was no other than a mere action of trefpafs. You have turned Gould Juftice-It must be taken for granted in this cafe, that Bro. Tref there was an actual oufter, and that the defendant kept him out pals, 63. from the time of the demife till the judgment in the ejectment; the plaintiff in this cafe is not confined to the very mefne profits only, but he may recover for his trouble, &c. I have known four times the value of the mefne profits given by a jury in this fort of action of trefpafs; if it were not to be fo fometimes, compleat juftice could not be done to the party injured. This action may be brought either in the name of the nominal plaintiff in the ejectment, or by his leffor; it follows the ejectment as a neceffary confequence: the judgment in ejectment by default is of the very fame effect in this cafe as if it had been after a verdict; and the court will intend every thing poffible against the defendant, that there was an actual oufter, if that were necessary in this cafe; but I think, proof of the judgment in ejectment, and the writ of poffeffion executed, was fufficient in this cafe to warrant a verdict for the mefne profits. Chief Juftice Wilmot-Damages are not confined to the mere rent of the premises; but the jury may give more, if they please, as my brother Gould hath truly obferved. Judgment for the plaintiff; abfente Lord Commiffioner Bathurft, in Canc'. Sir William Blackftone Knight, late one of the Judges of the See 5 Burr. King's Bench, being appointed a judge of the Common Pleas, Rep. 2368. in the room of Mr. Juftice Yates, lately deceafed, took his place in court. Baffett verfus Godfchall Efq. and others, Juftices of An action doth not lie against the juftices of Peace, for THE refusing to one a licence inn or an ale lord house. The grava men in first fufing plaintiff a licence. count is re zd Count. lord the King in the county of Surry, and also to hear and determine divers felonies, trefpaffes and other mifdemeanors, committed within the fame county; and whereas the fame plaintiff, for divers years laft paffed, hath dwelled, and ftill dwelleth, in the parish of Hafcomb in the county aforefaid, within the western divifion and hundred of Blackheath in the faid county, he the faid plaintiff, on the 13th day of September, in the year of our Lord 1769, at Guildford in the county aforefaid, did make application to the defendants, (being then and there met and affembled together at a general meeting of his Majesty's justices of the peace for the faid county, acting for the faid weftern divifion and hundred of Blackheath in the faid county, for licenf ing perfons to keep common inus and alehoufes) to grant to him. the plaintiff a licence to keep a common inn and alehouse at the faid parish of Hafcomb; fuch common inn and alehoufe being then greatly wanted at the parifh of Hafcomb; and then at Guildford aforefaid was ready to produce, and offered to produce to the defendants fo met and affembled together, a certificate under the hands of 7B. RB. 7 B. JB. WG. TW. WS. JL. JP. HL. CE. ES. JS. and WM. then being reput able and fubftantial housekeepers of the parish of Hafcomb aforefaid, fetting forth the plaintiff to be a perfon of good fame, and of fober life and converfation; yet the defendants, well knowing the premises, but not regarding their duty as fuch juftices as aforefaid, and wrongfully and maliciously contriving and intending to opprefs and injure the plaintiff, on the faid 13th day of September, in the faid year, at Guildford aforefaid, did moft unlawfully and unjustly, and against their duty as fuch juftices as aforefaid, refufe to grant to the plaintiff fuch licence as aforefaid. And whereas alfo the defendants, for divers years laft paft, have been and ftill are juftices of our lord the King, affigned to keep the peace of the faid lord the King in the said county of Surry, and alfo to hear and determine divers felonies, trefpaffes and other mifdemeanors, committed within the fame county; and whereas the plaintiff, for divers years laft paft, hath dwelled, and ftill dwelleth, in the faid parifh of Hafcomb in the county aforefaid, within the weftern divifion and hundred of Blackheath in the faid county, he the faid plaintiff, on the faid 13th day of September, in the faid year, at Guildford aforefaid, did make application to the defendants, (being then and there met and affembled together at a general meeting of his Majefty's juftices of the peace for the faid county, acting for the faid western divifion and hundred of Blackheath in the faid county, for licenfing perfons to keep common inns and alehoufes) to grant to him the plaintiff a licence to keep a common inn and alehoufe at the faid parifh of Hafcomb, fuch common inn and alehouse being then greatly wanted at the faid parifh of Haf comb: fecond count, comb; and then, at Guildford åforefaid, was ready to produce, and offered to produce to the defendants, fo as laft aforefaid being met and affembled together, a certificate under the hands of B. RB. JB. JB. WG. TW. WS. JL. JP. HL. CE. ES. 7S. and WM. then being reputable and fubftantial householders of the parish of Hafcomb aforefaid, fetting forth the plaintiff to be a perfon of good fame, and fober life and converfation; yet the defendants, well knowing the The gravapremiles, but not regarding their duty as fuch juftices as afore- men in the faid, and wrongfully and maliciously contriving and intending to is for refufing opprefs and injure the plaintiff, on the faid 13th day of Septem- to receive a ber, in the faid year, at Guildford aforefaid, did moft unlawfully certificate of and unjustly, and against their duty as fuch juftices as aforefaid, good fame refufe to receive from the plaintiff the faid laft-mentioned cer- and character. tificate under the hands of the faid 7 B. R B. JB. JB. WG. TW. WS. JL. JP. HL. CE. ES. JS. and WM. to the damage of the plaintiff of 500l. and therefore he brings fuit, &c. To this declaration the defendants demur generally; and the plaintiff has joined in demurrer. Serjeant Leigh was prepared to fupport the demurrer for the defendants; but the court called upon Serjeant Glynn, of counfel for the plaintiff, to fupport this action if he could: whereupon he said, that as this was an injury laid in the declaration to be done to the plaintiff wrongfully and malicioufly, and with an intent to opprefs and injure him, he thought the action well laid, and that the facts alledged in the declaration were very proper to be laid before a jury; but cited no cafe to prove any fuch action as this had ever been brought againft juftices of the peace. So without hearing Serjeant Leigh for the defendants, the court gave judgment for them. plaintiff's Holland, Wilmot Chief Juftice-The legislature hath intrusted the juftices of peace with a difcretionary power to grant or refuse* *[See R. v. licences for keeping inns and alehoufes; if they abufe that power, 1 Term Rep. or misbehave themfelves in the execution of their office or au- K. B..692.] thority, they are anfwerable criminally, by way of information, in B. R. I cannot think a juftice of peace is anfwerable in an action to every individual who afks him for a licence to keep an inn or an alehouse, and he refuses to grant one; if he were so, there would be an end of the commiffion of the peace, for no man would act therein. Indeed he is anfwerable to the public if he mifbehaves himself, and wilfully, knowingly and maliciously injures or oppreffes the King's fubjects, under colour of his office, and contrary to law: but he cannot be anfwerable to every individual, touching the matter in queftion, in an action. Every plaintiff in an action must have an antecedent right to Husband and after judgment in dif charge of discharged upon motion. bring it; the plaintiff here has no right to have a licence, unless the juftices think proper to grant it, therefore he can have no right of action against the justices for refusing it. Gould Juftice-I am of the fame opinion. There have been great abufes committed by inn-keepers and alehoufe-keepers, and therefore the legislature have wifely given the juftices a difcretionary power to grant licences to fuch perfons as they fhall judge proper. Blackflone Juftice-This matter, I think, is wholly in the difcretion of the juftices; there must be a right of action, before a man can bring it; here is no right, therefore no action lies in this cafe. Judgment for defendants; abfent Lord Commiffioner Bathurst in Canc.' THIS Anonymous. "HIS was an action against the husband and wife, for a debt contracted by her dum fola. After judgment against them, they were both rendered to prifon in difcharge of their bail; and not being now charged in execution, it was moved that the wife might be discharged out of cuftody on common bail. Per curiam. The rule and practice is, that where there is wife rendered judgment and execution against both the hufband and wife, the fhall not be difcharged; but if they be both in cuftody upon mefne procefs, the wife fhall be discharged upon common bail: bail, the wife in the prefent cafe they are rendered to prifon in difcharge of their bail, are now in the fame fituation as if bail had never been put in for them; fo are really in prifon for want of bail to the firft procefs; and not being charged in execution, the wife must be difcharged out of prifon. See 2 Stra. 1167, 1237, 1272. 1 Wilfon 149. In Trin. 1750, Coffin, Executor, verfus Fell & Ux. B. R. hufband and wife were rendered in difcharge of their bail; before execution, it was moved that the might be difcharged on common bail, which was ruled accordingly. In Trin. 1754, Wilmot verfus Butler & Ux'. B. R. husband and wife were both in execution; Pratt obtained a rule to fhew caufe why the wife fhould not be difcharged out of cuftody: but per curiam, where judgment and execution are against husband and wife, fhe fhall not be discharged, but only when the is in cuftody upon mefne process. Frogmorton * Frogmorton* on the demife of Robinfon verfus [Throg morton. See P. 144.] dered copy EJECTMENT of one meffuage, one cottage, twenty J. R. furrenacres of land, twenty acres of meadow, and twenty acres hold lands to of pafture, with the appurtenances, in Hemingbrough, otherwife the ufe of M. Hembrough, in the county of York. Upon the general iffue, this caufe was tried before Mr. Juftice Gould at the last affizes, when a verdict was given for the plaintiff, fubject to the opinion of this court, upon a case stated in the words following, viz. A. (whom he intended to the heirs of marry) and their two That John Robinfon, being feifed in fee according to the in special cuftom of the manor of Hemingbrough, of the premises in tail in M. A. queftion in this caufe, being copyhold held of the faid manor, executed. on the first day of Auguft 1720, furrendered the fame, according But fee in the to the cuftom of the faid manor, to the ufe of Mary Arnall next term (whom he then intended to marry) and the heirs of their two bodies (poft. pa. lawfully to be begotten; and for default of fuch iffue, to the use of that M. A. the right heirs of the faid John Robinson. 144.) refolved only took an eftate for life, with contin gent remain That the faid marriage took effect; and afterwards, (to wit) at a court held for the faid manor, on the 21ft day of October 1720, ders to the the faid Mary was admitted tenant to the faid premifes, accord- heirs of the ing to the faid furrender, to the ufe of the faid Mary, and the bodies of her hers of their two bodies lawfully to be begotten, and for default of band. fuch iffue, to the ufe and behoof of the right heirs of the faid John Robinfon, according to the custom of the faid manor. That the faid Mary died in 1735, leaving John her eldest son, begotten by the faid John Robinfon her husband, which fon was born in the year 1722. That the faid John Robinson, the fon, died in 1745, leaving the leffor of the plaintiff his only fon and heir, born in that year, who was duly admitted tenant to the faid premifes in the year 1769. That by the cuftom of the faid manor, husbands are entitled for life to the inheritance of their wives, in the nature of tenants by the curtefy, whether the wife is feised before the coverture or afterwards. That John Robinfon the furrenderor, furvived his wife, and continued in poffeffion until the year 1746, when he furrendered the premifes in queftion, to the defendant in fee; who was admitted, and her huf |