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1. Every indictment must contain a complete defcription of such facts and circumftances as conftitute the crime, without inconfiftency or repugnancy. But, except in certain cafes, where technical expreffions, having grown by long ufe into law, are required to be ufed, the fame fenfe is to be put on the words of an indictment which they bear in ordinary acceptation: and if the fenfe of any word be in ordinary acceptation ambiguous, it fhall be conflrued according as the context and fubje& matter require it to be in order to make the whole confiflent and fenfible. The word until may therefore be construed either exclufive or inclufive of the day to which it is applied, according to the context and fubje&t-matter Rex v. Stevens and Agnew, T. 44 G. 3.

244

2. Therefore, where an information on the

3. But that if it had been incapable of receiving an inclufive conttruction, the words under the first videlicet, “until the 20th of November 1795," could not have been rejected as furplufage; for that can never be where the allegation is fenfible and confiftent in the place where it occurs, and not repugnant to antecedent matter, though laid under a videlicet, and however inconfiftent with an allegation fubfequent. ib.

4.

itat. 33 G. 3. c. 52. f. 62. prohibiting5. officers of the East India Company, reJiding in India, from receiving prefents, charged that the defendants being British fubjects, on the 1ft January 1791, and from thence for a long time, to wit, until the 29th November 1795, held certain offices under the Company, and during all that time refided in the Eaft Indies; and that whilst they held the faid offices as aforesaid, and whift they refided in the Eat Indies as aforesaid, to wit, on the 29th of November 1795, they received certain prefents: held that the context fhewed that the word until was to be taken inclufive of the 29th November 1795.

I

An indictment for an affault, falle im. prifonment, and refcue, ftated that the Judges of the Court of Record of the town and county, &c. of P. iffued their writ, directed to T. B. one of the ferjeants at mace of the faid town and county, to arrelt W., by virtue of which T. B. was proceeding to arrest W. within the juris diction of the faid Court, but that the defendant affaulted T. B. in the execution of his office, and prevented his arreft: held fuch indictment bad; it not appearing that T. B. was an officer of the Court: and that there could not be judgment after a general verdict on such a count as for a common affault and falfe imprisonment, because the jury must be taken to have found that the affault and imprisonment was for the caufe therein ftated; which caufe appears to have been that the officer was attempting to make an illegal arrest of another, which, being a breach of the peace, the defend. ant might, for aught appeared, have lawfully interfered to prevent it. Rex v. Ofmer, T. 44 G. 3.

394

The voluntary abfence of a chi f officer of a corporation upon the charter-day of election of his fucceffor is not indictable upon the ftat. II G. 1. c. 4. f. 6., unless his prefence as fuch chief officer be necary by the conftitution of the corporation to conflitute a legal corporate aflembly for fuch purpofe. Rex v. Corry, T. 44 G 3. 372

INFERIOR JURISDICTION. See LONDON COURT OF REQUESTS,

INSOLVENT DEBTORS' DIS

CHARGE.

See EXECUTION, No. 1.

ib.

INSU

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INSURANCE.

1. Where a foreign Court of Prize pro feffes to condemn a fhip and cargo on the ground of an infraction of treaty in not being properly documented, &c. as required by the treaty between the captors and captured; fuch fentence is conclufive in our courts against a warranty of neutrality of fuch fhip and cargo in an action upon a policy of infurance against the underwriter; although in ferences were drawn in fuch fentence from ex parte ordinances in aid of the conclufion of fuch infraction of treaty. Baring v. The Royal Exchange Affurance Company, E. 44 G. 3

99

2. A fentence of a foreign Court of Prize is conclusive evidence in an action upon a policy of infurance upon every matter within the jurifdiction of fuch Court upon which it has profeffed to decide. Therefore where a Danish fhip, war ranted neutral, was captured by a French fhip of war, (Denmark being at peace with France) and the court in which the was libelled as prize, profeffing to confider that the built of the veffel was unknown, that he was fold to a neutral fubject only Ance the declaration of war, that the bill of fale does not mention her place of built, or her original owner, that the mate and third officer were n'aturalized Danes only fince the declaration of war, and that the greater part of the crew were fubjects of bofile powers, condemned the thip as good and lawful prize; fuch condemnation is conclufive against the warranty of neutrality in an action on the policy against the underwriter. And no evidence can be received to falfify the facts affirmed by fuch fentence, nor to fhew that the conclufion was unfounded: although the fentence proceeded to refer to certain ordinances of France, containing rules to direct the judgment of its Courts in the confideration of the question of neutrality; by which rules the Prize Court appeared to have regulated their judgment in the conclufion they had drawn. Bolton v. Gladstone, E. 4+ G. 3.

155

3. Upon a hoftile embargo in a foreign port, the owner, who had feparately infured hip and freight, abandoned them

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to the refpective underwriters, which was accepted by them; after which the embargo was taken off, and the ship completed her voyage and earned freight: held that the affured could not recover as for a total lofs of freight, the freight having been in fact earned; or, fuppofing it to have been in any other fenfe loft to the affured by the abandonment of the fhip to the underwriters thereon, it was fo loft, not by any peril infured againft, but by the voluntary act of the affured in making fuch abandonment. McCarthy v. Abel, T. 44 G 3.

388 The 25th article of the treaty of February 1778, between France and America, which requires the veffels of the allies, in cafe either is at war, to be furnished with a paffport expreffing (inter alia) the place of habitation of the commander of the veffel, is not complied with by a paffport granting leave" to G. D. commander of the fhip called M. V. of the town of P., of the burden of," &c.; fuch defcription of place being applicable only to the hip as the laft antecedent, which is further defcribed by her burthen in a continuing fentence; and therefore the plaintiff was holden not entitled to recover upon a policy of infurance on fuch fhip warranted Ameriwhich had been captured by the French, and condemned as prize. Baring v. Chriflie, T. 44 G 3.

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INTEREST.

See PRIZE, No. 1.

JOINDER IN ACTION.

:

398

1. A count upon an account ftated with the plaintiff, executrix, &c. (not saying as executrix, &c.) cannot be joined with counts on promifes to the teflator; for it is no allegation that the promises were made to the plaintiff in her reprefentative capacity and under fuch a count proof might be given of an account ftated with her in her individual character. Qu. Whether, if it had been laid to be on an account ftated with the plaintiff herself, though named as executrix, &c. it could be fo joined, as the Ff3

caufe

150

caufe of action would fill appear to have arisen in the time of the executrix, though the money, when recovered, would be affets. Henfhall v. Roberts, in error. E. 44 G. 3. 2. A., B., and C., having diffolved partnerfhip, C, after fuch diffolution drew bills in the partnership firm in favour of D., he not knowing of fuch diffolution; upon which D. brought his action against all the former partners; and C. having pleaded his bankruptcy, D. entered a noli profequi as to him, and recovered judgment against A. and B., which was afterwards fatisfied by the attorney of A. and B., who advanced part, and borrowed the rest of the money on their joint credit: held that the fum fo paid in fatisfaction of the judgment might be recovered in a joint action by A and B. against C. Ofborne and Amphlett v. Harper, T. 44 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. removing one of the feveral affignees of a bankrupt's ellate, not followed up by any re-affignment or release of fuch affignee to the remaining affignees, nor by any new affignment of the commiffioners under the Lord Chanceller's further order, does not operate to diveft the legal eftate out of fuch removed affignee: and confequently he ought to join in an action of trover brought by the other affignees for a fhip belonging to the bankrupt's eftate: but if he be not joined, advantage can only be taken by a plea in abatement to the whole action: though the other affignees who fue can only recover their proportional parts. Bloxam, Knt. and Others, Alignees of Ward, a Bankrupt, v. Hubbard, T. 44 G. 3.

JOINT-TENANT.

407

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ceale; held that a notice to quit, figned by tavo only of three executors of the original leffor, to whom he had te. queathed the freehold as joint tenants, expreffing the notice to be given on behalf of themselves and the third executor, was not good under the provifo, which required it to be given under the hands of all three. Neither could fuch notice be fultained under the general rule of law, that one joint tenant may bind his companions by an act done for his benefit; for non conftat that the determination of the leafe was for the benefit of the cc-joint-tenant; which it was incumbent on the party who wished to avail himself of it to prove. And the notice to quit being fuch as the tenant was to act upon at the time, no fubfequent recognition of the third executor will make it good by relation: nor was his joining in the ejectment evidence of his original affent to bind the tenant by the notice. Right d. Fifer and Another v. Cuthell, M. 45 G. 3. 491

JURISDICTION.

See LONDON COURT OF REQUESTS.

PRIZE, NO. 1. PROHIBITION.

1. An indictment for an affault, false imprifonment, and rescue, stated that the Judges of the court of record of the town and county, &c. of P., iffued their writ, directed to 7. B., one of the jerjeants at mace of the faid town and county, to arrest W., by virtue of which T. B. was proceeding to arrest W. within the jurisdiction of the faid court, but that the defendant affulted 7. B. in the due execution of his office, and prevented the arreft: hela fuch indictment bad; it not appearing that T. B. was an officer of the court: and that there could not be judgment after a general verdict on fuch a count as for a common affault and falfe imprifonment, because the jury muft be taken to have found that the affault and imprifonment was for the caufe therein ftated, which caufe appears to have been that the officer was attempting to make an illegal arreft of another, which being a breach of the peace, the defendant might, for aught appeared, have law

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INSURANCE.

1. Where a foreign Court of Prize pro feffes to condemn a fhip and cargo on the ground of an infraction of treaty in not being properly documented, &c. arequired by the treaty between the cap. tors and captured; fuch fentence is conclufive in our courts against a warranty of neutrality of fuch fhip and cargo in an action upon a policy of infurance against the underwriter; although in ferences were drawn in fuch fentence from ex parte ordinances in aid of the conclufion of fuch infraction of treaty. Baring v. The Royal Exchange Affurance Company, E. 44 G. 3 99 2. A fentence of a foreign Court of Prize is conclusive evidence in an action upon a policy of infurance upon every matter within the jurifdiction of fuch Court upon which it has profeffed to decide. Therefore where a Danish fhip, war ranted neutral, was captured by a French fhip of war, (Denmark being at peace with France) and the court in which the was libelled as prize, profeffing to confider that the built of the veffel was unknown, that flie was fold to a neutral fubject only Ance the declaration of war, that the bill of fale does not mention her place of built, or her original owner, that the mate and third officer were n'aturalized Danes only fince the declaration of war, and that the greater part of the crew were fubjects of bofile powers, condemned the thip as good and lawful prize; fuch condemnation is conclufive against the warranty of neutrality in an action on the policy against the underwriter. And no evidence can be received to falfify the facts affirmed by fuch fentence, nor to fhew that the conclufion was unfounded: although the fentence proceeded to refer to certain ordinances of France, containing rules to direct the judgment of its Courts in the confideration of the question of neutrality; by which rules the Prize Court appeared to have regulated their judgment in the conclufion they had drawn. Bolton v. Gladstone, E. 44 G. 3.

155 3. Upon a hoftile embargo in a foreign port, the owner, who had feparately infured hip and freight, abandoned them

to the refpective underwriters, which was accepted by them; after which the embargo was taken off, and the ship completed her voyage and earned freight: held that the affured could not recover as for a total loss of freight, the freight having been in fact earned; or, fuppofing it to have been in any other fenfe loft to the affured by the abandonment of the fhip to the underwriters thereon, it was fo loft, not by any peril infured against, but by the voluntary act of the affured in making fuch abandonment. McCarthy v. Abel, T. 44 G 3.

388 4. The 25th article of the treaty of February 1778, between France and America, which requires the veffels of the allies, in cafe either is at war, to be furnished with a paffport expreffing (inter alia) the place of habitation of the commander of the veffel, is not complied with by a paffport granting leave to G. D. commander of the fhip called M. V. of the town of P., of the burden of," &c.; fuch defcription of place being applicable only to the hip as the laft antecedent, which is further defcribed by her burthen in a continuing fentence; and therefore the plaintiff was holden not entitled to recover upon a policy of infurance on fuch fhip warranted American, which had been captured by the French, and condemned as prize. Baring v. Chriflie, T. 44 G 3.

INTEREST.

See PRIZE, No. 1.

JOINDER IN ACTION.

398

1. A count upon an account ftated with the plaintiff, executrix, &c. (not faying as executrix, &c.) cannot be joined with counts on promifes to the teflator; for it is no allegation that the promifes were made to the plaintiff in her reprefentative capacity and under fuch a count proof might be given of an account ftated with her in her individual character. Qu. Whether, if it had been laid to be on an account ftated with the plaintiff herself, though named as executrix, &c. it could be fo joined, as the Ff3 caufe

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intermarried after the fubmiffion and before the award made; in which cafe, although the plaintiff could not recover upon the breach affigned for non-payment of the fum awarded, because the marriage was a countermand to the authority of the arbitrator; yet as by the marriage itfelf B. had by her own act put it out of her power to perform the award, the covenant to abide the award was broken; and therefore judgment could not be arrested on the ground that the mar riage was a revocation of the arbitrator's authority, and that fo the plaintiff could not recover as for a breach by non-performance of the award. Charnley v. Winftanley and his Wife, T. 44 G. 3. 265

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

MINES.

See POOR-RATE, No. 3.

MISDEMEANOR. See AGREEMENT, No. 2.

MORTGAGE. See COPYHOLD, No. 1.

NOTICE OF ACTION. See ACTION, NOTICE OF.

NOTICE TO QUIT. Where a leafe for 21 years contained a provifo, that in cafe either landlord or tenant, or their respective heirs and executors, wished to determine it at the end of the first 14 years, and fhould give fix months' notice in writing under his or their respective hands, the term fhould ceafe; held that a notice to quit figned by two only of three executors of the original leffor, to whom he had bequeathed the freehold as joint-tenants, expreffing the notice to be given on behalf of themselves and the third executor, was not good under the provifo, which required it to be given under the hands of all three. Neither could fuch notice be fultained under the general rule

of law, that one joint-tenant may bind his companion by an act done for his benefit; for non conftat that the determination of the leafe was for the benefi of the co-joint-tenant; which it was incumbent on the party who wished to avail himself of it to prove. And the notice to quit being fuch as the tenant was to act upon at the time, no fublequent recognition of the third executor would make it good by relation: nor was his joining in the ejectment evidence of his original affent to bind the tenant by the notice. Right d. Fisher and Another v. Cuthell, M. 45 G. 3. 491

PARENT AND CHILD.

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

1. The father of a child is entitled to the cuftody of it, though an infant at the bread of its mother, if the Court fee no ground to impute any motive to the father injurious to the health or liberty of fuch a child, as by fending it out of the kingdom; the father being at the time an alien enemy domiciled in this kingdom, and the mother being an Englishwoman, and apprehenfive only that he meant to fend the child abroad, but affigning no fufficient reafon for fach her apprehenfion. Rex v. d: Manneville, E. 44 G. 3.

221

2. If the putative father of a bastard child obtain poffeffion of it by force or fraud, the Court will order it to be reftured on the application of the mother. Rex v. Mofeley, H. 38 G. 3.

PARTNERSHIP.

224

A., B., and C., having diffolved partnerfhip, C, after fuch diffolution drew bills in the partnership firm in favour of D., he not knowing of fuch diffolution; upon which D. brought his action against all the former partners, and C. having pleaded his bankruptcy, D. entered a noli profequi as to him, and recovered judgment against A. and B., which was afterwards fatisfied by the attorney of A. and B., who advanced part, and borrowed the rest of the mo.

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