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INDICTMENT.

INSOLVENT DEBTORS, &c.

221

lish woman, and apprehensive only that ; 3. But that if it had been incapable of re. he meant to send the child abroad, but ceiving an inclusive conttruction, the aligning no fufficient reason for such words under the first videlicet, "uncil her apprehension. Rex v. de Manne- the 29th of November 1795,” could nos ville, E. 44 G. 3.

have been rejected as surplusage; for 2. I! the purative father of a bastard child that can never be where the allegarion

obtain poflession of it by force or fraud, is sensible and confiftent in the place the Court will order it to be restored where it occurs, and not repugnant to on the application of the mother. Rex anteceitint matter, though laid under a v, Moseley, H. 33 G. 3.

224

videlicet, and however incvalltent with an allegation subsequent.

ib. HUSBAND AND WIFE. 4. An indictment for an affault, falle im. See POOR-REMOVAL, No. 1.

prisonment, and rescue, stated that the

Judges of the Court of Record of the lown INDICTMENT.

and county, &c. of P. iilued their writ,

directed to T. B. one of the ferjeanis a: 1. Every indiament must contain a com. plete description of such facts and cir.

mace of the said town and county, to arcumftances as constitute the crime,

reit W., by virtue of which 7. B. was without inconfiftency or repugnancy.

proceeding to arrest W'. within the jurisBut, except in certain cases, where

dission of the said Court, but that the de.

fendant assaulted T. B. in the execution technical expressions, having grown by long use into law, are required to be

of his office, and prevented his arrest:

held such indictment bad; it not ap. used, the same fense is to be put on the words of an indictment which they bear

pearing that T. B, was an officer of the

Court; and that there could not be judge in ordinary acceptation : and if the sense of any word be in ordinary acceptation

mene after a general verdict on such a ambiguous, it shall be conilrued accord.

count as for a common assault and false ing as the context and subject matter

imprisonment, because the jury must be

taken to bave found that the assault ard require ir to be in order to make the

imprisonment was for the cause sherein whole con sillent and sensible. The word until may therefore be construed ei.

ftated; which cause appears to bave

been that the officer was aitempting to ther exclusive or inclusive of the day to which it is applied, according

make an illegal arrest of another, whichi, the context and subject-matter

being a breach of the peace, the defeod. Rex v. Stevens and Agnew, Y.

ant might, for aught appeared, bave G. 44 3.

lawfully interfered to prevent it. Rex

214 2. Therefore, where an information on the

Ofizer, T. 44 G. 3.

3°4 ftat. 33 G. 3. c. 52. S. 62. probibiting 5. The voluntary absence of a chi foficer officers of the East India Company, rea

of a corporation upon the charter-day of

election of his fucceifor is not indictable liding in India, from receiving presents, charged that the defendants being

upon the stat. I 6.1.6.4.4.6., unless British subjects, on the ift January 1791,

his presence as such chiet officer be neand from thence for a long time, co wit,

cujáry by the conftitution of the corpo

rätion to conflituie a legal corporate until the 29:h November 1795, heldcer. tain offices under the Company, and

afiembly fur fuch purpose. Rex v.Curry,

T. 41 G 3. during all that time refided in the East

37Indies; and that whild they held che faid offices as aforesaid, and whilst they

INFERIOR JURISDICTION. resided in the Eait Indies as a forejaid, to

See LONDON COURT OF REQUEST3, wit, on the 29th of November 1795, they received certain presents: held

INSOLVENT DEBTORS' DIS. that the context showed that the word

CHARGE. until was to be taken inclusive of the See EXECUTION, No. 1.

No.n. 29th November 1795: ib.

INSU.

to

V.

G 30

INSURANCE.

to the respective underwriters, which 1. Where a foreign Court of Prize pro

was accepted by them; after which the fesses to condemn a hip and cargo on

embargo was taken off, and the ship the ground of an infraction of treary in completed her voyage and earned not being properly documented, &c. a. freight : held that the assured could not required by the treaty between the cap.

recover as for a total loss of freight, the tors and captured; such sentence is

freight having been in fact earned ; or, conclusive in our courts against a war.

supfofing it to have been in any other ranty of neutrality of such ship and cargo

senle loit to the assured by the abandonin an action upon a policy of insurance ment of the ship to the underwriters against the underwriter ; although in thereon, it was so ioit, not by any peril ferences were drawn in such lentence

insured against, but by the voluntary from ex parte ordinances in aid of the

act of the assured in making such abanconclusion of such infraction of treaty.

donment. M Carthy v. Abel, T. 44 Baring v. The Royal Exchange Alurance

388 Company, E. 44 G. 3.

The 25th article of the treaty of Feb.

99 2. A fentence of a foreign Court of Prize ruary 1778, between France and America, is conclusive evidence in an action upon

which requires the vessels of the allies, a policy of insurance upon every matter

in case either is at war, to be furnished wiehin the jurisdiction of such Court

with a pallport exprefling (inter alia) ppon which it has profesied to decide. the place of habilation of the commander Therefore where a Danish ship, wur

of the vessel, is not complied with by a ranied neutral, was captured by a French

pasport granting leave “ to G. D. Thip of war, (Denmark being at peace

commander of the ship called M. V.

of with France ) and the court in which she

the town of P., of the burden of,&c.; was libelied as prize, protesting to con

such description of place being applisider that the built of the vessel was cable only to the ship as the last ante. unknown, that lie was fold io a neutral

cedent, which is further described by subject only, fonce the declaration of war,

her burchen in a continuing sentence ; that the bill of sale does not mention

and therefore the plaintiff was holden her place of built, or her original owner,

nos entitled to recover upon a policy of that the mate and third officer were n'a

insurance on such thip warranted Amerituralized Danes only fence the declaration can, which had been captured by the of war, and that the greater part of the

French, and condemned as prize. Bar. crew were subjects of bolile powers,

ing v. Christie, T.41 G 3.

398 condemned the ihip as good and lourful prize; such condemnation is conclufive

INTEREST against the warranty of neutrality in an

See PRIZE, No. 1. action on the policy against the underwriter. And no evidence can be received

JOINDER IN ACTION. to falsify the facts affirmed by such fentence, nor to shew that the conclusion :. A count upon an account stated with was unfounded: although the sentence the plaintiff, executrix, &c. (not saying proceeded to refer to certain ordinances as executrix, &c.) cannot be joined with of France, containing rules to direct the counts on promises to the teftator; for judgment of its Courts in the confidera- it is no ailegation that the promises were tion of the question of neutrality ; by made to the plaintiff in her reprelentawhich rules the Prize Court appeared tive capacity : and under such a count to have regulated their judgment in the proof might be given of an account conclusion they had drawn. Bolton v. Itated with her in her individual cha. Gladstone, E. 4+ G. 3.

155 racter. Qu. Whether, if it had been 3. Upon a hostile embargo in a foreign laid to be on an account stated with the

port, the owner, who had separately in. plaintiff herself, though named as exefured ship and freigbt, abandoned them cutrix, &c. it could be so joined, as the

caule

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cause of alion would fill appear to have ariien in the time of the executrix, though the money, when recovered, would be aflcts. Hensball v. Roberts, in error. E. 44 G. 3.

150 2. A., B., and C., having dissolved partner

ship, C, afier such dissolution drew bills in the partnership firm in favour of D., he not knowing of such diffolution; upon which D. brought his action against all the former partners; and C. having pleaded his bankruptcy, D. entered a noli prole qui as to him, and recovered judgment againit A. and B., which was afterwards fatisfied by the attorney of A, and B., who advanced part, and borrowed the rest of the inoney on their joint credit : held that the sum so paid in fatisfaction of the judgment might be recovered in a joint action by A and B. against C. Ofoorne and Amphlett v. Harfer, T.4+G. 3.

225 3. An order of the Lord Chancellor, made

under the flat. 5 Geo.2.c. 30. upon the petition of creditors for. semoving one of the several asiignees of a bankrupe's eltate, not followed up by any re-assign. ment or release of such aslignee to the remaining assignees, nor by any new alignment of the commissioners under the Lord Chancellor's further order, does not operate to divest the legal eltate out of such removed assignee: and consequently he ought to join in an action of trover brought by che other aflignees for a ship belonging to the bankrupt's estate : but if he be not joined, advantage can only b: taken by a plea in abatement to the whole act on: though the other alignees who sue can only recover their proportional parts, Bloxam, Knt. and Olbers, Alignees of Ward, a Bankrupt, v. Hubbard, T. 44 G. 3.

407

ceale; held that a notice to quit, figned by two only of three executors of the original leffor, to whom he had te. queathed the freehold as joint lerants, expressing the notice to be given on behalf of themselves and the third executor, was not good under the proviso, which required it to be given under the hands of all three. Neither could such notice be fultained under the general rule of law, that one joine tenant may bind his companions by an act done for his bene. fit; for non conftat that the determina. tion of the lease was for the benefit of the cc-joini-tenant; which it was in. cumbent on the party who wished to avail himself of it to prove. And the notice to quit being such as the tenant was to act upon at the time, no subíe. quent recognition of the third executor will make it good by relation : nor was his joining in the ej-ctment evidence of his original assent to bind the tenant bv 'the norice. Right d. Fifteer and Another v. Cutbell, M. 45 G. 3. 491

JURISDICTION. See LONDON COURT OF REQUESTS.

PRIZE, No. 1. PROHIBITION. 1. An indictment for an assault, false im.

prisonment, and rescue, laced that the Judges of the court of record of the town and county, &c. of P., issued their writ, directed to T. B., one of the jerjeants at mace of the saidia

Torun and county, to arrest W., by virtue of which T. B. was pro. ceeding to arrest W. within ihe jurisdice tion of the said court, but that the de. fendanı aff-ulied 1. B. in the due exechtion of his office, and prevented the arreft: hela luch indictment bad; it not appear. ing thar T. B. was an officer of ihe court : and that there could not be judgment after a general verdict on such a count as for a common assault and false impri. sonment, because the jury must be taken to have found that the assault and im. prisonment was for the cause therein itated, which cause appears to have been that the officer was attempting to make an illegal arrest of another, which being a breach of the peace, the defendant might, for aught appeared, have law

fully

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2.

fully interfered to prevent it.

Rex v.

A conftable executing the warrant of a Olmer, T. 44 G. 3.

304

joftice of peace, and sued in trespass, 2. The ltat. 39 Geo. 3. c. 79. giving a pe- without the magistrate, is within the

nalty of zol. for printing papers to be protection of the stat. 2.1 G. 2. c. 44. published, without adding the printer's 5.6., and cutiiled to a verdict on proof name and place of abode, directs that of such warrant; having first corr plied any penalty imposed by the act exceeding with the plaintiff's demand of a perufal 201. may be sued for in the courts at and copy of the warrant before the Weftminter : and any penalty not ex. action brought, though not within fix ceeding 2cl. shall and may be recovered days after such demand, as the act die before any justice of peace; but it also rects. Fones v. Vaughan, M. 45 G. 3. gives, in the same clause, a form of de.

445 claration for recovering 20'. in the courts of Westminster. Yes held, that a com

LEASEHOLD VALUE. moa informer cannot fue for a penalty

See COMPENSATION. of 201. in this court; no such power being given by the facute, and there being no power at common law for a

LONDON COURT OF REQUESTS. common informer to fue for any penal. | The London Court of Requests has juristv ; and that the form of the declara

diction by the fat. 39 & 40 G. 3. 6. 104. tion must be read in biank, as to the

over a contract for the retention of tithes funi, such form being otherwise inappli

by the tenant, the value of which was cable to a larger penalty before given: under 51. And therefore if the vicar and that no such action lay to recover fue for the same, and recover less chan two or more penalties of 2cl. each.

51. upon a count in affumpfit for a Fleming qui tam v. Bailey, T. 44 G. 3.

quantum valebant, the defendant may 313 enter a suggestion on the roll, stating

that he was a freeman and inhabitant JUSTICES OF PEACE, CONSTA- of the city of London, trading there at BLES, &c.

the time he was served with the writ,

for the purpose of ousing the plaintiff I. Where goods were taken by conftables

of his costs, under the 12th rect. of the onder a warrant of distress, granted by

act. Sandby, Clerk, v. Miller, E. 44 a justice of peace for the county of

G. 3. Kent, directed to the constables of the

194 Lower Half Hundred of C. and G. in

MARRIAGE. the county of Kent;" which warrant recited that the plaintiff, (whose goods 4. declared in covenant against B. and were distrained) of the parish of G..in her husband, for that B., before her inthe said county, was bailotied for the termarriage, covenanted with A. by militia of the said county, and having

deed to leave certain accounts in differrefused to serve, &c. was convicted in ence between them to arbitration, and a certain penalty; for levying which

to abide and perform the award, prothe warrant was granted; if it turn out vided it were made during their lives. that the warrant was executed within And 1. protesting that B. had not, bea certain part of the parish of G., with

fore her intermarriage, performed her in the jurisdiction of the Cinque Ports, part of the covenant, averred that after and not within the county of Kent, the

making the indenture and the intermarconstables are not within the protection riage of the defendants the arbitrator of the stat. 24 Geo. 2. c. 44. S. 6., and

awarded B. to pay Ai a certain sum; may be sued in trespass without the and then alleged a breach for non-paymagistrate's being made a defendant. ment of such rum. After verdict, on Miltou y. Green and Jenner, T. 44 G. 3.

non est factum pleaded, held that upan 233 this declaration it must be taken that B,

inter,

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intermarried after the submision and of law, that one joint-tenant may bind
before the award made; in which care, bis companion by an act done for his
although the plaintiff could not recover benefit; tor non conkat that the deter-
upon the breach aligned for non-payment

minacion of the leare was for the bene.
of the fim awarded, because the marriage fi: of the co-joint tenant; which it was
was a countermund to the authority of the incumbent on the party who wished to
arbitrator ; yet as by the marriage it- avail himself or it to prove. And the
felf B. had by her own act put it out of notice to quit being such as the tenant
her power to perform the award, the was to act upon at the tine, no suble-
covenant to abide the award was broken; quent recognirion of the third executor
and therefore judgment could not be would make it good by relation: nor
arreited on the ground that the mar was his joining in the ejectmeni evi.
riage was a revocation of the arbiirator's dence of his original assent to bind the
authority, and that so the plaintiff could tenant by the notice. Right d. Fisker
not recover as for a breach by non-per. and Anoiber v.Cutkell, M. 45 6. 3. 491
formance of the award, Charnley v.
Winftanley and his Wife, T.44 G. 3. 265 PARENT AND CHILD.

See ACTION ON THE CASE, No, 1. for
MASTER AND SERVANT.

debauching the plaintiff's daughter.
See ACTION ON THE CASE, No. 1,

1. The father of a child is entitled to the

cuiłody of it, though an infant at the
MINES.

breast of its mo'her, is the Courtree no
See POOR-RATE, No. 3.

ground to impute any morive to the fa.

ther injurious to the health or liberty of
MISDEMEANOR.

such a child, as by sending it out of the
See AGREEMENT, No. 2.

kingdon; the father being at the time
an alien enemy domiciled in this king-

dom, and the mother being an English-
MORTGAGE.

woman, and apprehenfive only that he
See COPYHOLD, No. 1.

meant to send the child abroad, but

afligning no suficient reason for fach
NOTICE OF ACTION.

her apprehenfion. Rex v. d: Manne.
ville, E. 44 G. 3.

221
See ACTION, NOTICE OF.

2. If the putative father of a hastard child

obtain pelle lion of is by force or fraud,
NOTICE TO QUIT.

the Court will order it to be retured on
Where a lease for 21 years contained a the application of the mother. Rex v.
proviso, that in case either landiord or Blofeley, H. 38 G. g.

224
tenant, or their respective heirs and
executors, wished to determine it at the

PARTNERSHIP.
end of the first 14 years, and should
give fix months' notice in writing under A., B., and C., having diffolved partner.
his or thrir refpefli ve hands, the term

ship, C., after such dissolution drew bills
Thould cease; held that a notice to quit

in the partnership firm in favour of D.,
figned by two enly of three executors of he not knowing of such diffolution;
the original lefior, to whom he had be. upon which D. brought his action
queathed the freehold as joint-tenants,

against all the former partners, and C.
exp:essing the notice to be given in be- having pleaded his bankruptcy, D. en.
half of themselves and the bird executor, tered a noli profequi as to him, and se.
was not good under the proviso, which covered jodgment against A. and B.,
required it to be given under the hands which was afterwards satisfied by the
of all three. Neither could such no. attorney of A. and B., who advanced
tice be fultained under the general rule

part, and borrowed the rest of the mo.

ney

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