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should be agreed upon between fuch lord and cuftomary tenant; and if they fhould difagree about the fame, then such reafonable fum as fhould be affeffed by the Court Baron at the homage; and that when the faid fum of money fo agreed upon or affeffed had remained unpaid after reafonable requeft and demand, the lord of the manor for the time being, from time whereof, &c. had been used and accustomed to take a reafonable diftrefs for the fame. 8th, The fame plea to the laft avowry.
Replication tendering iffue on the traverfes in the third and fourth pleas, and demurring to the fifth, fixth, feventh, and eighth.
Rejoinder joining in iffue and demurrer.
Cockell Serjt. in fupport of the demurrer. 1ft, The cuftoms ftated in the pleas in bar are unreasonable and uncertain, and therefore bad. There is no criterion fhewn by which the homage may judge how to affefs a compenfation for the heriot, whereas fome rule ought to appear by which the rights of the lord and the tenant may be preferved. There is a cafe mentioned in Noy 2. by the name of the Yelmefter Custom, reported in Noy 3. by the name of Crabb v. Bales, and recognized in 1 Rolle 48. under the name of Crabb v. Bevis, where a custom that a copyholder for life might nominate one or two that should have the copyhold lands after his death for a fine to be affeffed by the homage, if they could agree with the lord, was adjudged to be good. But this feems to be answered by Bill's cafe, 4 Leon. 238. where the fame cuftom was held good, only with this qualification, viz. that the fum affeffed fhould not be "leffer than had used to be paid where "the lord would affefs a reasonable fine." 2dly, Suppofing the cuftoms to be good, yet as it is admitted on the pleadings that the lord has a right to the heriot, though subject to a compenfation to be affeffed by the homage, it fhould have been stated either that fome compenfation had been affeffed, or that fome ftep towards an affeffment had been taken.
Clayton Serjt. contrà. We have a right to modify the custom ftated by the Defendant, by fetting up another custom on our part; for a heriot not being due of common right, but the mere creature of custom, ought to be regulated by cuftom. No cafes have been cited to prove this cuftom unreasonable or uncertain; nor is the difcretion of the homage more arbitrary in this cafe than in all cafes where juries are to decide. The cafe in Noy is of no flight authority, having been recognized in 1 Rolle 48. and in Perkins v. Titus, 3 Mod. 134. Certainly the custom here is not
more unreafonable than that which was held good in Wallis's cafe, Cro, Jac. 555. As to the fecond point, it is the bufinefs of the lord whofe tortious act is complained of, to fet out what is neceflary to his own juftification.
EYRE Ch. J. My difficulty is, how to incorporate the two cuftoms. The landlord pleads a custom to have the beft live or dead chattel as a heriot; the tenant anfwers that he is not entitled to the beft live or dead chattel, but to a fum of money by way of compenfation. This is pleaded two ways, firít, as a fum of money to be affeffed abfolutely by the homage; fecondly, as a fum to be agreed upon by the landlord and tenant, and on failure of an agreement then to be affeffed by the homage. Either of thefe pleas is an abfolute denial of the cuftom that the lord fhould have the beft live or dead chattel. This compenfation is pleaded to be in lieu of a heriot; but fince it is ftated not to depend upon the will either of lord or tenant, but to take place in all cafes, it cannot be in lieu; it ought therefore to have been stated in the name of a heriot, and as an inducement to a traverfe. the Plaintiff had faid, true, there is fuch a cuftom, but if the tenant prefer to pay a fum of money in lieu, then he shall pay fuch a fum as the parties fhall agree upon, that would have been a modification of the cuftom, and the money would have come in lieu of the original right of the landlord, but here the original right is ftated in two contradictory ways. (a)
BULLER. J. I am not quite clear that the cuftoms ftated on thefe pleas may not ftand together, as well as thofe in Kenchin v. Knight (b). No anfwer however has been given to the argument advanced against the goodness of the custom set up by the pleas in bar, viz. that there is no rule to direct the jury in affeffing the amount of the compenfation. I think the custom bad.
HEATH J. All the members of the homage are liable to pay this compenfation, and are therefore interefted in the affeffiment. Suppofe a cuftom that the parishioners of a certain parish should affefs a compenfation to be paid to the rector in lieu of tithes; it would be void as unreafonable and uncertain. In the cafe in Leonard the landlord could never be injured by the affeffment, and he might be put in a better fituation.
ROOKE J. I have not the fame difficulty with refpect to the cuftom. A heriot is not due of common right as tithes are, but is the mere creature of cuftom. The lord has no right but by cuf
(a) Vide Bland v. Mofeley, cit. 9 Rep. 38. Spooner v. Day and Another, Cro.
Car. 432. and Murgatroid v. Law, Carth.
(b) 1 Bl. 49. 1 Wilf. 253. B. R.
tom, which is the life of copyhold. This is a claim of the first impreffion, for the lord does not claim from the out-going tenant, but from the in-coming tenant, who is to have his best beaft taken RADCLIFFE. from him: and yet I conceive that it may be good and reasonable that the in-coming tenant fhould pay fuch a fum of money by way of acknowledgment to the landlord, as the homage fhall affefs. However I incline to think that the plea in bar is not well pleaded.
The Court then offered a fecond argument, which being de clined by the parties who meant to go to trial on the iffues joined, the Court faid that as they were all of opinion, though on different grounds, that the demurrer muft prevail, they fhould give Judgment for the Defendant.
3 Bro. C. C. 1.
6 Vex. Jun. 805.
6 Vez. Jun. 301.
STOCK v. MAWSON.
The creditors of a bankrupt entered into a deed of composition to
charge of their debts, and agreed to release every that to the bank rupt and join in a petition to the Chancellor, to fuperfede the commiffion; one of the creditors having two diftinct debts due from the bankrupt, for one of which he held bills to the full amount, received his dividend of 8s.
HIS was an action for money had and received. The circumftances were as follow. A commiffion of bankrupt having receive 8s. in the iffued against the Plaintiff, and an affignment of his effects pound in full difhaving been executed under that commiflion, the creditors, of whom the Defendant was one, entered into a deed of compofition with the Plaintiff, wherein, after reciting the commiffion and affignment, they agreed to accep. 8s. in the pound "upon "the amount of their refpective debts, and in full difcharge "thereof," to be fecured by the promiffory notes of three fureties, and in confideration thereof " to release and discharge the "faid William Stock, his heirs, executors, and adminiftrators, "eftate and effects, of and from the debts to them due and "owing from him," and to join in a petition to fuperfede the commiffion. The deed then went on with a general release “of ❝ all actions, fuits, debts, fums of money, accounts, reckonings, "damages, claims, and demands whatfoever, both in law and equity," and relinquished and gave up to the Plaintiff, his executors, administrators, and affigns, "all and fingular the stock in trade, houfhold goods, plate, china, linen, and furniture, book "debts, and other debts and fums of money due, owing, or belong"ing to him, from any perfon or perfons whomfoever, and all for the money fo❝ bonds, bills, notes, and other fecurities for the fame; and all
both debts, and
in the pound on then recovered the full value of
fome of the bills: Held that the
bankrupt was entitled to fue
obtained on the "other the eftate and effects hatfoever of the faid William Stock,
bills in an action for money had and received.
"whereof or wherein he the faid William Stock, or any perfon or "perfons in truft for him or for his ufe, was or were feifed or "poffeffed or interefted on the day of the date and iffuing forth of
*the faid commiffion, and on any day fince, and all benefit and advantage whatsoever to be made, had, or derived thereby or * therefrom." At the time when this deed was executed the Plaintiff was indebted to the Defendant in two different fums of money on two different accounts, viz. 1113l. 195. 5d. and 11077. 58. 5d., for fecuring the latter of which he had given the Defendant bills to the full amount. The whole 2221l. 45. 1cd. was proved, and a dividend of 8s. in the pound received by the Defendant on that fum: after which he called upon the acceptors of the bills and obtained on one of them 20s. in the pound and differents fums upon the others, confidering himself indeed as a truftee for the Plaintiff, to the amount of all which he received above 12s. in the pound on any of the bills, but retaining that fum for which the prefent action was brought.
The caufe was tried before Rooke J. at the Guildhall fittings after Easter term, when a verdict was found for the Plaintiff for 116. A rule having been obtained on a former day to fhew caufe why this verdict fhould not be fet afide and a new trial had,
This Le Blanc and Shepherd Serjts. now fhewed caufe. queftion will depend on the conftruction of the deed. It will be contended that the deed being fubftituted in the place of a commiffion of bankruptcy, the parties muft ftand in the fame fituation under the former, as they would have done under the latter; whereas the rules which apply to an adverfe proceeding under a commiffion, cannot be any guide to the court in conftruing the terms of a dced executed between the parties. The commiffion was done away, and the parties were placed in a new fituation; fince the creditors obtained the fecurity of three folvent perfons for a certain definite fum; a fecurity which they could not have had under the commiffion. The bills in queftion were either accommodation bills, or drawn for value in the hands of the acceptors, in either of which cafes the Defendant has violated his agreement to leave the Plaintiff in full poffeffion of his eftate. If they were accommodation bills, a debt has been created against the eftate of the Plaintiff, which would not have exifted if the acceptors had not been called upon, and if on the other hand they were drawn for value, payment of those bills by the acceptors is a discharge of a debt which they owed to the Plaintiff's eftate. Befides the Defendant has committed fraud on the other creditors, who expected to be put upon an equal footing with him, and who perhaps might not have
executed the deed if they had fuppofed that he was to receive twenty fhillings in the pound on any of his debts.
Adair and Palmer Serjts. in fupport of the rule. It is clear that under the bankrupt laws, the great object of which is to eftablish an equal divifion among the creditors, the Defendant would be allowed to retain what he has received to the amount of 20s. in the pound; Ex parte Wildman, 1 Atk. 109.: now the deed in queftion being fubftituted in their place, he ought to be entitled to the fame advantage. The object of this deed is the mutual benefit of the creditors and the infolvent; the latter is inftantly put in the fituation which he might hope to attain, after a long delay, under the bankrupt laws; the former have the payment of a certain fum fecured to them, in confideration of which they agree to release all demands upon the bankrupt, though not on any other perfons. Indeed, thould the eftate of the infolvent produce more than 8s. in the pound, ftill the creditors par themfelves by this deed, from claiming any further fum out of that eftate. This queftion depends upon two claufes in the deed, viz. that of releafe and that of reftitution; now release to the drawer is no releafe to the acceptor, who by his acceptance of the bill has made himfelf the original debtor; Dingwall v. Dunfter, Doug. 247.: and by the claufe of reftitution nothing could be restored to the bankrupt but what he had loft by the transfer to the affignees, of which the fecurities in the hands of the Defendant were no part. Admitting, however, the acceptor to have been difcharged, the money in queftion has been received by the Defendant to his ufe, and not to that of the Plaintiff.
EYRE Ch. J. The only difficulty in my mind is, whether Stock has a right to bring this action for money had and received to his use. I am inclined to think, that on the true conftruction of the deed of compofition, it must be confidered as a discharge of every body; the confequence of which is, that the acceptors of the bills who have been called upon, have paid the money in their own wrong, and ought to recover it back. A folution of this difficulty was attempted by my brother Le Blanc in arguing on the relation between the acceptor and the drawer. If the bills were accommodation bills, the acceptor would have a right to call on the drawer; it feems, therefore, that the money received by the Defendant was in fact part of the eftate of the Plaintiff, and ought under the deed to be returned to him in order to enable him to fatisfy the acceptor: if the bills were