TRIQUET 1. BATH. 66 66 "institores forsan et mercatores. Et quamvis hos sæpe de"fenderint, et comitum loco habere voluerint legati, apparet tamen satis, eo non pertinere, qui in legati legationisve officio non sunt. Quum autem ea res nonnunquam turbas dederit, op"timo exemplo in quibusdam aulis olim receptum fuit, ut lega"tus teneretur exhibere nomenclaturam comitum suorum, &c." Our Courts have watched over this privilege with a jealous eye, and held the defendants to strict proof of their qualifications. Widmore and Alvarez, Hil. 4 Geo. 2, Stra. 797, Fitz. Gibb. 200; actual service held necessary. Holmes and Gurdon (y), M. 7 Geo. 2, defendant sworn to be an officiating servant, hired for a year at 10l. per annum; was entered, and had the resident's certificate, as his servant; had often perused the private papers, settled the accounts, and copied foreign letters of the resident, and frequently attended him on private business. the other hand, it appeared, he was a solicitor in Chancery, and resided in his own house with his wife and family. The Court held, 1st, That the entry and certificate alone were not sufficient to give the privilege. 2dly, That the nature of the service must be shewn. 3dly, That Gurdon was not privileged, because the nature and denomination of the service was not shewn. But, in the last point, Lee, J., differed from Lord Hardwicke, Page, and Probyn, on whose opinion the rule was discharged. In Poitier and Croza (≈), T. 23 Geo. 2, the rule was discharged for insufficiency of the affidavits, in not specifying the service done. Johnston and Colonel Stewart, M. 24 Geo. 2, S. P., and determined accordingly. As to the present case; there is indeed an actual service sworn to, but in very loose and general terms, which may probably extend only to the letters and memorials written upon this very transaction: But it is expressly sworn he was a trader, a mercer in Dublin, [ *474] at the time when this debt was contracted, in 1756; a trade within the description of the bankrupt laws, against which there is no statute of limitation in point of time. And he acknowledges he was a trader, but has not been so ever since 1756. One parcel of goods is sworn to have been personally bought by him in England. And, in Dodsworth and Anderson, Raym. 375, Sir T. Jones, 141, buying goods in England, and selling them in Ireland, then coming over to England and absconding from his creditors, was held sufficient to make the defendant a bankrupt (a). In Brettel and Carolina (b), M. 17 Geo. 2, the defendant had not been a trader for four years before; yet the Court held him to be excepted out of the statute, and refused to discharge him. Add to this, the other suspicious circumstances which attend the case. It is sworn, the defendant understands no language but English; therefore an improper person to be secretary to a foreign minister. He is an officer on half-pay, at 15s. per diem; therefore unlikely to undertake a bona fide service for 30l. per annum, wages and boardwages. (y) Ca. temp. Hardw. 3. (z) Ante, 48. * (a) Allen v. Cannon, 4 B. & A. 418, acc. (b) 1 Wils. 78, called Malachi Carolino's Case. No wages have ever been paid. And Count Haslang (a minister of very humble rank) has more domestics registered, than the embassadors of the most potent crowns in Europe. TRIQUET v. BATH. Per Cur.-The principles laid down by the plaintiff's counsel are very just; particularly that this privilege arises from the general law of nations, and not merely from the local statute of Queen Anne, which was made to please the Czar Peter, and sent over very finely illuminated to Moscow. The cases cited are also certainly just, and the present circumstances are very suspicious:-but suspicion alone will not warrant a legal determination. The defendant and his witnesses have sworn up to the requisites necessary by the statute, and the jus gentium on which it is founded. They have sworn to an actual retainer to an office by name, and to an actual service in that office. (And by WILMOT, J., I make no question, but the person, who framed the affidavits, was well acquainted with all the cases cited). As to the trading; there is only a single instance, and that of buying only, sworn to in this kingdom; and this is seven years ago. This objection, therefore, does not [ *475 ] seem to be sufficiently supported, in point of fact. Rule made absolute, absente DENNISON, J. (c). (c) See Poitier v. Croza, ante, 48, and cases there referred to. TRINITY TERM,-4 GEO. III. 1764.-K. B. GREEN v. WARING. If two partners refer all matters in difference between them, the arbitrator may dissolve the MOTION to set aside an award. In a dispute between two partners, all matters in difference were referred to the award, &c. of A. B., in common form. The arbitrator, inter alia, directed the partnership to be dissolved. Objected, that he has exceeded his power. Sed per Cur'.-When all matters in difference were referred, he had clearly a power to dissolve it. partnership. If a difference between a master and apprentice were referred, the arbitrators would have a power to order the indentures to be delivered up. And it being sworn, that at the trial, after the juror was withdrawn, and the rule of reference was thus generally drawn up, the plaintiff openly declared, he would not have it understood, that the arbitrator had a power to dissolve the partnership; Lord MANSFIELD, C. J., observed, that is sufficient evidence, ex ore suo, that the dissolution of the partnership was then a matter in difference. Rule discharged (a). (a) See Vin. Abr. Arbitrement (B); Com. Dig. Id. (E 3); and Pickering v. Watson, post, 1117. Will of jointenant not good, though the jointure is severed before his death. SWIFT on demise of NEALE and his Wife v. ROBERTS. A JOINT-TENANT makes his will of lands duly attested; Harvey, for defendant, contended, that his being sole seised at the time of his death was sufficient to establish the will:That, where the personal ability of the testator to devise is in question, there the will must be considered at the time of making;-where the qualities of the estate or of the devisee are disputed, there at the time of its operation: That, in lands devisable by custom at common law, a joint-tenant's devise was not good; for which the reason is given by Littleton, sect. 287, because the survivorship, which is the act of law, takes place of the devise. But Perkins, sect. 500, says, that, if such devisor survives all his joint companions, then such devise is good. Whether, therefore, by long life or otherwise, the incident of survivorship is removed by any means, and the devisor becomes sole seised, the devise will stand. And after severance of the jointure, the testator is in of the same use as before, only stript of the incident of survivorship: That the statute 32 Hen. 8, c. 1, and its explanatory statute, 34 Hen. 8, c. 5(c), (which alone requires the sole seisin of the testator), are framed upon the model of these estates, which were devisable at common law; and must receive the same construction. Morton, contra.-Perkins cites Littleton and Fitzherbert in support of the doctrine he advances. But neither Littleton in his chapter Joint-tenants, nor Fitzherbert in the writ Ex gravi Querela (the places referred to), contain any such doctrine. Littleton only says, a joint-tenant can't devise; and Fitzherbert [ *477 ] *is absolutely silent in regard to joint-tenants. Besides, Perkins does not say, that a will made during the jointenancy shall be good, if the testator becomes sole seised; but solely, that when he becomes sole seised, then such devise is good; i. e. such devise as he makes, when sole seised. Butler against Baker and Delves, Poph. 89, is in point: held by the majority of the twelve Judges, that a devise by a joint-tenant is void, though by a deed ex post facto he might become, as it were, sole seised; for it is to be considered only, what estate the devisor had in the land at the time of the devise made. A man can devise only what he has: therefore put the case, which Perkins is supposed to have put, that I devise all my estate held in jointure, and after the date of my will my partner dies; what part does that will convey? the whole estate, or only my original moiety? This shews the absurdity of such a construction. SWIFT ບ. ROBERTS. Lord MANSFIELD, C. J.-There is no difficulty in this case. The will is of an estate held in jointure with his sister. The only question is, if the will is not void ab initio. The devisor had nothing devisable. Wills in England are not, like Roman wills, the creation of an heir to a man's estate. If so, then after-purchased estates would pass by themt. But with us it is, under the statute of wills, a limitation of the estate which a man has. If the will of a joint-tenant could operate at all, it must be by severance of the jointure; but that it cannot do, because the doctrine of survivorship takes place before the will can operate. A feoffment in fee to the use of his will would be a severance. Perkins's dictum is very loose. In the first part he rightly says, a devise by a joint-tenant is not good. The devise itself is a bad one. What he means by the latter part, I don't understand. If he only means, that, when he has the whole by survivorship, he may then devise, it is very true; but need not have been so solemnly laid down. And yet perhaps he may mean so, as he just before lays it down with [ 478 ] equal gravity, that a dean and chapter, who never die, cannot devise lands holden in the right of their church, &c. Besides, he cites Littleton, who only says that joint-tenants cannot devise, and gives the reason; and Fitzherbert, who says nothing about it. Nothing, therefore, can be gathered from so loose a dictum. However, whatever he means, he speaks only of customary devises at common law. But the stat. 34 Hen. 8. has expressly excluded all devises by joint-tenants. When a will is well made, both the time of making and the time of the testator's death may be considered in order to interpret it. But here the will itself is void ab initio. WILMOT, J.-The statute 32 Hen. 8 gives a power and authority to devise, which did not subsist before. A devise is the execution of this power, and therefore to be construed strictly, especially as the 34 Hen. 8 is an explanatory act. I agree, that as to personal ability and property in the thing devised, the time of making is to be regarded. Try it then by this rule. The stat. 32 Hen. 8 gives the power of devising to persons having lands, &c. Now a joint-tenant has not a devisable estate in lands. No explanatory act was necessary to establish this; the first statute did it sufficiently. YATES, J.-The question is, whether the severance of the + "Mem. In the old Nat. Brev. tit. Ex gravi Quereld, it is laid down, as determined M. 26 Hen. 6; Si un devise terre de que il n'est pas seisi, si apres, il purchase la terre, le devise est bon.""-Note by the Reporter. ↑ "Mem.-Perkins does not cite Fitzherbert's Nat. Brev. who was his cotemporary at least, if not his junior, and published his book in 1534, but the Nat. Brev. with its additions; which means the old Nat. Brev. which has additions printed at the end of each writ; and, in the additions to the writ Ex gravi Querelá, has (as Perkins says) plusors bones cases concernants devises, the last of which lays down the same rule concerning the devise of a joint-tenant, as is in Littleton. And in very old writers nothing is more common, than to lay down with great solemnity, what we now look upon as first principles, but which then perhaps were not thoroughly known or established."Note by the Reporter. SWIFT v. ROBERTS. jointure can relate back, so as to substantiate a bad will. *No man (d) Doe v. Tomkinson, 2 M. & S. 165, acc. If one joint-tenant bargains and sells his moiety, and dies before the deed is enrolled; yet the deed being afterwards en rolled shall work a severance ab initio, and support by relation the interest of the bargainee; Co. Lit. 186 a. manual how to be worded, and made use of. THE KING . BEATON. Pardon by sign DEFENDANT was convicted on an indictment for a violent assault on Mr. Owens, the Secondary of this Court, and had judgment some months ago to pay a fine of 50%., to be imprisoned for two years, and give security for five years longer. Afterwards, at the desire of the prosecutor, and for that the defendant was poor, had a wife and five children, and being a cooper could not exercise his trade in prison, the King, by letters under his sign manual directed to the Judges of this Court, signified, that it was his royal pleasure to remit the fine and imprisonment, and willed them to give the necessary directions accordingly. And now Morton moved to bring the defendant up to take the benefit of this sign manual. Lord MANSFIELD, C. J.-The defendant has been ill advised. He should have procured a Privy Seal to bail him in order to plead his pardon, which, it should be suggested, the King intends to grant, in the nature of a circuit pardon (e). 66 "N. B. It seems the method of pardoning upon the circuit (and at the Old Bailey, as it was said by Eyre, Recorder of London) is this. A sign manual issues, signifying the King's "intention of either an absolute or conditional pardon, and directing the Justices of gaol delivery to bail the prisoner, in "order to appear and plead the next general pardon that shall come out; which they do accordingly, taking his recogni"zance to perform the conditions of the pardon, if any." *But by Lord MANSFIELD, C. J.-We can do nothing upon this sign manual; which imports to be a pardon in itself, and should therefore have been under the Great Seal (ƒ). (e) 4 Bla. Comm. 400. (f) See the forms of charters of pardon in Registrum Brevium, fo. 309, &c. Such pardon, if pleaded, must be averred to be under the great seal; Bull v. Tilt, 1 Bos. & P. 199; Com. Dig. Pardon (H). Yet it seems, it would be sufficient to aver, that it was under the King's seal of Great Britain; R. v. Yandell, 4 T. R. 533, n. (a). As to pardons generally, see 3 Inst. 233; 2 Hawk. P. C. c. 37; Vin. Abr. Preroga tive (P. a. 8); Bac. Abr. and Com. Dig. Pardon. As to when serving the period of transportation shall operate as a pardon, see Bullock v. Dodds, 2 B. & A. 258; and as to the effect of the sign manual pardon, see R. v. Miller, post, 797. By 6 G. 4, c. 25, s. 1, in cases of free pardons the prisoner's discharge, and in cases of conditional pardons the performance of the condition, shall have the effect of a pardon under the Great Seal. |