1801. against COOPER. which was afterwards returned upon the greatest deliberation, is in print. Nothing could be more pofitive than the words of the will in that cafe to fhew a particular intent that the first taker should take an estate for his life and no longer. But there was a general intent apparent, which could not be effected but by giving him an estate-tail, and on that the decifion was founded. The cafe was carried up to the Houfe of Lords while Lord Hardwicke fat there, and was much confidered by him; and queftions were put' to the Judges upon it framed by him in every poffible fhape; and Lord Ch. B. Parker, who is known to have been a very strict lawyer, delivered their opinions agreeing with the judgment of this court. The fame queftion came on again to be confidered in Roed. Dodjon v. Grew (a), in the Court of Common Pleas, and was there much canvaffed, and underwent the fame determination. Then came on the cafe of Doe on the demife of Candler v. Smith, in the 7 Term Rep. 531. in which I thought I could not make the matter more clear than by reading the words of Lord Ch. J. Willes in Roe d. Dodon v Grew. I will not go through all the cafes again which have been fo fully confidered in thofe I have alluded to. Perhaps we should best fulfil the particular intent of the teftator in this cafe by giving Richd. Cock only an eftate for life; but the general intent was that all his iffue fhould inherit the entire eftate before it went [236] over; and that intent can only be answered by giving him an estatetail by implication from the fubfequent words "in default of his leaving iffue." It is fuggefted that it would anfwer the fame purpofe if we were to raise cross remainders by implication between the children of R. C. But to do this between more than two without any thing further than what appears here would be directly contrary to former authorities; and it would alfo be in exprefs contradiction to the rule of law in Comber v. Hill (b), that an heir at law shall not be difinherited but by express words or neceffary implication, whereas fuch a conftruction would operate to difinherit him by a very weak and remote implication." GROSE J. The only question is, What upon the whole of the will appears to have been the intent of the teftator? and this has been truly stated to be that Richard Cock should first take the eftate, and after him his children, and that the remainder over fhould not take effect fo long as any of his defcendants remained. Then this general intent can only be carried into effect by giving the first taker an estate-tail. LAWRENCE J. The principal part of the plaintiff's argument is founced upon the raifing of crofs remainders by implication be tween the iffus of R. C.; but it is a fettled rule that they fhall not be implied between more than two, uniefs fuch appears upon the face of the will to have been the intention of the teftator: but no fuch intent appears in this cafe from the words of the will. Nor can it be implied merely from the circumftance that the remainder over [237] was not to take effect but upon the dying of R. C. without leaving itfue. The cafe of Doc d. Candler v. Smith is very like the prefent. That was a devife to A. for life, remainder to the heirs of the body as tenants in common, and in cafe A. died before 21 or without LE BLANC J. I can find no words in the will to raise cross remainders between the iffue; and if not we cannot imply them without breaking in upon the fettled rule that crofs remainders fhall not be implied between more than two. Then the general intent of the teftator cannot be effectuated without annexing the fubfequent estate of inheritance to the eftate of the first taker and giving him an eftate-tail. The Mayor, &c. of LONDON against DIAS. 1801. DOE against COOPER Wednesday, bail, fworn THE HE defendant was arrested and holden to bail upon the fol- An affidavit. lowing affidavit: "James Byfield, clerk to Richard Clarke to hold to "Efquire, Chamberlain of the city of London, maketh oath and by a clerk in "faith, that George Dias is indebted to the Mayor, &c. of London the Cham"in 2247. 195. 3d. for certain arrears of rent due from the faid berlain of "George Dias to the faid Mayor, &c. for the ufe and occupation office as to "of certain parcels of ground," &c. concluding in the ufual form the existence with negativing a tender of the debt in bank notes, to the best of of the debt, his knowledge and belief. London's and that no tender of it made in Bank notes Hovell on a former day obtained a rule nifi for discharging the had been defendant on common bail for the infufficiency of the affidavit to hold to bail, it having been fworn to by a clerk in the chamberlain's to the best of office instead of by his principal; and because, for aught appeared, his knowa tender in bank notes may have been made to the Chamberlain, ledge and be though not within the knowledge of the deponent; and he cited fufficient in Cafs v. Levy, 8 Term Rep. 520. lief, held an action the corpora Dampier now fhewed caufe, ftating that this mode of fwearing brought by was always allowed where from the nature of the thing the par- tion. ties themfelves could not fwear to their own knowledge of the *[238] debt. It had been admitted in the cafes of executors, affignees of bankrupts, and agents of principals refiding abroad, and could not be otherwife in the cafe of corporate bodies. That the deponent in this cafe being a clerk in the Chamberlain's office who had the management of all corporation bufinefs of this kind, was a more likely perfon to have a competent knowledge of the facts contained in the affidavit than the Chamberlain himself; and he cited Munro v. Spinks, 8 Term Rep. 284. and Crefwell v. Lovell, ib. 418. Lord KEYNON C. J. This cafe does not go further in principle than thofe in which affidavits to hold to bail in this form have been decided to be fufficient. The affidavit must have been made by fome of the officers of the corporation; and the Chamberlain himfelf, who certainly could not know more of the matter than the clerk 1801. The Mayor, &c. of LONDON againft DIAS. * [239] clerk in his office,* could not have fworn in any different manner, or with more certainty than the clerk has done. Per Curiam, Rule discharged. The KING against The Inhabitants of MARTHAM. TWO 'WO juftices removed E. Green, Mary his wife, and their fix children by name, from the parish of St. Paul in the city of Norwich to that of Martham in Norfolk. The Seffions on appeal (which fignifies ferving confirmed the order, and ftated the following cafe for the opinion another for of this Court. the purpose of learning a trade) for at a certain ly wages, vifo that if bad weather, The pauper E. Green was legally fettled at Martham, where he worked as a labourer with his father who was a bricklayer there. three years In 1782, being then 17 or 18 years of age, he came to the parish rate of week- of St. Paul in Norwich, and worked as a labourer with Chadley a bricklayer for about fix months, when by an agreement made by with a pro- the pauper's uncles J. and F. Littleboy he was clubbed to his faid he were pre- master for three years at the wages of 7 fhillings per week for the vented from first year, 8 fhillings for the fecond, and 9 fhillings for the third, working by to learn the trade of a bricklayer, and to do any other work his illness, or mafter might fet him about. The above wages were the usual want of em- wages of a bricklayer at that time. The pauper was to board, ployment, lodge, and wash for himself; and if prevented at any time from be a propor- working by badness of weather, illness, or from his master not tionable de- having employment for him, a proportionable deduction was to be made from his week's wages for fuch lofs of time. Occafional deductions of a day or two's labour were made. The pauper fometimes drove his master's cart employed in his business, and fometimes drove his miftrefs an airing. Whenever he was employed year under by his master either as a bricklayer or as above stated, no deduction this hiring, was made from his wages. He continued three years in the emthough occafional deployment of his master under the preceding contract. From these ductions on circumftances the Seffions confidered this as a contract of apprenticeship between the parties, and confirmed the order. duction of wages; held that Again ed a fettlement by ferving a thefe ac counts were made. When this cafe was called on, the Court afked the counsel in [240] fupport of the order whether it were poffible to diftinguish this from the cafe of R. v. Cottishall (a), where a fettlement was gained by ferving under fuch a hiring. Wilson and Marb attempted to distinguish the cases by observing that here was a ftipulation in the contract, that in cafe of illness, bad weather, or want of employment, the pauper was to have no wages: whereas to enable one to gain a fettlement by hiring and fervice, the contract must continue during the whole year. But the neceffary conftruction of this agreement must be, that if the mafter had no employment for the pauper, or the weather were too bad to admit of his ufual work, in which cafes he was to have no wages, he should be at liberty to work for any other master. But (a) 5 Term Rep. 193. The The Court thought that this did not fufficiently vary this cafe from the former; and that if they drew fuch refined diftinctions they should leave the juftices below without any rule to guide their determinations. Alderfon was to have argued contrà. A Both orders quafhed. SMITH against BURLTON. 1801. The KING against The Inhabitants of MARTHAM, [241] Thursday, Feb. 5th. The rule of Court of the. 4th Geo. 2., requiring an attorney to be prefent on behalf of a prifoner at the time of does not ap cuftody at Rule was obtained calling on the plaintiff to fhew caufe why the warrant of attorney given in this cause should not be delivered up to be cancelled, and why the judgment and execution iffued thereon fhould not be fet afide, &c. The principal ground made for the rule in the defendant's affidavit was, that being a prifoner in the King's Bench prifon, the warrant of attorney was obtained from him by the plaintiff (alfo in cuftody in the fame prifon) by the intervention of another prifoner of the name of Bland, his execut who acted as agent or attorney for the plaintiff, no perfon being of attorney ing a warrant prefent on the part of the defendant at the time when the inftru- to confefs ment was executed. It appeared however from a comparison of judgment, the feveral affidavits on fhewing caufe, (and on which the queftion at length turned), that the defendant was not at the time in cuftody where the at the plaintiff's fuit, but at the fuit of another perfon. And it party was in was fworn by Bland that he had not acted as attorney for the the time at plaintiff, but had only interfered as a friend to both parties, though the fuit of a originally at the folicitation of the plaintiff. third perfon. Marryat for the plaintiff, on fhewing caufe, contended that the rule of court of the 4 Geo. 2. (a) engrafted on a former rule of the 15 Car. 2. (b), requiring an attorney to be prefent on the part of a prifoner at the time of executing a warrant of attorney to confefs judgment only relates to prifoners in the cuftody of a fheriff's officer. The words of the latter rule are "fheriff or other officer," which have always had that conftruction (c). At any rate, the [242] rule does not apply to cafes where the defendant is not in cuftody at the fuit of the party to whom the warrant of attorney is given. Finn v. Hutchinfon (d), Holcombe v. Wade (e), Churchy v. Roffe (f), and the fame is recognized by Lord Mansfield in Gillman v. Hill (g). Lawes in fupport of the rule faid, that as it was not pofitively fworn that the defendant was in cuftody at the fuit of another perfon, he had confidered that the plaintiff meant to rely on the circumftance of the defendant's affenting that Bland should act for himfelf as well as for the plaintiff; but in Hutfon v. Hutfon (b) this had been deemed not to be fufficient to take the cafe out of the rule of Court, If however the Court thought that the fact now SMITH 1801. infifted upon (which he was not prepared to deny) fufficiently appeared upon the affidavits, he could not diftinguish this from the cafes cited; though he contended that this cafe fell as much within the principle of the rule of Court, which was intended for the protection of prifoners who could not readily have access to proper advice, as if the defendant had been in cuftody on mefne process at the fuit of the plaintiff himself. against BURLTON. the 4 Lord KENYON C. J. I am forry to find that the weight of authority is with the plaintiff. If this had been res integra I certainly [243] fhould not have put the fame conftruction on the rule of Court of Geo. 2. as appears to have been done by the cafes cited. That rule was made in order to protect those who were not in a condition to protect themselves, and therefore I would not have frittered away one word of it. I should rather have faid, that it made no difference whether a prifoner were in cuftody upon méfne procefs or in execution, or whether at the fuit of the plaintiff or of any other perfon; or whether in charge of the fheriff or any other defcription of officer. The cafe indeed in Lord Ramond was before the 4 Geo. 2.; but as the cafes fince have followed up the fame conftruction, and mankind have acted upon it for fo long, I must acquiefce in the decifion however reluctantly. [244] Thursday, One in pof feffion of glebe land 8. 20. by GROSE J. I am forry that the rule of Court has been fo pared away; but as the cafe in queftion has been fo exprefsly determined not to fall within it, we must abide by the decifion, LAWRENCE J. The cafe of Hutfon v. Hutfon only determined that where a party was within the rule he fhould not be permitted to wave the benefit of it by any confent at the time. But here the defendant has not brought himself within the rule. LE BLANC J. of the fame opinion. GRAHAM against PEAT. Rule discharged. RESPASS quare claufum fregit. Plea the general iffue, (and certain fpecial pleas not material to the question). At the under a leafe trial before Grabam B. at the laft affizes at Carlile, the trefpafs void by the was proved in fact; but it alfo appeared that the locus in quo was ftat. 13 Elix. part of the glebe of the rector of the parish of Workington in Cumreafon of the berland, which had been demifed by the rector to the plaintiff, and rector's non- that the rector had not been refident within the parish for five refidence years laft paft, and no fufficient excufe was fhewn for his abfence. maintain Whereupon it was objected that the action could not be maintrefpafs upon tained, the leafe being abfolutely void by the act of the 13 Eliz. his poffeffion c. 20., which enacts, "that no leafe of any benefice or ecclefiaftical against a wrong-doer. "promotion with cure or any part thereof shall endure any longer may yet "than while the leffor fhall be ordinarily refident and ferving the "cure of fuch benefice without abfence above fourfcore days in "any one year; but that every fuch leafe immediately upon fuch "abfence hall ceafe and be void." And thereupon the plaintiff was nonfuited. A rule |