1801.

GRAHAM

against SIME.

amounting to 187. for making effectual the fame: and then the plaintiff averred, that fuch admiflion of him took place, and the faid fine was due and payable during the life of Elizabeth, &c. but that neither the defendant nor his wife paid the faid 187. to the lord, &c. on the admission of the plaintiff, although duly requested, &c. as an affurance required, &c. by the plaintiff; and therefore, &c. The plea took iffue on the firft breach affigned, and demurred to the fecond breach, because it was not alleged in the declaration that the payment of the fine therein mentioned was any [634] act, deed, or affurance neceffary or requifite to be made or performed by the defendant, or that the fame was a reasonable fine, or that the defendant and his wife had notice of such fine, or that the plaintiff had fuftained any damage by the non-payment thereof. Lambe in fupport of the demurrer was stopped by the Court. Efpinaffe, contrà, faid, that the intent of the covenant was, that the feller fhould pay all the expence of the conveyances and acts neceffary to make a good title to the purchaser: and that the payment of the lord's fine was part of the affurance neceffary to perfect the plaintiff's title. But

The Court, referring to Hobart v. Hammond, 4 Co. 28. a. and Rex v. The Lord of the Manor of Hendon, 2 Term Rep. 484. faid, that no fine was due to the lord till after admittance, and confequently the plaintiff's title was complete before the fine was due. Judgment for the Defendant.

NoWLAN against GEDDES.

THE
HE plaintiff declared in affumpfit upon joint promises against
the defendant A. Geddes and one George Laing, "which faid
"George was and is now in due manner outlawed," &c. Plea by
Geddes, after imparlance, that actio non, &c. becaufe there is no
fuch record of the judgment of outlawry against the said G. L. in
* the faid declaration mentioned now remaining in the Court, &c.
as the faid plaintiff has above in and by his faid declaration fup-
pofed; and this the faid A. G. is ready to verify; wherefore he
prays judgment if the faid plaintiff ought to have maintained his
aforefaid action thereof against him the faid A. G.
was a general demurrer, and joinder.

To this there

Lawes, in fupport of the demurrer, faid, that in effect the plea only amounted to this, that another ought to have been fued jointly with the defendant; and therefore the plea ought to have concluded in abatement, and not in bar. For every plea in bar ought to go to the merits; unlefs where collateral facts pleaded are an inducement to or fubftratum of the action; and then they may conclude in bar. And it was neceffary for the plaintiff to demur, otherwise he would be concluded by the judgment on a plea in

bar.

Barrow contrà. The plea was properly in bar. The proceedings are by original against two, and the declaration states a joint promife, and yet is against one only: for the demurrer to the plea

admits

1801.

admits the fact, that there is no record of outlawry against the other. And he referred to Horner v. Moor (a), where debt being NoWLAN brought upon a joint bond against one, judgment was arrested. against But

GEDDES.

[636]

All the Court agreed, that as the plea amounted only to a plea in abatement, it was ill to conclude in bar. And by

LAWRENCE J. The demurrer only admits what is properly pleaded; and if the plea fhould have concluded in abatement aud not in bar, the demurrer does not admit facts not rightly pleaded. Now the plea is in effect, that another joint contractor was not fued, which is a plea in abatement. In the cafe cited, it did not appear on the face of the declaration that the other joint obligor was outlawed.

LE BLANC J. The admiffion of the fact by the demurrer cannot vary the cafe; for fuppofing the defendant had pleaded that there was a joint promife, (and the prefent plea is in effect no more,) and the plaintiff had demurred, that would have been equally an admiflion of the fact, and yet no doubt such a plea must have concluded in abatement.

Et per Curiam. The judgment in this cafe is not a refpondeas oufter, but a general

Judgment for the Plaintiff (),

(a) B. R. Mich. 24 Geo. 2. cited by Afton J. in Rice v. Shute, 5 Burr. 1614.
(b) Viae Wallis v. Savil, 1 Lutw. 41.

Friday,
June 19th.

Where a
mob, after

beginning to demolish

and pull down a houfe, fteal

flour there in, or force

the owner to fell it at an under price, the value there

of cannot be

recovered in

an action against the hundred on

the 6th fect.

of the riot

at 1 Geo. 1.

ft. 2. c. 5. and robbery being fub

fuch fealing

ftantive felonies, and not within

GREASLEY against HIGGINBOTTOM and Another.

THIS
HIS was an action on the ftat. 1 Geo. 1. ft. 2. c. 5. S. 6. against
the hundred of Stapleford in the county of Nottingham, for a
reparation in damages by reafon of the pulling down in part the
dwelling-house of the plaintiff by perfons unlawfully, riotoufly,
and tumultuously affembled. On the 3d of September a mob con-
fifting of more than two hundred perfons came in the morning to
[657] the plaintiff's houfe at Stapleford, who was a flour-feller and gro-
cer; and after beating him, and threatening to break the windows
and pull the houfe down, they actually broke the windows of the
houfe and kitchen, cut the iron and ftaunchions, and broke the
window-fhutters. They alfo pulled down a lean-to or little out-
houfe, and tore off the roof of it. This latter was fo placed, that
when pulled down there was left an opening outwards from the
upper chamber of the house, which had communicated as a door-
way into the upper part of the lean-to. Out of the lumber-room
with which this was connected the mob took a quantity of flour;
fome of it they fold one amongst another against the plaintiff's
confent at their own price (nearly half the value), which they paid
to the plaintiff; fome was ftolen; and fome was thrown about
and wafted; in all more than two hundred ftone. On the part
of the hundred it was firft objected, that the lean-to was no part

the offence created by the 4th section of the act. But flour which was fpoiled or deftroyed at the time of fuch beginning to demolish, &c. may be fo recovered.

of

1801.

LEY

against HIGGIN

BOTTOM

other.

of the dwelling-houfe: which was over-ruled. 2dly, that the facts proved did not amount to the felony deferibed in the 4th fect. of the riot act, viz. that of the perfons being unlawfully, riotously, GREASand tumultuoufly affembled to the disturbance of the public peace, and unlawfully and with force beginning to demolish and pull down the plaintiff's dwelling-houfe. At the trial Graham B. agreed, that in order to make the hundred liable, the acts done and Anby the perfous fo affembled muft amount to the offence defcribed in the 4th fection: but he thought the cafe proved brought them within it. It was alfo objected, that at any rate the plaintiff was not entitled to recover for any part of the flour which was taken and fold by the mob,but only for the damage done to the house and lean-to, and the flour fpoiled in fo doing. The jury however, under the Judge's direction, found a verdict for the plaintiff for the feveral amount of the damages fuftained by him in each respect, [638] making altogether 401.

Clarke and Reader in Eafter term laft obtained a rule for the plaintiff to fhew caufe why the verdict fhould not be fet afide and a new trial had, on the last-mentioned ground of objection; the flour which was stolen, including that which was taken and fold against the will of the owner, being a felony of another defcription, and not within the meaning of the 4th fect. of the riot act, creating a new offence, and confequently not within the 6th claufe, giving a remedy against the hundred for damages occafioned thereby.

Balguy now fhewed caufe, and faid, that though the 4th claufe was highly penal, and therefore to be construed ftrictly, yet the 6th claufe on which the action was founded was a remedial law, and ought confequently to receive a liberal conftruction. And here the damage arose from one continued act, and all flowed from the original violence.

The Court, however, were of opinion that the hundred were only liable for the damage done to the houfe and lean-to, and for fuch of the flour as was fpoiled or destroyed in doing that damage: but that as to the flour stolen, or, which in effect was the fame thing, taken away and fold without the confent of the plaintiff, that being a diftinct felony in the offenders, an offence which exifted before the paffing of the riot act, and not an injury done to the party by beginning to demolish or pull down the house, it was not within the 4th claufe of the act, and confequently not [639] within the claufe giving damages against the hundred (a).

On this, the plaintiff's counfel confenting to remit the damages. given for the flour ftolen or taken away by the mob and fold, the rule for the new trial was difcharged without costs.

(a) Vide Ratcliffe v. Eder, Corp. 485. Hyde v. Cogan, Dougl. 699. and Reid v. Clarke, 7 Term Rep. 496, and Burrows v. Wright, ante, 615.

The

1801.

Τ

The KING against STONE.

Saturday, THE following conviction on the game laws was removed into this court by certiorari.

June 20th.

If a convic

tion before a justice of peace on the gameJaws state

that the de

fendant was prefent at the tim: when the

the inform

ation was

read and the

witneffes examined; and that

when called

on for his defence he

produced no evidence,

and did not require any further

without

Bedfordshire, to wit. "Be it remembered that on the 6th of January, in the 41 Geo. 3. at, &c. T. French, of, &c. cometh before me, J. Webfler clerk, one of the juftices, &c. and then and there giveth me the faid juftice to understand and be informed that T. Stone of A. in the county of B. gentleman, within three months then laft paft, that is, on Saturday the 3d of January in the 41ft year, &c. at M. &c. he the faid T. S. being a perfon not then having lands or tenements or any other eftate of inheritance in his own right or his wife's right of the clear yearly value of 100% per ann. &c. (and fo negativing all the other qualifications of the flat. 22 & 23 Car. 2.), nor then being in any other manner qualified or entitled in his own right to keep or ufe any engine to kill and deftroy the game of this kingdom, did keep and [640] ufe a certain engine to kill and destroy game called a gun, against the form of the flatute, &c. : of which faid information, and of the offence therein charged upon him as aforefaid, he the faid T. S. on the faid 6th of January, &c. at M. &c. had notice. Whereupon the faid T. S. appeareth, and is then and there on the faid 6th of January, &c. at M. &c. prefent before me the faid time; that juftice to anfwer and make his defence to the faid information and is fufficient, the offence therein charged upon him as aforefaid; and he the ftating that faid T. S. having heard the fame is afked by me the said justice he was pre- if he can fay any thing for himfelf, why he the faid T. S. thould vioufly fum- not be convicted of the premises above charged upon him in form aforefaid? and the faid Thomas Stone pleadeth that he is not guilty of the faid offence. Nevertheless on the faid 6th of January, &c. at M. &c. two credible witneffes, to wit, J. C. of, &c. and . . of, &c. come before me the faid juftice in their own proper perfons, and before me the faid juftice, in the prefence of the faid T. S. they the faid J. C. and J. W. being respectively then and there on the fame day and year aforefaid at M. &c. duly the informa- fworn, &c. and depofe, &c. (The conviction then fet forth the tion the qua- evidence of the witneffes as to the fact of the defendant's having the defend- killed a pheasant on Saturday the 3d of January 1801, in the parifh of M. &c. but not ftating any evidence of the difqualification of the defendant). And thereupon the faid T. S. being afked by me the faid Juftice if he had any thing to fay, or can produce any evidence in answer to the feveral matters depofed to by the fuch qualifi- faid 7. G. and J. W. as aforefaid, he the faid T. S. pretends and must be re- reprefents to me the faid juftice that he the faid T. S. on the faid peated in 3d of January, &c. was qualified both in his own right and in right of his wife to kill game, but doth not produce any evidence [641] thereof; nor that he the faid T. S. on the faid 3d of January, &c. had any lands or tenements or any other eftate of inheritance in his own right or his wife's right of the clear yearly value of

moned to

anfwer, &c. Qu. Whe

ther it be neceffary

for the pro

fecutor to

negative by

evidence as well as in

lifications of

ant to kill game? and Qu. Whether the ne

gative of

cations

the adjudi

catory part of the con viction, or whether it

be not fuf.

ficent to

convict the defendant or the offence aforefaid, referring to the previous part of the conviction which fets forth the information in which fuch qualifications were fpecifically negatived?

100l. per ann., or for term of life, or any leafe or leafes for 99 years, or for any longer term, of the clear yearly value of 150%; nor that he the faid T. S. was the fon and heir apparent of an efquire, or of other perfon of higher degree; nor that he was the owner or keeper of any foreft, park, chafe, or warren, or gamekeeper to any lord or lady of or for any manor or manors; nor in any other manner qualified in his own right to keep or ufe any engine to kill and deftroy the game of this kingdom; nor doth he produce any fufficient evidence thereof in answer to the feveral matters depofed to by the faid J. C. and J. W. as aforefaid; nor doth the faid T. S. require any further time for that purpose. And thereupon it manifeftly appears to me the faid juftice that the said T. S. is guilty of the offence above charged upon him in and by the faid information. Wherefore I the faid justice on the faid 6th of January, &c. at M. &c. on the oaths of two credible witnefies fo taken before me as aforefaid, do adjudge him the faid T. S. to be guilty of the offence aforefaid; and do thereupon convict him of the fame; and do declare and adjudge that he the faid T. S. hath forfeited the fum of five pounds for the fame offence, to be diftributed as the ftatute in that cafe made and provided doth dire."

1801.

The KING against STONE.

McIntosh, on the part of the defendant, objected, 1ft, that the conviction dues not ftate that he was duly fummoned; and that this was not cured by alleging that the defendant was prefent; for if a man be not apprised before-hand when he fhall be called upon to answer a charge, he cannot be prepared for his defence or have his witneffes ready. In Rex v. Heber (a), an information was [642] granted against a magiftrate for convicting one without fummoning him, he happening to be prefent when another perfon was convicted for the fame offence, who had been previously fummoned. It was there faid to be a mot known rule of common justice that no man should be convicted of an offence till he had previous notice given him of the charge. To be fure in Rex v. Johnson (b) it was holden, that appearance cured all defects in the fummons; but there the objection went only to the shortness of the fummons, it having been iffued on the fame day on which the defendant was required to appear. In R. v. Venables (c) it was ruled that a fummons was neceflary; but there no appearance was ftated. (The Court exprelling their opinion, that the appearance of the party, especially as he did not afk for further time, difpenfed with the fummons, this objection was abandoned.)→ 2dly, Neither the evidence nor the adjudication negatives the qualifications required by the ftat. 22 & 23 Car. 2.; the want of which is of the very effence of the offence. This was holden to be neceflary in R. v. Jarvis (d). It is true, that the qualifica. tions are here negatived in the information; but that alone is not fufficient; for as the information is the ground of the fummons,

(a) 2 Barnard. 34. 77. 101, (when this book was cited Lord Kenyon obferved, that Barnardifton was a bad reporter; and that probably, if the conviction itfeif were looked into, it would appear either that the party was not called upon for his defence, or had not proper time given to him upon request.) Vid. 2 Stra. 914. S. C. (6) 1 Stra. 261. (c) Ib. 630, and 2 Ld. Ray, 1405.

7

(d) 1 Burr, 148.