. C. poil, 422.]
Bond V, Seawell.
3 Burr. 1773.
tttadLrfrf"" ISSUE to try the validity of Sir Thomas Chitty's will. On will of lands be the trial, this special case was made:
valid, when the witnesses only see the last sheet of the will?
Sir Thomas Chitty made his will, 20th March, 1762, all of his own hand-writing, upon two sheets of paper, wrote in folio pages on all sides, and signed at the bottom of each page. The sentences and words were so connected, from the bottom of each page to the top of the next (and particularly from the fourth side of the first sheet to the first side of the second sheet), that they were imperfect and nonsensical, if read apart, but clear and intelligible, when read together. He also made a codicil in like manner, on a single sheet. The testator then called in Francis Harding, shewed him both sheets of the will, and his signature to every page, told him that was his will, and also shewed him the codicil, and desired him to attest both, which he did on the last sheet of the will, and on the codicil, in the presence of the testator, and then left the room. John
[ *408 ] Vaughan and John Leyland came in immediately after*wards; the testator shewed them the codicil and the last sheet of the will, and sealed them in their presence, took each of them up, and severally delivered them as his act and deed. These witnesses then attested the same in the testator's presence, but never saw the first sheet of the will, nor was it produced to them, nor was the same or any other paper on the table. After the testator's death, both sheets were found in his bureau, not pinned together, but (with the codicil) wrapped up in one piece of paper.
Queere, Whether this was a will duly executed, according to the statute to prevent frauds and perjuries?
Morton, for the plaintiff, argued in support of the will:— That in the last sheet there are no lands devised; therefore to that alone, no formal attestation was necessary; so that the testator must intend, that the attestation should relate to the
! \ . first sheet: That no witness is expected to know the number