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1806. Doe dem.

COOK versus DANVERS.

party was possessed at the time, by will in writing.
Under this statute short notes taken by a lawyer from
the testator were held to be a good will in writing, 1
Anderson, 34, and other authorities for that proposi-
tion, mentioned by Lord Coke. Indeed every deci. .
sion on the statute is an authority of what in the lan.
guage of the law is a will in writing. And in Carey
v. Askew, on the 9th of May, 1796, before Sir Lloyd
Kenyon, master of the rolls, sitting for the Lord Chan-
cellor, his honour determined that a mere draft of a
will, the signing and publication of which were pre-
vented by the sudden death of the testator, yet being
proved in the ecclesiastical court as a testamentary pa-
per, was sufficient to pass copybolds, which the testa-
for had before surrendered to the use of his will; Cor's
notes to the case of Wagstaffe v. Wagstaffe.* The origi-
nal 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 writ-
ing within the words of the surrender.”

Postea to the PLAINTIFF.

Wall v. Nixon.-February 6.

Eviden

. Twenty years' possession. Churchland Gwart.

In the case of an injury done to church lands, by a ritulet being

penned back upon them by à headstock, the proof of the existence of the headstock 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 Peere Will. 259,

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

for thut rebuts the presumption of antiquity. U PON an action on the case for erecting a tumbrel

bay, in the whitstering 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 plaintif 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 soinewhat 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 defendunt.

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

a hear that the end thi

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 bead. stock 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.

1806.

ANONYMOUS-Practice. Time to declare.-4th Feb. Practice. Out- Where one is arrested on a joint contract for a small debt, and lawry. Abate. ment.

the other debtor is not arrested, but is abroad; and proceed. ings to outlawry against him would erhaust the debt; the court will not compel the defendant who is arrested to relia

quish his right to plead in abatement. Anonymous. G ASELEY moved for time to declare, unless the

defendant would consent not to plead in abatemenl. The debt was only 201: The defendant was arrested on a joint contract: The other defendant was a common soldier abroad : if the plaintiff declared on 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 amount 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 for time to declare.

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ation,

w AMO

The King against The Free-fishers and Dredgers of

WHITSTABLE.-- April 24. Where a company was incorporated solely for adrenture Mandamus.

and profit by their mutual labcur, and to receive a daily pay for such work as euch member should perform for the corpo- tion, ration, and a bye-law was depriving one of his profit in cer- '. tain cases untıl a fine be paid, as if he ceased to be a free , man, and where one was so deprived of profit, held that it was not an amotion from the corporation, and he was not entitled to a writ of manilumus to restore him, THIS was a rule to shew cause why a writ of man

1806 *dumus should not issue directed to the defendants

The King commanding them to restore one W. Adley to the office of a freeman of the said company. The prosecu- The F

FISHERS, &c. tor Adley was a freeman of this company, which was an of Worstan ancient company, and was further incorporated by an actof the S3d Gro. III The company were joint-lessees of a certain oyster-ground and were governed by certain bye-laws; under which eacı meinber is bound to dredge a certain number of days such a quantity of oysters as the foreman directs, and be pays them a certain sum for their day's work, the surplus going to pay the in.

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BLL.

The KING

versus

1806. terest of the debt due by the company. A bye-law No was made the 22d of July, whereby any one who

should be engaged in any other oyster-ground should The FREE81817ERS, &c. of pay 101. for every offence, and should be excluded WHITSTABLE. from all share of profits until the same should be

paid, and the same should be divided as it 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 101. according to the bye-law, which penalty had been previously demanded ; but he had no potice of any meeting por any summons to attend, nor any notice of complaini. The prosecutor was by such proceedinys 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 jol. fine; but it did not state the express adjudication of any fine.

Sir Vicary GIBBS, BAYLEY, Serjt. and ABBOTT, shewed cause, and contended that the real object of this mandamus was to compel the defenılants 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 din rects the company to restore him.

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