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ut other auxiliary circumstances; this Gobel having formerly een allowed as bail in this Court, on making affidavit that he as worth 90001. in Antigua (e).
(e) Boddy v. Leyland, 4 Burr. 2526; Vightwick v. Pickering, Forrest, 38, cont. ail allowed to justify in respect partly of ish, and partly of a freehold house at ibraltar; Beardmore v. Philips, 4 M. & . 173. So, a native of England allowed
justify, partly in respect of a landed state in Surinam, and partly in respect of roperty in England. But Bayley, J.,
there observed, after citing this case, and
GUICHARD 0. ROBERTS.
[ 445 ] ACTION on a note of hand. On the trial the defendant Defendant may fave in evidence, that the note was obtained upon a smuggling set up an illegal
consideration consideration (f); on which the jury found a verdict for him. i
lound a verdict for mm. against an acOn a motion for a new trial, Lord MANSFIELD was strongly of tion on a note of opinion, that such evidence should not have been admitted; hand. ind took a difference, where the plaintiff alleges the turpis ausa as the ground of his action, and where the defendant sets t up as the ground of his defence: in both which cases, he deied that either party should avail himself of his own wrong; ind granted a rule to shew cause.
But afterwards, in the close of the Term, the cause being compromised, Lord MANSFIELD took it up again mero motu; ind declared, that it was now the clear opinion of the whole Court, that on this action an illegal consideration might clearly be set up as a defence; and they did not see why it might not be done on an action of debt on bond (g). For every creditor ought in justice to prove the consideration on which his conract is founded; and, though the law allows bonds and notes o be prima facie evidence of a good consideration without proving it on the part of the plaintiff, yet it ought not to prelude the defendant from shewing, that the consideration in fact s a bad one.
The King v. BANKES and Others.
S. C. 3 Burr. 1452. RULE to shew cause why a mandamus should not go to the In rules for a lord of the manor of Corfe Castle to hold a Court Leet, and to mandamus to
elect a mayor, a certain jurors (who had been summoned to attend at a court subsist appointed to be held on 25th October last) to appear, and form de facto must a jury, in order to elect a mayor. It appeared on the prose- always be a cutor's affidavits, that one John Price had been de facto elected pa
mayor on 29th October, and had acted as such, but his name was not in the rule.
Morton shewed for cause, that the rule could not proceed till Price was inserted therein, and had been served, he being ] *materially interested in the event of the question; and cited
the King and Scawen (h), mayor of Mitchel, in Cornwall, coram Rider, C. J., Mich. 1753, where the omission of the subsisting mayor (in a rule to shew cause against a mandamus to elect another) was allowed to be sufficient cause why the mandamus should not go. And upon this precedent, as well as upon the reason of the thing, the Court enlarged the rule till next Term, and ordered Price's name to be inserted therein.
[S. C. Post, 452.]
(h) See 3 Burr. 1453.
Right on demise of BASSET v. Thomas and Another.
S. C. 3 Burr. 1441. Leasing powers IN ejectment, at the Summer Assizes for Cornwall, 1761, to be liberally, a verdict was found for the plaintiff, subject to the following construed; and therefore land case: settled for years John Pendarves Basset, by marriage settlement, 11th and determinable on 12th April, 1737, conveyed to trustees divers manors, &c. to lives, by a family settlement, shaủ the use of himself for life, and so on to his intended wife and be said to have issue, in strict settlement; remainder to such uses as he should been thereby appoint; remainder (if no appointment) to himself in tail; reusually demised.
mainder to his brother, Francis Basset (lessor of the plaintiff), in strict settlement; remainder to himself in fee: with power to the several tenants in possession, or to the trustees, during their minority, by any deed or deeds, with two credible witnesses, to lease for one, two, or three lives, or for years determinable on one, two, or three lives, any part of the premisses, which had been usually so letten, so as such rent as had been given for twenty years past, or a proportionable part should be reserved thereon; and all usual covenants inserted therein, and with other usual provisoes. The marriage took effect, and said John Pendarves Basset died 19th September, 1739, leaving his wife enseint of a son, born 22d May, 1740, and having made no appointment.
On 24th June, 1742, said trustees (with the approbation of a Master in Chancery) demised to Nicholas Tresidder the pre
misses in question in consideration of 1751. for ninety-nine years, [ *447 ] *determinable on three lives, at the rent of 13s. 4d. per annum,
with usual covenants, &c. On 17th November, 1756, John Prideaux Basset, the son, died intestate, and unmarried, whereupon the premisses in settlement vested in Francis Basset. It appeared in evidence, that 21st June, 24 Hen. 8, the premisses (with others) were let to John Killegrew for 55 years :—That
on the 20th of October, 18 Eliz. the same were demised to Right Thomas Cosworth for forty years from and after the expira
THOMAS. tion of the former lease, which term, by mesne assignment, became vested in Richard Gardiner : That 17th November, 5 Jac. 1, the same was demised to said Gardiner, for ninety years, determinable on three lives from and after the term then subsisting: That these terms were assigned to Samuel, father of William Pendarves; That on 15th September, 1631, William Pendarves purchased the fee-simple of the premisses :That on 4th December, 1635, Samuel Pendarves assigned the residue of his terms to Thomas, his second son, and on 12th December, 1638, William conveyed the inheritance to his father Samuel: That on 15th December, 1638, Samuel Pendarves (in consideration of natural love and affection) covenanted, that he and his heirs should stand seised (ö), of the premisses, to the use of himself for life, with remainder to his son Thomas for ninety-nine years, if he, or any wife he should marry, or any issue he might have, should so long live: That Samuel died in 1643, at which time the said term of ninety-nine years commenced: That Thomas granted several under-leases, for terms determinable upon lives: That in 1738, Henry, the only surviving issue of Thomas Pendarves, died; whereupon the reversion in fee (then vested in said John Pendarves Basset,) took effect. It was agreed, that the rent reserved on the lease of 1742, was in proportionable share of the ancient rent (k): And upon the whole the question was, whether this be a good lease, under the power contained in the settlement of the 12th April, 1737 ?
* Thurlow, for the plaintiff, took some slight objections to [ *448 the want of usual covenants, and the non-execution of the power in the presence of two witnesses, which were not stated in the case; but, it appearing, that the principal question below was, whether the lands had been usually so letten, the Court over-ruled those exceptions.
As to the principal point, he argued, that the leases in 1533 and 1586, were both for terms absolute, and therefore not of the present kind. As to the lease in 1608, it is for ninety years, not ninety-nine, as in the present case. But, if good, still one instance will not create a custom of so letting, for usus æquiparatur actibus : 2 Roll. Abr. 262; Vaugh. 32; 2 Jones, 27. And besides, any rent reserved upon that lease will not be a rent reserved within twenty years preceding the year 1742. The covenant in 1638 is a transaction of another nature, a provision for a man's son in consideration of natural affection, not a lease to a tenant: and it could not be in the contemplation of the settler to square the manner of leasing, by a substantive provision for a younger branch of the family.
Burland, Serjeant, for the defendants, argued, that the power is, to lease for any number of years determinable, &c. There
(i) Stapleton's Ca., cited by Hale, C. J., (k) See Roe v. Rawlings, 7 East, 279; 1 Ventr. 228; Hastings' Ca., cited T. Doe v. Creed, 4 M. & S. 371. Raym. 239.
fore lands, “ usually so demised," must mean, “ usually de“mised for any number of years.” Ninety years was formerly the usual term for determinable leases. So is the case cited from Vaughan. The lands had been in lease for 200 years and upwards; and, if they are only twice demised, that will be interpreted usage.
Not to insist on the absolute leases, the determinable ones of 1608 and 1638 bring the usage down to the present time. A lease may be made by a covenant to stand seised, since the statute 27 Hen. 8: so laid down expressly, in Lord Bacon's Use of the Law. The present lease is more beneficial to the reversioner than that covenant; for there the lives were uncertain, and might have extended to more than three.
*N. B.-Norton, Solicitor-General, for the plaintiff, and
Blackstone, for the defendant, were retained for a second argument. But the Court (absentibus DENNISON and FosTER), were clear upon the first.
And by Lord MANSFIELD, C. J.—This is a settlement made by Mr. Basset, the owner of the fee, in the usual manner, with a power to make leases, according to the custom of the country, where the usual profit arises from fines. There is also a very wise provision for leasing during the tenant's infancy. And the leases are to be for any number of years, determinable on one, two, or three lives. There is no doubt, but that the premisses have been let for years so determinable ever since the reign of Queen Elizabeth. And the present lease was approved by the Master, the estate being in Chancery. A doubt is made, because the last preceding lease is, by way of covenant, to stand seised in a family settlement. I make no question but it is in all respects a lease. It is said, that this is not a lease to make a profit of, but is properly only a provision for a younger child. What then? The lessor's bounty to his child arises not from granting the lease, but from remitting the fine. It is a common case for bishops, deans, &c. and for tenants for life, with such powers as the present, to grant beneficial leases of such estates as chance to fall in, in trust for themselves or for their children. Are they the less leases upon that account? This power was intended as a benefit to the person in possession, and a benefit to the estate itself, which may be prejudiced sometimes by nonrenewal. It appears to have been properly executed. And indeed powers, being derived from equity, ought to be liberally construed. I can't conceive how it ever came to be thought, that they should be construed strictly; being only a modification of the uses of an estate, by the absolute owner of it.
WILMOT, J.-This case is the more unfavourable for the lessor of the plaintiff, because he is a mere volunteer, and is endeavouring to defeat the estate of a purchaser for valuable consi
deration. Had the elder brother pleased, he could at any time J have defeated the estate of Francis, the younger *brother.
And yet Francis is now attempting to set aside an act done for
the benefit of his néphew, the son of that brother, from whose bounty he receives his own title.
Judgment for the defendants (1).
JOSEPH Yates, of the Inner Temple, Esq., was this Term appointed a Justice of the Court of King's Bench, in the room of Sir Michael Foster, deceased, and received the honour of knighthood.
Talbot v. Linfield.
S. C. 3 Burr. 1455. ORDER for a month's time to plead. No plea being put in, A month's time the plaintiff, on the 29th day after, signed judgment. Motion to plead is a luto set aside the judgment as irregular, because the order shall nar i be construed to extend to a calendar month, as most beneficial to the party. But by Lord Mansfield, C. J.-A month in law is always a lunar month, except in quare impedit. And by DENNISON, J.-In all temporal cases, we go by lunar months; in ecclesiastical cases, by solar (a).
- (a) The time is reckoned inclusive of
cal it is deemed calendar, because in each