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loos. party was possessed at the time, by will in writing.

jjot (|fin< Under this statute short notes taken by a lawyer from Cooi the testator were held to be a good will in-writing, I

DiHvrm. Anderson, 34, and other authorities for that proposition, mentioned by Lord Coke. Indeed every decision on the statute is an authority of what in the language of the law is a will in writing. And in Carey v. Askew, on the 9th of Mai/, 1706, before Sir Lloyd Kenyan, master of the rolls,- silting for the Lord Chancellor, his honour determined that a mere draft of a will, the signing and publication of which were prevented by the sudden death of the testator, yet being proved in the ecclesiastical court as a testamentary paper, was sufficient to pass copyholds, which the testator had before surrendered to the use of his will; Cox's notes to the case of fVagstaffe v. Wagataffe.* The original will in that case was produced to us at the argument, and it was as it was taken to be in the notes to that work. We are therefore of opinion, that this is a will in writing within the words of the surrender."

, FosTEA to the PLAINTIFF,

Wall V. Nixon.February G.

, XThTmre. jn (fa case 0jan injury done to church lands,by a rivulet being pweJwn.*1 penned back upon them by a headstock, the proof of the < imrchland existence of the htadstock for about 20 years, though it would be evidence of a grant in other cases, is not sufficient to warrant the continuance of it. For the grant of the

* 2 Peeve WilL 259.

prior incumbent will not bind the successor. But it may be 1806. used as evidence to shew an ancient grant; yet even that cannot be, if the commencement of the first erection be shewn, for that rebuts the presumption of antiquity.

PON an action on the ca9e for erecting a tumbrel bay, in the whitttering grounds of the defendant by which the water was driven back upon the plaintiff's garden to his injury, &c. which was tried before Heath, J. at Maidstone, it appeared that the plaintiff was the vicar of D. in Kent, and the injury was done to the garden of the vicarage house, and the headstock or tumbrel bay was made somewhat above 20 years ago,and the learned judge held that, this garden being church land, although in any other case the possession of this headstock for twenty years, would have been evidence of a grant by deed, yet had the preceding vicar made such a grant, it would not bind his successor. He therefore refused to nonsuit the plaintiff on this ground, and called upon the defendant to shew that no injury was done to the garden. A verdict was had for the defendant.

Shepherd, Serj. (and Pitcairn was with him) obtained a rule nisi for a new trial, and on the motion,

The Court recognised this opinion of the learned judge, but added that it might be evidence to go to a jury that there was a headstock anciently. But in this case, it was only proved that this individual headstock was erected about that time, and that no other was ever known to have been erected there.

The rule nisi was granted; and upon the argument the same doctrine was acceded to by the Court, and the case was afterwards argued and decided upon the balance of the evidence.

versus 1806.

~ Anonymous—Practice. Time to declare.—Feb.

Practice. Out- jyaere one {s arrested on a joint contrail for a small debt, and tawry. Abate- * , 7 '

ment. the other debtor is not arrested, but is abroad; and proceed

ings to outlawry against him would exhaust the debt; the court will not compel the defendant who is arrested to relinquish his right to plead in abatement.

^nonymon*. ^J-ASELEY moved for lime to declare, unless the defendant would consent not to plead in abatement. The debt was only 20l: The defendant was arrested on a joint contract: The other defendant wai a common soldier abroad: if the plaintiff declared oa a single contract against one of the defendants, he would be discharged out of custody, and he might plead in abatement: to proceed to outlawry would exhaust all the amouut of the debt. Upon these grounds he moved.

The Court refused the rule nisi, and said, that if it was done in a case of small value, it might be made a precedent for a case of larger value.*

* I have no note whether the court granted a common rule fcr time to declare.

ARGUED AND DETERMINED,

In the Court of King's Bcncht

IN EASTER TERM,
In the 46ih Year of the Reign of Geo. Ill,

The King against The Free-fishers and Dredgers of
Wii Itsta B Le .—April 24.

Where a company was incorporated solely for adventure Mandamus.
and profit by their mutuanabour, and to receive a daily pay g"^^*1 iu-tm'
for such work as each member should perform for the corpo- tioo,
ration, and a bye-law was depriving one of his profit in cer-
tain casts until a Jinc be paid, us if he ceased to be a free-
man, and where one was so deprived of profit, held that
it was nut an amotion J rom the corporation, and he was not
entitled to a wnt of mundumus to restore him.

1806The Kino

'plIIS was a rule to shew cause why a writ of mandamus should not issue directed to the defendants commanding them to restore one IF. Adieu to the office of a freeman of the said company. The prosecu- The Fr£f

... . .... 1 , . , Fismns, &c.

tor Adley was a freeman or tins company, which was an Oi'wiutbtaancient company, and was further incorporated bv an BL1" actof the 53d Gio. Ill The company werejoint-lessees ofa certain oyster-ground and were governed by certain bye-laws; under which eac'i member is bound to dredge a certain number of days such a quantity of oysters as the foieman directs, and he pays them a certain sum fur their day's work, the surplus going to pay the in

1806. terest of the debt due by the company. A bye-law The Kino was made the 22d of July, whereby any one who venu$ should be engaged in any other oyster-ground should ruHEm, &cof pay 101. for every offence, and should be excluded Vnmuu from all share of profits until the same should be paid, and the same should be divided as if such freeman had wholly ceased to be a freeman of the company. The prosecutor performed a certain day's work 'and demanded 6s., for his share, of the foreman, who refused to pay him until he had paid the LOl. according to the bye-law, which penalty had been previous- , ]y demanded; but he had no notice of any meeting nor any summons to attend, nor any notice of complaint. The prosecutor was by such proceedings deprived of his share of the profits. The defendants by the affidavit of their foreman stated the bye-law, and the breach thereof by the prosecutor, and that he was duly summoned to attend an adjourned court, and that he refused and still refuses to pay the ]0l. fine; but it did not state the express adjudication of any fine."

i

SirVicAKY Gibbs, Bayley, Serjt. and Abbott, shewed cause, and contended that the real object of this mandamus was to compel the defendants to pay 6s. The company agree to divide their profits according to certain proportions, and afterwards they make a bye-law to impose a fine upon any persons who commit certain acts, namely, who engage themselves in any other similar concern of dredging oysters. Upon this bye-law the prosecutor is convicted, and is deprived of certain profits until it is paid, but he is not removed from the corporation, yet this \ mandamus treats him as if he were removed, and directs the company to restore him.

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