1766. v. SEWELL. surrendered at any time, and that a surrender was as much within the given power, and within the intention of the WILSON Legislature, as effluxion of time; and that they meant no more than to give every Master of the Rolls for the future, a protection from being incumbered for a longer time than 21 years, by the leases of predecessors. They thought, consequently, that this lease of 1762 did not break in upon the power; as it does not charge the reversion longer than 21 years in the whole. And it was observed by Lord MANSFIELD and by Mr. Justice HEWITT, that as this estate was in houses, it might happen to be very inconvenient, if the tenants might not surrender their leases within less than the last seven years of their terms, in order to rebuild their houses, in cases where it might be necessary. And it seemed to be their opinion, that the Master of the Rolls might take surrenders and make re-grants, toties quoties; and that his having executed the power once, did not prevent him from repeating it. As to the third point-They held the acceptance of the • V. Co. Litt. lease in 1762 to be an * implied surrender of the old lease in 1755. 358 Hutton 104, Watt v. Maydewell. [See also post 2211. 2213 5:Com. 486. 20 Vin. 128. pl. 8. 133. pl. 35..]. But they seemed to agree, that if the lease of 1762 had not been a good lease, then the acceptance of it would not have implied a surrender of the former one of 1755. For, it was not reasonable in itself, nor could it be the intent of the parties, that an acceptance of a bad lease should be an implied surrender of a good one. This is not only agreeable to principles and common sense, but has been determined; it was so resolved in the case of Lloyde and Gregory; (which is best reported in Sir William Jones + See also the 405, 406.).+ If a surrender is intended for a particular purpose; and that purpose the only motive of it, fails; the surrender ought to fail too. (q) Case cited at the end of Watt ". in Hutt. 105. Upon the whole THE COURT Concurred in giving JUDGMENT for the plaintiff, upon the issue on the vali [*1981 ]dity of the lease of 1762; and for the defendant, upon the issue on the validity of the lease of 1755. (q) In 20 Vin. 128. pl. 6. and 135. pl. 13. the distinction is where the second lease is void, and where voidable; that in the latter case it is a surrender, (but it is unreasonable it should, unless confirmed; but in the first, not) Vid. Post. 2213. The same distinction was taken and allowed by Lord HARDWICKE, Rex versus Duffin. S. P. 8 Vin. 141. pl. 1.. .1766. LAKE, Esq. Sheriff of Hertfordshire, vers. TURNER and HARLEY, ESQ. (Roll 498.) Sheriffs Pound age. [The Law is now altered by THIS HIS was an action of debt for £464. 7 s. 6 d. upon Crown not the Statute of 29 Eliz. c. 4. "to prevent extortion bound by "in cases of execution," brought by the plaintiff, as 29 Eliz. c. 4. Sheriff of Hertford, against the defendants, Sheriffs of respecting London, for his poundage upon a Testatum Capias ad satisfaciendum prosecuted by them out of the Court of Exchequer, against one George Gibbs, for a debt of £18,478. 2 s. at their suit, as the King's Debtors; upon which writ, the plaintiff had arrested the said George Gibbs; whereby he became intitled to demand and have of the defendants the aforesaid sum of £464. 7 s. 6 d. that is to say, twelve pence for every twenty shillings of £100. Parcel of the said debt and damages, and six-pence for every twenty shillings of the residue of it. The defendants in their plea set forth a prosecution by the Attorney General on behalf of his Majesty, in the Court of Exchequer against Charles Gibbs, for Customhouse forfeitures and penalties; whereupon Exchequer process issued against the said Charles Gibbs, directed to them; by virtue of which process they arrested him, and took bail for his appearance. That George Gibbs was his surety upon this occasion, and executed a bail-bond to them in the sum of £18,473. 2s. conditioned for Charles Gibbs's appearance at the return of the writ. That Charles did not appear. Whereupon they put the bail-bond in suit in the Exchequer, and recovered against Charles the said 18,473. 2 s. debt and 56 s. 8d. damages; and upon this judgment they prosecuted the said Testatum Capias ad satisfaciendum against the said George. And they aver "that the aforesaid judgment against the said George Gibbs was had and obtained, "and the said writ of Capias ad satisfaciendum was pro"secuted by them, at the instance and on the behalf and "account and for the benefit of his said MAJESTY, and at "his said MAJESTY's costs and charges," whereof the said Bibye Lake, (the plaintiff,) at the time of the delivery of the said writ to him to be executed, had notice. To this plea the plaintiff demurred; and the defendants joined in demurrer. Mr. Ashurst, on behalf of the plaintiff, argued that this was a bad plea. Nothing appears to vary this case from the general rule. 7 Geo.3.3.29.] [1982] 1766. LAKE V. TURNER. Sect. S. 13. 16. 17. 1st. This is no trust for the crown. 2dly. This Court will not take notice of a trust. First-The Act of 23 H. 6. c. 10, § 1. does not make the Sheriff liable to an action. 2 Saund. 59. Posterne versus Hanson and Hooker, Vic'. Midd. 2 Mod. 177. Ellis versus Yarborough. 1 Mod. 239. Page versus Tulse. The not bringing in the body at the return of the writ, is not actionable; it is an offence against the Court only, and amerceable by them. The Sheriff is not therefore considered as a Trustee for the party; nor, in this case, for the crown. There is no difference between the case of the crown, and the case of the subject. This was so before 4 Ann. c. 16. (which made bailbonds assignable.) That act makes no alteration; it does not oblige the plaintiff to take an assignment of the bailbond. His remedy still is, by moving for issues. The bail-bond belongs to the Sheriff; he takes it for his own indemnity. Secondly-This Court can not take notice of a trust. And here, the Crown's interest does not at all appear to the Court. Mr. Wallace contra, for the defendants. The Act of Parliament upon which this action is founded, is 29 Eliz. c. 4. But the Crown is not within it. No demand has ever been made upon the Crown, on that act. The Act of 3 G. 1. c. 15. gives fees to Sheriffs, on levies, &c. But the money must first be accounted for, in the Exchequer. The Crown therefore is not within the act. The question here is, "whether this be the suit of the "Crown, or the suit of a private person.' Now, it is, in substance, the suit of the Crown; and it [1983] is averred to be so. The plaintiff has his election, either to accept of the bail, or to proceed against the Sheriff by amercement. 12 Mod. 447. Pickering's case. I Salk. 99. pl. 6.` 10 W. 3. Etherick versus Cowper. 2 Salk. 608. Rex versus Daws. Raymond moved that further amercement might be stayed; and that the prosecutor might accept of the bail-bond. And the Court held that they could not oblige the plaintiff to accept the bail-bond. But here the Crown has elected to proceed against the bail. The Act of 4 Ann. c. 16. does not extend to the King; nor does 23 H. 6. c. 10. This is a trust under 23 H. 6. c. 10. And this is averred to be a suit and proceeding for the benefit and on account of the Crown; and that "the plaintiff had notice of this," is agreed by the plea and demurrer. Therefore the defendants ought not to be subject to this payment. 1766. LAKE V. Mr. Ashurst, in reply-Acknowledged that the Crown was not named in the act; and therefore not bound by it. But it would be a hard case, he said, upon the Sheriff, if TURNer. he was to lose his poundage. And this is so far from having been thought reasonable, that the Act of 3 G. 1. c. 15. § 3. gives the Sheriff larger poundage in the case of the Crown, than in the case of a subject. As to any admission made by our demurring, the answer is, that nothing is admitted by a demurrer, but what is well pleaded. And we demur, because we say, "that "the facts pleaded do not warrant the inference; we say the Sheriff was not a trustee for the Crown. As to the case of Etherick versus Cowper in 1 Salk. 99. -It does not impeach my doctrine; neither does Daws's case in 2 Salk. 608. (which rather makes for me.) As the Crown has not interfered, the Sheriff of Hertfordshire ought not to be deprived of his fees. The plaintiff's having had notice "that the Crown was "concerned in interest,' "is not a matter that we could have taken issue upon. THE COURT agreed, that if the Crown be not named in 1984 ] an Act of Parliament, it is not bound by it. But, they were unanimous, that this could not, in any light, be considered as the suit of the Crown. The bail-bond was taken in the name of the Sheriffs; and it was their own security. It was incumbent on them to take good security. The Statute of 33 H. 8. c. 39. § 4. requires all suits for the recovery of any of the King's Debts, to be brought "in the name of the King only;" whereas this is brought in the name of the Sheriffs. Per Cur'. unanimously— REX vers. Inhabitants of Llandverras. Wednesday, 26th Nov. 1766. See this Case at large, in the Quarto-Edition of my [S.C. 1 Black. SETTLEMENT-CASES. No. 184. p.571. 603.] 1766. Thursday 27 SADLER vers. EVANS: or Lady WINDSOR's Case. (S. C. Bull 133.) A non-snit by A MOTION having been made, on behalf of the plain mistake at N. P. may be 4 Durn. 555.] tiff to set aside a non-suit On the last day of Easter Term last (1766,) Mr. Justice ASTON reported from Mr. Baron Perrott who tried the cause, that this was an action for money had and received to the plaintiff's use; and that the Counsel for the plaintiff, who opened the cause at the trial, stated the action to be brought with intention to try the RIGHT of Lady Windsor to a quit-rent of one shilling, and to another sum of six-pence for mises. They stated, that the defendant was her receiver; and demanded them of the plaintiff, as such. That the plaintiff paid the 1s. 6d. to the defendant; and took a receipt for them, by which the defendant acknowledged to have received them for the use of Lady Windsor. That, in fact, these sums were not due to Lady Windsor; and that they were therefore received without any good consideration; and consequently, that this action well lay against the defendant into whose hands they were paid. And they were pre[1985] pared with, and would have called evidence to the RIGHT. But the Judge (Mr. Baron PERROT) was of opinion, that under these circumstances, the action did not lie against the defendant. That nothing could be more absurd than to make the collector or receiver of another person liable to an action for every payment that was voluntarily made to him; and to leave him to be defended, or deserted by his principal, as such principal should think fit. That it was (in his opinion) yet still more absurd, as he did not see how a verdict given in this cause could ever be received in evidence for or against the right which might in a future cause come to be tried. That if this action lay in such a case as this, it would lie against every attorney, who by his client's direction should demand and receive money as due to his client, which the supposed debtor might voluntarily pay, and afterwards think fit to dispute. He thought that if the one shilling and sixpence had been paid over to Lady Windsor, the plaintiff might easily prove it. [It was not the plaintiff's business, nor in his knowledge, but the defendant's who was the receiver.] And if it was not paid over, yet the payment to her receiver was payment to her; and therefore the action ought to have been brought against her. |