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versus LIAMSON

On the 1st of January, 1781, all the estate, power, 1804. &c. of E. Hyde, by the exception in the above Cheetham conveyance, became and now are vested in the wu plaintiff, in fee, as amply as they were held by and Others. Hyde, who is also entitled to the rights reserved out of the other estates in fee. That for upwards of, and within, sixty years the persons claiming under Edward Hyde, by virtue of the above ešception, and their lessees, have got coals under the lands, and made allowances for the injury done to the lands. That by an agreement, dated 4th of November, 1782, between the plaintiff and one Fletcher the agent of G. H. Clarke, for the management of his collieries worked by a water engine, Clarke being then resident in Jamaica, it Was agreed, inter alia by the plaintiff, to set bis coals in Haughton, that lie above the level of or can be laid dry by Mr. Clarke's present water engine, in Haughton, to Mr. Clarke, of Hyde, except so much of his coal as is in a meadow in Haughton, called Jasper Meadow, in the occupation of S. Hague, which Mr. Cheetham agreed to set to Mr. Arden, of Stockport, together with the liberty of sinking pits for the getting and vending the same. The special verdict then set out the residue of the agreement, and “ that such part of the coals mentioned in the indentures of the 29th and 29th of March, 6 W. and M. as lie above the level, in the agreement mentioned, are part of the coals comprized in the above agreement. That G. H. Clarke assented to the agreement, and got the coals under it according to the terms of it; part of which was that he should pay one penny for every horse-load of coal so gotten and sold. That G. H. Clarke, on the 22d December, 1798 demised to the defendants the coal mines mentioned in the agreement, together with his other coal mines in Haughton, as tenants from year to year; and they entered and were possessed thereof. That the defendants got the coals in question under the premises mentioned in the indentures of the 28th and 29th Dlarch, 6 W. and M.; that they were gotten under a level of the water engine of G. H, Clarke, mentioned in the agreement, and that no part of the said coals were com

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- 1804. prised in the said agreement. That notice was given by

the plaintiff to the said defendants not to get the coals so versus situated, and that the defendants, after such notices, got

SON and converted the same to their own use.

WILLIAMSON ind Others,

LITTLEDALE, for the plaintiff, cited Shepherd's Touchstone, 77. Co. Lit. 47, a. Drake v. Munday, Cro. Car. 207. Co. Lit. 143, and Dyer, 276, and argued that the covenant by Hobson, in the indentures of 28th and 29th of March, to permit Hyde and his heirs to enter and get coal, was a reservation and exception out of the estate conveyed by Hyde, and gave him and his heirs an ex. clusive right to the coals, and not a right merely concurrent with Hobson and his heirs. For this purpose also he cited Lord Mountjoy's case.*

Lord ELLENBOROUGII, C. J. stopping Woov on the other side. « This case appears to me to involve no point of difficulty. In contemplation of law Edward Hyde was a perfect stranger, as to any legal estate, and therefore could neither grant the legal estate, nor consequently reserve to himself any thing out of it. He possessed only the equity of redemption, and could convey only that which he possessed. The case of Lord Mountjoy, in Anderson, is a decisive authority against the plaintiff in the second resolution : nor is there a single case in the law to

shew that where a man has the liberty of getting coals - he is considered as having an absolute property in the

soil, so as to maintain an action of truver. The decision of the twelve Judges in Lord Mountjoy's case is decisive of the negative of that question. Here Nettleton only is seised in fee; he conveyed to Hodgson; and Hyde only confirmed the estate by conveying to him the equity of redemption. How it might have been if there were a livery of seisin, or a feoffment by Hyde, and he had passed the legal estate, it is not necessary now to decide. But

* Anderson, 307. Moor, 174. Godó. 17. 4 Leon. 147.

versus

that makes the distinction between this and Lord Mount- 1804. joy's case; for he was seised of the legal estate, and re- CHPETHAM served out of that estate a liberty to himself to dig and

WILLIAMSON carry away the allum. Here the plaintiff has not an ex. and Others. clusive right to the whole, but only a liberty.

JUDGMENT FOR THE DEFENDANTS.

PARSLOE versus DEAR LOVE.-Jan. 26.

A schoolmaster takes the son of B. to board for half a year, ending the
24th of June ; the son is taken home for the holidays on the 18th; B.
becomes bankrupt on the 20th : Held, the half year's board is not a debt
proveable under the commission against B. and therefore not barred
by his certificate.
Semble. The statutes, 7 Geo. I. c. 31, and 5 Geo. II. C. 30, apply
only to the written securities therein mentioned, and debts secured
thereby.

ACTION of Assumpsit by a schoolmaster for board,

&c. for the defendant's child ; the defendant pleaded his bankruptcy and certificate. The facts proved on the trial were, that the plaintiff was to be paid half-yearly, the half year ending the 24th of June. The plaintiff took his child away from school before that time, viz. on the 18th, and became a bankrupt on the 20th ; and the question was, whether this was a debt proveable under the commission.-Lord ELLENBOROUGH, C. J. who tried the cause, thought that it was not, and a verdict was found for the plaintiff

ESPINASSE now moved for a new trial, contending that under the statutes 7 Gto. I. c. 31, s. 1, and 5 Geo. II. c. 30, this being a debt certain, and payable at a certain day, might be proved under the commission. That the contract was entire for the half year, and that upon the taking away the child, the master having done all on his part up to that time, and being prevented by the TOL, III. No. 17.

00

1804.

PARSLOE

tersus DEAR LOVE.

father's own act from doing more, might immediately have brought an action for the whole. He stated that the 18th of June was the day when the school broke up for the holidays. He also cited Cochrane v. Love,* and Henbest v. Brown, t to shew that the statute extended to all debts, which are debita in presenti solvenda in futuro

Lord ELLENBOROUGH, C. J. “At the trial, when this point was made, I looked into the statutes, and found the word securities running through the whole of them. I therefore over-ruled the defendant's Counsel, because I thought they applied only to debts founded on the written securities therein mentioned. The case cited from Peake's Nisi Prius, is stated only as the inclination of the opinion of Lord Kenyon. This was a subsisting contract at the time of the bankruptcy, and not proveable under the commission.

THE RULE NISI REFUSED.

Cooper versus HUNCHIN, otherwise HUNCHEON.

Thursday, February 7th.

Interlocutory judgment being obtained in assumpsit against a feme sole,

final judgment may be entered, and a ca. sa. may issue against her as a feme sole, although she marry before the suing out of the ca. sa.

COOPER

versus IIUNCHIN.

ON a rule to set aside the ca. sa. issued in this cause,

and upon which the defendant was taken into custody, for irregularity, with costs; the defendant swore that since the interlocutory judgment in assumpsit for goods sold and delivered, she had intermarried with one Robert Ridgway, of which the plaintiff and his attorney had notice.

ESPINASSE shewed cause, relying upon 3 Blackstone's Commentaries, 414, and Doyley v. White, Cro. Jac. 323,

Cooke's Bankrupt Laws, 18. 23. + Peake's Nisi Prius Ca. ' 1804.

COOPER

versus HUNCHIN.

to shew that “ If an action be brought against an husband and wife for the debt of the wife when sole, and the plaintiff recovers judgment, the capias shall issue to take both the husband and wife in execution ; but if the action was originally brought against herself when sole, and pending the suit she marries, the capias shall be awarded against her only, and not against her husband.”

Barry, in support of the rule, endeavoured to distinguish this case from Doyley v. White, which, he said, was a case of trespass. And he cited also Salkeld, 117, and Shower, 91. “ If a woman gives a warrant of attorney and marries, the judgment may be entered up against both."

| Lord ELLENBOROUGH, C. J. “ That being upon a warrant of attorney, the suit itself may be considered as commenced when the judgment is entered up.”

Barry then cited Barnes' Notes, 167Rownson and Fife v. Williamson; and 3 P. Wms. 409---Heard and Wije v. Saunders; and upon being questioned by the Court as to what step the plaintif should have taken, | contended, that he should have sued out a scire facias against the husband and wife.

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Lord ELLENBOROUGH, C. J. “ In this case as the execution follows the nature of the judgment, which is against the defendant, as a feme sole, the plaintiff could only have the execution against her. Whether the defendant can bring a writ of error, coram nobis, is another question. He does not want a scire facias to charge any other person than the defendant. He has a right to take the body of the defendant if he does not wish to proceed against the husband..

Lawrence, J. " According to the general rules of pleading there is no necessity for a sci. fa. unless there is some alteration in the parties to the record, and it is sued

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