tithes are evicted, the rent ought to be apportioned, otherwise fuch leffee fhall pay 100l. per annum, being the whole rent for the barn, which perhaps was not of the yearly value of 40 fhillings, which would be contrary to all reafon and juftice; and fo is the cafe of Dubytoft v. Courteene, Cro. Jac. 458. wherein it is faid, that although the rent in fuch cafe is only iffuing out of the barn in point of remedy, yet it is iffuing out of both the tithes and barn in point of render; and in the cafe of Valentine v. Denton, Cro. Jac. 111. it is agreed by Yelverton, Williams and Tanfield, that if a bifhop makes a leafe for years of tithes only, referving the ancient rent, fuch leafe fhall bind his fucceffor, but not if the bifhop makes a leafe for life; and the reason is, because that upon a leafe for years, the fucceffor hath remedy for the rent referved by action of debt, but he hath no remedy for rent reserved. upon fuch leafe for life; therefore (fays he) if the fucceffor of a bishop fhall have remedy by action of debt for fuch rent referved upon a leafe for years, it follows, that it is fuch a rent as fhall go with the reverfion, and doth not lie only in privity of contract, for the fucceffor of the bifhop, who was the leffor, is not privy to the contract of his predeceffor, but hath only a privity of eftate, viz. the reverfion, and confequently the rent fhall go with the term to the affignee (of the tithes) and he fhall pay it to the leffors. Upon this excellent argument of Saunders the court there faid, that the cafe was of great confequence, for that many perfons were feifed of tithes in fee as of their lay inheritance; and if they demife their tithes referving rent, and fuch rent fhall be adjudged to be only a duty by privity of contract, then the heirs to whom the reverfions of fuch tithes fhall defcend, will not have any remedy for the rent due in their own time; and therefore the court feemed to incline, that it was fuch a rent as fhall go with the reverfion, and that the affignee fhall be bound to pay it; but it was not adjudged, for the council for the plaintiff took a trifling exception to the defendant's plea (which would not be allowed at this time of day) whereupon they gave judgment for the plaintiff: Saunders fays, he believes their principal reafon was, because they would not determine the matter in law. Tipping v. Grover Sir Tho. Raym. 18. Debt for rent by executors: The plaintiffs count that their teftator was feized for another's life of certain tithes, and demifed them to the defendant for years rendering rent, and for 400l. arrear they bring debt; and on demurrer to this declaration, Jones argued it was a rent, and that the executors fhall not have this rent, because it appertains to the reverfion, for it is a rent, although not in point of remedy. Cro. Jac. 112, 453. Allen argued è contrà, and faid, that debt lies upon the contract which goes to the executors. But he perceiving the opinion of the court to be against him, prayed a difcontinuance, which was granted. 1 Jewel's Objection. Answer. Godbolt Hil. Hardr. 87,88. 322. Salk. 198. S. C. Jewel's Cafe 5 Rep. 3. has been objected for the defendant; where it is refolved, that if a leafe be made by a bishop of a Fair for 21 years, rendering the ancient and accustomed rent, the fucceffor fhall avoid it. But this has fince been determined otherwife. Cro. Jac. 111, 112. and fee 2 Saund. 303, 304. The flat, 5 Geo. 3. cap. 17. has been objected; that the legiflature thought a rent could not be referved upon a lease of tithes, and therefore that ftatute was made: But in answer to this, it's plain from the words of the ftatute, that they only had a doubt, and made the ftatute to brush away that cobweb of a doubt; And the cafes before cited fhew, that debt laid for rent, referved upon a leafe for tithes, long before. 2 Vern. 423. That affignees of an incorporeal inheritance are not liable at law to the rent, for that they have no privity of eftate, was objected for the defendant :-But this is only a dictum of counsel at the bar, and would have had no weight, we think, if the court had faid it; fo that we think there is no difference between lands and tithes in this cafe. As to the cafe in Moore 159. mentioned before, that a covenant by the leffee to build a wall, fhall bind the affignee although he be not named, and that the covenant is inherent in the land; we rather choose to adhere to Lord Coke's opinion, that fuch a covenant will not bind the affignee unless he be named, but we have no occafion to determine that point; for in the cafe at bar, the defendant the affignee is named, and therefore this action well lies against him. What is this covenant? It is a mode of occupation, prescribed by the leffor to the leffee of the tithes, that he fhall manage and take them in kind, to do which, he has agreed and covenanted for himself and his affigns; it is like covenants to spend all the muck upon the land, and falls exactly within the rules laid down by Lord Coke in Spencer's cafe as to land; it concerns the thing demifed, and tends to fupport and preferve the eftate of tithes in kind; here is a reverfion in the leffor, and a privity between him and the affignee. We do not mean to fhake any of the authorities in the books: 29 Eliz. 120. In Purfrey's cafe, Moore 43. there is fomething looks against us; 2Ld. Raym. the opinion there is, that the covenant would not run with the land; but it must be observed, that it did not concern the thing demifed, nor is the word affigns there, fo it does not apply to, nor clash with the cafe at bar. The covenant here is not, that you fhall not affign the lease of the tithes, but that (let the leafe of the tithes go where it will) they fhall be taken in kind, they fhall continue in the fame ftate; upon this we lay our greatest Pennant's greateft ftrefs. A covenant not to affign generally, must be per- Cro. Jac. 398. fonal and collateral, and can only bind the leffee himself, there cafe. 3 Rep. never can be any affignee; whereas the prefent leafe grants to ex- 64. Styl. 265. ecutors, adminiftrators and affigns: Upon the whole, as there is Tho. Raym. no cafe in point, we do not break through any of the authorities 250. Co. Lit. in the books concerning collateral or perfonal covenants. Judgment for the plaintiff per totam curiam. Cave verfus Aaron. C. B. 223.6. and rule to plead iffu ably, &c. plea DE EFENDANT had time to justify his bail, whereupon a After time to rule was made (according to the common courfe of the juftify bail, court) that he fhould plead iffuably, and take fhort notice of trial for the laft fitting within the term; then the defendant pleads a recovery in B. R. The court, upon motion, made a rule to fhew caufe why the plea fhould not be set aside, and why the defendant's attorney fhould not pay the cofts of the ap- cofts. plication, which was afterwards made abfolute. Serjeant Nares for the plaintiff. Darling, Knight, verfus Atkins. of a recovery in B. R. fet afide with a an ambaffa allowed, because it ap peared he was purier of a ship of war. THE HE defendant being indebted to the plaintiff in 500l. Protection of paid him 250l. in part, and gave him a bond and judg- dor, to his ment for the refidue, with ftay of execution for a certain time; English fecrewhich being elapfed, and the defendant not having paid either tary was dif the principal or intereft, the plaintiff threatened to take out execution against him; whereupon the defendant wrote a letter to the plaintiff, defiring him to give him further time, and that he would make it a point of honour to pay him as foon as poffible. The plaintiff having waited for his money a year longer, and not being paid, took out a writ directed to the fheriff of Middlefex; whereupon the defendant was arrelled by one Dennis a fheriff's officer, who carried him to the lock-up houfe of one Norton another of the theriff's officers. Whilft the defendant was in cuftody at Norton's lock-up houfe, Baron Haflang, envoy from the Elector of Bavaria and from the Elector Palatine, fent a meffage to Norton the officer, demanding a difcharge of the defendant out of cuftody, infifting he was the Baron's Englifa fecretary, and was duly registered as fuch in the proper offices; whereupon, and upon receiving a note of indemnity, Norton difcharged the defendant out of cuftody. Whereupon the plaintiff caused the sheriff to be served with a rule to return the writ. And now it was moved by Serjeant Nares, on behalf of the fheriff and defendant, that the rule to return the writ might be discharged, upon an affidavit of the defendant, ftating the facts and arrefts as above, and that he was English fecretary to the Vol. III. amballador, D ambaffador, and received a falary of 40l. per annum to his own ufe, for copying all his English difpatches, memorials, &c. that he is properly registered, and his name entered in the fheriff's office; and upon another affidavit in confirmation of the above facts, and that the defendant has been conftantly attendant upon this minifter, to copy memorials, letters and difpatches, for fome years, except when he had leave of abfence for a few days at a time; and upon another affidavit of Norton the officer, who fwears that Dennis brought the defendant to his house to be locked up, that he did not then know lie was a fervant to Baron Haflang, but that he (deponent) foon after received a demand in writing from the baron to difcharge the defendant out of his cuftody, and to detain him at his peril, whereupon, being in fear of punishment, (having received a note of indemnity under the hand of the Baron) he discharged the defendant out of custody : Rule to fhew caufe why the rule to return the writ fhould not be discharged. Serjeant Forfer, for the plaintiff, upon fhewing caufe, produced an affidavit of the plaintiff, wherein he depofes, that the defendant being indebted to him in 500l. paid him 250l. in part, and gave him fecurity for the reft, as above ftated; and after he had received the letter, as above, and waited for his money above a year, caufed defendant to be arrested; that he never before heard that the defendant was protected or claimed any protection, or confidered himfelf as a fervant to Baron Haflang; on the contrary he depofes, that he believes he is not protected, nor is his fervant, because he fays that the defendant, in the year 1761, was appointed purfer of the Triumph man of war by the commiffioners of the navy, and continued fuch till the year 1767, when he was appointed purfer of the king's fhip called the New Grafton, by warrant, and is fill purfer thereof; that, as fuch officer, he gets confiderable profits by buying in the provifions; that he takes care and keeps an account thereof, and of the flops, &c. belonging to the fhip, and accounts for the fame monthly; that the defendant acts as a factor for the ship, and the deponent apprehends he is liable to a commiffion of bankrupt, for that he receives 51. per cent. for every thing he buys in for the fhip: Whereupon Serjeant Forfter fubmitted it to the court, that as the defendant was obliged to do constant duty in regard to his office of purfer, he could not at the fame time be a fervant to Baron Haflang, intitled to protection by the ftat. 7 Annæ, c. 12. and cited 1 Burro. 401. B. R. as a fimilar cafe to this, where the court refufed even a rule to fhew cause. In anfwer, by way of reply, it was admitted that the defendant was purfer of the New Grafton, which in time of war is an office of full employment, incompatible with that of fecretary to an ambassador; but it was faid, that in time of peace (as at prefent) present) it is a mere fine cure, and the defendant may well be fecretary to Baron Haflang; and that the cafe in 1 Burro. 401. is not at all fimilar to the prefent cafe. Curia. To be fure courts of law will protect the ambaffadors or public minifters of foreign princes or ftates, and their fervants, from being arrefted; it is the law of nations; but we muft not confound the right of protection with the abuse of that right. The question is, whether the defendant is bonâ fide a fervant of the ambaffador? It is determined he need not be a domeftic fervant, (although the words of the ftat. 7 Ann. are domeftic fervants), for many houses are not large enough to contain and lodge all the fervants of fome ambaffadors. But we are of opinion that the office of purfer, which the defendant has and enjoys, is incompatible with being fecretary to an ambassador, for no man can serve two masters; the defendant is a fervant to the King, fo cannot be a fervant to the ambaffador: the defendant himfelf feems to think this is but a flimfy protection, by not having claimed it until now; as appears by the affidavit of the plaintiff, with whom the defendant has had credit for fome years. The rule to fhew caufe why the rule upon the fheriff to return the writ must be difcharged, the protection being difallowed per totam curiam. Pugh verfus Curgenven. C. B. ACTION of debt, to recover certain penalties against the The defenddefendant, upon the ftat. 2 Geo. 2. c. 24. for corrupting ant having a verdict against and procuring certain perfons (voters) to give their votes in the him for brilaft election of members to ferve in parliament for the borough bery at an of Mitchell, in the county of Cornwall. The defendant pleaded election, nil debet per patriam. The caufe was tried at the laft affizes, moves that when a verdict was found for the plaintiff. judgment upon the verdict may be stayed on the ftatute 2 Geo. 2. c. 24. he having made a difcovery of another perfon offending against that ftatute, who had been convicted thereof on his the defendant's evidence. In the beginning of this term, it was moved by Serjeants Burland and Glynn, on the behalf of the defendant, that judg ment upon the poftea returned in this caufe, might be stayed; they grounded their motion upon a claufe in the fame act of parliament, whereby it is enacted, " that if any person offending against that act fhall, within the space of twelve months next "after fuch election, difcover any other perfon or perfons offending against that act, so that fuch perfon or perfons fo "difcovered be thereupon convicted; fuch perfon fo discover"ing, and not having been before that time convicted of any offence against that act, fhall be indemnified and difcharged from all penalties and difabilities which fhall then have incurred by |