Note; In which was for the plaintiff, and leave given to the defendant's counfel to move the court to fet that verdict afide, and to enter a nonfuit, if they should be of opinion that the objection was well, founded. A rule nifi having been obtained for that purpofe, Lord Kenyon, C. J. faid, it is clear that this action cannot be fupported against the owner of the inheritance, when it is in the poffeffion of another perfon. It is fo notoriously the duty of the actual occupier to repair the fences, and fo little the duty of the landlord, that without any agreement to that effect, the landlord may maintain an action against his tenant for not fo doing, upon the ground of the injury done to the inheritance. And the other judges concurring, the rule was made abfolute. Cheetham v. Hampfon, Trin. 31 Geo. 3. 4 Term Rep. 318. 2. Where a man is bound to make fences against another, it is enough to fay, omnes occupatores ought to repair, &c. becaufe that lays a charge upon the right of another, which it may be he cannot particularly know, Per Buller, J. in the cafe of Rider v. Smith, Trin. 30 Geo. 3. 3. Term Rep. 768. an action for not repairing a private road leading through the defendant's ground, and the declaration ftated, that the defendant, by reafon of his poffeffion of the faid clofe called, &c. ought to repair, &c. the court were clearly of opinion that the declaration fufficiently charged the defendant by reafon of bis toffefion, Scc. IF there be an exclufive right of ferry from A. to B., it does not 13 Vin. 208. prevent perfons from going by any other boat from A. to C., though it lie near B., provided it be not done fraudulently, and as a pretence for avoiding the regular ferry. Tripp v. Frank, 4 Term Rep. 666. I. Fictions. (A) Fictions. BY fiction of law, writs taken out in the vacation bear date as of the last day of the term; and it was held, that the fiction fhall not be contradicted so as to invalidate the writ; because the fiction was invented for the furtherance of justice, and to make the writ appear right in form. But where the true time of fuing out a latitat is material, as on a plea of non affumpfit infra fex annos, there it may be fhewn that the latitat was fued out after the fix years notwithstanding the tefte. Johnson and Another v. Smith, Executrix, Sc. Eaft, 33 Geo. 2. Burr. 950. 2. In an action of trover, it appeared on the nifi prius roll that the bill was filed of Eafter term; and on the trial the plaintiff proved a demand and refufal on the fecond of May; and it was objected that this demand and refusal appeared to be fubfequent to the bringing of the action: for as the bill was filed of Eafter term, without any special memorandum, it must refer to the first day of that term, which was in the beginning of April: in anfwer to this objection, the counfel for the plaintiff produced the writ, which appeared to be sued out after the fecond of May. But the defendant's counsel objecting to this evidence as not being admiffible, on the ground that they were concluded by what appears on the record, and that the writ could not be fhewn in contradiction to it, the point was referved for the opinion of the court, whether the writ was admiffible evidence. The court, after argument, were all clearly of opinion that the writ was rightly admitVOL. IV. Cc ted [G] 13 Via. 209. ted to be given in evidence, and difcharged the rule. And Lord Mansfield, in delivering his opinion on this cafe faid, "It is true, if there be no fpecial memorandum, the bill, by fiction of "law, relates to the first day of the term. But fictions of law "hold only in refpect of the ends and purposes for which they "were invented: when they are urged to an intent and purpose "not within the reafon and policy of the fiction, the other party "may fhew the truth." Morris v. Pugh and Another, Mich. 2 Geo. 3. Burr. 1241. 3. In ejectment, the leffor of the plaintiff claimed by descent from his ancestor, who died on the first day of January 1771, at five o'clock in the morning; the demife was laid in the declaration on the fame day, to hold from the 31st day of December then last paft. After verdict, a rule was obtained to fhew caufe why the verdict should not be fet afide, because the ancestor from whom the leffor of the plaintiff claimed by defcent, was living on the first of January 1771, till five o'clock in the morning, and there is no fraction in a day, fo that in fiction of law he was alive all that day, and the leffor of the plaintiff's title did not accrue until the beginning of the next day, the 2d of January. But per totam curiam," If my ancestor die at five o'clock in the morning, I "enter at fix, and make a lease at seven o'clock, it is a gcod "leafe. It is faid there is no fraction in a day, but this is a "fiction in law, fictio juris neminem lædere debet, but aid much it "may, and this is feen in all matters where the law operates by "relation, and divifion of an inftant, which are fictions in law. "By fiction of law, the whole term, the whole time of the affizes, " and the whole feflion of parliament may be, and fometimes are "confidered as one day, yet the matter of fact shall overturn the "fiction, in order to do juftice betwen the parties." Roe ex dem. Wrangham v. Herfey, Mich. 12 Geo. 3. 3 Wilf. 274. 4. In an action of trefpafs for an affault and falfe imprisonment, the plaintiff declared, that the defendant on the first day of September, in the year 1771, with force and arms, &c. made an affault upon the plaintiff at Minorca, (t wit,) at London, &c. and after judgment for the plaintiff (in C. B.,) the defendant affigned for error, upon a bill of exceptions, that no action could be maintained in this country for an imprisonment committed at Minorca, upon a native of that place. But the court, after argument, affirmed the judgment. And Lord Mansfield, in giving his opinion on this point faid, that all actions of a tranfitory nature which arife abroad, may be laid as happening in an Englifh county. But there are occafions which make it abfolutely neceflary to state in the declaration, that the caufe of action really happened abroad, as in the cafe of fpecialties, where the date must be set forth. If the declaration ftates a fpecialty to have been made at Westminster in Middlefex, and upon producing the deed, it bears date at Bengal, the action is gone; because it is. fuch a variance between the deed and the declaration, as makes it appear to be a different inftrument. But the law has in that cafe invented 10 invented a fiction; and has said, the party fhall first set out the description truly, and then give a venue only for form, and for the fake of trial by a videlicet, in the county of Middlesex, or any other county. But no judge ever thought that when the de. 'aration faid in Fort St. George, viz. in Cheapfide, that the pantif meant it was in Cheapfide. It is a fiction of form; every country has its forms, which are invented for the furtherance of justice; and it is a certain rule, that a fiction of law fhall never be contradicted fo as to defeat the end for which it was invented, but for every other purpose it may be contradicted. Now, the fiction invented in thefe cafes is barely for the mode of trial; to every other purpose, therefore, it fhall be contradicted, but not for the purpose of faying the coufe fhall not be tried. Molyn v. Fabrigas, of his CumMich. 15 Geo. 3. B. R. Cowp. 161. Mr. Justice Blackstone, in th .d buck, cap. 4. mentaries, obferves, "that these fictions of law, though at first they may startle the ftudent, he will find upon further conderation to be highly beneficial and ufeful: cfpecially as this maxin is ever invariably observed, that no fiction fhall extend to work an injury, its proper operation being to prevent a mischief, or "remedy an inconvenience, that might refult from the general rule of law." File. (A) Of putting upon the File, and taking off. See Report (A). [F] 13 Vin. 210. Fines. (A. 2) The Original of Fines. See Harg. note 1. Co. Litt. 121. a. [B] #3 Vin. 211. (D) Fine of Land. What Perfons, in respect of 13 Vin. 218. Eftate, [may levy Fines.] 1. A Cc 2 the the profits at the company's office, (who were in receipt of them,)before the fine was levied, but did not actually receive any until afterwards. Lord Hardwicke said, that was not a fufficient feifin to fupport the fine. Though his lordship obferved, that the evidence of receipt of rent, if the jury had believed it, would be confidered as a fufficient poffeffion to levy a fine. Townsend v. Afb, 3 Atk. 336. 2. The tenant in poffeffion will not be allowed as evidence to prove the estate of his landlord, who levies a fine; because he would then be a witness to fupport his own poffeflion. Doe v. Williams, Cowp. 621. 23Vin. 227. (D 10.) What Perfons may levy a Fine. Idiots, Infants, &c. And at what Time such Fine may be reversed. See Butl. note 2. Co. Litt. 247. a. and May v. Hook, stated in (D. 13) By whom Fines may be levied. Perfons A. 13 Vin. 246. (P. 2) Certified. How Fine acknowledged shall be certified; and when, and by whom. IN lieu of a former rule made in the court of C. B. with respect to the acknowledgment of fines, the following rule was made, in Hilary term 17 Geo. 2. |