1787. The KING against MATTINGLEY. a fraudulent purchase, no settlement could be acquired by it. In the case of The King v. The Inhabitants of Tedford there was a purchase for 391.; the purchase-money was in fact paid, and it was the money of the pauper, though part of it was borrowed on a mortgage of the very estate which he purchased: and that was properly holden to be a bona fide purchase of an estate for 30%. But here it cannot be contended that the pauper gained a settlement in the parish of Mattingley by virtue of a purchase for 30%. when in point of fact that sum has not been paid. In order to constitute a purchase within the 9 Geo. 1. the sum of 30%. must not only be paid in point of fact, but it must be bonâ fide paid. Rulé absolute. Tuesday, June 14th. If on the return of a writ in a personal action the defendant cast an es soign which is not liver his de claration on of the fol lowing term, the defendant is not entitled to an im THE ROOKE against The Earl of Leicester. HE plaintiff sued out a writ against the defendant, who was a peer of Great Britain, in a personal action, returnable the second return of Easter Term. At the return the defendant cast an essoign, which was not adjourned to any particular day. And on the first day of Trinity Term the plaintiff delivered his declaration. Baldwin moved that the defendant might have an imparlance to Michaelmas Term, the declaration not having been delivered before the essoign day of Trinity Term. Lane shewed cause. BULLER, J. In the case of Argent v. The Dean and Chapter the first day of St. Paul's (a), it was held, first, that a corporation was not entitled to an essoign, and secondly, that there could be no essoign in a personal action; and there the Court quashed the essoign. Where an essoign is cast, the parties should adjourn it to a particular day but as that was not done here, and as no motion was made to quash the essoign, the declaration could not be delivered till the first day of the term. But the defendant is not entitled to an imparlance where the plaintiff is prevented from declaring before the essoign day by an essoign cast. And the Court will be glad to use any means to prevent such a delay attempted by the defendant. parlance. 126, 137.] Rule discharged. (a) E. 23 G. 3. B. R. [Repd. 16 East. 8.] 8 SAMBIDGE SAMBIDGE against HOUSLEY in Error. 1787. Thursday, June 13th. AFTER verdict in an action of debt in the Court of Com- If the de fendant in error from B. R. give rule to cer record may in less time, mon Pleas, a writ of error was brought, returnable the last return of Easter Term; and bail being perfected, a rule G. b. into was given by the defendant in error, signed by the clerk of the an eight-day errors, to certify the record in eight days, otherwise a nonpros tify the rewould be entered. This rule was served on the 18th of May, cord, the and the record was certified, before the first day of this Term. be certified The defendant, after the record was certified, and three days in before this Term, sued out a scire facias quare executionem non, rule expire tested the last day of Easter Term, and returnable the first day tien; and of this Term, and a warrant thereon was served on the plaintiff a scire facias the first day of this Term. On the same day the plaintiff was tionem non also served with a rule to appear to the scire facias, and another having been rule to assign errors on record. though the in vaca. quare execu issued immediately upon the fied, return Runnington obtained a rule to shew cause why the scire facias record beshould not be quashed for irregularity, on two grounds; first, ing certithat the record should not have been certified before the first able the day of the present Term, till which time the scire facias should first day of not have been sued out; and secondly, that the rule to assign errors should not have been given before the rule to appear to the scire facias was out. the follow ing term, the defend ant may serve the plaintiff in error on that day with a the pear to the scire facias, rule to ap and a rule to Marshall shewed cause, insisting that the rule signed by the clerk of the errors to certify the record in eight days, and the compliance of the officer, were sufficient evidence of what practice was. And though the rule on the officer was to certify the record in eight days, yet when it is certified here, the party assign errors. [6T.R.367. As to the rule to appear to the scire 15 East. may proceed upon it. facias, and that to assign errors, being both served on the same 646.] day, they are perfectly consistent, because the object of both is to compel an assignment of errors. The rule to appear to the scire facias is only to bring the plaintiff into Court, as he has no But if the plainday in Court given him by the writ of error. tiff do not assign errors before the rule expires, and suffer judgment to pass upon two nihils, though the defendant may sue out execution, yet he will be entitled to no costs in error, and the And therefore the writ of error may still be proceeded upon. defendant gives a rule on the transcript to assign errors, and if the plaintiff do not assign errors in four days, the defendant may VOL. II. C sign 1787. sign a nonpros, which will entitle him to the costs in error. But without a rule to assign errors a writ of error connot be nonSAMBIDGE prossed. 3 Burr. 1772. against HOUSLEY. BULLER, J. The proceedings are regular on both grounds. As to the first; the record was brought into this Court in the vacation; then it remains as a transcript of the last term. It is not necessary that the officer should have eight days allowed him to transcribe it; it is his duty as an officer of the Court to transscribe it as soon as he can. And though eight days are mentioned, which he is not to exceed, yet if he can certify the record in less time, he should do it. Then as to the other point, there is no ground for it as an irregularity; the two rules are consistent, being both for the same purpose. Thursday, In a convic- 5 An. c. 14. 5. 4. evi dence, that stroy the game, was held suffi cient. In a con Per Curiam, THIS Rule discharged. The KING against RICHARD THOMPSON. HIS was a conviction on the 5 An. c. 14. s. 4. stating, according to the precedent in 2 Burn. 329. (a) the information against the defendant on the 8th December 1786, the apthe defendpearance of the defendant on the 9th, after being summoned, ant kept and and the plea of Not guilty; and then proceeding as follows; neused a gun to kill and devertheless, on the said 9th day of December, in the year aforesaid, at &c. one credible witness, to wit, Richard Taylor of, &c. cometh before me the said justice, and before me the same justice, upon his oath on the Holy Gospel to him then and there viction, if by me the aforesaid justice administered, deposeth, sweareth, [6 T. R. 76. Ibid. 177. and upon his oath aforesaid affirmeth and saith, that the de7 lbid. 152. fendant on the 7th day of December aforesaid, in the afore284. 1 East. said, at, &c. [negativing the qualifications of the 22 & 23 Car. 642. 9 Ibid. 358.] 2. c. 25. s. 3.] did keep and use a gun to kill and destroy the game; the defend- and thereupon the said Thompson, (the defendant,) the said 9th day of December, in the year aforesaid, at, &c. before me the same justice, by the oath of one credible witness aforesaid, acgiven on the cording to the form of the statute aforesaid, is convicted, and the Court for his offence aforesaid, hath forfeited the sum of five pounds, will intend, to be distributed as the statute aforesaid doth direct, &c. 8 Ibid. 220, ant appear and plead, and the evidence be same day, that the evidence was year This was argued last term by Cockell, Serieant, against the congiven in the viction, and Lambe in support of it; when it was objected, that defendant's presence. Where the conviction after stating the evidence, stated, "thereupon the defendant on, &c. at, &c. before me, &c. by the oath of one credible witness, according to the form of the statute is « convicted,” it was held to be an adjudication of the justice that he is convicted of the offence. 66 (a) Tit. Game Precedents at the end Letter E. The KING against THOMP SON. it did not appear upon the conviction of what the defendant had 1787. been convicted; it is only said, "thereupon the defendant on, " &c. before me the same justice by the oath of one credible wit"ness according to the form of the statute is convicted, and for "his offence aforesaid hath forfeited, &c." This is only a conclusion of law, and not an adjudication of the justice. There is nothing to connect it with that which precedes it; such as that " he is convicted of the premises," or, "in manner and form "aforesaid." And they cited the following cases: The King v. Jarvis, 1 Burr. 148. The Queen v. Matthews, 10 Mod. 26. The King v. Pickles, cited in 1 Burr. 153. and The King v. Green, H. 24 G. 3. B. R. And it was observed that this conviction was taken from the precedent in Burn (a). The Court were clearly of opinion that there was no ground for that objection; but they desired it might be argued again on another objection, which they suggested to the counsel; whether the evidence was sufficiently set forth, so that the Court could see by what act the defendant had incurred the penalty; for they observed that the act of keeping a gun was in itself ambiguous, and that it must be shewn to be kept for the purpose of killing game, in order to bring the party keeping it within the act of parliament; it was not like keeping a greyhound or a snare which could not be kept for any other purpose, and which was expressly prohibited by the act. Wood now argued against the conviction. It is a fatal objection that the evidence, on which the conviction is grounded, is not particularly set forth. The evidence which is stated is merely a repetition of the information. Only the result arising from the facts is set forth; but every part of the evidence ought to have been specially shewn; that this Court might have had an opportunity of judging whether the justice convicting drew a legal and proper inference from the facts sworn to, so as to bring the defendant within the penalty of the act of parliament. In the case of the The Queen v. Green (b), it was objected that the evidence, upon which the defendant was convicted, was not set forth. It was only said, that the witness was sworn de veritate pramissorum, without saying, "what the answer of the witness was." And though it was said, that it did appear, from what was sworn to the justice, that he was guilty, yet it was answered, that it ought to have appeared so to the Court from the nature of the (a) 1 Burn, 328. (6) 10 Mod. 213. C 2 evidence The KING against THOMP SON. 1787. evidence specially set forth. And the Court were of that opinion. In the case of The King v. Killet (a), this doctrine was recognized, where it was objected, that the justice only stated "that the charge as set forth, being duly proved before him, &c." and the objection was held to be fatal, because he did not set forth the evidence particularly. It was there determined, “ that "upon a conviction, it is necessary, that the evidence should be "set out, that the Court may judge whether the justices have done right." The same law is declared in the case of The King v. Vipont (b). Now in the present case it does not appear for what purpose the gun was kept, or in what manner it was used. The act of keeping a gun is equivocal; it may be used for other purposes than that of killing game; and therefore the facts of keeping and using should have appeared by the evidence, in order that this Court might see whether it was kept and used for the purpose of destroying game. This is not like keeping a lurcher, the bare keeping of which is evidence of the purpose for which it is kept. In The King v. Filer (c), a difference was taken as to keeping a dog, which could only be to destroy the game, and keeping a gun, which a man might do for the defence of his house. And though it is here said, that "the defendant used the "gun, &c." it ought to have appeared by the evidence how he used it. The evidence, which was given before the justice, could not have been given in the manner in which it is stated in the conviction; for this evidence is the language of the act of parliament and even if it were given in this general way, the justice ought to have refused it. If this evidence were allowed to be sufficient, the Court will never on any future occasion be able to judge whether a defendant has been properly convicted, because the evidence will always be stated in the very words of the information. Chambre, contrà, did not dispute the general rule that it was necessary to state the evidence particularly in a conviction, but insisted that in the present case the evidence was sufficiently stated. The case of The King v. Filer is not applicable to the present; for there it was only said that "keeping a gun" was not sufficient to bring the defendant within the act of parliament, unless he kept it for the purpose of destroying game, because he might keep it for the defence of his house; but here it is expressly stated that the defendant "kept and used the gun to kill and destroy the (a) 4 Burr. 2063. (b) 2 Burr. 1163. (c). I Stra. 496. 66 game," |