statute, and not an ordinance. Bench by certiorari, it was contended, on the authority of Stowe's quantity of land case, Cro. Jac. 603. that the 33 Edw. 1. c. 6. was not a statute, but only in an acre,* is a an ordinance. The proposition, however, was denied by the Court. See 33 Ed. 1; 24 H. 8. c. 4; 2 Inst. 737; Co. Litt. 69. a; Spelm. Gloss v. Acra, particata terræ pertica pes forestæ roda terræ ; Con. Interp. v. Acre. 2. WADDY V. NEWTON. T. T. 1723. K. B. 8 Mod. 275. On a special verdict in ejectment it appeared that a tenant in tail Where the word had covenanted to levy a fine and suffer a common recovery of the acre, by the consent of the parlands in question, and also of a fishery; and that he had accordingly ties, is inserted levied the fine, describing the parcels as 120 acres of land in Stock-in a fine or recowell-hall, in the county of, &c. and ten acres of land, covered with very,t it is taken water; and declared the use thereof to himself and heirs. But there according to the being more than 140 acres statute measure, (but only that number customary and usual measure of according to the local mode of admeasurement,) the defendant, who the country, was heir in tail, defended the action for all the land beyond the 140 and not accordacres. The jury found that the fine had been levied, and the recovery ing to the duly suffered by the name of 120 acres of land, and of ten acres of statute. running water, and that the whole estate entailed was computed in the county to be 140 acres of land. For the plaintiff it was contended, that all the entailed property was comprised under the description of 140 acres of land, and that this construction was consistent with the intent of the tenant in tail who had levied the fine; that admeasurements are to be ascertained by a jury according to the reputed computations where they are made; that they are tied down to the very county where the things are transacted; hence where an habere facias possessionem is directed to the sheriff to put a man in possession of twenty acres, he must deliver twenty acres to him, according to the usage of the district where the lands lie. (See Thynn v. Thynn, 1 Vent. 51; S. C. 1 Lev. 27; 1 Sid. 190; 1 Mod. 190. 239; 2 Inst. 42.) On behalf of the defendant it was argued that the quantity of land conveyed under the word acre could only be ascertained and determined by the statute De Mensurandis Terris, 34 Edw. 1. Το adopt any other mode of computation, derivable from varying and local custom, would lead to endless uncertainty, and a general want of precision on such questions; that there is a difference between a manor which is fixed to no certain measure and a quantity of acres The word acre, on its first introduction, denoted not a determined quantity of land, but any open ground or field. It afterwards signified a measured portion of land, but the quantity varied, and was not fixed until the 33 Edw. 1. according to which an acre contains 169 square perches, so that every acre is a superficies of forty perches long and four broad, or in that proportion, be the length or breadth more or less. The length of the perch was, previously to the statute of Edward, fixed at âve yards and a half, or sixteen feet and a half by the statute called compositio ulnarum et perticarum; and the act of Edward must of course be construed with reference to this standard. (See Co. Litt. 56; 4 Inst. 274; 6 Rep. 67. a; 4 Mod, 185; Cro. Eliz. 476.) + In adverse suits the word acre is construed according to the statute measure, and not regulated by the measure of any particular or local custom. Thus in Andrews's case, cited Cro. Eliz. 476. it was adjudged, that if one brings an ejectione firma, or a præcipe of 100 acres, it shall be according to the statute measure; but if he bargains and sells 100 acres of land, that shall not be according to the statute measure, but according to the local mode of computation. Semb. Custom cannot control the quantity of land included in the word acre. where the measure is ascertained. It is true, if it was the custom of the county or of the hundred, so as it was limited or fixed to a certain place, this method of computation might be good. But in the present case the acres, if taken by computation, are two-fifths larger than the common or statute measure, without confining such computation to any certain place; and that in all the cases wherein it is mentioned that a manor in reputation is to pass by a recovery, it is alleged in the deed that the covenantor is to suffer a recovery of a reputed manor, but it is not set forth in this deed that the covenantor was to suffer a common recovery of so many acres in reputation, but only of 140 acres generally. Besides, there is a difference between a fine levied, and a recovery suffered, in pursuance of a contract for a valuable consideration, and a voluntary fine and recovery, as this is; for in the one case the prior agreement governs the whole; but where there is no such agreement the ordinary course of law is to be the guide, and no strained construction ought to be deduced from the intention of the parties. And it is to be observed, that the statute De Terris Mensurandis was made on purpose to ascertain the fine due to the king by alienation of lands by fines, and therefore such a loose computation of the number of acres shall not avoid the design of this statute. Per Cur. It has been admitted by the defendant's counsel, that if the fine had been levied, and recovery suffered, in pursuance of a prior agreement or covenant for a valuable consideration, and if it had appeared to be the intent of the parties to pass the whole estate by the name of 140 acres, in such case the whole would pass. Now here the jury have found that the whole estate entailed was computed in the county to be 140 acres ; and it will be difficult to comprehend a difference between a covenant for a valuable consideration and a voluntary covenant; for it cannot reasonably be said that the same words shall pass all the lands in one case, and shall not pass the whole in the other, especially when the tenant had it in his power to express his intention in any language he pleased. 3. NOBLE V. DURELL. E. T. 1789. E. T. 3 T. R. 274. Per Lord Kenyon. It is impossible to contend that a custom could prevail in a particular place; that a less number of days than seven should constitute a week; or that a less space of ground than an acre should be called an acre. See Plow. 169; 4 T. R. 414. 750; 6 T. R. 338; 11 East, 312; 4 Taunt. 102. Act of Bankruptcy.-See tit. Bankrupt. Act of God.-See Act of Parliament.-See tit. Statute. Actio non.-See tit. Plea. Actio personalis moritur cum persona.-See tit. Abatement, p. 1; and tit. Executor and Administrator. Action. I. OF THE PARTIES TO AN ACTION. - See tit. also Parties to Actions. (A) BY AND AGAINST WHOM TO BE BROUGHT, WITH REFERENCE TO THE FORM OF ACTION OR SUBJECT MATTER. |