BOND v. SEAWELL. of sheets or skins in a will; the statute gives no direction for that purpose. It is allowed, that the last sheet is well executed: the question is, what does that extend to? All is of the testator's writing, the context runs from one sheet to another; therefore he meant to publish his whole will; and declares that his intention in the last sheet. The last sheet is clearly valid; shall the first be bad? Suppose the mansion-house devised in the first sheet, and the out-houses in the second; would the Court separate them by this nicety of construction? In all trials, a witness is only shewn the last sheet upon which his attestation is signed, and by which only he knows the identity of the instrument. Lea and Libb, 3 Mod. 262, 1 Show. 68, 88, Comb. 174, Carth. 35; Reports temp. Holt, 742; Reports in Equ. 263, (relied on by the other side), [was] a will attested by two witnesses, [and] a codicil, reciting the will, attested by two witnesses also, one of whom was also a witness to the will: held not to be well executed. But that was the case of one complete instrument attested by an incompetent number, and of a co*dicil subsequent many months in date. [*409 ] We have three witnesses, who all attested the whole, that Sir Thomas Chitty meant to publish as his will at the same time. Suppose a will is made without any attestation; and afterwards, by a codicil, the testator refers to it, and confirms it, and has three witnesses to the codicil: this would be a good will (e). [In] Molineux and Molineux, Cro. Jac. 144, the question was, whether a man had made a good will in writing, under the statute of wills. He devised to his sons, "accord"ing to the intent expressed in certain other writings, therein "mentioned." Court held it to be good by way of reference. By the same rule I now contend, that the first sheet of Sir Thomas Chitty's will is well attested, being in like manner referred to by the last, which is allowed to be indisputably good. Yates, for the defendant, observed, that the question is not, (e) It would not be a good will since the Statute of Frauds. The original will referred to by the codicil, must have been properly executed, for if it be bad in its inception, no codicil, though properly executed, can give effect to it. As where a testator devised lands by a will written in his own hand, but which had no witnesses, and then by a codicil, duly executed and subscribed by four witnesses, recited and took notice of it, it was held that the will was void; Att.-Gen. v. Barnes, 2 Vern. 597, Prec. in Ch. 270. In a leading case on the subject, this doctrine has been laid down, viz. that every codicil, referring to a previous duly executed will, unless confined in expression, is a republication of such will, though the codicil relate only to personal property; Barnes v. Crowe, 1 Ves. Jun. 486, confirming the case of Acherley v. Vernon, 1 Com. R. 381; Piggott v. Waller, 7 Ves. Jun. 98, S. P. Lord Hardwicke seems to have been of the same opinion, in Gibson v. Lord Montford, 1 BOND v. SEAWELL. [ *410 ] whether the will is genuine, but whether duly published under the statute of frauds. And in support of a general law made for the security of devises, it is proper to go even against the intent of any particular testator. This statute has been always strictly interpreted; and the first sheet was never seen by two of the witnesses. Had the sheets lain one upon another, and been connected together, I allow it would be a good attestation, though the witnesses might never see the under ones. The law implies that they did see them, till the contrary appears; and if they saw but the extremest edge of the paper, it will be sufficient. But here there is a direct absolute negative. The witnesses have sworn, they did never see the first sheet. In Lea and Libb, as reported in 3 Mod. the Court put this very case in terminis, and held it no good attestation. The reason is, because the testator may afterwards substitute another sheet in the room of that he had first written; which, if proved, would clearly vitiate the will. The Case of Molineux and Molineux was only a question of description; and the Court very justly held, that the nature of the estate might well be described, by reference to another instrument. *Morton, in reply, observed, that a man might as easily change a sheet in his will for a new one, after he had shewn and published it as before; unless the witnesses must subscribe every sheet, which was never yet contended. And that, as to the legal possibility of seeing the edge of every sheet, nothing hinders a man from writing his will on paper of various sizes; and if a little bit be inserted in the middle of his will between several other sheets, no witness can prove its publication, otherwise than by inference and connexion. And that the connexion of grammar and context is altogether as rational and as certain a criterion, as the connexion of a wafer or pack-thread, which Mr. Yates has admitted would have made it a good publication of the first sheet, though it had lain out of sight, and totally covered by the second. [Post, 422, 454.] delivers on a habeas corpus, protection to the is of course. THE KING v. DELAVAL and Others. S. C. 3 Burr. 1434. When the Court ANN CATLEY (the daughter of a gentleman's coachman), was apprenticed by her father, at sixteen years old, to one Bates, a music-master, for seven years; and the father was bound in a penalty of 2007., in case of the girl's misbehaviour or running away, when qualified to be profitable to her master. About the age of nineteen, she became acquainted with Sir Francis Blake Delaval, and had a criminal correspondence with him, which produced other irregularities in her conduct. Bates, the master, being angry at her behaviour, threatened to turn her out of doors, and sue the father for the penalty. Hereupon Sir Francis took a lodging for her and her mother, and furnished it, the master allowing her 251. a year for her board, the person, it is always done in Court. and being to have her earnings as a singer at Covent Garden Theatre and Marybone Gardens. DELAVAL. Afterwards, at the girl's request, Sir Francis paid Bates the 2007. penalty, and agreed to pay him 2007. more, for her earnings this season, and had a general release from him to the girl and Catley the father. She then agreed to bind herself apprentice to Sir Francis for the residue of the term in the common form, and with the usual covenants of such *indentures, and also a special covenant not to leave Sir Fran- [ 411 ] cis's house; and Sir Francis covenanted to instruct, or cause her to be instructed, in the art of music. The father was made a party to this indenture; but when Fraine the attorney brought it him to execute, he kept it;-and now, 13 May, moved the Court for an information against Sir Francis, Bates the master, and Fraine the attorney for a conspiracy to debauch his daughter under the forms of law; and for a habeas corpus directed to Delaval to bring in the body of Ann Catley; which he did the next day, without any return in scriptis (f) (which the Court allowed to be well enough), and the girl was discharged out of his custody. Upon this the father attempted to seize her in Court, but was not permitted, and reprimanded for the contempt by the Chief Justice. She declared her attachment to Sir Francis, and aversion to go home with her father; upon which, Norton, Solicitor-General, desired the direction of the Court, that she might be protected from any violence redeundo. But, as her intention was plain to return to cohabit with Sir Francis, the Court hesitated as to that point; and said, that such protections depend on the circumstances of the case. Sometimes we go so far as to send an officer with the parties home. At other times we only protect in the face of the Court. It may, or may not, be proper for a father to have the custody of his child under age, [till] arrived at years of discretion. In the present case, he seems to have assigned over his parental authority to Bates the master, by the indenture of apprenticeship. However, let cause be shewn on the information, the 16th, (being the last day of Term) and let the girl and her master then attend; and in the mean time let no person molest her on pain of being committed. On the 16th cause was shewn; and the conduct of the young woman appeared so thoroughly vicious, that the Court declared, they had no hopes of reclaiming her; and that the only question was, whether any temporal crime had been committed deserving the interposition of this Court.-They were led to believe, that the girl had been ruined by conspiracy, and that the father and mother were originally parties to it; though now the father appeared in the light of prosecutor. The rule was [412] therefore enlarged to the first day of Trinity Term(g), that the father and mother might answer the matter of the defendant's affidavits. ("Qu. If they should appear to be guilty, who will be now the prosecutor?") * (f) See Mash's Ca., post, 805; Warman's Ca., 1204. THE KING v. DELAVAL. But as to the delivery in pursuance of the habeas corpus, Norton, Solicitor-general, observed, that the Court have been ever very reluctant to do any thing but release from the confinement; and cited the King and Clarkson, Trin., 7 Geo. 1, Str. 444; King and Johnson, H. 10 Geo. 1, Id. 579, Lord Raym. 1334; King and Smith, Trin., 10 Geo. 2, Stra. 982. Lord MANSFIELD, C. J.-We have considered those cases very fully. We think, what was done in all of them was very right; but we don't agree with what was said in the books about them. In the case of wards, not sui juris, the Court is bound to protect them. And, wherever the Court does not think fit to deliver the parties into any special custody, they will privilege them redeundo. If the Court refuses that, it impliedly directs the parties to break the peace, even in PalaceYard. As to the cases; 1, K. and Clarkson. A young lady, of marriageable years, lives with her legal guardian. A man claims to be her husband, and sues out a habeas corpus. She, in Court, denies the marriage. Till the fact is tried, the Court cannot change the custody. They therefore protected her home by a tipstaff, lest the pretended husband should seize her redeundo. But this bears no resemblance to Lady Harriot Berkley's Case, as the reporter has made the Court declare. 2, K. and Johnson. Frances Holland, a child of nine years old, brought up in custody of a guardian, appointed by the Spiritual Court. This Court delivered over the custody of the child to her guardian, appointed by her father's will;-the Court did right. What authority had the Spiritual Court to appoint a guardian in such a case? If a child be in custody improper for it, the Court will not remand; for if it remands, it must also [*413] protect. And if a child be kidnapped, or kept up for the purpose of prostitution, shall this Court send them back again, and not rather restore them to their parents or guardians? It is said in the next case, that Lord Raymond repented of what was done in this. His Lordship was latterly a very scrupulous man. But we are clear, his first judgment was the right one. 3, K. and Smith. A boy almost fourteen living with his aunt, brought up by habeas corpus at the suit of his father. The Court only delivered him out of custody, and informed him, he might go where he pleased. He chose to remain with his aunt. According to the note I have seen of it, the Court had a very ill opinion of the father's designs; and the boy expressed great unwillingness to go to him.-Upon the whole, the true rule to be collected from all these cases is, that, if the circumstances require a change of the custody, it must be delivered in Court: If they do not require it, the privilege redeundo is of course (h). In the present case, upon the circumstances, we think it very improper for her to go to her father. He used her ill before she was apprenticed; and by the indenture has parted with all his parental authority. She must be discharged; and of course, (h) R. v. Mead, 1 Burr. 542; R. v. Clarke, Id. 606. In R. v. Brook, 4 Burr. 1991, the Court gave the person a tipstaff to secure her from insult on her return. See also R. v. Winton, 5 T. R. 89. will have her privilege redeundo: but I will not interpose in any extraordinary manner. DENNISON, J., WILMOT, J., accord.. STEPHEN [et al.] v. COSTER et al. S. C. 3 Burr. 1408. ACTION on the case against certain malt-factors, for loading and unloading malt at the plaintiff's wharf, without paying any duties for the same. On trial at Guildhall the following spe cial case was made: THE KING บ. DELAVAL. Wharfingers in goods unladen tened at their By an order of Privy Council, 1st of May, 1674,-reciting into lighters, the statute, 22 Car. 2, c. 11, s. 44, which enacts, "That a pub- from barges faslic wharf or key be left along the river-side, from the Temple wharfs. to London-Bridge, forty feet wide; and that no vessels shall [Post, 423.] *lie before the same longer than shall be necessary for the [414] lading or unlading of goods, without consent of the several wharfingers; and that it shall be lawful for all persons to load or unload goods at the same, paying for wharfage and cranage such rates, as the King in council, from time to time, shall appoint."-King Charles 2d did appoint certain rates to be taken for all goods brought unto, shipped off, loaden or unloaden, at Brooke's wharf; and that the rate for malt was 6d. per score. That the plaintiffs were wharfingers, and possessed of Brooke's wharf, and entitled to the said rates; that the defendants were consignees of a loading of malt, which was brought in a westcountry barge to Brooke's wharf; which barge was fastened and lay at Brooke's wharf, and unloaded a small part of her cargo upon the said wharf; and, while she lay there fastened, the other part of the cargo was taken out and put on board lighters, and never landed on the wharf. The question is, whether the defendants are liable to pay the wharfinger according to the rates mentioned in the order of council for such part of the cargo as was put on board the lighters, and never landed on the wharf. Wallace, for plaintiffs.-At common law none could lade or unlade at a wharf, but by contract with the owner. This act of Parliament obliges the owner to allow the use at certain rates; therefore just and reasonable, that he should have the rate appointed. Defendant fastened in the usual way for unlading, which the plaintiff could not prevent; and so had the use and benefit of the wharf. In the case of a fair, stallage is due, whether a man sells any thing or no; Case of Newington Fair, 2 Roll. Abr. 123 (). The statute has not fixed how much he shall unlade at the wharf;-therefore, by unloading a bushel a day, he may justify lying there, may keep other barges off, and unlade the rest of his cargo in lighters. Burland, Serjeant, for defendants.-The statute vests a power in the King and Council to make rates. If the power (i) Market (B) pl. 1; S. P. Hickman's Ca., ibid. pl. 2; Hill v. Hawkur, Moore, 835; Com. Dig. Market (F 2). See Mayor of Norwich v. Swan, post, 1116. |