AN

A.

ACCORD,

See AGREEMENT, No. 19.

ACTION.

See AGREEMENT. ASSUMPSIT.
PLEADING. WARRANTY.

"ecution of any fentence fo ap-
"pealed from as aforefaid, fhould
"not be fufpended by reafon of
"fuch appeal, in case the
party or
parties appellate fhould give fuffi
"cient fecurity to be approved of
by the court, in which fuch fen-
66 tence would be given, to reftore
"the ship, &c. concerning which
"fuch fentence fhould be pro-
"nounced, or the full value thereof,

to the appellant or appellants, in
"cafe the fentence fo appealed from
"should be reverfed." Though a
fecurity taken in a court of Vice-
Admiralty, by virtue of this fection
of the act, is in the form of an ac-
knowledgment of a debt to the king,
yet not being in a court of record,
it is not strictly a recognizance, but
operates as a ftipulation by the par-
ties to abide the decifion of the
court of Appeals. Neither is the
court of Appeals bound by this fec-
tion to interpret the words "full
"value" by any definire measure,
but they have a difcretionary power
of declaring what is the full value,
and a power to enforce payment
from the fureties of what they de
clare to be the full value. Brymer

and

and Others v. Atkins and Another,
Hil. 29 Geo. 3.
i. 164
N. B. The judgment in this cafe was
affirmed by the court of King's Bench
on a writ of error. Mich. 30 Geo. 3.
2. During the late war with the States
General, a fquadron of the king's
fhips having a detachment of the
king's troops on board, were fent
to attack a fettlement belonging to
the enemy, and fecret inftructions
were given by his majefty to the
commanders in chief, that all the
booty which should be gained by the
joint operation of the army and navy,
at the attack of the fettlement, fhould
be divided into two shares, between
the land and fea forces. The attack
was not made, but the fquadron,
while the troops were on board, took
as prize a ship and cargo belonging
to the enemy, in an open unfortified
bay, at a distance from the destined
object of attack. This fhip and
cargo being condemned as lawful
prize, the produce was to be diftributed
according to the provifions of the prize-
act 21 Geo. 3. c. 15. The court
of C. P. held that under that act
a legal right was vefted in the offi-
cers and crews of the fquadron to
their respective fhares, on the con-
demnation. And the Lords Com-
miffioners of Appeals from the Ad-
miralty having iffued a monition to
the prize agent, to bring in the pro-
ceeds which were in his hands, a
prohibition was granted to that court
by the court of C. P. becaufe they
confidered the mouition as contrary
to the legal vefed right. Home v.
Earl Camden and Others, Trin.
30 Geo. 3.
i. 476
N. B. The judgment in this cate was
reverfed on a writ of error, by the
court of King's Bench, Mic. 32
Geo. 3. 4 Term Rep. B. R. 382.
And the judgment of the court of
K. B. was affirmed in the Houfe of

Lords,

ii. 533

See title PROHIBITION, No. 4, 5,

6, 7:
3. During the late war with Spain, a
flag-officer on a certain station, gave
orders to a fhip under his command

4.

5.

to fail on a cruize. After the orders
were given, but before a prize was
taken, he accepted a command on
another station, but no flag-officer
was appointed to fucceed him on
his former ftation. He was not
entitled to one-eighth of a prize
taken by the fhip which failed in
confequence of his orders, under the
proclamation which iffaed for the
diftribution of prizes. Johnflone ex-
ecutor of Johnstone v. Margetjon, Trin.
29 Geo. 3.
i. 261
Where a fhip belonging to a fqua-
dron under the command of an ad-
miral, fails by his orders on a cruize,
but before any prize is taken, he is
fuperfeded in his command by an.
other admiral, and afterwards a
prize is taken by the fhip which fo
failed; though it fhould be doubtful
to which of the admirals the share
of admiral would belong; clearly
the captain of the fhip taking the
prize is not entitled to it. Taylor v.
Lord H. Pawlett, coram Lord Manf
field, Nifi Prius, A. D. 1759.

i. 264. *.
But under fuch circumstances, the
admiral who fucceeds to the com-
mand, (ie. who is actually in com•
mand at the time when the prize is
taken) is intitled. Piget v. White,
East. 25 Geo. 3. B. R. i. 265. *.

ADVOWSON.

1. The royal prerogative of prefenting
to a church vacant by the incumbent
being promoted to a bishoprick, does
not wholly destroy the effect of a
prior grant of the next prefentation,
by the owner of the advowfon: but
the grantee fhall have the right of
prefentation on the vacancy next
after the prefentation by the crown.
Calland v. Troward, Trin. 34 Geo. 3.
ii. 324
N. B. The judgment in this caufe was
affirmed by the court of B. R. on a
writ of error. See 6 Term Rep.
B. R. 439; and the judgment of
the Court of B. R. in the Houfe of
Lords.

AFFI-

AFFIDAVIT.

See LOTTERY, No. 1, 2. PRACTICE, No. 11, 12. RECOVERY, No. 2, 3. REQUESTS, COURT OF, No. 3, 4.

1. An affidavit to hold to bail muft fhew how the debt arose. Cooke v. Dobree, Eaft. 28 Geo. 3. i. 10 2. An affidavit that the defendant is indebted to the plaintiff in the fum of-1. and upwards," is not fufficient to hold to bail. i. ibid. 3. Where fuch defective affidavit is made, the court will not permit a fupplemental one. i ibid. 4. An affidavit to hold to bail, ftating, that the defendant is indebted to the plaintiffin trover" is bad. Hub. bard v. Pacheco, East. 19 Geo. 3.

i. 218

5. Where a prifoner has been brought up to be discharged under the lords' act, and upon his examination the court have refused to discharge him, they will not afterwards difcharge him on that act, though he make an affidavit of circumftances in anfwer to the caufe before fhewn on his examination, against his difcharge, and that the circumstances were not then difclofed, by mistake. Thornton and Another v. Dumphy, Hil. 28 Geo. 3.

i. 101 6. A bond was given conditioned for the payment of bills of exchange drawn in England on A. in the East Indies, in cafe fuch bills fhould be returned to England protested for nonpayment. The affidavit to hold the obligor to bail, after ftating, "that

he was indebted to the deponent "the obligee in a certain fum," ftated alfo the condition of the bond, and that the faid bills were not

66

viz. a proteft for non-acceptance. Hobfon and Another v. Campbell, Trin. 29 Geo. 3.

i. 245

7. But the plaintiff might have filed a fupplemental affidavit. Ib. i. 249 8. To fupport, in the next term after that in which iffue is joined, a rule for judgment as in cafe of a nonfuit, for not proceeding to trial, the affidavit must state that iffue was joined early enough in the preceding term. for the plaintiff to have proceeded to trial in that term. Woulfe v. i. 282 Sholls, Trin. 22 Géo. 3. 9. But in the third term, a general affidavit, ftating that iffue was joined in the former term, is fufficient.

paid to his knowledge or belief in « India, or elsewhere, but that they "were protefted for non acceptance in "India, and were ftill unpaid." It was no objection to this affidavit, that it was stated that the bills were unpaid to the knowledge and belief of the plaintiff; but it was bad because it introduced a new term not mentioned in the condition of the bond,

i. ibid. 10. In an action of debt for non-refidence, on flat. 21 Hen. 8. c. 13. an affidavit that the offence was committed in the county where, and a year before the action is brought, is not neceffary; the ftat. 21 Jac. 1. c. 4.

3. not being applicable to fuch action. Balls qui tam v. Atwood, clerk. Hil. 31 Geo. 3. i. 546 11. The court will not grant leave to amend a recovery on affidavit only. Pearfon v. Pearfon and Another, Mic. 29 Geo. 3.

AGREEMENT.

i. 73

i.

37

4. A. B. C. and D. enter into an
agreement jointly to purchafe goods
in the name of A. only, and each to
take aliquot fhares; but it does not
appear that they agree jointly to refell
the goods. On the failure of A.
the oftenfible buyer, B. C. and D.
are not answerable to the feller as
partners. Coove and Others v. Eyre
and Others, Trin. 28 Geo. 3.
5. A. the owner of a fhip, executes an
abfolute bill of fale of it to B. and
by another deed of the fame date,
affigns other property to B. which
deed of affignment (reciting that
the bill of fale was for the better
fecuring a fum of money lent by B. to
A. and also reciting a bond and
warrant of attorney to fecure the fame
Jum) declares that thofe feveral

deeds and inftruments were made
"to enable B. by fale of all the
"things comprifed in them, to raife
"the um lent, without the con-
"currence of A. at any time before
"the money should be paid off;"
but in this deed there is a covenant
that upon repayment of the money,
"B. fhall reconvey to A. but fo as
"not to prevent B. from Jelling
e at any time before the full
&c." Under these con-
"payment, &c."
veyances, B. is not abfolute owner
of the fhip, but only mortgagee;
and therefore is not liable for necef
Jaries provided for the ship before be
takes poffeffion. Jackfon v. Vernon,
Hil. 29 Gea. 3.

i. 114

6. The mortgagee of a fhip cannot
maintain an action for freight against
a third perfon, before he takes pof-
feflion. Chinnery v. Blackburne,

B. R. Eaf. 24 Gea. 3. i. 117. n.
7. A tradelman delivers goods to A.
at the request and on the credit of B.
who fays before the delivery,
"will be bound for the payment of
"the money as far as 800 or
This promife of B. not being in
writing, is void by the ftatute of
frauds, if it appear that credit was
given to A. as well as B. Anderfon

V.

1000/"

Hayman, Hil. 29 Geo. 3. i. 120
8. A. a general merchant, undertakes
voluntarily, without any reward, to

enter a parcel of goods belonging to
B. together with a parcel of his own
of the fame fort, at the custom-houfe,
for exportation, but makes the entry
under a wrong denomination, by
means of which both parcels are
feized. 4. having taken the fame
care of the goods of B. as of bis
own, not having received any re-
ward, and not being of a profession
or employment which neceffarily implied
fkill in what he had undertaken, is
not liable to an action for the lofs
fuftained by B. Shiells and Another
v. Blackburne, Hil. 29 Geo. 3.

i. 158
9. In an action for the penalty of the
ftat. 12 Anne, c. 16. the declaration
flated a fpecific fum of money to
have been lent, (in which the ufory
confifted,) but the evidence was, that
the loan was part in money and part
in goods, (i e. gold) of a known
definite value, which the party re-
ceiving the loan agreed to take as
cafb. This was good evidence to
fupport the declaration.
Barbe qui
tam v. Parker, Mic. Geo.
30 3.

i. 283
10. Where a carrier gives notice by
printed propofals, that he will not
be anfwerable for certain valuable
goods, if loft, "of more than the
"value of a fum fpecified, unless
"entered and paid for as fucb;" and
valuable goods of that defcription
are delivered to him by 4. who
knows the conditions, but conceal-
ing the value pays no more than the
ordinary price of carriage and book-
ing; on a lofs happening, the car-
rier is neither liable to the extent of
the fum fpecified, nor to repay the fum
paid for carriage and booking. Clay
v.Willan and Another, Mic. 30 Geo. 3.

i. 298
11. A. being poffeffed of an office in a
dock-yard, B. in order to induce
him to procure himself to be fuper-
annuated, and retire on the usual
penfion, agrees (without the know-
ledge of the navy board, to whom
the appointment belongs) in cafe
B. fhould facceed him in the office,
to allow him a certain annual share

of