1791. BALL against DUNSTERVILLE and Another. ruled the objection, and the plaintiff obtained a verdict; to set aside which a rule was obtained in the last term. Bearcroft and Lawrence, Serjt. now shewed cause; and relied upon Lord Lovelace's case (a); where it was said, That "if one "of the officers of the forest put one seal to the rolls by assent "of all the verderers, and other officers, it is as good as if every 66 one had put his several seal; as in case divers men enter into "an obligation, and they all consent, and set but one seal to "it, it is a good obligation of them all." And they observed that this was a stronger case, because this instrument was executed by one defendant in the presence of the other. But even if it were necessary that the one who did execute should have affixed the seal twice to the wax in order to execute for himself and his partner, it did not appear negatively that it was not done in this case. Bower, Rooke, Serjt. and Gibbs, contrà, said, That though the defendant, who executed the deed, might have executed for himself and his partner, by putting the seal on the same wax, yet that he should actually have executed it twice; first for the one and then for the other; whereas here, he had only executed and delivered it once, which could not be taken to be the execution of both. But The Court were clearly of opinion that there was no ground for the objection; that no particular mode of delivery was necessary, for that it was sufficient if the party executing a deed treated it as his own. And they relied principally on this deed having been executed by one defendant for himself and the other in the presence of that other. (a) Sir W. Jones, 268. Rule discharged. Thursday, June 30th. Proof that the defendant agreed to sell so many bushels of corn according to a particular measure, will not support an alle gation in a declaration to sell so many bushels; THE HOCKIN against COOKE. 'HE declaration in this case alleged, That, in consideration that the plaintiff at the defendant's request had undertaken to purchase of the defendant, a large quantity, to wit, 400 bushels of oats, according to a certain sample thereof then and there produced by the defendant to the plaintiff, at and after the rate of 1s. 6d. per bushel thereof, the defendant under because “busbels," without any other explanation, means a bushel by statute measure. [Post. 750, 6 T. R.338.] took took to sell and deliver to the plaintiff, &c. and then stated the breach for non-delivery. At the trial, on the general issue, at the last Easter Assizes before Perryn, B. it was proved that the contract was for so many bushels, according to the Hartland Quay measure, which contains 8 gallons to the bushel; on which it was objected that the contract proved varied from that declared on; for that a bushel, without any other explanation, means a bushel by the Winchester measure; because the 12 Hen. 7. c. 5. enacts, that a bushel shall contain 8 gallons; and it is enacted by the 22 Car. 2. c. 8. that no person shall sell corn by any other bushel than that called the Winchester measure, containing 8 gallons, under a penalty of 40s. The learned Judge suffered the cause to proceed, reserving liberty to the defendant's counsel to move to enter a nonsuit, in case the Court should be of opinion that the objection was well founded. The plaintiff obtained a verdict; and in the last term a rule was given to shew cause why the verdict should not be set aside, and a nonsnit entered. Rooke, Serjt. and Gibbs, now shewed cause; saying, that the bushel mentioned in the declaration might be applied to a customary bushel in the country, as used in opposition to a statute bushel. In 6 Co. 67. a. the Court said, "It was adjudged in Sir "John Bruyn's case, in the beginning of the reign of Queen Eli“zabeth, that in a common recovery, which is had by agreement "and consent of the parties, of acres of land, they shall be ac"counted according to the customary and usual measure of the 66 country, and not according to the statute de terris mensuran"dis. 33 Ed. 1. So it is agreed in 47 E. 3. 18. a. that if a man bargain and sell so many acres of wood, it shall be measured "according to the usage of the country, ss. according to 20 feet "to the rod, and not according to the said act, for consuetudo "loci est observanda." And yet it might have been contended in those cases that acres, without any farther explanation, must necessarily have meant statute acres. So by different statutes, Mag. Chart. c. 25. 14 Ed. 3. st. 1. c. 12. and 27 Ed. 3. c. 10. it is enacted, that there shall be only one weight throughout the kingdom; and yet Lord Coke observes (a) that there are two weights notwithstanding these statutes; and in his comment on Mag. Chart. says (b), “And this [speaking of there being only one weight and one measure] hath often by authority of parlia 66 (a) 4 Inst. 27-3 (6) 2 Inst. 41. ❝ ment 1791. HOCKIN against COOKE. 1791. HOCKIN against COOKE. "ment been enacted but never could be effected." This case is extremely different from that of Noble v. Durnell (a), for that only decided that a custom to compel persons in a particular town to sell butter, of more than 16 ounces to the pound, was bad. But The Court (stopping Lawrance, Serjt. and Burrough, who were to have argued in support of the rule) said, that the question was not whether these parties might not have contracted for the sale of corn by a customary measure, differing from the statute measure, but Whether there was not a variance between the contract proved and that alleged in the declaration? Of which they said no doubt could be entertained; for that a bushel, taken by itself, and without reference to any custom, or particular agreement, meant a statute bushel. (a) Ante, 3 vol. 271. Rule absolute. Thursday, June 30th. A person in custody under an attachment for BONAFOUS against SCHOOLE. BEARCROFT obtained a rule to shew cause why the detainer against the prisoner should not be set aside, because non-payment of when it was lodged against him he was in custody on an attachcosts, may be execution in [Willes 292. charged with an ment for non-payment of costs, which was (it was said) a crimia different action. nal proceeding. And it was contended that a plaintiff in a civil action could not change the custody of the defendant under a criminal charge without leave of the Court, or an order by one of the Judges. Fost. 61. Allgood v. Howard, Co. Pract. 27. and Pepper v. Bawden, ib. 31. i B. & P. 336. post. 809.] Bower shewed cause on the general ground, and also on an affidavit, which stated that the defendant was in custody under civil process in another action when he was charged with the attachment. And, as to the general ground, he said that the authorities cited were not applicable to the present; those in Co. Pract. being cases where the defendant was charged with a declaration, whereas this was an execution. And as to the case in Fost. the party was attainted, and it was contended that such a person was civiliter mortuus; and there too the party was charged with leave of the Lord Chief Justice. But The Court were clearly of opinion that the application could not be supported. That in the first place an answer in point of fact had been given to it, that the defendant was in custody in a civil suit at the time when he was charged with the the attachment: and, secondly, That the rule, on which the motion was grounded, did not apply to this case. The foundation of the rule is, that a prisoner who is in custody at the suit of the king, cannot be charged with civil process without leave of the Court or one of the Judges; but this defendant was only in custody on an attachment for non-payment of costs; which, in whatever light it may have been considered when the cases cited from Co. Pract. were determined, has of late years been deemed to be only a civil execution; so much so, that a person charged in custody on such an attachment is entitled to be discharged under the lords' act (a). And they Discharged the rule. (a) Cowp. 136. See also R. v. Myers, ante, 1 vol. 266. 1791. BONAFOUS against SCHOOLE. CHORLEY, M. D. against BOLCOT, Executor. Thursday, action for his THE HE plaintiff, who was a physician, living at Doncaster, A physician canbrought this action for fees, for attending for a considerable not maintain an time on the defendant's testator, who lived at some little distance fees. from the town; and the evidence was, that at Doncaster and its neighbourhood there was no certain rule about fees; but the general practice was for a physician to receive two guineas aweek for his attendance. The plaintiff obtained a verdict at the last Assizes at York; to set aside which, Wood obtained a rule nisi last term, on the ground that no action lay for a physician's fees any more than for a barrister's. Cockell, Serjt. and Chambre, now shewed cause; observing, that though this point had been ruled several times at nisi prius against such a claim, yet it had never been solemnly decided; nor was there any authority in the books for putting the claim of a physician's fees upon the same footing as those of a barrister. In the latter case it might originally have been proper that no temptation should be held out to countenance injustice: but in the former it would be equally impolitic that those who are frequently put to expense in attending patients at a distance, and who are liable to make reparation to those who may suffer by their want of skill, should not be certain of a just and honourable reward. The regulation with regard to barristers is founded on grounds of public policy, as appears by the passage in Tacitus, to which Mr. J. Blackstone (a) refers; but they are totally in (a) 3 Bl. Com. 28. 9. Vid. Co. Lit. 295.n. applicable 1791. CHORLEY against BOLCOT. applicable to the case of physicians; and in that very passage in Tacitus it is taken for granted that the latter were entitled to a remuneration, because their situation was dissimilar to that of advocates; besides, in this case there is an additional reason why the plaintiff should recover, as there is understood to be a general stipulated acknowledgement for a physician's attendance at the place where this transaction arose. Lord KENYON, Ch. J.-I remember a learned controversy some years ago as to what description of persons were intended by the Medici at Rome; and it seemed to have been clearly established by Dr. Mead, that by those were not meant physicians, but an inferior degree amongst the professors of that art, such as answer rather to the description of surgeons amongst us; but at all events it has been understood in this country that the fees of a physician are honorary, and not demandable of right; and it is much more for the credit and rank of that honourable body, and perhaps for their benefit also, that they should be so considered. It never was yet heard of that it was necessary to take a receipt upon such an occasion; and I much doubt whether they themselves would not altogether claim such a right as would place them upon a less respectable footing in society than that which they at present hold. Per Curiam, Rule absolute. Thursday, June 30th. An action on the case for not repairing fences, whereby another maintained pier, and not against the THIS CHEETHAM against HAMPSON. HIS was an action on the case against the defendant, who was owner of the fee, for not repairing the fences of a close, party is damnifi- whereby the plaintiff was damaged, &c. At the trial before ed, can only be Thomson, B. at the last assizes for Lancaster, it appeared that against the occu- another person was tenant in possession under the defendant; whereupon it was objected that the action did not lie against the present defendant. The learned Judge would not nonsuit the plaintiff, and a verdict was taken for him; but he gave [2 H. Bl. 350.] leave to the defendant's counsel to move the Court to set that verdict aside and to enter a nonsuit, if they should be of opinion that the objection was well founded. A rule nisi having been obtained for that purpose last term, owner of the fee, who is not in possession. Law now shewed cause against it; contending, that from all the old authorities it appeared that the burthen of repair lay the owner of the fee; and that the cases which shew that the occupier also is liable, only prove that the same burthen upon may |