was, where the bill was for difcovery of a particular bond fuggested to be loft, or for a discovery of a particular deed, for want of which the plaintiff could not recover his debt at law, or the poffeffion in ejectment: for in thofe cafes it is fit he should make oath that he himself has not the bond or deed, because if he had, his remedy is at law; and then he is not to put another to the unneceffary expence of an answer to deny his having it. Prec. in Ch. 536. Trin. Term 1720. Anon. 2. If a bill be purely for difcovery of a deed or to have it delivered up, there is no need to annex an affidavit that the deed is loft; but if a bill be for relief generally, upon any deed or bond, as to recover the money upon the bond or the profits of the land under the deed, in that cafe an affidavit must be annexed to the bill, that the deed is not in the plaintiff's cuftody, because fuch a bill feeks to tranflate the jurisdiction from a court of law to a court of equity. 2 Wms. Rep. 541. Trin. Term 2729. Whitchurch v. Golding. 3. The defendant's witnefs proves a deed, and refers to it in his depofition; the plaintiff cannot compel the defendant to produce the deed at the hearing, the reference thereto not making it part of the depofition. 3 Wms. Rep. 35. Hil. Vac. 1729. Hodgfon v. Earl of Warrington. 4. Sir Edward Bettifon, deceased, was tenant in tail of a confiderable eftate, remainder in tail to plaintiff's father, remainder to Sir Edward Bettifon, deceased, in fee; Sir Edward Bettifon fuffered a recovery, and declared the ufes to himself in fee: after which, on his dying without iffue, defendants, his three fifters, entered on the premifes, and on the death of plaintiff's father, plaintiff filed his bill to discover what title defendants had, who by their answer fhewed, that their brother the late Sir Edward Bettifon fuffered a recovery to the use of himself in fee, and referred to the deeds in their cuftody. The court before hearing, ordered the defendants to leave with the clerk in court the deeds, making the tenant to the præcipe, and declaring the uses of the recovery. 3 Wms. Rep. 363. Trin. 1735. Sir Edward Bettifon v. Albinia Farringdon and others. 5. Bill by heir in tail against devifees, praying that defendants might be decreed to produce and fhew to the plaintiff all the feveral title deeds and writings, which fhould appear to be in their poffeffion; and that if it should appear that teftator was not seised in fee, or if any of the eftates were copyhold not duly furrendered to the ufe of the will, or if the will was not duly executed, or if it should appear that the teftator was not of found mind at the time of execution, or if any fraud were practifed, then that the feveral title deeds, fettlements, and inftruments in writing, relating to such of the said eftates as the plaintiff fhould appear intitled to either as heir at law, cuftomary heir, or heir of the body, might be decreed to be delivered up to the plaintiff. Defendants, by fchedule to their anfwer, fet forth an abstract of feveral several settlements in their poffeffion. On motion, an inspection was ordered of all deeds of fettlement, admitted to be in the defendant's poffeffion, creating eftates tail general; but no farther. 4 Vef. jun. July 24, 1798. Lady Shaftsbury v. Arrowsmith. For more of Faits or Deeds, vide Oyer, and other proper titles. Falle Dath. See Perjury. 1 Falle plea. [G] (A) The Effect thereof, and how discountenanced 13Vin.115. and punished in Law and Equity. I. A Motion to fet afide a demurrer to a declaration, where a plea in abatement had been pleaded to the declaration, and that plea demurred to; yet Mr. Serjeant had demurted to the declaration, and to the demurrer before pleaded to the plea in abatement: the court, refenting this behaviour in the ferjeant, ordered the act against false pleading to be read, made a rule to fet afide the *Stat. 3 E.1. demurrer, and ordered the ferjeant to pay the costs of the motion. t. 29. Richardson v. Sutton, Hil. 2 Geo. 2. Caf. Prac. C. B. 51. 2. A bankrupt fued as executor pleaded a falfe plea, and it being found against him, the plaintiff had judgment for the cofts de bonis propriis, after which he obtained his certificate; and the court held, that this judgment for the cofts was not difcharged by 1 Black.. the certificate. Howard and Another v. Jemmet Executor, Hil. Rep. 400. 3 Geo. 3. Burr. 1368. See Viner, title Executors (C. b). S. C. Fallifying Recoveries. See Suppl. tit. Recovery, poft. Farms. See Clergymen (C), Nonrefidence (D), Trial (E. f). [G] Father and Son, &c. Vin. 139. (A) What Actions a Father, c. may have on account of his Child. I. IN an action of trespass vi et armis for an affault upon the plaintiff's daughter, and getting her with child, the declaration concluded, per quod fervitium amifit. On the trial a ver. dict was given for the plaintiff, fubject to the opinion of the court on the following cafe: The plaintiff's daughter, beng 23 years of age, hired herself to one Saul as a fervant, with whom the lived for fome time. During her fervice, fhe was gotten with child by the defendant; and becoming big with child, and unable thereby to perform her fervice as fhe was used to do, fhe was discharged by Saul her mafter; and the plaintiff received her when no one elfe would, and lodged and boarded her in his house, where the lay in, and was maintained at his expence. The court, after hearing counsel on each fide, and it appearing that the parties were poor, propofed a compromise, viz. " that all proceed"ings be ftayed, without cofts on either fide;" which being accepted, no judicial opinion was given; though the reporter adds, that there can be no doubt but that the court were all of opinion that B. R. 168. 2 Term Rep. that the action could not be maintained; but in compaffion to the Vide Bennett plaintiff, whofe daughter had been injured by the defendant, they v. Alcott, wifhed to fave him from the payment of cofts: and Lord Manffield, addreffing himself to the defendant's counfel, faid, "It is "not upon any doubt in point of law that I propofe this com"promife." Poftlethwaite v. Parkes, Eaft. 6 Geo. 3. Burr. 1878. "fectly well fettled fince the cafe of Poftlethwaite v. Parker, that the action will not lie by the father, "unless the daughter be proved in fome way or another his fervant." And in this cafe, it was determined, that a father may bring an action of trespass for breaking and entering his houfe, and debauching his daughter, per quod fervitium amifit, though the daughter be above 21 years of age. See alfo fame book, p. 4. and 2 Ld. Raym. 1032. 2. Upon a declaration, which stated that the defendants made an affault on one 7. 7. then and still being the son and servant of the plaintiff, and then being employed as the fervant of the plaintiff, in and about his bufinefs, per quod fervitium amifit, a question was made at the trial, Whether it was neceffary for the plaintiff to fhew in evidence, that the fon, in point of fact, did any service for his father in his bufinefs, pursuant to the allega tion in the declaration: Lord Kenyon ruled, that it was fufficient to fhew that the fon lived in, and was part of his father's family; and that it alone would raise a fervice by implication, and be fufficient to support the allegation in the declaration, and alfo to maintain the action. Jones v. Brown et al. fittings at Nifi Prius in Mich. Term, 35 Geo. 3. Efp. caf. 217. tions of this kind the flightest evidence of fervice is fufficient; even milking cows.' material whether the fervant be or be not hired for a year, or whether she has any wages; cient that she is a fervant de facto. where Ball- In the cafe above re ferred to, it was alfo faid by Buller, J. ❝ that in ac And it is im it being suffi (B) Inter fe; as to Legacies, &c. to the Children 13Vin.139 1. by others. •BILL by the plaintiff for two legacies of 50%, and 50% left to himself and his fifter under the will of their grandfather, and for the intereft. Defendant, executor to the plaintiff's father, infifts on being allowed 105/. for putting out the plaintiff apprentice, and 50/. for the maintenance of the fifter: but the court was of opinion, that where legacies are given by a relation, a father cannot use it in maintenance of such child; nor can he apply the money in putting him out apprentice. 3 Atk. 399. Dec. 1746. Darley v. Durley. 2. Bill by plaintiff, adminiftrator to his wife, one of the daughters of William Bradford; which daughter was entitled to a fifth part of a legacy of 5207. left to her and her four fifters by the will of Thomas Tindale their grandfather. Thomas Tindale made the wife of Bradford executrix; Bradford as her husband poffeffed himself of Tindale's perfonal eftate, and applied it as his own till his death in 1740 there was a treaty for the marriage of plaintiff with one of Bradford's daughters: Bradford was to give 400l. as a marriage portion on the wedding-day: Bradford went up and fetched fetched 4c0l. which was put by for the husband's ufe. It appeared that the daughter was privy to the right the had to this fifth part. It did not appear that her husband knew of it at that time; but he knew of it a year after the marriage, yet never made a demand of it in the life of his wife, who died in 1742, nor in the life of Bradford, who died in 1746. The plaintiff's acquiefcence during the life of his wife and Bradford was confidered evidence to fhew that the fum of 400/. was intended as a fatisfaction of the plaintiff's wife's fhare of the legacy. The bill therefore was difmiffed, but without cofts, on account of Bradford's not having been explicit enough in telling what the 400/. confifted of. 1 Vef. 501. July 1750. Seed v. Bradford. 3. Charles De Lexet by his will gave to Humphrey Sibthorp the fum of 7000l. the better to enable him to provide for his younger children;" and if he should depart this life before, or I be ren"dered incapable in cafe of accident to make any alteration, then "I give the faid fum of 7000l. to Sufannah Sibthorp his wife for "the purposes aforefaid; and if both of them fhould die before "me, I give the fame among the younger children." The father confented to fecure the capital; but was held entitled to the intereft. 4 Vef. jun. 498. March 1799. Brown v. Cafamajor. 13 Vin. 119. (C) Allowances to Parents for Maintenance out of Childrens' Fortunes. I. IN this cafe the father of the plaintiff appearing to be sufficiently competent, the court would not give any direction with regard to the infant's maintenance, as that depends always upon the particular circumstances of the case. 1 Atk. 515. Eaft. Term 1737. Jackson v. Jackson. 2. The refidue of a perfonal estate being given by a grandfather to a grandson upon a contingency of his attaining 21, and nothing faid as to the application of the produce, he is not entitled to be maintained out of it, for the court will not direct the interest of a contingent legacy to be applied for the child's maintenance, unless from the poverty of the parent he is in danger of perishing for want; for a parent must maintain his own child, unless totally incapable, or by having many children borders on neceffity. ·3 Atk. 60. June 1743. Butler v. Butler. 3. The court does not allow maintenance where the parent is of ability, though it be directed by the will; and where the parent is reported not of ability, the fums allowed fhall be only from the time of the report, not of the decree. 1 Bro. 386. 1784. Hughes v. Hughes. 4. Motion, that an order of reference to the Mafter to confider of a proper allowance to an infant for maintenance should be varied, by ordering the allowance to be from Christmas last, instead of from the day of the reference, the father not being able to maintain the infant; but the court said, that the maintenance 2 could |