1801. ABLE againf READ fendants claimed the whole; but this is no evidence that they claimed adverfely at the time of the fine levied. Therefore the cafe is no more than this, that one tenant in common, without PEACEoufting his companion or fetting up any adverfe claim, levies a fine of the whole in 1796, and afterwards receives all the rent. Primâ facie the receipt of rent by one tenant in common shall be and Others. taken to be for all, and according to the right; and it refts upon him to fhew that it was received for himself only. Of this there is no evidence. The levying a fine of the whole by one has been fettled to be in itfelf no oufter of the other: and nothing appears to fhew that at the time it was levied Pearfall claimed adverfely to the leffor. Therefore there was no evidence to leave to the jury from whence to prefume an actual ouster at the time of the fine levied. Rule abfolute for entering a Nonfuit. RICE against CHUTE. [579] Tuesday, June 16th. for which the orders of a a appointed tain is not had received THIS was an action for goods fold and delivered, and for money The captain had and received, tried at the laft affizes for Horsham before of a troop Heath J. The plaintiff's demand was for forage fupplied by him forage is at different times to the Hampshire Fencible Cavalry at Brighton furnished by from the 15th of October 1799 to May 1800; and the only quef- cerk tion was, Whether the defendant were liable for it? Reed the quarter-mafter of the troop faid, that he was appointed by the defendant to be clerk of the troop at the falary of 10l. a-year. He proved the amount of the oats delivered by the plaintiff to the ufe of the troop, and that the oats were delivered according to the orders of the defendant as commanding officer of the troop, the for fuch fofame having been purchased by the witness by the express direction rage, though of the defendant. That Hunt was the paymaster of the troop for present with the last two years and a half; and that he the witnefs had paid the time; it the troop at the plaintiff feveral fums by bills on the paymafter. The plaintiff not appearreceived orders to draw bills on Hunt, and was paid at different ing that he times by him. The plaintiff and others who fupplied the troop any money were to be paid monthly, but Hunt had not paid at all fince October for this pur1799. The drafts were of this fort: "27th January 1800. Two pofe from months after date pay John Rice or order 3161. value in oats by mafter, to Alexander Reed;" addreffed to W. Hunt Efq. and accepted by whom it is him. In the latter end of October 1799 the defendant was re- iffued by cruiting at Bafing floke, and came to Brighton on the 8th of Novem- ment, and ber following. The defendant was in Brighton for three or upon whom four weeks, and was detached to Arundel in the December of the the captain fame year. About 24th January the defendant returned, and staid draw for a at Brighton till his regiment was difbanded. Hunt was appointed certain fun paymaster in 1797 by the commander in chief. He had been regulated by flack in his payments for fome time, and at last abfconded; which the returne was the occafion of the prefent fuit. The witness had received ceding orders from the defendant to draw bills on the paymaster and on his agent too, which were paid. Evidence was alfo given of bills [580] drawn by the defendant on the paymaster in favour of various 4 perfons the pay Govern is entitled to of the pre month. 1801. RICE againft Снить. perfons who had furnished articles for the troop. At Brighton the clerk drew bills as ufual for defendant, and received money for a long time after the new regulation (in July 1797 as to the appointment of the paymafters) both from defendant and from the pay. mafter. The clerk applied twice by letter to the defendant at Arundel and Brighton for money for the ufe of the troop. He alfo proved that Hunt the paymafter was indebted to the defendant in 400/., and the regiment was indebted to Hunt in 700l. That Hunt's credit was fo bad that no perfon would have trufted him for 20%. Before the new regulation the colonel appointed the paymafter, and the officers were liable for his deficiencies. By the new regulations the commander in chief appoints the paymafter, and the field officers and captains are no longer refponfible. However the fame practice continued after as exifted before this regulation, namely, that the captains of each troop drew on the paymafter bills for the pay, forage, and quarters of the troop. The two fureties for the paymafter Hunt were Colonel Dacre and Colonel Everitt. For the defendant it was proved, that on the 8th October the defendant was recruiting at Basingstoke, and remained there till the 3d of November following. He was at Brighton on the 10th of November and on the 24th of the fame month. That from 1ft of December to the 19th of January he was [581 with a detachment at Arundel. He was there likewife on the 28th of January, and staid till the 2d of February, and then had leave of abfence. He was at Brighton on the 1ft of March. That on the 20th of February Hunt abfconded. That the lieutenant next in command, in the abfence of the captain of the troop, figns the accounts and payments, and the pay lift, containing the extra food to the horses. On that return the paymaster iffues the money. The pay lift is the voucher of the laft iffue. There was a committee of paymafters, whereof the defendant was one, after the abfconding of Hunt who regulated the accounts. The counfel for the plaintiff, admitting that there was no exprefs undertaking for the payment, contended that he was entitled to recover on the count for money had and received; relying on the ftate of the paymaster's accounts as proved by Reed. The learned Judge directed the jury to find a verdict for the defendant, but they found a verdict for the plaintiff to the extent of his demand. And a rule nifi having been obtained for a new trial, Adam and Marryat fhewed caufe, and contended that this cafe differed from Myrtle v. Beavor (a), which was an action of the fame kind; for there the defendant the captain of the troop, for which the goods was furnished, was abfent from his troop the whole time on duty in another quarter, and another officer exercifed the command and gave the orders for the supply. Whereas here the defendant was prefent in command from time to time, and actually gave the orders to the clerk of the troop whom he had appointed, and whofe duty it was to provide the necessary forage. [Lord Kenyon obferved, that the plaintiff had taken da [582]mages for his whole demand, including articles furnished while the (a) Ante, 135. defendant defendant was abfent. But the counsel offered to deduct so much as the particular articles amounted to.] They then renewed the fame arguments as were before urged in the cafe referred to, in order to fhew that the captain or commanding officer of the troop was the perfon liable to anfwer fuch demands: and they added, that the paymaster was no more than the banker to each captain for the appropriated fum for which each was entitled to draw upon him after it was iffued by government. Shepherd Serjt. and Harrison contrà were stopped by the Court. 1801. RICE against CHUTE. Lord KENYON C. J. To be fure this cafe is different in the respect mentioned from the cafe referred to. But I cannot conceive how the captain of a troop can be perfonally responsible for the forage furnished to the troop, whether he have received any money for that purpose or not. It is admitted that the goods were not furnished upon his exprefs undertaking. They were ordered by the clerk, who receives his orders from whatever officer happens to be in the command at the time. But it is notorious to all parties that he does not contract as an individual, but on the behalf of government. And government it appears provides money for this very purpose, which is iffued from time to time to the paymafter of the regiment. The parties who furnish the goods know that the money is not to come out of the pocket of the captain of the troop. Then the paymaster not having paid this money over to the defendant, how can we fay that the money has been had and received by him to the plaintiff's ufe, when no money whatever has been received by the defendant. The confequence is, there [583 1 must be a new trial. Rule abfolute (a). (a) There was another cafe of Rice v. Everitt, determined at the same time, which was an action brought by the fame plaintiff against the colonel of the fame regiment for for ge furnished to his own particular troop. The evidence was in general the fame as in the other cafe: But here it appeared that though the defendant had not drawn upon the paymafter of the regiment for the particular fum in demand, and fo he could not be faid to have received that fum to the plaintiff's use; yet the defendant being indebted to the paymatter on the balance of his own private account with him to the amount of two-thirds of the plaintiff's demand, and being also furety for the paymafter to overnment, and the paymafter having abfconded in a state of infolvency, the Cour refused to fet afide a verdict recovered by the plaintiff for the amount of his debt, as the defendant was liable in fome fhape or other for the paymaster's default, and justice had upon the whole been done by the verdict. The KING against JOHN GILBERT. Wednesday, June 17th. Indictment for engrof quantity of AN N indictment charged that the defendant on, &c. at, &c. did engrofs and get into his hands by buying of and from divers perfons unknown a great quantity of fib, geefe, and ducks, to the intent to fell the fame again; to the evil example, &c. and against f, geele, the peace, &c.; and being removed by certiorari into this court, and ducks, the defendant demurred generally; and objected, amongst other matters, that no quantity was specified of the feveral articles charged to be engroffed. Wood (being called upon to fupport the indictment) referred to R. v. Tracey, 6 Mod, 32, where it was faid by Powell J. that an indictment held bad, without specifying the quantity of each. The KING 1801. indictment for engroffing' magnam quantitatem frumenti was holden good; and this is recognized in 1 Hawk. c. 80. f. 22. Sed Per Curiam. There are many authorities (a) to fhew that this against form of indictment is bad: it includes feveral things as fifh, geefe, GILBERT and ducks, without afcertaining the quantity of each. *[584] Gurney in fupport of the demurrer. Wednesday, The objects of a charitable foundation in the actual oc Judgment for the Defendant. (a) Cro. Car. 381. Anon. an indi&ment for engroffing magnam quantitatem ftraminis et foni was quafhed, for not mentioning how many loads of each. So for felling diverfas quantitates of beer. R. v. Gibbs, 1 Stra. 497. and vide 2 Hawk. cb 25 j. 74 The KING against MUNDAY and Others. OHN MUNDAY and feveral others named appealed to the quarter feffions of the county of Effex againtt a rate made for the relief of the poor of the parish of Felfed in that county. The Seffions confirmed the rate, fubject to the opinion of this cupation of Court on the following case: the almshouse and lands for their own benefit in the manner prescribed by the rules tution, and of the infti liable to be difmiffed for any breach of fuch rules, are rateable in respect of fuch occupation. Richard Lord Rich having founded a corporation in the parish of Felfed in the county of Effex for the relief of the poor there, called chaplains, parochians, and wardens of Felfted, and having endowed them with certain lands for that purpose, and for the fupport of a fchool therein, by indenture dated the 27th of September, 7th of Elizabeth, granted to the corporation and their fucceffors a meffuage called Colliers, fituate in Felfted, and twenty acres of land, with a wood of four acres in the faid parifh; and likewife the rectory of Braintree in the faid county; for certain ufes to be de clared by the faid Lord Rich in a certain indenture. Lord Rich accordingly by indenture dated* the 28th of December in the fame year, reciting the former deed, and that he had appointed for ever the faid meffuage for an alms-house, for the only relief, dwelling, habitation, and lodging of five poor, old, weak, impotent, or lame *[585] perfons, as well men as women, and alfo for one grave woman to attend them, each to be nominated and placed from time to time by him and his heirs, and there to remain during their natural lives, to the intent that they the faid five poor alms-folks for the time being fhould daily come to church, &c.; ordained and declared, that there fhould be and continue from time to time in the faid meffuage five fuch poor men and women, &c. and one grave woman to attend them, and to prepare their meat and drink, &c.; which faid fix perfons fhould have freely during their lives their dwelling-chambers and lodging in the faid alms-houfe, with fuch relief, profit, and neceffaries, and in manner and form as fhould be therein declared. It was further declared, that Lord Rich and his heirs fhould be perpetual patrons of the foundation. And that if any of the fix perfons fhould die or be justly removed, then Lord Rich and his heirs fhould appoint and place one other man or woman of the fort aforefaid in their place, in manner and form as the perfons fo dead or removed had poffeffed or enjoyed and in default of fuch appointment by Lord Rich or his heirs, the chaplain and churchwardens of Felled for the time being fhould ap MUNDAY point for that turn only. It then gave the patron, upon report of 1801. Pp their |