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 considered as in the nature of an estate tail in Richard Clemett, 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 remainder 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. Saturday, Nov. 28th. In an action against a per son licensed to SERGEAUNT and Another, qui tam, against THE THE plaintiffs declared in debt for penalties upon the post-horse duty act, 48 G. 3. c. 98., and the third cover a penalty which was the only count in question, stated that the defendant, so being such person letting horses to hire, let horses to re for not insert ing in his week. ly account the time for which he let to hire and usually letting horses to hire, and being so licensed 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 pay able 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 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 17. 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. 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. 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, (b) 2 East, 2. was was held to be sustained by proof that he let and did not account for five. 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. 1812. SERGEAUNT against TILBURY. Per Curiam, Rule absolute. (a) 6 T. R. 265. LEAPER 1812. Saturday, Nov. 28th. In assumpsit against the defendant as acceptor of a bill of exchange, and upon an account stated, evidence that the defendant acknowledged his acceptance and that he had been liable, but said that he was not liable then, because it was out of date, and that he could not pay it, it was not in his power to pay it, was held sufficient to take the case out of the statute, upon a plea of actio non accrevit infra sex annos. The plaintiff may declare on the original promise, al ' though he re lies on the sub sequent pro mise to take the case out of the statute of limitations. THE LEAPER against TATTON. HE plaintiff declared in assumpsit as the indorsee of a bill of exchange, drawn on the 10th of October 1796, by M. Smith, upon the defendant, at two months' date, for 201. 5s., payable to the order of the drawer, which was accepted by the defendant, and afterwards indorsed by the drawer to the plaintiff; and the special count concluded with this averment "of which said indorsement the defendant afterwards, &c. had notice, by reason of which said premises and according to the said custom and by the law of merchants, he the defendant then and there became liable to pay to the plaintiff the said sum of money specified in the said bill of exchange, according to the tenor and effect of the said bill of exchange, and of his said acceptance thereof; and being so liable, the defendant, in consideration thereof, afterwards promised," &c. The declaration also contained the common money counts. The defendant pleaded non assumpsit, and also that the several causes of action in the declaration mentioned, did not accrue to the plaintiff at any time within six years next before the exhibiting of the plaintiff's bill. To the last plea the plaintiff replied that the said several causes of action did accrue to the plaintiff within six years, &c. At the 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 |