CONSTABLE'S CASE. NORTON vs. MOLINEUX & al. escrow upon certain conditions, in such case, let the form of the words be whatever it may, the delivery is absolute, and the deed shall take effect presently as his deed. 8 Mass. 230, Fairbanks v. Metcalfe. But if a deed, intended as an escrow, be delivered to the grantee, but immediately afterwards, according to the understanding and agreement of the parties, it is placed in the hands of a stranger, to be kept by him as an escrow, until a certain event should happen; in such case the deed would be considered merely as an escrow. The plain sense and justice of the case would require that the deed, while in the hands of the grantee, should be considered as in transitu to the possession of the stranger. The grantee would be considered as merely the instrument or agent of the grantor to deliver the deed to the stranger as an escrow. Fairbanks v. Metcalf, ub. sup. An escrow generally takes its effect from the second delivery only. If therefore a grantor deliver the instrument to a third person as his escrow, to be delivered to the grantee, upon some future event, as the grantor's deed, and it be accordingly delivered to the grantee, it is not the grantor's deed until this second delivery. 2 Johns. 248, Jackson v. Catlin. Fairbanks v. Metcalf, ub. sup. But where a deed is delivered as an escrow, and either of the parties dies before the condition is performed, and afterwards the condition is performed, the deed is valid, and takes effect from the first delivery. 13 Johns. 285, Ruggles v. Lawson. And in various other cases, a deed delivered as an escrow will take its effect, and be considered the deed of the maker from the first delivery, if this construction should be necessary, in furtherance of the lawful intentions of the parties. 9 Mass. 307, Hatch v. Hatch. 18 Johns. 544, Beechman v. Frost. 2 Mass. 447, Wheelwright v. Wheelwright. 399 [246 a] CONSTABLE'S CASE. An action on the stat. of hue and cry may be maintained against the half hundred of Waltham. NORTON VS. MOLINEUX & al. A declaration against the defendants, naming them as administrators of the goods of T. C. during the minority of M. M., executrix of the said T. C., late executor of E. C., is good. Covenant. executor of an named. Post. 250, 251, NORTON, executor of James Hobart, brought a writ of Administrator during the micovenant against Molineux and Ford, administrators of nority of the the goods of Thomas Carrell, during the minority of Mary executor, how Molineux, executrix of the said Thomas Carrell, late he shall be executor of Edward Carrell, upon a condition of Edward Carrell's, for payment of an annuity; issue, non est factum; found for the plaintiff. It was moved in arrest, by Towes, that the defendant should have been named administrator of the goods of Edward, not administered by Swinb. 287. 3 Cr. 211. [246 b] Thomas. But the court, being informed by the prothonotaries that this was the ancient form, judgment was given for the plaintiff. If the children had been defendants, they should have been named but executors of the executor, for the rest follows; but the committing of administration is of both goods, but the precedents rule in the titling, &c. (1) (1) In Massachusetts, by stat. 1783. c. 24 s. 19, the executor of an executor shall not, in consequence thereof, become an executor of the first testator; but in every such case, administration may be granted upon the goods and estate of the first testator, unadministered upon, with the will annexed, to such person as the judge of probate may think fit. Debt. Amendment of 892. Brownl. 1. R. 53. 1 Cr. 105, 189, 311, LEESE VS. ARROWSMITH. The imparlance roll may be amended by the instructions of the clerk, but not by the plea roll. LEESE brought an action of debt against Arrowsmith, for three hundred pounds; and in the imparlance roll, the count was upon the sale of divers parcels to several sums, Hut. 83. Moor, all making up but two hundred and ninetyfour pounds. But after the count upon the plea roll was right, and upon nihil debet, it was found for the plaint. And al284. 1 Cro. 921. though the imparlance roll could not be amended by the 59. Cr. Car. 46, after roll, yet because Bayle, the plaintiff's attorney, 92. 1 Roll. 198. affirmed that his instructions to the clerk were right, it was amended by the court. 415, 498, 525, 537. Post. 251, Ant. 76. Hetl. Court ecclesiastical med dleth not with railing. Ro. 2d Abr. 286, 296. [247] SMITH US. PANNELL. SMITH and other church wardens of Ridgewell in Essex, presented to the archdeacon, that one Pannell was a railer, and a sower of discord between neighbours; whereupon the archdeacon enjoined him purgation; and the court awarded prohibition; for the clause belongs to the leet, except it were in the church, or the like. WATS VS. CONISBY. Prohibition lies to the ecclesiastical court for refusing to admit proper proof. [247 a] Court eccle siast. Court eccle siastical refu 22. Mesme Ca. Ant. 188. Mo. ELIZABETH WATS, wife of Edward Wats, libelled in the spiritual court against Jane Conisby, executrix of the ex- seth competent proof in prohiecutor of Henry Conisby, for a legacy of one hundred bition. Hutt. and sixty pounds. The defendant pleads the release of Hetl. 14, 134. Wats, the husband, after marriage; and there were two Dismes Br. 11. witnesses to the release, but both dead; and therefore not 413. Yel. 93, allowed; whereupon prohibition was granted, containing this averment, that the witnesses were dead, and that she offered to prove by witnesses, that it was the hands of the witnesses dead, and that Wats, the husband, confessed that he subscribed the release. (1) (1) See Yelv. 93, Brown v. Wentworth. 173. Syd. 161. Cr. Jac. 270. 12 Co. 65, 68. omitted. AUSTIN against Kirby; false judgment upon a judgment Super sacram. in the county court; in trespass, the jury say, that the defendant est culp., leaving out super sacramentum suum; and reversed. SPRAY VS. SHERROT. New writ against an heir, on reversal of outlawry, &c. and no judgment rendered. [248 a] Annuity. Annuity out of clear gains, chargeth the person absolutely. Mesme case, Hutt. 33. 1 Roll. 228. Dav. 5. b. SMITH US. BOUCHER. A grant of an annuity out of the clear gains of the allum works,' binds the person of the grantor, absolutely. : SMITH brought a writ of annuity against Boucher and others the annuity was forty pounds per annum, solvend. extra clara lucra des les allom works. The defendant pleaded, that there were no clear gains; and upon demurrer, the plaintiff had judgment, without argument. For the grant chargeth the person, and the rest is idle. Margaret Parkins' case. (1) (1) So if a man grants an annuity to another 'to be received out of his coffers,' or 'out of a bag of money,' or 'to be received of a stranger,' or out of his rent,' &c. this is sufficient to charge the person of the grantor. Com. Dig. Annuity (A. 2.) Amendment refused because the pleadings were not by a serjeant's hand. Ejectione, &c. Ejectione firmæ and trespass of BIRD VS. SNell. Ejectment and trespass for assault and battery are joined in one writ; and, upon not guilty pleaded, a verdict for the plaintiff, and entire damages are given. Whether any judgment can be rendered, quære? BIRD brought against Snell a writ containing both an battery both in ejectione firmæ, and a trespass of assault and battery: and upon not guilty pleaded, verdict was given for the plaintiff, both for the ejectment and battery, and entire dama one writ. ges assessed. And the court advised of the judgment, [249 a] because it was without precedent; but the damages for the battery could not be released, because they were entire with the ejectment. Note, it seemeth holpen by verdict. (1) (1) See 5 Mod. 90, Dalston v. Janson, and Archb. Civil Pleading, 72 and 73, where the above case is cited and commented on. THORP VS. TAYLOR. If an obligation is averred, in the declaration, to have been made on a certain day, and on oyer it appears to be dated on another day, this is no variance. THORP brought an action of debt against Taylor, and counted upon an obligation made ultimo die Augusti, anno 4. Rs. Upon oyer of the bond, it bore date 19 die Aug. anno 4. The defendant pleaded non est factum. The jury found it his deed, and the plaintiff had judgment; for the count was not of the date, but of the making; and the jury have found the deed. 2 Cro. 136. (1) (1) On the subject of variance, see Starkie on Evidence, 1526 et seq. In an action against the drawer of a bill of exchange, the declaration stated that the defendant,' on the 3d day of Feb. 1810, at, &c. made his certain bill of exchange, &c.' The bill produced appeared to be dated 6th Feb. 1810. The court held that, as the declaration did not allege the date as a part of the bill, but only averred that defendant, on that day, drew the bill, being silent as to the date of it, the date of the bill being different from the day in the declaration was not a material variIt was then objected that as the day of drawing the bill was alleged as a substantial averment, not being laid under a videlicet, the plaintiff was bound to prove the actual day, especially as the bill itself showed a different day. But it was ruled that the allegation of the day was immaterial, and that it was enough for the plaintiff to prove the bill. ance. . But in another case, where the declaration alleged that the defendant on, &c. made his certain bill of exchange in writing, bearing date the same day and year aforesaid,' and the real date of the bill was different, it was held that the variance was fatal. 2 Camp. 307, note. Where a deed has no date or an impossible date, and, in the deed, reference is made to the date, that word will be construed delivery; but if it has a sensible date, the word date, occurring in other parts of the deed, means the day of the date and not of delivery. 4 Barn. & Cres. 908, Styles v, Wardle. Ante 72, Pope v. Skinner, and note. Obligation. Count upon making of the the date and deed. 2 Cro. 5. Ant. 73. |