these: I give and bequeath unto Nicholas Lyng the lands in question for and during the term of his natural life, and after his decease to the heirs male of the body of him lawfully begotten and his heirs for ever; and if he die without such heir male, then he limited several remainders over. The question in this case was, whether Lyng had an estate in tail or for life devised to him? And 'twas strongly objected on the part of the plaintiff, that 'twas an estate for life and not an estate in tail. For it was said by the words, his heirs, were meant the heirs of the issue male, and that tho' the words heirs male were generally put, and in the plural number, yet it was said one heir male of his body was only intended, and that appear'd from the subsequent clause, namely, and if he should die without such heir male, which is in the singular number. But the Court were of a contrary opinion; they said it was very true if this was so, that one issue male was only intended, Lyng would be only tenant for life, and the remainder-man a purchaser. And they took the same distinction as there is in Shelly's case, 1st Report, fol. 104, between a remainder limited upon an estate for life, to the heirs male of the body of the tenant for life, and where 'tis only limited to the heir male. For in the first case they said the heirs male take by descent, and consequently the first person who is to take has an estate-tail; but in the other case, the heir male of the body of the tenant for life takes by purchase, and the first person who is to take has but a bare estate for life. But in the case at Bar the Court said the words were properly words of limitation. They said too, if these words had been in a deed, as they are in a will, 'twould have been beyond all question, that an estatetail had pass'd to the first taker. And they laid it down for a rule, that words in a will shall give the very same estate as such words in a deed would, unless the intent of the party can be discover'd to the contrary. Accordingly they adjudg'd that Lyng should take an estate-tail, remainder to his heirs in fee, and gave judgment for the defendant. N.B. A case [7] in More, fol. 124, was cited to shew that the subsequent words, beir male, make no alteration in this case; and that case was, of an estate being devised to a man and his heirs male of his body, and if he should die without heir of his body, that the land should remain to a stranger; where 'twas determin'd that an estate in tail male only passed, nothwithstanding the subsequent words; which is a stronger case than the case at Bar; for here are plain relative words, namely, such heir male, which evidently refer to and shall be explain'd by the foregoing words.

GOODTITLE AND ROGERS. How far the plea of antient demesne need not be

verified by affidavit.

This was an ejectment, wherein the defendant pleads antient demesne; a motion was made to set aside the plea, in as much as there is no affidavit made to verify it; whereas the Act for the Amendment of the Law says, that no dilatory pleas shall be allowed unless verified by affidavit. But the Court said, this was no dilatory; 'twas only a plea to the jurisdiction of the Court, and therefore need not be verified by affidavit.

THE KING AND CHIPING-NORTON. How far a certiorari shall be granted to

remove an indictment of felony.

A motion was made for a certiorari to remove an indictment of felony that was found in a private jurisdiction, in order that it might be tried in the county. And the reason given was, for that affidavit was made that this was an indictment for felony against a clergyman, for only taking a handful of hay out of a barn, which 'twas sworn was but of the value of a penny, and they swore 'twas nothing but a malicious prosecution. And the case of The King and Powel was cited where a certiorari went to remove an indictment out of the sessions of the county of Sarum, The Court said they never did grant such certiorari, but upon a particular occasion. But they made a rule to shew cause. And at the last day of the term, they granted it.

DAWKINS AND BURRIDGE. How far a Member of Parliament is to be proceeded against by bill only, and not by original.

This was a writ of error to reverse a judgment given in the Common Pleas; and the error assign'd was, that the suit there was by bill, as in the case of a privileg'd person of that Court, whereas it ought to have been brought by original, according to the usual course of that Court; for tho' this was an action against a member of the House of Commons; yet in as much as 12 W. 3, c. 3, on which that action was grounded, does not allow the Courts of Westminster-Hall to issue out any different process than according to the course of each respective Court, they have no jurisdiction to proceed in any different manner than against a common person. But the Court said that a new jurisdiction is given 'em by that Act, different from what they can exercise against a common person; and this they said not only was clear from a section [8] in it to that very purpose, but was strongly implied too from the last proviso in it; which says, that they shall not proceed in any real or mixed action in any different manner from that, which they proceed against common persons in ; which strongly implies that in personal actions, as this was, they may. Accordingly judgment was affirmed.

THE KING AND RICH. How far an instrument cannot be produced in evidence for want of its being stamped in due time.

[See S. C. 2 Str. 716; 93 E. R. 803 (with note).]

This was a trial at Bar upon an information in the nature of a quo warranto to know by what authority the defendant exercised the office of burgess. Four issues were joined. And when he came to the last, which was, whether he was duly sworn and admitted into the office, he produc'd his admission; but it appearing by the witnesses, that the stamps were put to it a month or two after 'twas drawn up, the Court said it could not be given in evidence, by a statute in the 9th and 10th of King Will. c. 25, 59, which says that no admission shall be given in evidence of a person's being admitted into an office of burgess, unless such admission has double stamps. This same point, the Court said, was determined in the case of Dr. Gastrill, Bishop of Chester, and Peploe. But if the penalty be paid, and a receipt taken from the StampOffice, before 'tis produc'd in evidence, 'tis very allowable. The Court ordered too the jury to find all the issues for the King, in as much as the defendant had fail'd in one. And this point, they said, was settled in the case of Pindar and Earle upon a writ of error brought into the House of Lords. They said too, that when once a person has entered upon evidence by deed, he cannot, if he fails of that evidence, afterwards go to parol evidence of that fact. Indeed the Attorney General said that if they had not produced this evidence by deed, he did not know but they might have been admitted to have given parol evidence of it. Accordingly judgment of ouster

went.

[9] TERM. HILL. 13 GEO. I. 1726.

THE KING AND THE INHABITANTS OF ROWLEY. How far a vill and a parish shall be said to be coextensive.

A vill was presented for not repairing its highways; and in order to quash the presentment, 'twas objected, that every parish of common right is bound to repair its highways, and they ought not to throw the charge upon a vill, unless by custom, contract, &c. no more than upon a particular person in the parish, for there may be many vills in one parish, and therefore as such custom, &c. was not set forth in the presentment, it ought to be quash'd. But the Court said it did not appear there was more than one, and therefore they would intend them coextensive.

RADLEY AND RUDGE. How far the goods, which an action of trover is brought for, shall be said to be described with sufficient certainty.

This was an action of trover. And exception was taken to the declaration, for

that it was too general; it being only unam peciam of black and white tabby, and it does not express the quantity of yards. And they cited a case lately adjudg'd, where parcellam papyre was held to be bad. And this case the Court allowed; but they said in the first case, a piece of silk contains a certain quantity; but a parcel does not.

THE KING AND SEYMOUR. When leave is given to amend an information,

what terms it must be upon.

The defendant in an information pleads in abatement, that he is a surgeon, and not generosus. The counsel for the King moved to amend; but it was objected, that the information cannot be amended; because in order to amend, the King must pay costs, which it would be derogatory from his honour to do. But the Court said, when the King comes for a favour he may pay costs; accordingly they let him amend upon payment of costs or giving an imparlance; the counsel for the King chose to pay costs. And they cited a stronger case than this, namely, The King and The Corporation of Malmesbury, Pasch. 9, of this King, where the amendment was in the very name of the corporation.

[10] THE KING AND WARD. What shall be said to be a forgery at common law.

The defendant being convicted in an information for forgery, mov'd several things in arrest of judgment; first, that this information was laid at common law, and informations of this sort for forgery did not lie, but where the thing forg'd was a writing under seal; and this was only a forgery of an order from the Duke of Buckingham to Ward. But the Court was of opinion that this was an offence indictable at common law; for they said equal prejudice might attend another in the having his order or receipt forg'd, as in the having his deed forg'd or other evidence. And that this was a matter never questioned, appears from several cases, wherein the counsel have taken remote exceptions to such indictments, but never mov'd this in arrest of judgment. As in 1 Salk. 342, 406, they did indeed admit the case in Noy 99 to be law, where the obligee's changing the word libris to marcis was held to be no forgery; but they said, the reason of that was, because such alteration could not be to the prejudice of any person but the obligee himself. And they said forgery was the alteration of any writing, which may be given in evidence, by the means of which another may be prejudiced. The second exception was, that the offence was not sufficiently laid in the indictment; for the words are, Johannes Ward obligabilis existens ad deliberanda trecentum dolia alumni, Anglice tuns of allom, Duci de Buckingham, ad certum diem præteritum, ipse idem Johannes machinans & intendens ad evitandam deliberationem prædictam, committed this forgery on the first of February 1724. Now they objected, that it did not necessarily appear that the defendant was chargeable at the day he committed the forgery, and if so it was no forgery indictable, because at the time of the forgery there must be a possibility of a prejudice coming to another. But the Court said that the words ipse idem Johannes were surplusage, and they would throw them out; and then they said, they must offer violence to common sense and grammar, to give any other meaning to the words than that he was chargeable at that day; for how could he intend to avoid the said charge by the forgery, if there was not any charge upon him at that time? A third exception was taken to the publication; but the Court said they did not care what became of that; for in the information there are two distinct charges, one of forging the order, the other of publishing it; and if the first be made out, that is enough for them to give judgment upon. A fourth exception was taken to the word dolium, for they said it only signified a tun in measure and not in weight; but it was overruled, several precedents being cited, wherein it was used in the present sense. Fifthly, to the word contrafecit for counterfeiting, where the word should have been controfecit; but this it was said was the constant old word. Sixthly, to a disagreement between the venire and the distringas; in the one, the issue being joined between the King and the defendant, in the other between the Attorney General and him. That exception was over-ruled likewise.

[11] WATS AND GOODMAN. How far the plaintiff need never demur

specially to a plea in abatement.

The defendant pleads a plea in abatement as a plea in bar, by concluding ideo petit quod declaratio cassetur; upon which the plaintiff demurs generally. And the Court said, such a general demurrer is good. And Judge Reynolds declar'd that in no case a person is obliged to demur specially upon a plea in abatement, for 'tis not within any of the Statutes for the Amendment of the Law.

THE KING AND LEWIS. How far the Court never quashes an information.

A motion was made to quash an information taken at the sessions. Court said, they never quash'd informations, for they may be amended.

But the

THE KING AND THE INHABITANTS OF PAULSPERRY. How far the settlement of children changes with the settlement of the mother, as well as it does with the settlement of the father.

A motion was made to quash an order of sessions; the fact was in this manner; a father dies leaving several children, and the mother goes with them and gets a new settlement; upon this the justices order, that the children shall be remov'd to the settlement of the father; and now it was moved that this order might be quashed. Which the Court accordingly did; for they said, that by the law of nature, a mother is as much oblig'd to take care of her children as a father is; and therefore they ought not to be removed from her. And they said, that the case of St. George's Southwark and St. Catherine's was a case in point; and that was in the first of the King.

THE KING AND THE INHABITANTS OF GRIMSTON. How far an order of removal shall not be good, by reason of the uncertainty of the place, to which the persons remov'd are sent.

This was an order of removal; and the exception that was taken to it was, that the removal was to the parish or hamlet of A. which was uncertain. The Court laid, that indeed a vill and a parish they would intend coextensive; but that a hamlet was nothing else but part of a parish. So they quash'd it.

[12] TERM. PASCHE, 13 GEO. I. 1727.

TYRRELL against SIR CLOBERY HOLT & JOHN HOPLEY. Which side shall begin with producing their evidence first.

And it was

This was an issue out of Chancery that came to be tried at the Bar. whether one Mrs. Bruerton was of sound memory at the time of her executing several deeds; and because the execution of the deeds was at several times, there were four issues, but each of them turned upon that single question. The defendant was to prove that she was of sound memory; the plaintiff that she was not. And the counsel of each side argued who should produce their evidence first. And the Court took this difference, that if there is one affirmative in any of the issues, the plaintiff shall first go through his evidence as to all of them; but in this case the affirmative thro' the whole lies upon the defendant, and therefore he shall go first through his evidence.

SHIPPMAN AND LETHALIER. When there are two returns made to a certiorari contrary one to the other, which return shall be taken to be true.

The plaintiff in error assigns for error want of a writ of inquiry, and takes out a certiorari to verify it; and the custos brevium returns that there was none filed of that term, which the certiorari went to be informed of. Subsequent to this the defendant in error files it as of that term, takes out a certiorari himself and has a

return made, that it was filed. Upon this the counsel for the plaintiff moves that the second certiorari may be quashed. The Court said, that they ought to have entered a caveat to have prevented its being filed; but however made a rule to shew cause.

MACKLEED AND SLEED. What shall be said to be a good bill of exchange.

Upon a writ of error the question was, whether the present writing was a bill of exchange; and the words of it were to this effect, Pray pay to such a one or order within a month after the date hereof nine pounds ten shillings, as is a quarter's rent, due from the 24th of June to the 25th of September next following, by advance; witness my hand, &c. dated the 24th of May 1724. And the Court affirmed the judgment in the Common Pleas, adjudging that it was a good bill of exchange. For they said, if it had gone no farther than the nine pounds ten [13] shillings, 'tis very clear it would have been so; and the words subsequent have no other operation, than to shew the person upon whom 'tis drawn, how he should reimburse himself. Indeed if these nine pounds ten shillings were to issue out of the quarter's rent, they admitted, 'twould not be a bill of exchange; in as much as it would have been wholly uncertain, at the time the money contained in the bill was to be paid, whether any such rent would ever be due. And a bill of exchange must be peremptory and good at all events. And that is the reason the Court said of the case of Josling and Lascer, Hill. 11 Anne, where a man orders another to pay to such a one 19451. out of the money in the defendant's hand, belonging to the proprietors of the Devonshire mines; and that was adjudged no bill of exchange; because it depends upon a contingency, whether the person on whom the order was made should pay the money or no.

THE KING AND DORMER. How far an information is the
proper remedy for a libel.

A rule was made upon the defendant to shew cause why an information should not go against him for a libel, made upon one Mr. Carter, a justice of peace in Oxfordshire, which insinuated that Mr. Carter had lately foresworn himself in an affidavit. And the cause that he shewed was, that the fact contained in the libel was true; and therefore he hoped the Court would not allow him this summary way of proceeding, but leave him to his indictment or action upon the case. And Mr. Strange cited the case of The King and Bicarton, Hill. 8 Geo. 1, where an information was refused for the same cause. In that case the defendant was charged with personating Dr. Crow, and taking a fee as representing him; the defendant made affidavit of the contrary; and the Court would not grant the information. But the Chief Justice said, he did not believe that case was true. And he said, in all cases informations for libels go, unless you can shew the Court some probable cause for them to believe that you did not publish it. Now if you had denied it, it would have signified nothing; for then affidavit stands against affidavit, therefore the information shall go, that the fact may be tried. And Judge Fortescue said, that it would be a strange thing if a man should be allowed to justify, when an information is pray'd against him, and should not be allowed to justify in the information itself, when it is gone. Accordingly the information was granted.

STANTON AND SQUIBB. What words are actionable which are spoke of a tradesman.

This was an action for words. And the declaration set forth that the plaintiff was a brewer; and that the defendant speaking of him said, He is a pitiful fellow and a rogue, and has compounded for five shillings in the pound; and upon that the plaintiff concludes that he was damnified by them to the sum of Upon this the defendant demurs. And the coun-[14]-sel shewed for cause, first, that it did not appear, that he was speaking of him in his trade; secondly, that he ought to have shewn some special damage. But Judge Fortescue said, that he has heard my Lord Chief Justice Holt often say, that he would take the words always in a common sense, and if they imported any fact that might probably prejudice the person they K. B. XXIII.-1*