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Afterwards, a new sign manual was procured in these terms: The Kino "Whereas, &c. (stating the inducements aforesaid) we do here- „ c"

"by signify our intention of granting to the said Beaton « >

"our most gracious pardon, so far as relates to the said fine "and imprisonment, upon his giving security for [his] good be"haviour for five years according to the judgment of our said "Court, and entering into sufficient recognizance for his ap"pearance in the said Court of King's Bench, and pleading "our said pardon for his said offence, when thereto required. "Our will and pleasure therefore is, that you take due notice "thereof, and give the necessary directions accordingly."

This was allowed by the Court, and a rule granted to bring up the defendant; who, on a subsequent day, was brought up and discharged, upon giving bail for the purposes aforesaid.

Mylock V. Saladine.

S. C. 3 Burr. 1564.

ACTION of trespass and false imprisonment. The plaintiff Venue changed was a shew-man, and had painted a mare to resemble the on ■" acti.on of Queen's zebra, which mare, when examined and the trick dis- ment'tf,TM',*0"," covered, was found to be like a mare which had been stolen apprehension of from the defendant. Whereupon the defendant took up the * PTM4"*1 "itd. plaintiff on suspicion of felony, and after being detained two hours, the suspicion being ill founded, the plaintiff was set at liberty. And for this confinement the action was brought in the Mayor's Court at Chester, where the jury found a verdict for the plaintiff with 801. damages, which was set aside last Term as being excessive, and a new trial granted. And now the Attorney-General and Jones moved to change the venue from the city to the county of Chester (g) upon affidavits, that there was a subscription carried on among the citizens of Chester to maintain this action, Saladine being very unpopular there; that great rejoicings were made upon the verdict's being obtained; and public declarations made, that, though this verdict was set aside, equal damages would *be given on another; so r »4£i ] that it was sworn, it was apprehended an indifferent trial could not be had in the city. And it appeared on the Recorder's report, who tried the cause, that one of the witnesses had declared, that when Saladine carried Mylock before the justices upon the original complaint, he forbore to give evidence in his favour for fear of offending the citizens of Chester.

Clayton and Hall shewed for cause, that the city of Chester contained seven hundred freemen, among whom were many people of fortune, all of whom coujd not be supposed prejudiced. That the defendant might have his lawful challenges against any prejudiced jurors. They cited the case of the King against Harris\h), Trinity Term, 2 Geo. $, and denied, by affidavit, any subscription to support this action.

{g) Although Cheshire is a county pa- 1418; R. v. St. Mary Hill, 7T.K. 735; Uiinej see Godfrey Y.Philpot, 2 Ld. Raym. Price v. Griffith, 1 Wils. 222.

(A) Ante, 378.

Mylock Lord Mansfield, C. J.—I have no doubt of the propriety

"• of changing the venue, where an indifferent trial cannot be had,

■ nor of the power of this Court to change it, when such a case appears. A juror should be as white paper, and know neither plaintiff nor defendant, but judge of the issue merely as an abstract proposition upon the evidence produced before him. He should be superior even to a suspicion of partiality. Upon the motion for a new trial, we were all clear from the Recorder's report, which was as sensible and good a one as ever was made to this Court, that the verdict was against the weight of evidence, and that there had been a popular run against the defendant. If the prejudice be general, though not universal, it is sufficient to warrant this rule. It is impossible for the defendant to come at particular facts, so as to form a case for a legal challenge. Here is no universal accusation of the citizens of Chester; only a well-grounded apprehension of danger arising from the general prejudice. The subscription indeed is denied in terms, but elusively. It is not denied that contributions were made; perhaps without any formal subscription. The opposition made to this motion, and the struggle against it, are sufficient to shew that the plaintiff thinks he shall have an undue [ *482 ] advantage. Other*wise there is not an iota difference, whether he tries it in the city or the county. The town is the same, the time the same, the expence exactly the same.

Wilmot, J.—If I were otherwise dubious, the struggle would determine me. In criminal cases, where the question was local, there have been frequent motions to change the place of trial, as in the Gloucester Case and others. And they were denied upon the ground of locality. But I have always lamented that it could not be done; for I know by experience, that justice can seldom be had within these limited jurisdictions. In the former trial the damages were outrageous, which is an evident argument of prejudice.

Yates, J., of the same opinion. The great difference between this case and those of Gloucester and Nottingham, is, that here the action is of a transitory, there it was of a local nature.

Rule made absolute.

Harker V. Birkbeck.

S. C. 3 Burr. 1556.

trespass, and A.CTION on the case. The plaintiff declares on an exclu

not case, will lie ■. ... ,. « , . f~ , , . , ,

for incroaching sive liberty to dig tor lead ore "in the place where: but that on a lead-mine; the defendant dug in the same place, and took away ore to the thoughthepiain- vajue 0f 2000/. to the plaintiff's damage. On the general issue

tiff has no pro- i j a . * • i -i ° i&. .

perty in the soil pleaded, at the trial a special case was reserved; stating, that above the mine, one Mrs. More, who had no right in the soil, was entitled by

ty1 of digriniber" lea?e *Tom the Crown t0 the s°ie ri8ht of raising lead in such a district, and did, by writing without any stamp, let and set to the plaintiff all her right of digging for lead ore therein. And hereupon, the fact of the defendant's intrusion being proved,

two questions were reserved for the judgment of the Court; Harder 1st. Whether, for this injury, an action on the case will he, or "■

an action of trespass only. 2dly. Whether this writing, with- v

out stamp, could be given in evidence.

* On the argument there were cited for the defendant, on [ * 483 ] the second question, the Cases of Hall and Downs, coram Lord Hardwicke, where it was held, that an agreement to let for seven years could not be given in evidence, without being stamped; and Moor and Evelyn, coram Lord Raymond, S. P.

Lord Mansfield, C. J.—Upon the first question, it is clear that Mrs. More had the possession of the mine, that she meant to transfer it over, and actually did transfer it. The injury done to that possession is clearly a trespass; and therefore the only proper action is that of trespass, which is a possessory action, and may be maintained 'against a wrong-doer, even by a cestuy que trust in possession. Whatever therefore this writing be, it might (if properly authenticated) be given in evidence, to support an action of trespass. What it is, is difficult to say. If a lease, it ought certainly to be stamped, under the words of the statute (*), "indenture, lease, or deed." But it is not a lease, for it parts with the whole interest derived from the Crown; neither does it seem to be an assignment of that interest for want of legal form. It seems rather an agreement for an assigment, and till that agreement is executed, it operates only as a declaration of trust. The legal property therefore remains in Mrs. More; but the plaintiff is cestuy que trust in possession, and therefore was entitled to an action of tres-. pass, and no other, for the present injury. We are all of this opinion. So there must be

Judgment for the defendant^).

(I) Stamps are now regulated by 55 G. 3, v. Peat, ^ East, 244. See Bac. Abr. Tres

c.184: and see Baxter v. Browne, pott, pau(C) 3, and Wilton v. Macreth, 3 Burr.

973. 1S21; Crosby v. Wadsworth, 6 East, 602.

(k) Cory v. Holt, 2 Stra. 1238, ace. But Case, and not Trespatt, is the proper

"Trespass is a possessory action, founded remedy, where the plaintiff has not the

merely on the possession, and it is not at exclusive possession, as for disturbance in

all necessary that the right should come the enjoyment of a pew j for the possession'

in question;" per WiUet, C. }., in Lam- of the church is in the parson; Stocks v.

bert v. Stroolher, Willes, 221. So, one in Booth, 1 T. B, 428: so, for injuries to the

possession of glebe land under a void lease reversionary interest; Jester v. Clifford,

may jet maintain trespass upon his pos- 4 Burr. 21.41; Bac. Abr. Action on the

session against a wrong-doer. Lord Ke- Case, (A); Com. Dig. Action, #c. Nui

nyon:—" Any possession is a legal pos- tance, (B). session against a wrong-doer;" Graham

Francis V. Wyatt.

S. C. 3 Burr. 1498.

REPLEVIN, for taking a four-wheeled carriage of the A carriage plaintiff. Defendant avows the taking as a distress for 75/. J**"4TM* !* rent due from Matthew Wilkinson, the defendant's tenant of ,'^hiwe for the coach-house in which the same was taken. To which rem by the

Francis

Wtatt.

lessor of the premisses.

[ *484

avowry the plaintiff pleads, that the said coach-house is parcel of certain common coach-houses and stables occupied by the said Matthew, in his business of a common and public * livery stable-keeper; and that the plaintiff's carriage was standing at livery there, when distrained by the defendant. To this the defendant demurs, and the plaintiff joins in demurrer. The case was argued last Term, by Nares, Serjeant, for the defendant, and Ashhurst for the plaintiff; and now

Blackstone, for defendant, argued, that no protection could be claimed for this carriage, 1st, Unless these coach-houses were considered in the nature of common inns; or, 2dly, Unless it is for the public convenience and necessary advancement of trade to protect it in a livery yard. 1st, That they are not in the nature of a common inn, though called in the pleadings common and public coach-houses; since the master of them is not bound to take in horses and carriages, any more than the master of a public boarding-school is bound to receive all boarders, or a common brewer to serve all customers. That the right of putting up horses and carriages in the one arises from private contract; in the other from authority of law; which is the ground of the protection extended to these houses by Jaw. Bro. Distress, 57; 1 Roll. Abr. 668, pi. 12; Co. Litt. 47 a. For it would be absurd, to give me a right to put my horses, &c. into the stables, and at the same time give the lessor of the house a power to take them out. This distinction between the private contract of the parties and the general authority of law, is warranted by the Case of the Hosteler, Yelv. 66 (/). 2dly. Where goods, &c. are privileged from necessity or public convenience; it is, where it would be quite impracticable or highly incommodious to dispose of or manufacture the goods at home. So, corn sent to a mill or a market, cloth to a tailor's, stuff to a dyer's, &c. are protected from any distress; and had the plaintiff's carriage been sent to a coachmaker's to be repaired, it might, for the time, have been privileged; but no such necessity here. By hiring the coachhouse (whether by the week, the quarter, or the year) he becomes an undertenant, and must be liable to the landlord's distress, as much as a man who hires an unfurnished room in a [ * 485 ] lodging-*house. Else the landlord might be defeated of that summary remedy which the law allows him by the private contract of his tenant with a stranger.

Clayton, for the plaintiff, argued that many things are privileged from distress, on the score of public convenience: that this was a public livery stable, which are of great utility to the public; and if horses and carriages are not privileged therein, it will put an end to that branch of commerce. And he cited the cases of goods resorting to a fair or market; the horse bringing them; garments at a tailor's; wool sent to be spun; goods sent by a carrier, or left at a common wharf; all which

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are privileged from distress: 7 H. 7, 2; Noy, 19; Fitz. Abr. Distress; Co. Litt. 47 a; Cro. Eliz. 546, 549; Salk. 249(»«).

Lord Mansfield, C. J.—Whatever may be the law of this case, it is worth the defendant's while to consider the consequences of taking such a distress, which will ruin his estate. For if it should be determined, that carriages and horses standing at livery are liable to be distrained by the lessor for rent, the livery stables will all be deserted and undone; for no prudent man will make himself liable to such a hazard. Therefore let this case stand over for farther argument, and let the defendant in the mean time seriously consider, how far in prudence he ought to press the question.

Afterwards, in Easter Term, 1765, 5 Geo. 3, the defendant moved for judgment, and judgment was given for him, upon the ground of its being part of the profits of the premisses; which distinguishes it from the case of goods sent to be manufactured, &c. (n).

(si) Implements of trade are privileged, if they be in actual use at the time, or if (here be any other sufficient distress; Simpson v. Hartopp, Willes, 512, where this subject is fully discussed. S. P. Gorton v. Falkner, 4 T. 11. 565: there Lord Kenyan, C. J., said,—" We may lay it down as a general proposition, that at this time all moveable chattels are distrainable, whatever may have been said in ancient times to restrain the distress to those things which partook of the profits of the soil. But to this general proposition there are several exceptions; some things are exempt from being distrained, on account of the place, and others on account of the things themselves." A horse cannot be distrained damage feasant, if there Is a rider upon him; Storey v. Robinson, G T. R. 138. And in a late case, where all the

authorities were referred to, it was de-
cided, that goods of the principal in the
hands of his factor are not distrainable;
(iUnion v. Elton, 3 Brod. & B. 75; 6 11.
Mo. 243. See also Clarke v. Gaskarth,
2 B. Mo. 491; Clarke v. Calvert, 3 B. Mo.
96; Peacocke v. Purvit, 2 Brod. & B. 362;
5 B. Mo. 79; Com. Dig. Distress, (C) j.
Vin. Abr. Id. (I); Bac. Abr. Id. (B).

(n) Lord Kenyon said, observing upon
this case, that the question was, whether
a livery stable had the same privilege as
a common inn, so as to protect a carriage
standing at livery: and that the Court
thought that the same reason did not exist
in both cases, and therefore that the pri-
vilege of the common inn should not he
extended to a livery stable; IT. 11. 567.
This seems to be the true ground.

Francis

s. Wtatt.

Grant V. Vaughan.

S. C. 3 Burr. 1516.

DEFENDANT, the 22d October, 1763, drew a bill in mils, payable London on Sir Charles Asgill and Co. for 70/. payable to ship t0 ^arer, are Fortune or bearer, which he gave to Mr. Bignell, the ship's "ther bills of" husband, who lost it. It was found by a person un*known, exchange. who, on the 25th of October, paid it to the plaintiff, a grocer, [ * 486 ] in Portsmouth, for a parcel of teas, and took the change, having first made enquiry and found that the drawer was a responsible person. In the mean time Vaughan directed Sir Charles Asgill to stop payment of this bill, which produced this action (o), in which a special jury of merchants at Guidhall found a verdict

(o) It appears from the report in 3 Burr. 1517, that there were two counts in the declaration; one, upon an inland bill of

exchange; the other, an indebitatus assumpsit for money had and received.

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