1798. CAMDEN in Error. foreign commiffion is confidered only as one of the modes in which that trade was carried on. If we find an action brought upon a contract for a few bags of tea, or a few tubs of foreign fpirits bought or fold in the course of a contraband trade, we fay ANDERSON, without hefitation, this is a contract againft law, and no action can be maintained upon it, and if the action were founded upon a policy of affurance upon a fhip, or goods, employed or carried in the course of that contraband trade, we fhould not hesitate to fay, that no action lies upon fuch a policy; and furely it must be a reproach to law and justice if we were now to countenance an action upon this policy, the object of which is, to affure to thefe Plaintiffs the fafety of a ship engaged in a trade fo illicit and clandeftine as this trade has been declared by parliament to be, under fuch aggravated circumftances of fraud and collufion, in the manner of carrying it on, as are defcribed in this fpecial verdict, and which it might have been reafonably fuppofed no man who had a regard for his reputation as a merchant, or had any fenfe of truth and private honour, would have fuffered to have flood againft him upon the public records of one of the King's fupreme Courts of juftice. Let this judgment be affirmed. Judgment affirmed. In this Term Baker John Sellon of the Inner Temple, Efq. was called to the honourable degree of Serjeant at Law, and gave rings with this motto, "Refpice quid moneant Leges." THE END OF EASTER TERM. T 4 CASES ARGUED AND DETERMINED IN THE COURT OF COMMON PLEAS, IN Trinity Term, In the Thirty-eighth Year of the Reign of GEORGE III. 1798. WEBB V. HERNE and Another, Sheriff of MIDDLESEX. June 15th. 14 Eaft,224. Plaintia aver in writ indorfed for bail by virtue of an affidavit now ESCAPE againft the sheriff. The Plaintiff in his declaration in escape against ftated that J.S. was arrefted "under a writ indorfed for the sheriff, if the "bail, by virtue of an affidavit now on record," and gave the his declaration, that 7. S. was ar sheriff notice to produce the writ, which not having been comrefted under a plied with, he called the attorney, who at the trial proved from an entry in his book that fuch a writ had been iffued. Though this was not the next best evidence, no objection was taken on on record" he that head; but it was contended for the Defendant, that the affidavit in eviwords "by virtue of an affidavit now on record" being a fub. dence, though ftantive allegation, must be proved; and the Plaintiff not being the averment able to produce the affidavit, Eyre Ch. J., before whom the caufe was unneceffary was tried, nonfuited him. Shepherd Serjt. now moved for a rule nifi to fet afide the nonfuit, and contended that it was not neceffary to produce the affidavit, for had the fheriff enabled the Plaintiff to fhew the writ itself, it would have fufficiently appeared that it was indorfed for bail. BULLER muft produce the the latter part of BULLER J. I remember a cafe in Lord Mansfield's time where it was held unneceffary to produce the affidavit, but the declaration there differed from the prefent one, fince it only stated generally that a writ was fued out "indorfed for bail£——.” (a) EYRE Ch. J. If I had underftood this to have been fuch a cafe, I fhould have left the evidence to the jury: but it appeared to me that there was a fubftantive allegation of the existence of an affidavit, which must be proved. Shepherd took nothing by his (a) See Croke v. Dowling, E. 22 G. 3. Bull. N. P. 14. laft ed. and Rogers v Ilfcombe, Taunton, Lent Assl. 1785. Efp. N. P. 535. motion. (b) (b) Sec Savage v. Smith, 2 Bi. 1101. Briflow v. Wright, Doug. 665. 3d ed. alfo what is faid by Buller J in the King v. Helt, 5 T. R. 446. and Peppin v. Solomons, 5 T.R. 497. June 15th. It feems that a PARKIN V. RADCLIFFE. EPLEVIN of a cow. REPLEVE Avowries. Ift, For that the faid cow at the time of taking the fame, was the property of the Defendant. 2d, For that the in lieu of a heplace in which, &c. was parcel of a certain tenement fituate in the riot, to be paid by an in-coming township and manor of Marfden, and held of that manor, of copyholder on which manor the Defendant at the time of the taking was lord, furrender or alienation, is not and because a heriot, that is to fay, the best beaft of the Plaintiff good. If the was due, and not delivered to the Defendant for the faid tenelord fet up a cuftom to have the ment, the Defendant well avowed, &c. 3d, For that the place in best live or dead which, &c. was parcel of a certain cuftomary tenement fituate in riot, quare if the the township and manor of Marfden, within which manor from tenant can mo- time whereof, &c. there had been divers cuftomary tenements dify that custom by pleading an- demifed and demifeable by copy of the Court Rolls of the manor by the lord of the manor and his fteward for the time being, to any perfons willing to take the fame in fee-fimple, or otherwise at the will of the lord according to the custom of the manor, and that within the manor, there was, and for all the time aforefaid had been a certain ancient and laudable custom ufed and approved of, that is to fay, that the lord of the manor for the time being from time whereof, &c. had been ufed and accuftomed to take and have upon the admiffion of every customary tenant of the manor to every fuch customary tenement to which fuch tenant had been admitted, upon the surrender or alienation of any former tenant of fuch cuftomary tenement, the best chattel,15 alive other, that the homage fhall affeis a compenfa tion in lieu of the heriot? 1798. PARKIN alive or dead, of fuch tenant fo admitted as aforefaid, upon fuch furrender or alienation, after fuch his admiffion to the fame tenement, for and in the name of a heriot for fuch cuftomary tenement: that the tenement of which the place in which, &c. RADCLIFFE. was parcel, was from time whereof, &c. parcel of the faid manor and a cuftomary tenement; that the Defendant was lord of the manor; that in 1786 one J. H. had been admitted tenant of the faid cuftomary tenement; that in 1792 J. H. furrendered into the hands of the Defendant to the ufe of the Plaintiff and his heirs; that the Plaintiff was admitted, and entered, and was still feifed thereof; and becaufe at the time when he was fo admitted, and from thence until and at the faid time when, &c. he was poffeffed of the faid cow as of his own proper cow, the Defendant well avowed the taking the faid cow as the best living chattel at the time of the Plaintiff's admiffion, for and in the name of a heriot: and this, &c. wherefore, &c. 4th, The fame as the laft, only ftating the cuftom for the landlord to take "the best beaft," inftead of " the beft chattel alive or dead." Pleas in bar. ft, Iflue on the firft avowry. 2d, That the heriot was not due as alleged in the fecond avowry, and iffue thereon. 3d, Traverse of the custom in the third avowry. 4th, Traverse of the cuftom in the last avowry. 5th, That in the said manor in the third avowry mentioned there had been from time whereof, &c. a certain other ancient and laudable cuftom ufed and approved within the fame, that is to fay, that at the Court Baron of the lord of the faid manor for the time being, held in and for the faid manor, the homage of the faid Court Baron from time whereof, &c. had been used and accuftomed to affefs upon their oaths a reasonable fum of money to be paid upon the admiffion of every customary tenant, to any customary tenement to which fuch tenant had been admitted, upon the furrender or alienation of any former tenant, after fuch his admiffion, in lieu of fuch heriot by the faid cuftom in the faid avowry claimed, and which fame fum of money fo affeffed ought to be paid to the lord of the manor by fuch customary tenant, and ought to be accepted by fuch lord in lieu of fuch heriot by the faid cuftom in the faid avowry claimed. 6th, To the laft avowry the fame cuftom as in the preceding plea. 7th, To the third avowry, that within the faid manor there was another cuftom that every cuftomary tenant upon his admiffion should pay to the lord, in lieu of fuch heriot by the faid avowry claimed, fuch reasonable sum of money as fhould |