An application was in Hilary Term laft made to the Court for a new trial, on the ground that Mr.Thornton was not the procurator of the defendant, duly authorifed to accept this bill for her; and it was contended, that the attornies had no authority to provide for the payment of the teftator's debts in this manner, that they were to adminifter the affets for the executrix, but that they could do no act, by which he could become charge able with the debts in her own right, and particularly, that they were not authorifed to give a fecurity for the payment of any debts in her name. The Chief Jufice delivered the opinion of the court. The general fcope of the letter of attorney, he obferved, was to put the whole eftate into the hands of the attornies, to commit the collecting and the difpofition of it entirely to them, to delegate to them all the authority that the executrix poffeffed, and to conftitute them, as far as fuch a thing was poffible, executors in her name. The authority to pay, difcharge, and fatisfy debts, was defcribed, with a qualification properly applicable to this branch of the power, agreeably to the due order and courfe of law, to pay, difcharge, and fatisfy," which he confidered as equivalent to faying .in a courfe of adminiftration." The authority to pay debts, on the firft view of it, feemed to be more confined and fpecified than the authority to collect the effects; but if it were confidered more attentivey, it would be found, that the effect of this part of the inftrument, was to commit the application of the perfonal eftate in payment of debts to those attornies, abfolutely and exclufively; and it would alfo be found, without the affiftance of gencral words, that an authority of this nature neceffarily included intermediate powers, which were not expreffed. By intermediate powers, he meant all the means neceffary to be ufed, in order to attain the accomplishment of the object of the principal power, which in this cafe was the paying, fatisfying, and dif charging the teftator's debts. Numberlefs arrangements were to be made by 66 Thefe and many other fubordinate powers, though not exprefsly given, must be understood to be included in this power to pay debts. The prefent was not a cafe of mere minifterial authority, but a cafe where the whole care of the admini ftration was delegated by the executrix to the attornies, and all the means of executing the office of executrix put into their hands; fuch construction, therefore, ought to be made both of the particular provifions and general words as would, as far as poffible, place the attornies where the executrix intended to place them, in her room and stead, invefted with all her authority, and all her difcretion. Affuming, then, that this authority to pay debts was larger and more comprehenfive in its nature, than the words conftrued very ftrictly would import, and that it implied authority to make all neceffary arrangements which the executrix herfelf might make, in order to the payment of the debts, it might fairly be afked, whether among the arrangements that might be neceffary for that purpofe, there was one more likely to occur, more ufeful, or, in many cafes, more neceffary, than that they fhould ask and obtain from the creditors of the eftate, time for payment of the debts, when the time given might prevent all the vexation and expence of a ftruggle for priority? That an executrix herself might make this arrangement, no one could doubt; that it was alfo neceffary that they who were to have all the funds in their hands, who knew, and were the only perfons who could know, within what time those funds could be got in, and who had the whole application of them entrusted to their care, who reprefented the executrix, and in effect, were themselves the executors, fuch have it in their power to make fuch arrangement, was equally clear. quence of fuch an arrangement in either cafe, was that the executrix might, by poffibility, become perfonally, and in her own right, chargeable with debts, as the might become chargeable, in a variety of other cafes, exprefsly within the power of attorney. But upon whatever ground, and by whatever medium, in the inftance of debts poftponed, this perfonal charge was produced, the debt still remained a debt due from the eftate, and payable out of the affets. Such an arrangement amounted to an admiffion, that at the expiration of the credit given, there would be affets fufficient to pay the debt, which still remained a charge upon The confc the 1796.] Law Report.-Outlawry. the executrix in that character, and would 575 nor in truth ought any to be made, for the creditor who accepted this kind of payment purchased the benefit of it; the eftate had had its advantage, and the defendant, as executrix, had had her advantage of the forbearance. On thefe grounds the application for a new trial was refused. 'MR. PERRY'S OUTLAWRY. In a former number, having taken notice of the Outlawry against Sampfon Perry, we observed, that, on confidering that cafe, the fubject to which it belonged appeared of two much importance to be confined within the limits prefcribed for a fingle report; and we therefore promised, In a fubfequent number, to prefent our readers with a complete Effay on the subject of Outlawry, in which proper notice fhould be taken of the cafe of Mr. Perry, and also of that of Mr. England. We proceed to perform our engagement. In the times before, and long after, the conqueft, every male above the age of twelve years was bound to appear at the Sheriff's Tourn, held for the county, within the month next after Eafter, where an inqueft was held, to fee that he took or had taken the oath of allegiance, and found fecurity to the king for his good behaviour; this was called the view of frankpledge, that is, the viewing that every perfon had nine freemen pledges or fecurity for his loyalty to the king, and his peaceable behaviour to his fellow-fubjects. From hence, a male who had attained the age of discretion. that is, the age of fourteen, and refused to ftand to the law, might be put out of its protection, in which cafe he was an ciently faid to be pofitus extra legem, or, utlagatus; the fame proceeding might alfo have been had against a woman, but then fhe was not faid to be utlagata or outlawed, but waiviata or waived, that is, fays Lord Coke, dereli&a, left out or not. regarded; because she was not worn to the law as a man was. Every perfon, then, of the years of dif cretion, refident within the realm, and not in prifon, nor under coverture at the time when the procefs of Outlawry is awarded, may, on abfconding from the proccfs of the law, be outlawed: bat a married woman, or a man in prifon without covin, or a perfon beyond the leas, at the time of the process of outlawry awarded, ought not to be outlawed: the laft circumftance, however, that of being beyond the feas, must be underflood of the party's being abroad, with out having gone to avoid the procefs of the law; for if a man commit a murder, or other felony, and before he can be apprehended, or an indictment found, leave the realm, to avoid being brought to justice, he may be outlawed, notwithftanding his being beyond the feas, as was the cafe of Mr. England; or, if having entered an appearance to a profecution for an inferior offence, he leave the kingdom, and be afterwards convicted in his abfence, yet he may be outlawed on the conviction, as was the cafe of Mr. Wilkes, and Mr. Perry. In the time of Alfred, and from thence till long after the conqueft, no man could be outlawed but for treafon or felony, the punishment of which was death: an outlaw was faid to bear caput lupinum, or a wolf's head, becaufe any man might kill him, as being out of the protection of the king's laws, as he might kill a wolf, which was then efteemed the most pernicious animal that infefted the kingdom. It being, therefore, not only lawful, but meritorious, to kill an outlaw, it cannot be wondered at, that it was then common for outlaws to flee to the woods for fhelter; fome of whom, as Robin Hood, and others, have tranf mitted their names to pofterity by their audacious exploits. But, in the begin ning of the reign of Edward III, it was refolved," that for avoiding inhumanity, and the shedding of Chriftian blood, it fhould not be lawful for any man but the theriff to put an outlaw to death, though it were for felony ;" and if any man were to do fo at this day, he would be guilty of murder, unless it were in the endeavour to apprehend the outlaw: for any perfon may arreft an outlaw on a criminal profecution, either of his own head, or by writ, or warrant of capias utlagatum, in order to bring him to execution. By the ft. of 13 Edw. I, ft. 1, c. 11. process of Outlawry is given against accountants who fhall have been found in arrear before auditors, affigned in action of account, if they flee, and it be returned to the sheriff that they cannot be found. From Bracton, who lived in the reign of Edward I, we learn, that it was or dained that in all actions of trespass with force and arms, procefs of Outlawry should lie. By ft. 18 Edw. III, ft. 1, it is accorded, "That of them which be or have been receivers of the king's money, or of his wools which they take of the people, and the fame carry away or detain, fo that our fovereign lord the king may not be thereof ferved; and of them which bring wools to the parts beyond the fea, without being cocketted, or paying cuftom or fubfidy, whereto they be affeffed; and of cuftomers and finders, which fuffer the fame to the king's damage; of lay minifters, which receive the king's money, and the fame retain; and also for confpirators, confederators, and maintainers of falfe quarrels; and also of them that bring routs in the presence of the juftices, or other the king's minifters, or elsewhere in the counties, in affray of the people, fo that the law may not be done, as well of them which bring the fame, as of them which come in their company, or as of them which bring falfe money in deceipt of the people: against all thofe, in cafe they may not be found, or brought in to answer, by attachment or diftrefs, for the profit of our fovereign lord the king, the exigent shall be given and fued, and not against another." And, by ft. 18, Edw. III, ft. 2, c 5, it is enacted, "That no exigent fhall from thenceforth go out, in cafe where a man is indicted of trefpafs, unless it be against the peace, or of things which be contained in the declaration made in this cafe at the laft parliament holden at Westminster.” By which is meant the preceding ftatute. Whether procefs of Outlawry lay in cafes of mifdemeanour, where there was no actual force or breach of the peace, was not folemnly decided till the cafe of Mr. Wilkes. In that cafe, after great deliberation, Lord Mansfield, with the concurrence of the rest of the court of King's- Bench, declared, that the offences for which Mr. Wilkes was prosecuted, and the proceedings upon them, were at the common law; that the ftatutes which gave procefs of Outlawry in certain cafes, and reftricted its iffuing in others, unless under certain circumstances, did not affect the queftion before the court the procefs, he faid, in that cafe, was warranted by the common law, or not at all; actual force or violence did not appear to be the criterion on which the procefs of Outlawry depended; the greatnefs of the crime, and the severity of the punishment, feemed to be the material circumftances attended to in ancient times; felony did not neceffarily imply or convey the idea of actual outrage; grand larceny being in its defini 1796.] Account of Difeafes in Auguft. tion as well as practice, different. Hawkings confirmed this notion, by faying, "that this procefs, probably, lay for all crimes of a higher nature than trefpafs vi et armis." The execution of this procefs was fuppofed by Lord Coke (and what he said, has been repeated, with out examination, by a variety of authors) to have been fomewhat before Bracton's time the establishment of that period, for a fuppofed ordinance concerning Outlawries, ftrongly authenticated the teftimony of that contemporary writer, refpecting the cafes in which, and under what circumstances, this procefs lay: Lord Coke faw that it was impoffible to maintain," that Outlawry did not lie for any crime under felony," univerfal practice fhewed the contrary; he, therefore, fuppofed a positive ftatute made about Bracton's time: there did not, however, appear any particular ordinance for extending this procefs, and there was no authority for the fuppofition: but Bracton faid, "it lay in omni-tranfgreffione que fit contra pacem: and afterwards, " pro omni tranfgreffione, licet minima, ubi quis ad pacem domini regis vocatus, venire recufaverit, et boc propter contumacium." That this 577 neceffary ingredient, contra pacem," could not mean pofitive force in the com miffion of the offence, appeared from the reafon given why it lay for felony, which was, that it was contra pacem:" that could not mean more than it was an offence in its nature against the laws of fociety, and a disturbance of that good order and government which keeps a ftate in unity and peace. The crime of larceny, in its very nature, was fecret and fraudulent; when open violence accompanied it, it was diftinguished by the aggravated name of robbery: and in the cafe of writs, quare vi et armis, where this process was given, it was acknowledged to be on account of the fuppofed, not any actual force. In fact, therefore, it appeared from Bracton," that every offence committed against the peace,' fubjected the delinquent to the process of Outlawry; and the cafes fhewed that the peace of the king was broken by disorders without force; fome of the greatest crimes indeed were without force. On thefe principles the court decided, that procefs of Outlawry lay in the cafe of misdemea nours, where there was no actual force of breach of the peace. [To be continued.] 19 ACCOUNT or DISEASES IN LONDON. From the 20th of July to the 20th of August. The scarlet fever retains the fame mild form as during the last month. It does not spread much within the city, but extends to the adjoining villages; more efpecially on the fouthward of London, to Newington, Kennington, Stockwell, Mitcham, Streatham, &c. &c. The varieties of the fore-throat, mentioned in the lift of acute difeafes, have, as I understand from other practitioners, been very prevalent during the two laft months. They were, however, in general, more troublesome and lingering than danger ous. All the cafes of peripneumony, though attended with a spitting of blood, had a favourable termination. They occurred during the irregular temperature of the air, at the latter end of July. Since the commencement of warm, fettled weather, I have not obferved any inflammatory com, plaints. The fmall-pox and hooping-cough are yet very generally diffufed, and feem much aggravated in confequence of the heat of the feafon. These two com→ plaints have been intimately connected for several months paft. In many in ftances the paroxifms of the cough have continued, without any abatement, through the whole courfe of the small pox. The hooping cough, in other cafes, first commenced during the eruption of the fmall-pox, and remained a long time after it without any material alteration. These observations fet afide a general law infifted on by many phyfiologifts, that two specific difcafes, at leaft, two fpecific contagions, cannot actuate the human conftitution at the fame time. That the operation of one contagion is, in fome in ftances, fufpended, while the body is under the influence of another, may be granted; but I am convinced, from a variety of cafes, that this is not an univer fal law. STATE OF PUBLIC AFFAIRS, GREAT BRITAIN. In confequence of the French fucceffes in Italy, and particularly their attack upon the port of Leghorn, an order of his Majefty in council was iffued on the 27th of July, and an embargo was laid upon all fhips and veffels then within the ports of this kingdom, or which thould come into any of the faid ports laden with any goods or merchandize taken on board in this kingdom, which may be bound to any of the ports in the territories of the grand duke of Tufcany, or in the dominions of the Ecclefiaftical ftate; the embargo to continue till the further order of the board. At the fame time, an order was iffued from the privy council, regulating the payment of bills of exchange, drawn or negociated in the town of Leghorn, prior to the entrance of the French into that place. An additional article, explanatory of the treaty of amity and commerce, made between Great Britain and America, on the 19th of November, 1794, has been lately concluded between the United States of America and the agents of the British government, purporting, That by the above-mentioned treaty of 1 17942 it was agreed, that it fhould, at all times, be free to his Majefty's fubjects, and to the citizens of the United States, and alfo to the Indians, dwelling on either fide of the boundary line, afligned by treaty of to the United States, peace freely to pafs and repafs by land or inland navigation, into the respective territories and countries of the two contracting parties, on the continent of America, |