REPORTS of CASES DETERMINED in the COURT of KING'S BENCH, together with some Other Cases; from Trin. 12 Geo. I. to Trin. 7 Geo. II. In Two Two Volumes. Vol. I. By THOMAS BARNARDISTON, Serjeant at Law. 1744. [1] TERM. TRIN. 12 GEO. I. 1726. TWIFORD AND HUGGINS. When an action is brought in the King's Bench against an officer of the Common Pleas, what shall be a good plea of privilege to such action. This was an action of debt against the warden of the Fleet for an escape. The defendant pleads that he is an officer of the Common Pleas, ratione cujus attendentia sua indies requiritur in that Court. To which the plaintiff demurs. Exception was taken to the plea, for that he does not say he does every day attend. But the Court took a difference between such officers, as in the case at Bar, whose attendance the Court have a right to virtute officii, and such officers, who attend only casually, as attornies, and clerks to the prothonotaries; for the first may plead such a plea as the present one, but the other must say, they do every day attend; accordingly the Court gave judgment for the defendant. ANONYMUS. When actions are brought in Counties Palatine, how far the A writ of error was brought upon a judgment given in the County Palatine of Durham. Exception was taken to it, for that it had not the continuances from one session to another. As in writs of error on judgments in the Common Pleas, there must be the continuances of the action from one term to another. Which exception was allowed. However the Court did not reverse the judgment, but awarded a certiorari in order that the continuances might be certified. [2] TERM. MICH. 13 GEO. I. 1726. Construction upon THE KING AND THE OCCUPIERS OF LAND IN BUROUGH-FEN. that part of the Statute of 43 Eliz. 2, which allows the making one parish to be contributory to another. An order of two justices was made upon the occupiers of land in Burough-Fen for the relief of the poor of the parish of St. John Baptist. The exception, that was taken to it, was, that the Statute of 43 El. only gives two justices a power of charging any other of other parishes within the hundred, in case where a parish is overburdened with poor; but it does not appear by this order, that the occupiers of land in Burough-Fen are of a different parish from that of St. John Baptist; therefore non constat that they have pursued the authority given 'em by that statute. Accordingly the order was quashed. K. B. XXIII.—1 BARKER AND WHARTON. When prohibitions go to the Admiralty Court, the difference which there is between such of them as are granted before sentence and such of them as are granted after. A master of a ship libels in the Admiralty Court for his wages, and recovers there. A prohibition was moved for, for that it does not appear they had jurisdiction, in as much as 'tis not said in the libel that the contract was made infra altum mare. But the Court took a difference between where a prohibition is moved for before sentence, and where 'tis moved for after; for in the first case they said it must appear they have a jurisdiction upon the very face of the libel; but in the other it must appear upon the face of the libel that they have none. An instance of the first sort is this ; where a prohibition is moved for before sentence, 'twill not be enough for the libel to lay the contract to be made infra jurisdictionem maritimam, but it must appear to the King's Court to be so indeed, as by laying it infra fluxum et refluxum maris. Accordingly the Court did not grant the prohibition. STOREY AND ATKINS. What shall be a good averment that one action was brought for the same cause as another is. This is an action of indebitatus assumpsit, and there are three several counts; the first upon a promissory note; the second for money lent; the third for money laid out to the defendant's use. To the two last the defendant pleads the general issue; and to the first he pleads actio non accrevit infra sex annos the plaintiff replies that true it is, that from the time of the promissory note given to the time of bringing his action upon [3] it here 'tis above six years; but says that he levied a plaint in the Sheriff's Court within five years after the action accrued, upon an indebitatus assumpsit for the same sum as is laid in the declaration, secundum consuetudinem of London, without alledging in the plaint what the ground of the action was; and avers that he exhibuit billam prædict' pro eâdem causâ actionis pro quâ levavit his plaint in the Sheriff's Court, which plaint was removed here by habeas corpus. To which the defendant demurs specially; and two matters were shewn for cause, one that the averment was not good, the other that the plaint was too uncertainly set forth. Judge Fortescue said that the replication was naught; for the causes of action were intirely different, and then no averment can help it. The causes of action, he said, are different, in as much as the one is brought upon the Statute of the 3d and 4th of Queen Anne, ch. the 9th, the other at common law. This action is brought upon that statute, because the promissory note is laid in the declaration, whereas at common law it could only have been given in evidence. But he said, in the plaint the plaintiff had only proceeded at common law. But as to the objection, that the plaint was too uncertainly set forth in its being only generally laid secundum consuetudinem of London, he said, if the action here had been at common law, that would have been good. For he remembred a case adjudged here about three years ago, where the setting out a plaint by concessit solvere secundum consuetudinem was allowed to be good. But the other three Judges were of different opinion as to the first point. For they said a different cause or nature of action was not given by the statute, only a new and shorter remedy; therefore tho' the plaintiff has declared here according to the statute, and taken benefit of it, yet as the statute did not take away the old method, the plaint might very well be according to that, and the identity of the action still the same. They said farther, if the second point was determined, concerning the concessit solvere secundum consuetudinem being good, without setting out the custom, it put the matter beyond all question. Accordingly judgment was given for the plaintiff. Vide the case of Finch and Lamb, Cro. Car. 294, where 'tis said that the plaint and action differing in the sum make not different causes of action, which was said by the whole Court in this case. GRIFFIN AND SCOTT. How far a distress is necessary to be carried off the premisses. Plaintiff brings an action of trespass against the defendant for entring into his land. Defendant pleads an entry and distress for rent. Plaintiff replies that For defendant continued upon the land with the distress six days, and had eight bailiffs there. To which defendant demurs. But judgment was given for the plaintiff. the Court said, that by the common law a person that distrains is obliged to carry off the distress immediately, and put it into a pound covert or a pound overt, and not detain it upon the land, and the present case is not within the Statute of 2 W. & M, 5. And Judge Reynolds said, that the very reason why shocks of corn [4] could not be distrained at common law, was, because they could not be carried off without damage to the tenant, which implies that a carrying off of the distress is necessary. WHIGHT AND CLEVER. How far the rejoinder shall be said to be a departure from the plea. The plaintiff brings an action of debt upon a bond; defendant pleads the condition, which was, that he should execute such an office without the assistance of the plaintiff, and says that he did execute it without his assistance; plaintiff replies that he did not execute it without his assistance; defendant rejoins, and says that if the plaintiff did give him his assistance, 'twas voluntary. To which plaintiff demurs. And the demurrer was held to be good, for that the rejoinder was a departure from the plea. FARDING AND BAKER, How far an information must be brought in An information was brought upon the Statute of 21 H. 8, for Non-Residence; and it was moved in arrest of judgment, that the information was brought in the King's Bench, whereas it ought to have been brought before the Justices of Assise in the county where the cause of action lay, by the Statute 21 Jac. And the case of The King and Gaul was cited out of Salkeld to that purpose. Accordingly the Court gave judgment for the defendant. FRESCOBALDI AND KINASTON. When an infant is made an executor, and an action is brought against him in that right, how far he must appear by guardian, An action of debt was brought by the defendant in error in the Common Pleas against the plaintiff and another as executors, and judgment thereupon. Writ of error is brought and the error assign'd was, for that the plaintiff in error was an infant and appear'd by attorney, whereas he ought to have appear'd by guardian, as 'tis adjudg'd in 2 Cro. 420. This case was thought to have a good deal of difficulty in it; accordingly it stood over. BRAXTON AND DYKE. How far it shall not be necessary that a person shall appear by attorney. This was an action upon the case in the Common Pleas. Writ of error was brought, and one error assign'd was, that 'tis not said that he appear'd by attorney; but the Court said that then they would intend that he appear'd in person. Indeed they admitted that if the surname of the attorney had been only mentioned without the Christian name, there inasmuch as it appears that he came by attorney, and there is no attorney mention'd, that is a good error. Another error was assigned, and that was in the writ of inquiry, viz. that the writ of inquiry was executed on the day of the return, and that it does not appear 'twas executed during the sitting of the Court, after which time the jurisdiction of the sheriff as to that purpose ceases. But this exception the Court like-[5]-wise over-ruled, for they said, they would not admit of any fractions in a day. THE KING AND PUSEY. How far a certiorari shall not remove an indictment from the Old Baily. The defendant was indicted at the Old Baily, and motion was made for a certiorari to remove the indictment here, for that he was a person of distinction; but the Court said they would never do it upon that account, for that would occasion great confusion. They said, in some cases they did grant 'em; as where it appear'd that the fact would not support an indictment. As 'twas done in the case of Sir Humphry Mackworth, who was indicted at the Old Baily for forgery; for that he, being governor of a company set the seal of the company to a deed without authority; there, as it appear'd to the Court, that that fact was not indictable, they did grant it. ANONYMUS. How far a certiorari shall remove the record it self, and not Judge Fortescue in this case said, that where a certiorari goes, the very record itself is to be remov'd, in all places except London, where they are only oblig'd to send up the transcript. Which was not denied. CASTLE AND RICHARDSON. How far the officers belonging to a church which is a donative are under the jurisdiction of the Ordinary, notwithstanding the chaplain himself is not. The plaintiff was chosen chapel-warden to a donative, and was prosecuted in the Ecclesiastical Court for not taking his oath of office; upon this he moved for a prohibition, in as much as the chapel is a donative, and not under the Ordinary's jurisdiction. But the Court were of opinion, that tho' a chaplain or parson of such donative, is not subject to the deprivation or suspension of the Ordinary, but the donor is only visitor in such case; yet as to the other officers, they are under the same jurisdiction of the Ordinary, as in other places; for the parson or chaplain the donor only puts in, not the other officers. They said a parish-church might be a donative. So no prohibition went. FORTESCUE ALAND AND MASON. How far a plea shall not be allowed of by reason that it falls within the rule, quod non potest adduci exceptio ejusdem rei, cujus petitur dissolutio. The plaintiff brings a writ of error in the King's Bench in Ireland to reverse a common recovery suffer'd in the Common Pleas there, under which the defendant claims; the defendant pleads there his nonage, and judgment is given against the plaintiff. Upon this he brings another writ of error here, complaining that that plea was allow'd wrongfully, and the defendant pleads the same plea. But the Court resolved that that plea was not good, for they said that the allowance of that plea, would be admitting that thing to be right, which is complain'd of as an error in the judgment, and whether 'tis so or not, till they have look'd into the judgment, they cannot determine. So they said would it be in case a fine had been levied in the Common Pleas there, and a writ [6] of error brought there into the King's Bench, to which the defendant should plead nonclaim, yet in such case if upon a writ of error here the same plea should be pleaded, they would set it aside. Now in the case at Bar they said they could not yet possibly tell whether the plea of nonage in the writ of error in Ireland was allowable or not, and therefore they could not allow it in this writ of error. For suppose the action in Ireland had been a writ of dower, in which nonage is not allowed, and the defendant had pleaded it there, should such a plea here be a bar to this Court's looking into the judgment? That they said would be against the known rule of law, quod non potest adduci exceptio ejusdem rei cujus petitur dissolutio. Accordingly the Court set the plea aside. GOODRIGHT AND PULLEN. What words in a will give an estate-tail, and not barely for life only. [See S. C. 2 Ld. Raym. 1437; 92 E. R. 435 (with note).] This was a special verdict given upon an ejectment. And the only point of law that came before the Court in this case was upon the words of a will, which were |