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1812.

RoE, Lessee of CLEMETT,

against BRIGGS.

think that after the conveyance to Scaife by Shepherd of
the premises, to hold to him and his heirs and assigns for
ever, freed and discharged of and from all rents, fines,
customary tenures and services whatsoever, there was an
end of the outstanding freehold in the lord, and nothing
to protect or preserve the contingent estate from being
defeated or destroyed. Whether, therefore, this be con-
sidered as in the nature of an estate tail in Richard Cle-
mett, in order to effectuate the general intent of the
testator, according to the cases of Robinson v. Robinson (a),
Doe, on dem. of Cock, v. Cooper, Dodson v. Grew (b), and
that class of cases; or whether it be considered as an
estate for life in Richard Clemett, with a contingent re-
mainder to the heirs of his body (or children) living at
his death; in either way of considering it, we are of
opinion that the lessor of the plaintiff is barred, and that
the postea must be delivered to the defendant.
(a) i Burr. 38.

(6) 2 Wils, 323.

Saturday, Nov. 28th.

SERGEAUNT and Another, qui tam, against

TILBURY.

In an action against a person licensed to post-horse duty act, 48 G. 3. c. 98., and the third let horses to recover a penalty which was the only count in question, stated that the ing in his weckdefendant, so being such person letting horses to hire, ly account the and usually letting horses to hire, and being so licensed time for which he let to hire as aforesaid, and the plaintiffs so being such farmers, &c. two horses, nor the amount of he, the defendant, after the 31st of January and within the duty payable in respect of such hiring, where the declaration alleged that the defendant let to hire for a period of time less than 28 successive days, to wit, for eight days, &c.: Held that the letting need not be proved to have been for the exact number of days laid under the videlicet.

the

1812.

SERGEAUNT

against TILBURY.

the space of six calendar months next before the commencement of this suit, to wit, on the 4th day of De. cember 1809, at Westminster, in the county aforesaid, did let to hire for a period of time less than 28 successive days, to wit, for eight days, divers, to wit, two horses for drawing a certain carriage used in travelling, to wit, in travelling upon a public road, and such horses were on the day and year last aforesaid, used in drawing such carriage in pursuance of such letting to hire, to wit, &c. by reason whereof they became due and payable to the plaintiffs as such farmers, &c. for the duty payable on such letting to hire and using as aforesaid, a large sum of money, to wit, the sum of 11. 8s. The declaration then went on to charge that the defendant afterwards made out a certain account, as and for the stamp-office weekly account, required to be kept and made out by the defendant, including the day on which the said horses were so let to hire and used as aforesaid, without inserting in it the time for which the said horses were so hired as aforesaid, or the amount of the duty payable for or in respect of the said horses upon the said hiring, contrary to the form of the statute in such case made and provided. Whereby and by force of the statute defendant hath forfeited for his said offence the sum of 101. &c. Plea, nil debet.

It was objected at the trial, before Lord Ellenborough, C. J., at the Middlesex sittings, that the evidence did not sustain the count; the count alleging that the defendant let to hire for a period less than 28, to wit, for eight days, and the witness having stated that he was uncertain in his recollection whether the letting was for eight or nine days; whereupon the defendant was allowed to take a verdict, subject to be set

1812.

SERGEAUNT

against TILBURY.

aside and entered for the plaintiff, if the Court should be
of opinion that the count was sustained in proof.

A rule nisi was accordingly obtained for entering the
verdict for the plaintiff.

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Gurney and Puller shewed cause, and contended that the count should have been framed differently, in order to have corresponded with the proof; and instead of alleging the contract to have been for eight days absolutely, it should have alleged it in the alternative, according to Tate v. Wellings (a) and Penny v. Porter (b). If it should be said that the plaintiff is not bound to allege a hiring for any specific number of days, provided he allege it for any number less than 28 days, because the penalty is the same whether the number of days be more or less, it may be answered, that as the penalty attaches for not inserting the time of the hiring as well as the amount of the duty, therefore the time is material, and the contract as to that must be proved as laid ; Carlisle v. Trears (c). The duty also varies with the time, for it is a duty on each day; and it is material, in order to give the defendant notice. Suppose the allegation had only been that the defendant let for a period less than 28 days, without more; would that have been good? if not, it shews that the time is material, and if improperly laid, its being laid under a videlicet will not cure it.

Abbott, contrà, referred to Radford v. M'Intosh (d), where the defendant was charged with letting and not accounting for divers, to wit, eight horses, and the charge (a) 3 T. R. 531.

(1) 2 East, (c) Cowp. 671.

(d) 3 T. R. 632

was

1812.

was held to be sustained by proof that he let and did not account for five.

SERGEAUNT

against TILBURY.

Lord ELLENBOROUGH, C. J. The penalty is certainly collateral to the time of the contract; whether it be for eight, nine, or any period short of 28 days, it matters not as to the penalty, it is material only for ascertaining the duty. The gist of the allegation is that the letting was for a less number than 28 days, and the videlicet is not to fix the precise number, but only to shew it less than 28. I should have thought it unnecessary to make any specification at all; but if it be necessary, the specification need not be precisely proved, being under a videlicet, and not material. This is not like the case cited of usury, where the very contract is of the essence of the charge, and therefore must be truly stated. If this had been a letting for more than 28 days, it would have been different.

BAYLEY, J. The defendant is bound to enter in his account every letting to hire for less than 28 days, and the same penalty accrues from his neglect to do it, whether the number of days, within the period of 28, be greater or less. In Rex v. Gillham (a), upon an indictment for extortion, proof that the defendant took a less sum than the sum laid in the indictment was held sufficient to sustain the indictment. Per Curiam,

Rule absolute.

(a) 6 T. R. 265.

LEAPER

1812,

Saturday,

Leaper against Tatton.
Nov. 28tb.
In assumpsit
against the de

THE plaintiff declared in assumpsit as the indorsee of

THE fendant as ac

a bill of exchange, drawn on the 10th of October ceptor of a bill of exchange,

1796, by M. Smith, upon the defendant, at two months' account stated, date, for 201. 5s., payable to the order of the drawer, , evidence that which was accepted by the defendant, and afterwards the defendant acknowledged indorsed by the drawer to the plaintiff; and the special his acceptance count concluded with this averment " of which said inand that he had been liable, dorsement the defendant afterwards, &c. had notice, but said that he was not by reason of which said premises and according to the liable then, be cause it was

said custom and by the law of merchants, he the deout of date, and fendant then and there became liable to pay to the that he could not pay it, it plaintiff the said sum of money specified in the said bill was not in his power to pay of exchange, according to the tenor and effect of the said it, was held sufficient to

bill of exchange, and of his said acceptance thereof; and take the case being so liable, the defendant, in consideration thereof, out of the statute, upon a afterwards promised,” &c. The declaration also conplea of actio non accrevit tained the common money counts.

The defendant infra sex: annos. pleaded.non assumpsit, and also that the several causes of may declare on action in the declaration mentioned, did not accrue to the original promise, al the plaintiff at any time within six years next before the 'though he relies on the sub- exhibiting of the plaintiff's bill. To the last plea the mise to take the plaintiff replied that the said several causes of action did, case out of the

accrue to the plaintiff within six years, &c. At the statute of limi. tations. trial before Lord Ellenborough, C. J., at Guildhall, the

question turned upon evidence of an acknowledgment by the defendant to take the case out of the statute of limitations :

: a witness swore that the defendant, when applied to for payment, shortly before the action was commenced, said that he had been liable, but was not

liable

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