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1798.

GRINDLET

BARKER,

argued by my Brother Adair, whose argument, together with the authorities which he has cited, has convinced my mind, that fitting here, we must pronounce this to be the finding of all the fix triers.

This is a case in which fix persons are united together as one body, and are required by the act to form an opinion. They are not permitted to say we will form no opinion, but they must decide whether the leather be fufficient and serviceable or not. Four of them expressly decide that it is not; the other two do not agree in that finding, but they do not diffent: and I take it that in such a case, where the law compels persons convened under an oath to form an opinion, if any of them do not pronounce againft the opinion of the majority, they find for it. If that be fo, it puts an end to this case; for if it is to be understood, upon this record, that this judgment has the effect of a judgment of the fix triers, no question remains to be considered.

But upon the act two questions arise: ift, Whether all the fix triers must concur in their judgment, or whether a majority are fuficient to decide? 2dly, If a majority can decide, what that majority must consist of ? Now it seems to me, that upon the firit question the authority of Co. Litt. 181.b. if we went no further, is decisive; because it is there said in express terms, that in matters of public concern the voice of the majority shall govern. It is to be remembered, that not a single case, not a di&um has been quoted on the other fide of the question, and that this stands wholly uncontradicted. In the next place, I think there is great weight in fome of the cases which have been mentioned, and that the conclusion to be deduced from them goes much further than has been admitted. Wittnell v. Gartham was said to have been decided upon three different grounds: ift, Upon the founders intent; 2dly, On a refemblance to the case of corporations; and 3dly, Upon usage. One thing is clear from this authority, that a deed which speaks in general terms, giving a power to a certain number of persons, does not necessarily import that all these persons shall concur, because if that were neceffarily the legal construction of the deed, usage would be laid out of the question. Then we have got thus far upon this case, that a deed which gives a power to a certain number of persons may admit of two constructions; either that all muft join in the act, or that the majority may do it; in no other way could usage be admitted; usage being admitted, it cer. tainly had its effect in that case. The case therefore is open to the argument of inconvenience, which was lightly touched upon :

for

1798.

GRINDLEY

BARKER.

for if the act admits of two constructions, certainly the argument of inconvenience applies. Now if it be necessary that all thould concur, one man may destroy the determination of five, though that one may be the least qualified of the whole fix to judge; and the consequence will be, that if the defect be in the tanning of the leather, and by the tanners and the cordwainers opinions it be pronounced insufficient, yet if one currier declare it to be fufficient, the judgment of the others will not avail. Why, that is unreasonable upon the face of it, and therefore such a construction cannot be adopted. It seems to me therefore upon the whole view of the case, that the majority of the fix mult decide. With respect to that majority being composed in any particular way, I can see nothing in the statute which warrants such an idea.

HEATH J. I am of the same opinion, and as the case has been so fully entered into, I shall very shortly deliver the reasons on which my opinion is founded. In the first place, a question has been made whether or no a power requiring in the exercise of it skill and discretion, being delegated to a certain number of men, ought to be exercised by all, or whether it is sufficient that it should be exercised by the majority of them? I do not think that either of the three cases cited at the bar, either the case out of Atkyns, or the two cases out of the Term Reports, directly go to prove the proposition contended for by the Plaintiffs; because those decisions might have been maintained upon other grounds, for I observe that in all the three cases the powers in question were new powers delegated to bodies of men, in which by several statutes and the common law the acts of the majority conclude the minority; it might therefore be considered that the new power ought to be exercised exactly in the same way as the old power would be. However, we find some dicta of very great respectability, viz. of Lord Hardwicke, and the Judges who presided in the King's Bench, to shew that as well upon common law and common reafon

upon the particular circumstances of the cases before them, the act of the majority concluded the minority. Then the question has been argued upon the different clauses of the statute, and it seems to me, that a very good answer has been given to these clauses. All must concur in trying, and then though they be of different opinions, fome of one opinion, some of another, yet all having tried, the majority fall bind.

Though

as

1798.

GRINDLEY

BARKER.

Though we have no particular decisions directly in point, yet there are some usages and some received opinions which are equivalent to decisions. - We know very well that in all commillions of oyer and terminer and gaol delivery, and of the peace, where a quorum is constituted, and it is neceflary that a quorum fhould be present to do the acts for which they are appointed, yet if the quorum are in the minority, the majority shall conclude the minority. For these reasons I concur in opinion with his Lordihip and my Brother.

Rooke J. I might rest satisfied with deciding on the particular circumstances of this case, and if I did, I should agrce, that after the authority of the King v. Foxcroft, four having absolutely found in this case, and the two others having only refused to concur, will amount to a finding by the whole body. But as that might lay a ground for further litigation, I think it right to be more explicit. I think the words of the statute are at least doubtful, and I am warranted in fo thinking fince the counsel have not confined themselves to contending that the whole body must concur, but either the whole body or one of each class. The latter construction seems extremely questionable, since the act makes no mention of the three classes which in . 24. appoints triers for the country, though they are to examine and try in the fame way as those in London. The authority given to the triers in the present instance is general to examine and try whether certain goods are serviceable or not, and is committed to them for the advancement of public justice, and as a public trust. Now the decisions are numerous (and may be found in Viner, title Authority, letter B) to thew that a different construction prevails with respect to private authorities and authorities for the advancement of public justice. So also Lambard in his Justice of the Peace ftates expressly that where a precept for keeping the peace is made jointly to twain, one alone may serve and execute that precept; following the rule laid down in Co. Litt. 181.b. If this be the case and we are not bound by the strict words of the act, (which it seems agreed we are not,) but are to give the clauses such a construction as will best advance the ends of public justice, there can be very little doubt how we ought to decide. We shall not advance public justice by faying that though a majority of the triers who have had the advantage of all the information to be derived from the whole lix who compose the tribunal, are of opinion that the leather is unserviceable, ftill any one man shall have it in his power to prevent

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a find

1798.

GRINDLEY

BARKER.

a finding by holding out against the reft. All fix muft undoubtedly try; but it does not therefore follow that they must all decide the same way. Each man is after due examination and inquiry to decide according to the best of his judgment, and the question is to be determined by the opinion of the majority.

Judgment for the Defendants.

May 11th.

Da Costa V. Davis.

If the condition of a bond be to

EBT on bond for 14601. dated 20th July 1797, and given by

DEB render a person

the Defendant and one J. G. Kohn to the Plaintiff to proin execution

cure the release of one Edward May, who was in execution at who has once been discharged,

the suit of the plaintiff. The condition was that if the obligors it is void. or the faid Edward May should pay to the Plaintiff 7301. and Condition to do one of twothings; intereft, on or before 10th January 1798; or if default should be one becomes

made in such payment, then if the obligors should, on the 12th impossible, no realon for not

January 1798, surrender the faid Edward May to the Plaintiff, erforming the

at the house of one Thomas Wright, between the hours of other.

twelve and two, so that he might be again taken in execution, the bond should be void.

Plea. That before and at the time of making the bond, May was a prisoner in the Fleet, charged in execution at the suit of the Plaintiff and several others: that a little before the making of the bond, May requested the Plaintiff to discharge him from the said execution at his fuit, and offered the bond 'in question as a security for his debt to the Plaintiff; which bond was accordingly given, and May was discharged from the execution at the Plaintiff's suit; but that the other creditors having refused to discharge him, he continued a prisoner, whereby the obligors were prevented from furrendering him at the time and place in the condition mentioned ; that the obligors, before the day, gave notice to the Plaintiff that they could not surrender May according to the condition, but that May was then in the Fleet, and would be there on the 12th January, between twelve and two, and that the obligors would then and there render the said May, so that he might be again taken in execution; and that the obligors on the 12th January were in the Fleet, and attended there between twelve and two, and then and there had the body of the said May, and were ready to surrender and deliver him up to the Plaintiff, so that he might be again charged in execution, but that

neither

1798.

DA COSTA

Davis.

neither the Plaintiff or any person on his behalf was there to receive him. And this, &c. wherefore, &c.

General demurrer and joinder.

La Blanc Serjt. for the Plaintiff contended, that no legal excuse for non-performance of the condition was shewn by the plea.

Williams Serjt. contra infifted, that the condition to surrender had been substantially performed, and cited Freshwater v. Eaton, i Str. 49. where the condition of the recognizance was to surrender the principal to the keeper of the Palace court; a writ of error in the King's Bench having been brought, and the judgment below affirmed, a surrender to the Marshal of the Marshalfea was held a good performance of the condition of the recognizance.

The Court was of opinion on the authority of Vigers v. Aldrich, 4 Burr. 2482. that the first part of the condition was void, being to render a prisoner in execution who had been once discharged, and therefore as the other part had not been performed, the bond was forfeited. Besides that where the condition of a bond is to do one of two things, shewing that one could not (a) be performed, is no good reason for not having performed the other.

Judgment for the Plaintiff.

(a) Unless it become impossible by the act or by the Act of God. Laughter's Cafe. of the obligee. Com. Dig. Condition (K. 2). 5 Co. 21 B.

it B.

WHITELOCK Administrator, &c. and Others v. HEDDON May rath. and Others.

Po/,559. THI 'His was a case fent under the direction of the Lord Chan- Teftator devised

cellor for the opinion of the Judges of this court, which all his freer ftated: that Thomas Whitelock (the teftator) being feised of a leafe- &c. estates” to hold estate for three lives, under the Archbishop of York, and a 4. in fce, prona small freehold eftate, made his will the 31st August 1778, by shall have " which after giving to his son John Whitelock an annuity of 2ol. Con or fons,” for life, charged on his freehold, leasehold, and fountainfhold male iffue as B. eftates at Monckton Mains and Baldersby in the county of York, hall have when and also a further annuity of 201. for life, after the death of

twenty-one," Mrs. E. Beckwith charged on the fame estates, and also an the rents and

profits of the eftates till he attains twenty-one; by a subsequent clause he gave “ all the residue of his real and personal estates whatsoever, not before disposed of, to A. his heirs, &c. for ever;” B. had one fon who died before A. attained twenty-one, and a second who was born three weeks after that period; held that the firft son took nothing, but that the second took an estate in tail male.

R 22

annuity

A. attains

have

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