bad. Doe, Leffee of Spicer, v. Lea, T. 49 G. 3. 312 7. An order of removal, executed and unappealed againft, is conclufive as to the fettlement of the pauper at the time of fuch order, even as between third parishes no parties to the former order. The King v. The Inhabitants of Corfham, T. 49 G. 3. ubmitted to a jury, on which they might prefume a grant of enfranchifement; although the manor had continued out in leafe from before 1636 to 1804; and though a tablet of parochial benefactions, at least as old as 1656, which was fufpended in the parish church, noticed the gift of the copyhold by furrender, but did not notice any enfranchifement of it. Roe, Leffie of Johnson, 8. v. Ireland, T. 49 G. 3. 280 4. In cafe against a judgment creditor for maliciously faing out an alias fi. fa. after a fufficient execution levied upon the plaintiff's goods under the first fi. fa. held that the fheriff's returns indorfed upon the two writs, (which writs had been produced in evidence by the plaintiff as part of his cafe,) wherein the sheriff ftated that he had forborne to fell under the first, and had fold under the fecond writ, by the request and with the confent of the now plaintiff, were primâ facie evidence of the facts fo returned; credence being due to the official acts of the theriff between third perfons. Gyford v. Woodgate, T. 49 G. 3. 297 5. Where a witnefs admitted herfeit to have been connected with different men, and the judge thought it immaterial to hear witneffes tendered by the defendant to fhew her connexion with other perfons; as leading merely to the fame conclufion as to her character; the court being fatisfied that this could have had no influence on the verdict, refufed a new trial on that account. The King v. Teal, T. 49 G. 3. 311 6. A leafe of lands by deed, fince the New Stile, to hold from the feaft of St. Michael, must be taken to mean from New Michaelmas, and cannot be fhewn by extrinfic evidence to refer to a holding from Old Michaelmas and a notice to quit at Old Michaelmas, though given half a year before New Michaelmas, is 388 Upon a devife to the teftator's wife of all his wines, &c. for housekeeping, in addition to the fettlement he had made her upon his copyhold eltate; and to his niece M. the rents and profits of his new inclofed freebold cow pallure in North Collingham, during the life of his wife; and then to two nephews all his perfonal eftate, to be divided between certain nephews and nieces, and their fons and daughters and after the decease of his wife, he devised to the fame two nephews all his furniture, plate, &c. and all his copyhold eftates in North and South Collingham," and all other his perfonal eftate, to fell and divide among his nephews and nieces &c., including T. B. who, he declared, fhould be an equal fharer in this divifion of his real and perfonal eftate: held that extrinfic evidence could not be given, that the fettlement on his wife included a certain freehold clofe, mistakenly there enumerated as one of feveral copyhold clofes fettled, and which was in fact intermingled with the copyholds, (as were alfo fome other freehold clotes, the bounds of which were no longer diftinguishable from the copyhold, and all of which freeholds were included in the fettlement;) for the purpofe of fhewing that by the devife of all his copybold eftates in North and South Collingham," after his wife's decease, in truft to be divided, &c. the freebold clofe in queftion paffed; as meant to include all his real eftate in fettlement upon his wife, and which fettlement was re ferved 9. ferred to in the firft devife to the wife. And as the fettlement which was thus referred to in the former part of the will was not evidence for that purpose, fo neither were other inftruments and papers, not referred to, admiffible for the fame purpose; fuch as, 1. A bond of the fame date with the fettlement, and in aid of it, fpeaking only of copybold to be fettled; 2. The rough draught of the fettlement altered by the teftator; 3. A book indorsed "Collingham eftate farvey," kept with the muniments of his property, and including the freehold in queftion, without diftinguishing it from the copyhold clofes; and 5. A rental kept in the fame place, and on which was indorfed by the teftator, that "all the "rents of the copyhold lands in North "and South Collingham, &c. were "fettled on his wife for life." For there is no ambiguity on the face of the will; the teftator having copybold eftates in North and South Collingham to anfwer the defcription in it. Nor is there any reference from the devife in queftion to the fettlement, but by connecting it with the antecedent devise to the wife; and there is no fuch neceffary connexion. Nor does it follow that the teftator meant to devife the fame premifes under the name of copyhold to the trustees, as were fettled on his wife; or that he was under the fame miftake that the clofe in question was copyhold when he made his will, as when he made the fettlement or indorfed his rental: and therefore there is nothing appearing on the will to warrant a conftruction of the word copybold fo contrary to its ordinary acceptation as to include the freehold in question. Doe, Leffec of Brown, v. Brown, T. 49 G. 3. 441 Under what circumftances a grant or licence from the crown to hold or occupy crown land may be prefamed. See EJECTMENT, 5: 10. Evidence of Seifin, fee FINE, I. 11. A certain paper being found along with other papers relating to the private concerns of the perfon laft feifed, after his death, in a drawer in his houfe; which paper purported to be the will of a perfon anfwering the defcription of his grandfather, made in 1738, but which was found cancelled, and no evidence was given of its ever having been acted upon, or probate of it taken out; is yet evidence of its recognition by the party laft feifed, as the declaration of his ancestor concerning the ftate of his family, fo as to let in the contents of it for the purpofe of fhewing that that ancellor acknowledged a brother of the name of Thomas to be older than another brother of the name of William; affuming the jury to be fatisfied of the fact, that the paper fo found was kept there by the perfon laft feifed with a knowledge of its contents, and that no impofition was practifed. Doe, Leffee of Johnfon, v. the Earl of Pembroke, M. 50 G. 3. 504 12. In an action for a malicious profecution, the copy of the original roll or record of acquittal given in evidence, ftated the finding of the bill of indictment against the now plaintiff in B. R., the procefs to bring in the party, her appearance, and plea of not guilty in Mich. term, and the joining of iffue in the fame court; and then it ftated the venire facias juratores returnable in Hilary term, and the diftringas juratores, by which the fheriff is commanded to have the jury before our faid lord the king at Weftminster, on Wednesday next after 15 days from Eafter, OR before the Lord Chief Justice if he fhould come before that time, i. e. on Tuesday next after the end of the term (Hilary), at Westminster, &c. in tha great hall of pleas there; and then after giving a day day in bank to the profecutor and defendant, it proceeded-on which day, viz. on Wednesday next after 15 days, c. before our faid lord the king, at W., came the parties; and the Chief Justice before whom the faid jurors came to try, &c. fent here his record (which is the nifi prius record) in these words; (which are the words of the poftea indorfed on the nifi prius record ;) viz. afterwards, on the day, and at the place laft within mentioned, before the Chief Juftice, &c. and fo it proceeded to fet out the trial, and the verdict of not guilty; (which is the conclufion of the poftea on the nifi prius record fent into the court in bank by the Chief Justice:) and then the original roll proceeded-Whereupon, all the premises being feen by the court of our faid lord the king now here, it is confidered and adjudged by the faid court now here, that M. W. (the now plaintiff) do depart here without day, &c. on Wednesday next after 15 days, "&c. in the court of our faid lord the "king, before the king himself, at W. "before the Lord Chief Juftice af"figned to hold pleas before the king himself, &c. W. J. being "affociated with him, &c. was in "due manner and according to the "due courfe of law by a jury of the faid county of M. acquitted, &c. ;" which allegation fuppofed the trial to have been in bank on the returnday there given. Woodford and Mary bis Wife v. Afhley, M. 50 G. 3. 508 13. A rated parishioner not being bound, upon an appeal touching the fettlement of a pauper, to give evidence against his own parish, the oppofite parish may give evidence of his declarations as to the facts in iffue; the weight due to which muit depend upon his means of knowledge as to the facts fo declared, and the genuineness of the declarations, to be collected from circumstances. The King v. The Inbabitants of Hardwick, M. 50 G. 3. The form and component parts of the original roll, or record of acquittal, being thus understood; it follows that the words of the poftea, "afterwards, on the day and at the place laft within mentioned," stated in the indorsement on the nifi prius record, as fent by the Ld. Chief Juftice into the court in bank, refer to the day and place laft mentioned in the diftringas juratores fet forth in that record; namely, to "Tuesday next "after the end of the term, "(Hilary) at Weftminster, &c. in "the great hall of pleas there ;" which was the day and place at nifi prius given; and not to the " Wednefday next after 15 days, &c. before our faid lord the king at W.;" which was the return day in bank in the fubfequent term, and confequently after the trial was had; though the statement of this return day intervenes on the roll between the ftate-1. A fee does not pafs by a refiduary ment of the day and place given to 578 14. Where the plaintiff declares on a covenant in a deed, ftating fuch covenant by itself in its own abfolute terms, it feems that the defendant may give in evidence on non eft factum, that other parts of the deed in their legal effect qualified the generality of the covenant declared on. Howell v. Richards, M. 50G. 3. 633 EXECUTORS, claufe in a will, whereby the tefta tor tor, after feveral pecuniary bequests, ordered the leafe of his house, with his furniture, to be fold, and all the reft and refidue to be divided among it certain perfons; and appointed exccutors: for fuch divifion of the rest and refidue must be intended to be made by the executors, as fuch, and therefore confined to perfonal property. Bebb v. Penogre, E. 49 G. 3. his poffeffion during the period för which the rent is received. Do, Leffee of Ofborn, v. Spencer, M. 50 G. 3. 495 FOREIGN JUGDMENT. Evidence of an account flated, whereby 160 2. Where one devifes land to five truftees to fell and apply the money to certain afes, and afterwards makes the fame perfons his executors; they do not take the land as executors, but as devifees in truft and joint tenants. And at any rate the cafe is not helped by the ftatute 21 H. 8. c. 4. fo as to pass the whole eftate upon production of a conveyance purporting to be executed by the five, but the execution of which by three only could be proved. But taking it to be a conveyance by the three only, I. it would fever the joint-tenancy and convey 3-5ths of the estate to be held in common with the two re maining parts. Denne, Leffee of Bowyer, v. Judge, T. 49 G. 3. 288 FINE. Where a fine was levied of Michaelmas term, relating to the 6th of November, though in fact levied on the 8th; it is fufficient evidence of the feifin in fact of the cognizor at the time of the fine levied, that a writ of poffeffion after a recovery in eject. ment was executed on his behalf on the evening of the 6th, by the officer's entry on the land and claiming it for the cognizor, but without any actual change of the tenant in poffelfion, who afterwards paid rent to the cognizor. And fo it feems the receipt by a lawful poffeffor of rent due after a fine levied, for a period antecedent to fuch fine, is primâ facie evidence, if no covin appear, of the defendant admitted a certain balance due to the plaintiff, is not done away, but confirmed in fupport of an affumpfit, by evidence of a foreign judgment recovered by the plaintiff for the fame fum, with a stay of execution for fix months to enable the defendant to prove a counter demand, if he had any: and the plaintiff not having declared till after that period, it was held no objection that the writ was fued out and the defendant arrefted before. Hall v. Odber, E. 49 G. 3. 1:8 FRAUDS, Statute of, 29 Car. z. c. 3. If it appear to have been the un. derstanding of the parties to a contract, that it was not to be completed within a year, though it might be and was in fact in part performed within that time, it is within the 4th claufe of the ftatute of frauds; and if not in writing figned by the party to be charged, &c., it cannot be erforced against him. And his fignature in a book intitled "Shakespeare (ubfcribers, their fignatures," not referring to a printed profpectus which contained the terms of the contract, and which was delivered at the time to the subscribers to the Boydell Shakespeare, cannot be connected together, fo as to take the cafe out of the ftatute, as fuch connexion could only be established by parol evidence. Boydell v. Drummond, E. 49 G. 3. 142 2. A contract by the owner of a clofe cropped with potatoes, made on the 21ft of November, to fell to the defendant the potatoes at fo much a fack; the defendant, to get them Out out of the ground immediately; is not a contract for any intereft in land within the 4th section of the statute of frauds; but the fame as if the potatoes, which had done growing and were to be taken up immediately, had been fold in a warehouse, from whence they were to be removed by the defendant. Parker v. Staniland, T.49 G. 3. FREIGHT. 362 1. Freighters chartered a foreign fhip to take a cargo from London to St. Peterburgh, and to load a cargo there and immediately return to London, paying fo much freight per ton and it was covenanted that if political or other circumstances fhould prevent the shipping a return cargo, or difcharging the outward cargo, the freighters might detain the fhip at St. P. for 40 running days; and it that time elapfed without the outward cargo being delivered, and confequently without the return cargo being put on board, the master fhould be at liberty to return to London, and the freighters fhould pay him 2500l. immediately upon the arrival of the fhip at London. The freighters then procured a policy of infyrance, whereby the underwriters agreed to pay a total loss, in cafe the hip was not allowed by the Ruffian Government to load a cargo at St. P on the chartered voyage. In fact the Ruffian Government, when the ship arrived at St. P., prefuming that the outward cargo was British, refusea permiffion to unload her, and contequently he could not take in a Ruf fan cargo: on which the master, judging for the beft, proceeded immediately to Stockholm, where, after difpofing of the outward cargo to difadvantage, he brought home a Swedish cargo to London, and earned freight thereon, Held, VOL. XI. A ift, That the insurance was legal in the terms of it. 2dly, That the refufal of the Ruffian Government to permit the ship to unload her outward cargo, was in effect, and within the meaning of the contracting parties, a refufal to allow her to load a cargo at St. P.; and confequently that a total lofs within the policy was incurred. 3dly, That the proceeding directly from St. P to London was not a condition precedent to the mafter's right to recover from the freighters the dead freight of 2500/.; but that he was entitled to the fame, notwithftanding the intermediate voyage to Stockholm, under the circumstances; and confequently that the freighters were entitled to recover the fame from the underwriters. But, 4thly, That as the freighters would be entitled to deduct from the fum payable to the master for dead freight the amount of the freight received by him on the cargo from Stockholm to London; though fuch intermediate voyage were not originally contemplated by the contracting parties, but was undertaken upon the emergency; therefore the undertakers were entitled to make the fame deduction from the total lofs ftipulated for by the policy in the event which had happened; every contract of infurance being in its nature a contract of indemnity. Puller v. Staniforth, E. 49 G. 3. 232 GAME. See WILDFOWL. plea to an action of trefpafs, for killing the plain iff's dog, cannot justify the act, by ftating that the lord of the manor was poffeffed of a close, and that the defendant as his gamekeeper killed the dog when running after hares in that clofe, for the prefervation of the hares; fuch plea not even stating that it was ne3 A cefjary |