This count

may well be

ver.

county of Suffolk, and during the faid time hath had frequent occafion and been oftentimes used to send corn, feeds and other goods by water-carriage from Bury Saint Edmunds aforefaid, down the river Lark otherwife Burn, to the port of King's-Lynn in the county of Norfolk, and to receive by the like carriage by water from King's-Lynn aforefaid, up the fame river Lark otherwife Burn, to and at Bury Saint Edmunds aforefaid, coals, iron, deals, fir, timber and other goods in the way and ufage of his faid trade and dealing: and whereas the faid river Lark, otherwife Burn, fometimes becomes and is fo fhallow by reafon of the want of a fufficient quantity and depth of water therein to navigate veffels, boats and lighters, freighted and loaded with coals, iron, timber, and other goods to be carried by water as aforefaid, from King's-Lynn to Bury Saint Edmunds aforefaid, infomuch that the faid Thomas Maft hath been many times neceffarily obliged in the way of his faid trade in the carriage of his coals, iron, timber, and other goods by water, up the faid river Lark otherwife Burn, from King's-Lynn to Bury Saint Edmunds aforefaid, to land fuch his goods at Worlington in the county of joined with a Suffolk aforefaid, and to convey the fame from thence by land count ia trecarriage to Bury Saint Edmunds aforefaid, for the fake of greater expedition in the carriage thereof; and alfo, whereas the faid Thomas Goodfon on the faid 27th day of Auguft in the year of our Lord 1762 aforefaid, and long before, was and ftill is lawfully poffeffed of and in a certain close of ground, containing by eftimation fixty rods in length and ten rods in breadth, fituate, lying and being in Worlington aforefaid, in the faid county of Suffolk, next adjoining to and abutting upon the faid river Lark otherwife Burn, on the fouthward fide of the faid river; and also, whereas on the faid 27th day of Auguft in the year of our Lord 1762 aforefaid at Worlington aforefaid in the faid county of Suffolk, a certain difcourfe was had and moved by and between the faid Thomas Maft and the faid Thomas Goodfon, of and concerning a yard to be made and built by the faid Thomas Maft, in the faid clofe of the faid Thomas Goodfon, next the faid river Lark otherwife Burn, for the more commodiously carrying on the faid trade of the faid Thomas Maft, and for the landing and fafe keeping his coals and other his goods there, by and with the confent and agreement of the faid Thomas Goodfon; and upon that discourse, and in confequence thereof immediately after. wards, (to wit) on the fame day and year laft mentioned at Worlington aforefaid in the faid county of Suffolk, a certain agreement was had and made in writing, by and between the faid Thomas Goodfon and Thomas Maft, figned by them respectively, in manner and form following, (that is to fay) "Memorandum "27th August 1762. An agreement made this day between Mr. "Thomas Goodfon and Thomas Maft, for the faid Thomas Maft to

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"build a yard next the river, for the landing of coals and other "goods as many as he pleafe; but the faid Thomas Maft doth engage to lay out not lefs than twenty pounds on what he build, "for which reafon the faid Thomas Goodfon have agreed, that the faid Thomas Maft fhall enjoy the building with fregrefs eyreegrefs and regrefs, for any goods he like to bestow there during the term of his natural life, free from every charge whatfoever, and within fix months after his decease the building to become the property of Mr. Thomas Goodfon, but the faid Thomas Goodfon do hereby promife, that Thomas Maft executor "fhall have the firft refufal of it at the rent it will then let for. "As witness our hands, Thomas Goodfon, Thomas Maft," as by the faid agreement in writing more fully appears. And the faid Thomas Maft in fact further fays, that in purfuance and in performance of the faid agreement on his part and behalf to be done and performed, he the faid Thomas Maft as foon after the making of the faid agreement as conveniently might or could be, (to wit) on the first day of October in the year of our Lord 1762 aforefaid, did, with the approbation of the faid Thomas Goodfon, make and build a yard in the faid clofe of the faid Thomas Goodfon next the river Lark otherwife Burn aforefaid, for the landing of his coals and other goods there, and did inclofe the fame with a stone wall of great heighth, (to wit) feven feet high, and with four doors for the fafe keeping of his coals and other goods when and as often as the fame fhould be landed and placed there, and that he the faid Thomas Maft did upon that occafion lay out and pay a large fum of money, (to wit) the fum of eighty pounds in what he built in and upon the faid yard; and that he the faid Thomas Maft from the faid time of his making and building the faid yard for the landing and safe keeping of his coals and other goods there, hath, in purfuance of the faid agreement, peaceably and quietly occupied and ufed the faid yard as an eafement for the purposes aforefaid, for a long space of time, (to wit) from the time last above mentioned, until the 26th day of March in the year of our Lord 1772; nevertheless, the faid Thomas Goodfon, well knowing the premises, and not at all regarding the faid agreement, but contriving and wrongfully intending him the faid Thomas Maft in this behalf unjustly to aggrieve and damnify, and to hinder and deprive the faid Thomas Maft of the ufe and occupation of the faid yard, as an easement for landing, placing and fafe keeping his coals and other goods there according to the agreement aforefaid, he the faid Thomas Goodfon afterwards, (to wit) on the 27th day of March in the faid year of our Lord 1772, and on divers other days and times between that day and the day of fuing forth the faid original writ of the faid Thoma's Maft against him the faid Thomas Goodfon, did by himself and fervants wrongfully and injuriously obstruct

and

and hinder the faid Thomas Maft from landing divers large quantities of his coals, iron and timber, (to wit) fifty chaldrons of his coals, fourteen tons and fifteen hundred weight of his iron, and two hundred feet of his timber, at and upon the faid yard, contrary to the faid agreement, by reafon whereof he the faid Thomas Maft hath been and is greatly damnified in his faid trade and dealings, (to wit) at Worlington aforefaid, in the faid county of Suffolk. And alfo, whereas the faid Thomas Maft on the 30th day of May in the year of our Lord 1772, at Worlington aforefaid, in the faid county of Suffolk, was lawfully poffeffed of the goods and chattels following, that is to fay, of forty chaldrons of coals, ten ends of iron, ten other pieces of iron, twenty ten feet battons, twenty other battons, ten wooden rails, and ten other rails of the value of 100/. of lawful money of Great Britain, as of his own proper goods and chattels, and being fo poffeffed thereof, the faid Thomas Maft afterwards, (to wit) on the fame day and year laft mentioned at Worlington aforefaid in the faid county of Suffolk, cafually loft the goods and chattels aforefaid out of his hands and poffeffion, which faid goods and chattels fo lost afterwards, (to wit) on the fame day and year laft mentioned and at the place laft above faid, came to the hands and poffeffion of him the faid Thomas Goodfon by finding, nevertheless, the faid Thomas Goodfon, well knowing the goods and chattels aforefaid to be the proper goods and chattels of him the faid Thomas Mafi and to him the faid Thomas Maft of right to belong and appertain, but contriving and fraudulently intending craftily and fub. tilly to deceve and defraud him the faid Thomas Maft in this behalf, hath not yet delivered the goods and chattels aforefaid, to him the faid Thomas Maft (although by him often requested fo to do), but the faid Thomas Goodfon afterwards, (to wit) on the fame day and year last mentioned at Worlington aforefaid, in the faid county of Suffolk, converted and difpofed of the faid goods and chattels to his own proper ufe; whereupon the faid Thomas Maft fays, that he is injured and hath fuftained damage, to the value of gool. and thereupon he brings fuit, &c.

And the faid Thomas Goodfon by Charles Le Grice his attorney comes and defends the wrong and injury when, &c. and faith that he is not guilty of the premises above laid to his charge, in manner and form as the faid Thomas Maft hath above thereof complained against him, and of this he puts himself upon the country; and the faid Thomas Maft doth fo likewife. Therefore the fheriff is commanded that he cause to come here from the day of the Holy Trinity in three weeks twelve &c. by whom &c. and who neither &c. to recognize &c. becaufe as well &c.

This cause came on to be tried at the last affizes held for the county of Suffolk before my brother Whitaker, when a verdict was found for the plaintiff, with forty fhillings damages and forty fhillings cofts, taken intirely upon both the counts in the declaration.

And now it was moved in intereft of judgment by my Brothers Sayer and Walker, that these two counts could not be joined in one writ or declaration; because (they faid) that the firft count is laid to be upon an exprefs agreement in writing, and founds wholly in contract, and the latter is in cafe for trover and converfion, which is a tort. And to prove that counts founded upon tort and upon contract cannot be joined, they cited 1 Keb. 847. pl. 45. 2 Keb. 803. 1 Vent. 366. for they not only require feveral pleas, but therein are different process; in one, fummons, attachment, &c. and in the other, attachment, &c. that actions upon contract lie for and against executors, but actions upon tort do not lie for or against executors. In the cafe of Bage verfus Bromuel, 3 Lev. 99. Pafch. 35 Car. 2. C. B. Trover and affumpfit were joined in one action, and upon not guilty, the jury quoad the trover find for the defendant, and quoad the af fumpfit they find for the plaintiff, and it was moved in arreft of judgment that these two things cannot be joined in the fame action; and that although the jury hath fevered them, yet the declaration being naught and bad at the firft, the plaintiff cannot have any judgment; and fo it was holden by the whole court, who gave judgment that the plaintiff fhould take nothing by his writ; this cafe being after a verdict, wherein the jury had fevered one count from the other, fhews that the writ was originally naught, and that the declaration could not be helped, even after a verdict. And in 1 Keb. 795. pl. 7. in the Exchequer Chamber judgment in C. B. was reverfed, trover and an affumpfit being joined in the fame action, in regard they require feveral pleas, and affumpfit doth furvive to the executor or adminiftrator, but trover doth not; fo in Denton verius Clarke, and Flowerdew verfus Kellett. My Brother Serjeants cited feveral other cafes to the like purpose; not neceffary to be fet down here, because they may be found in Viner. Abr. tit. Action [Joinder]. The court made a rule to fhew caufe why the judgment should not be arrested.

Serjeant Wilfon, upon fhewing cause for the plaintiff why judg ment fhould not be arrested, said, that it seemed not to be neceffary in the prefent cafe for him to fhew that a count in affumpfit and another in trouer may well be joined in one writ

or

or action; but that if it was neceffary, he thought the cafe of Dickon verius Clifton, 2 Wilfon 319. went a great way to prove that a count upon a contract, and a count in trouer may well be joined in the fame writ and declaration; for the Lord Chief Juftice Wilmot in giving his opinion in that cafe fays, It is objecied that a count laid quafi ex contraclu, cannot be joined with trover, yet [lays he] I lay no great trefs upon old cafes to this point, at this day. The true teft [fays he] to try whether two counts can be joined in the fame declaration is to confider and fee whether there be the fame judgment in both, and not whether they both require the fame plea; and wherever there is the fame judgment, I think, [fays Lord Chief Juftice Wilmot] they may well be joined, that in affumpfit and trover there is exactly the fame judgment verbatim.

In the cafe of the Duke of Bedford verfus Alcock, 1 Wilson 250. Lord Chief Juftice Lee in giving the judgment of the court fays, that the true way to judge whether two counts can be joined in one declaration is this, viz. that whenever the fame procefs and judgment are in two counts they may be joined, otherwife they cannot; debt on a judgment and mutuatus may be joined, fo may debt on a bond and a mutuatus although there be different pleas required, because there is the fame procefs and judgment. Debt and detinue may be joined. Bro. Joinder in Action, pl. 97. And fo may debt for an amercement in a court leet, and a mutuatus. 2 Salk. 772.

But fuppofing it to be doubtful whether a count in affumpfit or upon a contract can, or cannot be joined with trover which is a tort, yet [Serjeant Wilfon faid] that this was not the cafe at bar, and infifted that the firft count in this declaration is not founded upon the contract or written agreement therein fet forth, but is chiefly founded upon the tort or wrong therein alledged to have been done by the defendant and his fervants in wrong fully and injuriously obftructing and hindering the plaintiff from the ufe and enjoyment of the faid yard as an eafement, which he had quietly and peaceably enjoyed for about ten years before, under the faid agreement, and which he was intitled to enjoy for the term of his life; that it was neceffary to fhew the agreement in the declaration by way of inducement leading to the gift of the action, which was the tort, wrong, or obftruction above-mentioned; fo that whatever may be the law with refpećt to joining affumpfit or contract and trover, yet this was not that cafe, but both thefe counts [Serjeant Wilfon humbly infifled were founded upon torts, and therefore he prayed judgment for the plaintiff.

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