by his father, who died feifed thereof in fee-fimple the 4th day of June 1760, leaving two daughters by his first wife, and his fecond wife enfient of this pofthumous fon; the wife and daughters remained in the fame houfe where the father died, then the wife received fome rent for the houfes, and afterwards in July 1760 the fon was born, and in his life-time the widow received more rent, then the fon died, having lived five weeks and three days, and fhe received fome more rent after his death.

Lands in fee-fimple muft defcend to the heir of the whole blood of the perfon laft actually feifed thereof; this is a maxime of the law of England which has fubfifted for ages, as appears by Bract. lib. 2. fol. 65. Britton cap. 119. fol. 271. and Fleta lib. 6. cap. 1. fect. 14. Although this may fometimes be very hard upon fome children of the half blood of the perfon laft actually fefed, yet we must take the law as it is, and determine accordingly.

The queftion therefore is, whether this pofthumous fon was actually feifed of the premifes in queftion? Upon the death of the father, his two daughters would have been good tenants to the præcipe before the birth of the pofthumous fon, who could not lay his title before he was born; the law vefted the feifin in law in the daughters upon the death of the father, and in like manner vefted the feifin in law in the fon the moment he was born; -if the daughters had aliened, or been diffeifed, the fon would not have been actually fefed, but would only have had a right of entry upon the poffeflion of the alienee or diffefor. This was the ground of my Brother Hill's argument, namely, that the daughters were diffeifed by the mother, and that the fon died having only a right of entry, fo was never actually feifed. But the daughters were in actual poffeffion as well as the mother, (of one houfe) from the time. of the death of their father, until the birth of the fon, and were alfo in actual poffeffion of the other three houfes by the poffeffion of the tenants thereof, whether any rent had been due, received or not received before the birth of the fon, 3 Rep. 41, 42. 4 Rep. 21. Moore 125. Co. Litt. 14, 15. And the rent which was due and received before the birth of the fon belonging to the daughters who were actually feifed. For by Babington [Chief Juftice C. B.] Trin. 9 Hen. 6. 25. a. If a man has iffue a daughter and dies, his wife being enfient, the daughter may lawfully enter, and if the dies, her heir may enter and take the profits for the time, and afterwards if the wife, being enfient by the ancestor paramount, is delivered of a fon, the fon may enter, notwithstanding that the heir of his fifter is in by defcent, but he fhall not have an action of account or any remedy for the fues in the mean time before his birth, because that their entry

entry was congeable until he was born; and if a church becomes void, and the fifter or her heir prefent, and their prefentee be inftituted and inducted before his birth, he fhall not have advantage of the avoidance, and yet by fuch prefentation he fhall not be out of poffeffion.

At the time of the birth of the fon [in the prefent cafe] his mother was in poffeffion as well as the daughters; the moment he was born fhe became his guardian in focage, and upon fuppofition that nothing was done to hinder it, the law will prefume that the entered as guardian to her fon as foon as he was born, and nothing appears to the contrary upon the facts flated in the cafe; the was in without any declaration of her intention how the was in, and acts without any words amount in law to an entry, for acts without words may make an entry, but words without an act (viz. entry into the land, &c.) cannot make an entry. Co. Litt. 245. b.

It was objected that the mother being in one house, and receiving the rents of the others, was a diffefor, or that it was in the election of the daughter to make it a difeifin. Cro. Car. 303. And that if one enters as guardian who is not fo, he is a dif feifor. 1 Roll. Abr. 662. [F.] pl. 3.- -In anfwer to this the facts in the cafe are, that the mother continued in poffeffion from the death of her hufband, received the rents under leafes, her poffeffion was general, it doth not appear that the oufted the daughters or made any actual or particular claim, fhe might continue in the houfe by quarentine which continued until the fon was born, and the entry of one is the entry of the others who have right to enter. 1 Roll. Abr. 740, 741. If guardian by nurture make a leafe by indenture to one being in under the title of the infant, rendering rent to himfelf, which is paid accordingly yet this is not any diffeifin to the infant. 1 Roll. Abr. 659. pl. 13.

It is to be obferved that the title of the daughters expired on the birth of the fon, before any election to make the mother a diffeifor was made, that the law will not prefume a wrong; there never was any determination that the mother's entry or poffeffion was by wrong in a cafe like this, and it is impoffible to fuppofe in this café, that the whole rents and profits of the premifes in queftion were not applied by the mother to the common ufe of the daughters, herself and the infant fon; indeed, if the mother had entered as guardian to the daughters, fhe not being their guardian, it would have been a diffefin; fo if the had entered for her dower when it was not aligned to her; the poffeffion of the mother and daughters, was the poffeffion of the daughters, and when the fon was born the eftate was divefted out of the daughters and not

before,

The defend.

ant drew a

bill of ex

before, then the fon was in actual poffeffion and feifin of the pre. mifes by his mother, who had a right to the poffeffion as being his guardian by law [namely] the perfon next of blood to whom the inheritance cannot defcend, her poffeffion was the poffef. fion of her fon. 3 Rep. 42. Moore 125. A guardian need not be affigned. The feifin of the guardian of a fon by the second venter fhall out the daughters of the first venter. 8 Affize 6. -Upon the whole, we are all of opinion that the premises in queftion belong to the leffor of the plaintiff, and therefore we give

THI

Judgment for the plaintiff.

Venderheyden verfus De Paiba. C. B.

"HIS was an action upon the cafe upon feveral promifes, wherein the plaintiff declared, Firft upon a general indechange on the bitatus affumpfit for 200l. for money had and received by the plaintiff but defendant for the ufe of the plaintiff on the 6th day of Novem. ber 1773-A fecond count for 200l. paid, laid out and exto pay it him- pended by the plaintiff for the defendant at his inftance and refelf when due; queft.-A third count for 200l. lent and advanced by the plainafterward de- tiff to the defendant at his like inftance and request.

the defend.

ant promised

fendant be

came a bank

rupt and afterwards plaintiff was fued and obliged to pay the bill. Refolved the plaintiff could not prove any debt under the commiffion. [See ante pp. 13, 262 of this Vol.]

The cafe

To this declaration the defendant pleaded, that after the 14th day of February 1729, and before the iffuing out the original writ of the plaintiff, (to wit) on the 17th day of November 1772, the defendant became a bankrupt within the true intent and meaning of the ftatutes concerning bankrupts made and pro vided, and that the said several causes of action in the said declaration mentioned did accrue, and each and every of them did accrue to the faid plaintiff before the tine when the faid defendant fo as aforefaid became bankrupt, and concluded to the coun try; whereupon iffue being joined.

The caufe came on to be tried by a special jury before the Lord Chief Justice De Grey, at the fittings after Michaelmas term last in London, when a verdict was found for the plaintiff, 156l. 155. 2d. damages, and 40s. cofts, fubject to the opinion of this court upon the following cafe, which states,

That on the 3d day of June 1772, the defendant drew a bill fated for the of exchange on the plaintiff as follows." London 3d June 1772, two months after date, pay to my order one hun"dred and forty-two pounds ten Thillings for coals delivered

opinion of the court.

66

by

by your order.-Rowland De Paiba.-Mr. Dirk Vanderheyden

Budge Row."-Which bill the plaintiff accepted, and on the fame day, and at the fame time the defendant gave the plaintiff a

memorandum as follows.

"London, 3d June 1772, drawn this day on Mr. Dirk Vans "derheyden for one hundred and forty-two pounds ten fhillings two months after date, which I promife to pay when due. -Rowland De Parba."

Before the faid bill became due the defendant indorfed the fame to one Mr.Del Vallie; that the bill drawn on the plaintiff became due the 6th day of August 1772, on which day it was prefented to the plaintiff for payment, but the plaintiff not paying the bill, the fame was noted for non-payment, and Mr. Del l'allie the indorfee and holder of the faid bill applied to his attorney in a day or two to write to the plaintiff, which attorney informed Mr. Del Vallie, he could not get intelligence where the plaintiff lived all that year, nor till the July or Auguft following, and then hearing where he lived he demanded paya ment as aforefaid; and the plaintiff not paying the fame he was arrested at the fuit of the faid Mr. Del Valle, on the third day of November 1773, and paid the debt of 142/. 10s. together with intereft and colts, amounting in the whole to 156/. 15s. 2d. for which fum, and on the defendant's undertaking, this action is brought.

That in November 1772 the defendant became bankrupt, and à commiffion iffued against him the 17th day of the fame month of November, and he afterwards obtained his certificate which was allowed by the Lord Chancellor the 3d day of February 1773.

The queftion for the opinion of the court is, whether the plaintiff is intitled upon the iffue joined to recover of the de fendant the fum paid by the plaintiff as aforefaid.

This cafe is figned by Serjeant Walker for the plaintiff, and by Serjeant Davy for the defendant. And was argued by them in this term.

It was argued for the plaintiff, that no debt was owing to him by the defendant until after the time he became bankrupt, and therefore the plaintiff could not have come in and fworn to any debt under the commiffion; and the cafes of Chilton verfus Whiffin and Cromwell, ante, fol. 13. and Goddard verfus Vanderheyden, ante, fol. 262. were cited as directly in point.

Vol. III.

M M

Serjeant

(Where a

bond is given

the honesty

and the obligee

afterwards

without the

Serjeant Davy for the defendant, endeavoured to diftinguish this cafe from the two cafes above cited; that thofe cafes were actions upon fpecial undertakings to indemnify, &c. but the prefent action is upon three general counts of indebitatus affumpfit, for money had and received,-money laid out and expended, -and money let and advanced.

But per curiam; this cafe cannot be confidered in any other light than as an indemnity; and is exactly like the cafe of Chilton verfus Whiffin and Cromwell, which was a promise to pay the money upon the bill when due, or to furnifh money for that purpofe; that was a parol promife; in the prefent cafe the promise is in writing; there was no debt owing by the defendant De Paiba to the plaintiff Vanderheyden before he paid the money to Del Vallie, and therefore the plaintiff could not come in and prove any debt under the commiffion. The cafe of Goddard verfus Vanderheyden is [in reafon and fpirit] alfo in point with the prefent cafe. The court alfo held the declaration in this cafe well enough, for in truth the plaintiff has paid, laid out and expended money for the defendant after he became bankrupt. Quere the cafe of Bernardifton verfus Coupland cited by Nares Juftice, as like the prefent cafe.

Judgment for the plaintiff.

Abfent Lord Chief Justice De Grey, and Blackstone, Juftice.

Wright verfus Ruffel. C. B. Entered of Michaelmas term laft. Rolls 484 to 486:

London, JOH
•JOHN

OHN RUSSELL, late of the Hay-Market, in the parish of Saint James, in the liberty of Weflminfler, by fureties for in the county of Middlefex, Blackfmith and Victualler, was fum. and fidelity of moned to anfwer George Wright in a plea that he render to him a broad clerk 500l. which he owes to and unjustly detains from him, &c. to a brewer, And whereupon the faid George by Thomas Strong his attorney complains, that whereas the faid John on the 13th day of July takes a partner in the year of our Lord 1771, at London, (to wit) in the parith of Saint Mary le Bow in the ward of Cheap, by his writing obliknowledge of the fureties, gatory then and there by him made, and fealed with his feal, acthey fhall not knowledged himself to be held and firmly bound to the faid be anfwerable George in the faid 500l. to be paid to the faid George when he fidelity to fuch the faid John fhould be thereunto afterwards requested, yet the partnership. faid John, often although afterwards requested by the faid Georgeto See Barclay pay the fame, hath not yet paid the faid 500l. or any part thereof Lucas, iTerm to the faid George, but the faid John hath hitherto intirely reRep. K. B. fufed and ftill refufes to pay the fame to the faid George, to the

for the clerk's

and others v.

291, where

the doctrine of this cafe is difputed.-See also Barker v, Parker, 1 T. R. K. B. 287.]

damage