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1769.

Vigers versus ALDRICH.

Friday 24th
Nov. 1769.

it;

THIS was an action of debt upon a judgment. It ap. A Replication

peared upon the plea, and was admitted by the re- and may be deplication, that the defendant's person had been taken in muried to if execution, by virtue of a capias ad satisfacientam, upon i temand this judgment; and afterwards discharged out of custody, and acknowby consent of the plaintiff, upon his entering into an ledge satisfacagreement “ to pay certaia suins of money at stipulated tion of part

times;” part whereof he had accordingly paid to the (See 1 Durn plaintiff pursuant to the said agreement, but had failed 3 Burm 338. in payment of the remaining part. The plaintiff, in his 6 Durn 5 27. replication, acknowledged all this; and yet concladed it 1 Durn 421. with demanding the whole sum dúe upon the judginent. : Durn 124.

2 Bosan. 442.) The defendant demurred to the plaintiff's replication.

Mr. Ashhurst, for the defendant argued that the defendant having been once taken in execution upon this judgınent

, and afterwards discharged of the execution [ 2183 ] against his person, by the consent of the plaintiff, he could not be liable to any further execution upon nor could the plaintiff bring an action of debt upon that same judgment, which had been already so carried into execution, and the defendant so discharged from it. He also objected to the replication, as repugn.nl, in per. [10 Vin. 94 sisting to demand the whole sum recovered by the said pl. 11.) judgment; though it admits part of it to have been satisfied.

Mr. Mansfield contra, for the plaintiff, endeavoured to answer the first and principal objection, by putting the plaintiff's consent to the defendant's discharge, upon the foot of a conditional one, and entirely rescinded or an. nulled by non-performance of the condition ; and there, fore, in event, no consent at all. As to the fault objected to, in the form of the replication; he said, it might be amended. But,

The Court were clear with Mr. Ashhurst in both points.

They held this to be an absolute consent in the plaintiff, to discharge the defendant out of execntion, in consideration of a new agreement then entered into, whereby 'he was to receive several sums of money instead of the person of the defendant ; (which was all that he could have had; if he had kept the defendant in gaol :) and that he could not bring an action upon the judgment, after the defen, dant had been taken in execution and discharged by the

1769.

YIGERS

V. ALDRICH,

plaintiff's own consent; but ought to have brought a new action upon the case, founded on this new agree- . ment.

Mr. Jąstice YATES added a strong reason why he could not bring an action upon the old judgment; namely, that it was the constant method of declaring, in an action of debt on a judgment, to alledge in the decla: ration, “ that the judgment still remained altogether “ unsatisfied."

They also held the replication ta be repugnant in demanding the whole sum, when it acknowledged it to be salisfied in part,

Per Cur'. unanimously

JUDGMENT for the DEFENDANT,

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RICHARD Roe, on the several demises of ELIZABETH

Haldane and THOMAS URRY, versus WILLIAM
HARVEY,

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IN ejectment—for certain premisses in Newtown alias Production of Frankville, in the Isle of Wight. The demises were Died neces- laid on 6th of October 1768. The cause was tried before sary to support Mr. Justice Aston at Winchester. plaintiffs title in ejectment He reported, that the title opened for the plaintiff was [See 5 Burr.

under Mrs. Haldane, as devisee of Robert Holmes. Two 26, 38.)

deeds were produced, (a lease and release,) dated 11th and 12th of October 1731, between the said Robert Holmes, and John Blachford, whereby Holmes, in consideration of £20 conveyed to John Blachford and his assigns, Little Starles, since called Bides, in Newlon alias Frankville ; to hold to the said John Blachford, for life. William Clark said that he had these deeds from the plaintiff's attorney : and Richard Clark proved “ that he received the rents of these pre« misses for John Blachford, for the years 1752 and 16 1753, of one John Draké since deceased." That John Blachford died in 1759 : and that after his death, this witness received the rents of the same premisses for three years, for Robert Blachford the son of John, as devisce of his father.

That in 1765, this witness was spoken to by Mrs. Holmes, for Mr. Blachford to give up the possession and that Blachford gave up the possession.

Then the will of Robert Holmes was produced, and proved; dated 24th January 1738. It appeared that he

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1769.

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ROE

V. HARVEY.

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died the 9th of April 1751; and by his will devised all
the rest and residue of his estate whatsoever and wheresoever
to his wife Elizabeth her heirs executors and administrators.

It was proved that Mrs. Elizabeth Holmes married
captain Haldane ; and that he was dead.

There was no proof of any receipt of rents, since the Blachfords : and William Clark, a witness produced for the plaintiff, upon his cross-examination said " That “ Mrs. Haldane had, before the 6th of October 1768,

conveyed away her interest in the premisses to Mr. Thomas Urry, and that the Deed was in Court."

Upon this, it was insisted by Mr. Serjeant Burland for the defendant," that the plaintiff's own witness proving “ the title oui of Mrs. Haldane, and that the deed of con

veyance to Urry was in Court, it ought to be PRODU

ced in evidence, to shew a title in Thomas Urry, the “ other lessor of the plaintiff.”

The deed's being in Court, or at least in the plaintiff's power, was not controverted. But, for the plaintiff, it was insisted that no notice having been given by the

defendant, for the plaintiff to produce this deed, they
6

were not obliged to do it. And it was also insisted,
that the plaintiff ought to recover under one or the

other of the lessors : for, upon this evidence, if Mrs.
Haldane had parted with the title, yet Urry had it.'

It was answered, “ that this was not a case which rc-
~ quired notice_" That the defendant did not claim
! under this deed : it was only then disclosed by the

plaintiff's own evidence ; and to be produced, to com.
plete his title derived from Urry."

Under the above circumstances, Mr. Justice Aston
thought “ the plaintiff ought to give further evidence,

to ascertain ihe tịtle, under which he was to recover the
term.

But the plaintiff rested his case; and was nonsuited;
the defendant agreeing " that the plaintiff should be at

liberty to move for a new trial, without payment of แ

costs.'

A motion was accordingly made ; a rule to shew cause; and cause now shewn.

This case was strenuously argued at the bar, by seve, ral eminent counsel on both sides.

It was urged on bçhalf of the defendant, that the deed being confessedly in Court, and in the power of the plaintiff, ought to have been produced by him, in order to shew that Urry had a title. For, his own witness (William Clark) had proved that no title remained in Mrs. Haldane; she having convryed it away : and none

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1769.

ROE

V. HIARNEY.

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appeared in Urry; as they refused to produce the deed, though actually in Court, upon which they pretended that his title was founded. So that, instead of shewing that Urry had a title, this refusal to produce the deed was a good grouud of presumption " that in fact he had none;

and that there was some defect in this deed, pr some thing or other contained in it, which if it bad “ been produced, would have shewn that he had none ; << and that they did not dare to produce it, because it “ would destroy their title instead of proving it.".

As to tlie objection urged on the part of the plaintiff, o that the defendant had not given the plaiutiff nolice to “ produce this deed; and therefore he was not obliged to

produce it;" their answer was, that notice to produce it, was neither requisite nor practicable in the present case;. for, the defendant could not be apprized that the plaintiff had any such deed ; neither did the defendant claim under it. On the contrary, it was first disclosed on the crossexamination of the plaintiff's own witness ; and ought to be produced by him, in order to complete the title which, he claimed under Urry; which title remained, otherwise, totally unsupported.

On the other hand, it was argued by the plaintiff's counsel, that even admitting “ that there was no need of their having had notice to produce it,” or taking it upon the same foot as if such notice had been actually given to them; yet they were not under any obliguiion to produce it. They laid it down as a known and establislied rule of evidence, “ that though a party had regular and full " notice to produce a decu, the only consequence of his 6 not producing it, was, tbat the adverse party should “ be let in to prove the contents of it by an inferior spe“ cies of proof; as, for instance, by reading a copy of it “ or by parol evidence :” which the defendant had not, " in the present case, either done or attempted to do.. And as to the pretended presumption that there might 6 be some defect in it, or something contained in it 66 which destroyed the validity or effect of it," it was grounded upon mere imagination : and so far was it from being at all probable, that on the contrary it must be presumed to convey at least an estate for life to Nir. Urry; because the witness (William Clark) bad said, 65 that the conveyance was made to Urry, in order to " qualify him to give his vote for a representative of the "borough in parliament ; which 'mist, therefore, be. a freehold. However, be the presumption ever so strong, such presumption ought to have been left to the jury the plaintiff ought not to have been nonsuited.

( ROE

V.

They insisted, with great vehemence, that instead of 1769. being nonsuited, the plaintiff ought to have bad a verdict : for, that his title appeared to be a good one, without the assistance of this deed. He had laid a double demise; one from Mrs. Haldane, the other from Urry. The evi- HARVEY. dence given by William Clark, was “that Mrs. Haldane “ had had an interest, but had conveyed it to Mr. Urry.' Therefore, most manifestly, there was an interest remaining in one of the two lessors of the plaintiff, and it was indifferent to the plaintiff, in which of the two it sub. Sisted. If it was out of Mrs. Haldane, it was in Mr. Urry: for, thus far the witness had clearly proved. And therefore they had a right to rest the matter here; having claimed under two demises, and shewn that there was a subsisting right in the one or in the other of the two [ 2487 ] lessors. So that, either under one demise or under the other, the plaintiff had proved a good title. Therefore this nonsuit ought to be set aside; and the cause go down to trial again.

They urged the propriety of adhering to the settled rules of evidence, and the inconvenience which would attend the rendering those rules again vague and fluctuating, by an unnecessary departure from them after they had been fully established.

LORD MANSFIELD reasoned from the nature of an ejectment, and the course of proceeding upon it. He laid it down as a position, “that in this action, the “ plaintiff can not recover, but upon the strength of his 4 own title.He can not found his claim upon the weakness of the defendant's title. For, possession gives the defendant a right against every man who can not shew a good title.

The plaintiff here claims under a widow who never was in the receipt of the rents and profits. Robert Holmes, in October 1731, conveyed to John Blachford, for life. Blachford died in 1759. She was widow and devisec of of Robert IIolmes, who died in April 1751 : but the rents were received for John Blachford in 1752 and 1753, and after his death in 1759, for three years, for his son Robert Blachford as devisee of John his father; there was no proof of any receipt of rent since the Blachfords. And the witness produced for the plaintiff proved upon cross-examination, “ that she had conveyed away her " interest.in the premisses, to Urry, before the 6th of " October 1768;" which was the day on which both demises were laid to be made. So that it is plain that the plaintiff had no title under the widow, Mrs. Haldane.

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