argued by my Brother Adair, whofe argument, together with the authorities which he has cited, has convinced my mind, that fitting here, we muft pronounce this to be the finding of all the fix triers. This is a cafe in which fix perfons 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 ferviceable or not. Four of them exprefsly 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 fuch a cafe, where the law compels perfons 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 cafe; for if it is to be understood, upon this record, that this judgment has the effect of a judgment of the fix triers, no queftion remains to be confidered. But upon the act two queftions arife: 1ft, Whether all the fix triers muft concur in their judgment, or whether a majority are fufficient to decide? 2dly, If a majority can decide, what that majority muft confift of? Now it feems to me, that upon the first question the authority of Co. Litt. 181. b. if we went no further, is decifive; because it is there faid in exprefs terms, that in matters of public concern the voice of the majority shall govern. It is to be remembered, that not a fingle cafe, not a dictum has been quoted on the other fide of the question, and that this ftands wholly uncontradicted. In the next place, I think there is great weight in fome of the cafes which have been mentioned, and that the conclufion to be deduced from them goes much further than has been admitted. Wittnell v. Gartham was faid to have been decided upon three different grounds: 1ft, Upon the founders intent; 2dly, On a refemblance to the cafe 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 perfons, does not neceffarily import that all these perfons fhall concur, because if that were neceffarily the legal conftruction of the deed, ufage would be laid out of the queftion. Then we have got thus far upon this cafe, that a deed which gives a power to a certain number of perfons may admit of two conftructions; either that all muft join in the act, or that the majority may do it; in no other way could ufage be admitted; ufage being admitted, it cer tainly had its effect in that cafe. The cafe therefore is open to the argument of inconvenience, which was flightly touched upon: for 1798. GRINDLEY V. BARKER. 1798. GRINDLEY V. BARKER. for if the act admits of two conftructions, certainly the argument of inconvenience applies. Now if it be neceffary that all fhould concur, one man may deftroy the determination of five, though that one may be the leaft qualified of the whole fix to judge; and the confequence will be, that if the defect be in the tanning of the leather, and by the tanners and the cordwainers opinions it be pronounced infufficient, 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 fuch a conftruction cannot be adopted. It seems to me therefore upon the whole view of the cafe, that the majority of the fix muft decide. With refpect to that majority being compofed in any particular way, I can fee nothing in the ftatute which warrants fuch an idea. HEATH J. I am of the fame opinion, and as the cafe has been fo fully entered into, I fhall 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 fkill and difcretion, being delegated to a certain number of men, ought to be exercised by all, or whether it is fufficient that it fhould be exercised by the majority of them? I do not think that either of the three cafes cited at the bar, either the cafe out of Atkyns, or the two cafes out of the Term Reports, directly go to prove the propofition contended for by the Plaintiffs; because thofe decifions might have been maintained upon other grounds, for I obferve that in all the three cafes 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 confidered that the new power ought to be exercifed exactly in the fame way as the old power would be. However, we find fome dicta of very great refpectability, viz. of Lord Hardwicke, and the Judges who prefided in the King's Bench, to fhew that as well upon common law and common reafon as upon the particular circumftances of the cafes before them, the act of the majority concluded the minority. Then the queftion has been argued upon the different claufes of the ftatute, and it seems to me, that a very good anfwer has been given to these claufes. All muft concur in trying, and then though they be of different opinions, fome of one opinion, fome of another, yet all having tried, the majority fhall bind. Though Though we have no particular decifions directly in point, yet there are fome ufages and fome received opinions which are equivalent to decifions. We know very well that in all commiffions of oyer and terminer and gaol delivery, and of the peace, where a quorum is constituted, and it is neceffary that a quorum fhould be prefent to do the acts for which they are appointed, yet if the quorum are in the minority, the majority fhall conclude the minority. For thefe reafons I concur in opinion with his Lordthip and my Brother. ROOKE J. I might reft fatisfied with deciding on the particular circumftances of this cafe, and if I did, I fhould agree, that after the authority of the King v. Foxcroft, four having abfolutely found in this cafe, 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 ftatute are at leaft doubtful, and I am warranted in fo thinking fince the counsel have not confined themselves to contending that the whole body muft concur, but either the whole body or one of each clafs. The latter conftruction feems extremely queftionable, fince the act makes no mention of the three claffes which in f. 24. appoints triers for the country, though they are to examine and try in the fame way as thofe in London. The authority given to the triers in the present instance is general to examine and try whether certain goods are ferviceable or not, and is committed to them for the advancement of public juftice, and as a public truft. Now the decifions are numerous (and may be found in Viner, title Authority, letter B) to fhew that a different conftruction prevails with refpect to private authorities and authorities for the advancement of public juftice. So alfo Lambard in his Juftice of the Peace ftates exprefsly that where a precept for keeping the peace is made jointly to twain, one alone may ferve and execute that precept; following the rule laid down in Co. Litt. 181. b. If this be the cafe and we are not bound by the ftrict words of the act, (which it seems agreed we are not,) but are to give the claufes fuch a conftruction as will beft advance the ends of public juftice, there can be very little doubt how we ought to decide. We fhall 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 fix who compofe the tribunal, are of opinion that the leather is unferviceable, ftill any one man fhall have it in his power to prevent a find VOL. I. R 1798. GRINDLEY v. BARKER. 1798. GRINDLEY V. 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 fame way. Each man is after due examination and inquiry to decide according to the beft of his judgment, and the queftion is to be determined by the opinion of the majority. Judgment for the Defendants. May 11th. If the condition of a bond be to render a perfon in execution who has once it is void. Condition to do DA COSTA v. DAVIS. DEB EBT on bond for 1460l. dated 20th July 1797, and given by the Defendant and one J. G. Kohn to the Plaintiff to procure the release of one Edward May, who was in execution at the fuit of the Plaintiff. The condition was that if the obligors or the faid Edward May should pay to the Plaintiff 730l. and one of two things; intereft, on or before 10th January 1798; or if default should be made in fuch payment, then if the obligors fhould, on the 12th January 1798, furrender the faid Edward May to the Plaintiff, at the house of one Thomas Wright, between the hours of twelve and two, so that he might be again taken in execution, the bond fhould be void. one becomes impoffible, no reason for not performing the other. Plea. That before and at the time of making the bond, May was a prisoner in the Fleet, charged in execution at the fuit of the Plaintiff and several others: that a little before the making of the bond, May requested the Plaintiff to discharge him from the faid execution at his fuit, and offered the bond in queftion as a fecurity for his debt to the Plaintiff; which bond was accordingly given, and May was difcharged from the execution at the Plaintiff's fuit; but that the other creditors having refused to discharge him, he continued a prifoner, 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 furrender 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 faid May, fo 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 faid May, and were ready to furrender and deliver him up to the Plaintiff, fo that he might be again charged in execution, but that neither neither the Plaintiff or any perfon on his behalf was there to receive him. And this, &c. wherefore, &c. General demurrer and joinder. Le Blanc Serjt, for the Plaintiff contended, that no legal excufe for non-performance of the condition was fhewn by the plea. Williams Serjt. contrà infifted, that the condition to furrender had been substantially performed, and cited Freshwater v. Eaton, I Str. 49. where the condition of the recognizance was to furrender 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 furrender to the Marshal of the Marfhalfea 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 prifoner in execution who had been once difcharged, and therefore as the other part had not been performed, the bond was forfeited. Befides that where the condition of a bond is to do one of two things, fhewing that one could not (a) be performed, is no good reafon for not having performed the other. Judgment for the Plaintiff. (a) Unless it become impossible by the act of the obligee. Com. Dig. Condition (K. 2). or by the Act of God. Laughter's Cafe. 1798. DA COSTA V. DAVIS. WHITELOCK Adminiftrator, &c. and Others v. HEDDON May 12th. hold, leafehold, vided that it B. any THIS was a cafe fent under the direction of the Lord Chan- Teftator devised cellor for the opinion of the Judges of this court, which "all his freeftated: that Thomas Whitelock (the teftator) being feifed of a leafe- . estates" to hold eftate for three lives, under the Archbishop of York, and a 4. fmall freehold eftate, made his will the 31ft August 1778, by thall have " which after giving to his fon John Whitelock an annuity of 201. fon or ions," for life, charged on his freehold, leafehold, and fountainfhold male iffue as B. eftates at Monckton Mains and Baldersby in the county of York, fhall have when and alfo a further annuity of 20l. for life, after the death of twenty-one," Mrs. E. Beckwith charged on the fame eftates, and also an then "to fuch A. attains but A. to have the rents and profits of the eftates till he attains twenty-one; by a fubfequent clause he gave "all the refidue of his real and perfonal eftates 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 fecond who was born three weeks after that period; held that the firft fon took nothing, but that the second took an estate in tail male. |