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No proceedings
can be pursued
under a repealed
act of Parlia-
ment, though
begun before
the repeal; un
less by special

Miller's Case.

UNDER the Insolvent Debtor's Act, 1 Geo. 3, one Miller was compelled by a creditor, at the Sessions at Guildhall, to give up his effects, and he accordingly signed and swore to his schedule, &c. But some circumstances arising, the Court adjourned his discharge till the next Sessions. In the mean time, the statute 2 Geo. 3, passed, which repealed the compelling clause. Motion for a mandamus to the justices, now to proceed to grant Miller his discharge, the jurisdiction having attached before the clause was repealed. But by the Court:— Nothing is more clear, than that the jurisdiction is now gone, and that we cannot grant any such mandamus. Even offences committed against the clause (while in force) could not have been now punished, without a special clause to allow it; and therefore, a clause is inserted in the repealing statute for that

■ TM ^'" Rule discharged.

(b) A contract declared by a statute to Withy, 1 H. Bla. 67; and see Com. Dig. be illegal, is not made good by a subse- Parliament (R 10, &c.) uuent repeal of the statute; Jaques v.

Executors in tome .un-1 shall

I my costs for eave to discontinue.


11 Arris, an Executor, v. Jones.

S. C. 3 Burr. 1451.

.A.SHHURST moved for leave to discontinue without
ment of costs, the plaintiff being an executor.

Walker shewed for cause, that the action was brought by one executor in his own name only, when he knew that there were others subsisting; and that thereby he had wantonly put the defendant to great expence.

And by Dennison, Wilmot, and Yates, Js. {absente Lord Mansfield, C. J.) This is a matter within his own knowledge. The plaintiff comes to the Court for a favour; and we will therefore put what terms we please upon him. There are many cases, where executors, applying for favours, are obliged to pay costs (c).

Rule absolute, on payment of costs.

(c) Halt (Administrator) v. Norton, Barnes, 169, Cas. Pr. C. P. 79; MelItuish ». Maunder, 2 N. R. 72, occ. But an executor or administrator will be allowed to discontinue without payment of costs, where he has not knowingly brought

a wrong action; Baynham v. Mathews, 2 Sim. 871; Bennet, (Administrator) r. Coker, 4 Burr. 1927. In general, when plaintiff, he shall pay no costs; however, this must be understood to be, when he is under a necessity of naming himself exe

cutor or administrator, for if he were under no such necessity, he shall pay costs; Bull. N. P. 331. "It is clear upon the statute, where an executor or administrator necessarily sues as such, he is not liable to costs. And yet it has been holden, that where he is guilty of misbehaviour he shall pay costs. As where he suffers himself to be non-prossed; where he has knowingly brought a wrong action, or otherwise been guilty of a wilful default, he shall pay costs upon a discontinuance; or for not proceeding to trial according to notice:"

Per llooke, J., in Comber v. Hardcastle,
3 Bos. & P. 117. See also n. (;), ante,
356. In the case of an executor or ad-
ministrator, wrongfully suing as such upon
a contract made with his testator, and not
succeeding, the Court will, in their dis-
cretion, make an order upon him to pay
costs to the defendant; but costs cannot
be awarded on the record, and judgment
must be entered without them; otherwise
it would be erroneous, Ibid.; Barnard v.
Higdon, 3 B. & A. 213. As to disconti-
nuance, see Roe v. Gray, post, 815.



The Kino ». Bankes and Others. r 452 ]

S. C. Ante, 445.

1 HE name of John Price, the mayor de facto, being now in- Mandamus to serted in the rule, the principal question came on to be argued; summon specific when it appeared, that Mr. Bankes was lord of the manor of £""£«", deCorfe Castle, and Mr. Henry Bankes (his brother) was steward njed. or bailiff of the manor, who had appointed a deputy-bailiff, who usually held the courts in his stead; and had warned a jury for a court on the 25th October, 1763, when a mayor was to be elected for the year ensuing. But he, suspecting that the deputy-bailiff had been tampered with to warn a jury, who would chuse a mayor in the interest, not of the lord of the manor, but of Mr. Calcraft his opponent, suddenly revoked his deputation after the jury were warned; so that no court was held, and of consequence no mayor chosen on the regular prescriptive day. And now the motion was for a mandamus to the lord of the manor to hold a court leet, and to the jurors by name, who were summoned for the 25th of October, to appear and form a jury, in order to proceed to the election of a mayor: It being argued that Price's election, being not on the prescriptive day, was invalid.

But by the whole Court.—We are all of opinion, that a special mandamus, to the jury [by name] (d), is new and unprecedented; and cannot be granted. Nor, upon this rule, can any general mandamus issue; more especially, as there is already a mayor de facto subsisting (e). So discharge the rule; but, as the steward has behaved illegally, in the revocation of the deputy-bailiffs power, after the jury were summoned, no costs shall be allowed.

(d) This evidently should be so; and not " to the same jury" as in the former edition.

(e) It appears from the report in 3 Burr. 1454, that if it was a doubtful election, and fit to be tried upon an information in nature of a quo warranto, the Court ought

not to grant a mandamus; but if it was a mere colourable election and clearly void, they ought. See also R. v. Mayor of Tintagel, 2 Stra. 1003; Scarborough Corporation, Id. 1180; It. v. Mayor of Cambridge, 4 Burr. 2008, and It. v. Lord Montacute, ante, 60, and notes.

office so as to gain a settlement.

The King V. Winterborne.

5. C. Burr. Sett. €a. 520.

Serving consta- ON a certiorari it appeared, that William Merrick and his bie as substitute gjght children were removed, by an order of two justices, from

tor another, is , 9. _ _, ... '■'_ , . _, » . . * _

not serving an Winterborne to St. Philip and Jacob in Gloucestershire. On [ *453 ] appeal to the Sessions, they discharge this order, *and state, that the pauper, about thirteen years ago, gained a settlement in St. Philip and Jacob: That, at a Court Leet at Winterborne, the 3d of October, 1761, one Richard Bailey was chosen constable for the tithing of Hambrook in Winterborne, but was never sworn in, nor took on him the said office; but procured the pauper to serve the said office in his stead, in order to gain the pauper a settlement at Winterborne: That the pauper was accordingly sworn in before a justice, and served for the year, and lived in Hambrook; but was never presented at the leet, though the custom has ever been, that all constables should be first presented there.

Morton and Vernon argued, that the pauper was settled at Winterborne; that he served the office on his own account, as a substitute, not as a deputy, and was the real officer of the tithing.

But the Court, without hearing any counsel on the other side, were clear, that this was not serving an office on his own account within the intent of the statute: and discharged the order of Sessions and confirmed the order of the justices [g).

(g) So executing the office of tithingman, as deputy, will not gain a settlement, even though he be swom at the Court Leet; R. v. Allcannings, Burr. Sett Ca. 634. A pauper gains a settlement in that parish, in which he resides, by executing the office of constable for a city, which consists of several other parishes; R. v. St. Maurice, Burr. Sett. Ca. 27; 2 Stra. 1014, S. C. Lee, ]., there said (p. 34), that under 9 & 10 W. 3, c. 11, if he exe

cute such an office by deputy he gains a settlement. And so it was decided in II. v. Hope Mansell, Cald. 252. But where a borseholder, regularly sworn in at a Court Leet, after executing his office a few days was irregularly discharged by two magistrates, in which he acquiesced, and did not in fact afterwards execute the office, he did not gain a settlement; II. v. Holy Cross, IVcstgate, 4 B. & A. 619.

In judgments
by default the
plaintiff is to
make up the
whole record;
but if error is
brought for a
slip in not mak-
ing proper en-
tries for the de-
fendant, judg-
ment shall stay
till he can apply
to amend below.

French V. Cornelys.

XiRROR from the Common Pleas of a judgment by default on a note of hand. The error assigned was, that no warrant of attorney for the defendant (the now plaintiff in error) was entered on the record below (A).

Ashhurst, for the defendant in error (the plaintiff below), insisted, that a man shall not take advantage of his own neglect in not making proper entries on record.

Clayton, contra, that, in judgments by default, the plaintiff is to make up the whole record, and therefore it is his own laches.

(A) See Richardsq. t. v. Brown, 1 Doug. 114 a, and notes; Com. Dig. Amendment (E);
Tidd'sPr. 110, 587 (ed. 1821).

The Court ordered the cause to stand over, till the Court of French Common Pleas could be moved, for leave to amend the record. "•

And afterwards, on an application to the Chief Justice of the ■ Common Pleas at his chambers, he directed a proper *war- [ *454 ] rant of attorney to be filed and entered; and thereupon a new certiorari issued, and the judgment was affirmed in the King's Bench (i).

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Kendrick V. Kynaston.

IN assault, the latitat was of Michaelmas Term, but the de- claim of conufendant never appeared; and this Term the plaintiff entered sance by the an appearance for the defendant, and filed common bail and Q^f"rcde TM0° left a declaration in the office. And now, before plea pleaded, made.' or imparlance prayed, Blackstone exhibited a claim of conusance (k), by the Earl of Litchfield, Chancellor of the University of Oxford; stating the charters of the University, confirmed by statute 13 Eliz. (I); and alleging, that the defendant was a privileged person, as being a matriculated person, and fellow of Brazen-Nose College, where he was a master of arts and in holy orders. This claim was under seal of the Chancellor's office, and was (previous to the present motion) entered upon record, together with a letter of attorney from the Chancellor, empowering one Elderton, an attorney of this Court, to appear in his name, and demand the conusance (w). There

(i) See the form of a claim of conusance by the Chancellor of the University of Oxford, in Welles v. Traherne, Willes, 233, n. (a). During the vacancy of the office of Chancellor it may be made by the ViceCbancellor; Williams v. Brickenden, 11 East, 543. A claim on behalf of the University of Cambridge is made by the ViceChanccllnr, as locum tenens or deputy of the Chancellor, and of the masters and scholars. See the form in Browne v. Renouard, 12 Bast, 12. As to conusance by the Universities, and the time and manner of claiming it, see the above cases, and Wilkms v. Shalcrqft, Hardr. 188; Castle T. Lichfield, Hardr. 505; Parker v. Edwards, 1 Show. 352; Woodcock V.Brooke, Ca. temp. Hardw. 241; Leasingbyv. Smith, 2 WUs. 406, where the time of claiming conusance is particularly considered, (Oxford): Case of Cambridge University, 10 Mod. 126; R. v. Agar, 5 Burr. 2823, (Cambridge) ; Vin. Abr. Conusance; Com. Dig. Courts (P 2, 3).

(0 C. 29: see 4 Inst. 227.

(*•) It is to be observed, that the Uni

versity of Oxford has conusance of all manner of trespasses and other offences whatsoever, and of all other contracts, pleas, and complaints personal (assizes and pleas of freehold alone excepted) arising, done, or committed within the town of Oxford, &c, or elsewhere within the kingdom of England, where the scholars or their servants, or ministers, or any other persons, who ought to have any privilege of the said University, whom the Chancellor, &c. shall challenge, is one of the parties. But the University of Cambridge has conusance of all personal pleas, and of all misprisions within the town of Cambridge and its suburbs (mayhem and felony only excepted), where any master and scholar or servitor, or common minister of the said University, shall be one of the parties. Therefore in case of a claim by the latter University, it must appear by affidavit, that the cause of action, if any, arises within the liberty of the University, to wit, within the town and suburbs of the town of Cambridge.

Kbndmck were also affidavits from the defendant himself and another "■ person, which proved him to be, at the time of the writ sued,

. TW*8 N' . and at the time of making the claim, a matriculated person (»). On reading all which, and also the charter of King Henry the Eighth under the great seal, and an exemplification of the statute 18 Eliz. (which, though printed in the statute books, is only a private act) the Court granted a rule to shew cause, why the cognizance should not be allowed; and, in the mean time, all proceedings to stay (o).

(n) It should also appear by affidavit, R. v. Routledge, 2 Doug. 531.

that the party is actually resident within (o) "The entry of the claim on the roll

the University; the privilege not extend- in the case of Kendrick v. KytuuUm, in

ing to non-resident members; Hayes v. B. R. was exactly like that in Hayes v.

Long, 2 Wils. 310; Browne v. Renouard, Long, 2 Wils. 310, (which seems to be

12 East, 12. But where an affidavit de- drawn from it). I was in that Court, when

scribed the party to be of the parish of—, a rule to shew cause was made, why the

in the suburbs of the city of Oxford, and claim of conusance should not be allowed;

marshal of the University of Oxford: and but nothing further was done, nor was the

that he had been for fourteen years, and rule ever made absolute; so that whether

then was a common servant of the Univer- the claim in the case of Kendrick v. JTy

sity, and called marshal of the University; nation was duly made and entered or not,

it was held sufficient, though he was not wasnever determined;" Per Wilmnt, C.J.,

expressly stated to have been resident; in Leatingby v. Smith, 2 Wils. 409.
Thornton v. Ford, 15 East, 634: see also

Bond V. Seawell.

S. C. Ante, 407, 422.

[If three wit- THIS case was again argued by Willes for the plaintiff; who Cut'sheetof*f" 0Dserved« that if a testator had shewn a will made on several will, and the pieces of parchment rolled up, so that only the bottom should other sheets are appear to the witnesses, that would doubtless be a good attest[ *455 J ation. That the inconvenience sug*gested, that the testator then m th« same mi„ht substitute another sheet never seen by any witness, would

room, though , o ,. . „ „ , . «!"•**•»

they do not see be equally strong, it all the witnesses had seen it; tor it was

them, or know all written with his own hand, and he might change any part

Uistahey dat-°' of 'lt at Pleasure- That the dictum relied on (in Lea and Libb,

testation.] 3 Mod.) supposes, that none of the witnesses see the first sheet,

which is not the present case. He also cited Wyndham and

Chetwynd, 31 Geo. 2(p), from 2 Burn's Ecclesiastical Law,

but was interrupted by Lord Mansfield, who said that book

was no authority, and that the case cited was ill reported to

his knowledge.

Norton, Attorney-General, for the defendant, allowed, that this instrument might be good as a will, but not as a devise of lands. That the word will is never once mentioned in stat. Car. 2. The only question is, whether it has all the statutable requisites to such a devise. We say, it is not statutably attested. It is rather a question of fact than of law. I admit, that the witness need not know the number of sheets which he attests: but here he actually did know it. When he positively says, "I attested a will of one sheet only," and you produce a will of two sheets; the Court will say, "That is not the same

(p) Ante, 95.

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