1792. Friday, May 11th. pleads, he must give the plain. THOMAS against PRICHARD. When a prisoner BY a rule of the Court 5 W. & M. if a copy of a declaration be delivered against a prisoner in Hilary Term, and thereplea. If a plains upon the plaintiff give a rule to appear and plead, then if the tiff do not pro- defendant appear within two days before the Essoign day of the tiff notice of his ceed to trial or three terms against the de fendant, a pri soner, the latter is not entitled to be discharged until the expira judgment within next term, he may imparle until the next term: but if he do not appear within that time, judgment may be given against him. And by another rule, 2 Geo. 1. the plaintiff must proceed to trial or judgment within three terms. In this case the plaintiff declared against the defendant, who was a prisoner in the custody of the sheriff of Gloucester, in last Hilary Term; and on the 25th of February the defendant pleaded the general issue, by leaving it in the office, but gave no notice of it to the plaintiff. And no subsequent step having been taken by the plaintiff, tion of the third term. [5 T. R. 473. 8 Ibid. 596. I N. R. 273. 4 Taunt. 545] Vaughan now moved to discharge the defendant out of custody; because the plaintiff could not, according to the direc tions of the rule of Geo. 1. proceed to trial or judgment within three terms. Burrough opposed this rule in the first instance, on two grounds. 1st, At all events the application is too early; because, as the plaintiff has three terms in which he is to proceed to trial or judgment, the defendant is not entitled to be discharged until after the end of Trinity Term. 2dly, The plea in this case must be considered as a nullity, the defendant not having given any notice of it. In the books of practice this is treated as a common mode of surprising the plaintiff: but in Imp. 443, 2d edition, a case is mentioned in which Buller, J. refused to discharge the defendant out of custody under similar circumstances, considering the plea as a nullity; though indeed that case is omitted in the subsequent editions of that book. BULLER, J.-I think that the defendant is wrong upon both points. The first would be a sufficient answer to this application; and on the second I have no difficulty in saying, That the defendant should have given notice of the plea. Per Curiam, Rule refused. JENKINSON JENKINSON qui tam against THOMAS. 1792. Friday, May 11th. augmented cu. Anne's bounty, the 21 H. 8. c. AN action of debt for the penalty given by the 21 H. 8. c. 13. A curate of an (called the statute of non-residence) was brought against racy by Queen the defendant, as curate of the chapel of Stalmine, which was is not liable to stated in the declaration to have been augmented by Queen the penalties of Anne's bounty and after verdict for the plaintiff, at the last 13. for non-reassizes at Lancaster, before Buller, J. a rule was granted to shew cause why the judgment should not be arrested, on the ground that an augmented curacy was not within the operation of the statute of non-residence; against which Law and Chambre now shewed cause. The statute 21 H. 8. c. 13. s. 26. enacts, "That as well every spiritual person now "being promoted to any archdeaconry, deanry, or dignity in any monastery or cathedral church, or other church, con❝ventual or collegiate, or being beneficed (a) with any parson 66 66 age or vicarage, as all and every spiritual person or persons "which hereafter shall be promoted to any of the said digni"ties or benefices with any parsonage or vicarage, shall be per"sonally resident, and abiding in, at, and upon, his said dig"nity, prebend, or benefice, &c.; otherwise he shall forfeit," &c. Now, although the only words particularly specified in the act are parsonages and vicarages, under neither of which denominations this augmented curacy falls, yet they are only put by way of example, and the act must be taken to include all benefices with cure of souls; of which parsonages and vicarages were the only denominations at the time when that act was passed. So Lord Coke (b), in his comment on the statute 9 Ed. 2. st. 1. c. 9. Articuli Cleri, says, "Rectors" are only named for example. The statute under consideration was undoubtedly intended to enforce a general regulation as to residence, which was before enjoined by the canon and common law. 2 Inst. 625. And therefore the present instance falls directly within the spirit of the regulation; and, as it was said in Quilter v. Mussendine (c), this statute ought to be construed liberally to enforce residence. But if there be any doubt on this statute taken by itself, yet other statutes passed in the same (a) Vide 3 Burn's Eccl. Law, 282. tit. Residence, where he takes the words to be " bene"fices with any parsonage," &c. which he supposes to be a mistake either in the record or transcript, and that it ought to be" beneficed;" and it is accordingly so written in Runnington's edition of the Statutes. (6) 2 Inst. 627. (c) Gilb. Eg. Rep. 230.; and 2 Eq. Cas. Ab. 73. sidence. 1792. JENKINSON qui tam against THOMAS. reign, and in pari materia, may be called in aid to the construction of it; for though, in some sense, it may be considered as a penal, yet in another and more enlarged view it is a remedial law. The statutes alluded to, namely, the 25 H. 8. c. 16.; 28 H. 8. c. 13.; and 33 H. 8. c. 28. seem to consider the 21 H. 8. c. 13. as extending to all benefices with cure of souls. Now, if such be the true construction of that act, this case will fall directly within the operation of it; for by 1 Geo. 1. şt. 2. c. 10. s. 4. all churches, curacies, or chapels, which shall be augmented, shall be perpetual cures and benefices; and by section 6. they are made subject to lapse like all other benefices: and it has been held, that quare impedit will lie for them. Upon the same principle it has been held, in many cases, that subject-matter newly created by statute, may be included in former statutes upon the same subject. Cockell, Serjt. contrà, was stopped by the Court. Lord KENYON, Ch. J.-If we had the power of legislation, perhaps we should think it proper to extend the penalties created by the statute of Hen. S. to all benefices with cure of souls: but as it is our duty to expound, and not to make acts of parliament, we must not extend a penal law to other cases than those intended by the Legislature, even though we think they come within the mischief intended to be remedied. The words of the statute of Hen. 8. are, "Beneficed with any parsonage or vica"rage;” but this is neither a parsonage nor a vicarage. For wise purposes, augmented curacies are made perpetual cures and benefices by a subsequent statute, 1 Geo. 1. in order that such curates may be perpetual corporations; but the act does not go on to say that they shall be considered as parsonages or vicarages: if it had, the former law would have extended to them. These curates are still bound by the canon law to reside on their benefices; but I do not think that they are liable to the penal ties of the statute of Hen. 8. for non-residence. Per Curiam, Judgment arrested. Friday, May 11th. If there be an exclusive ferry from A. and B. THIS TRIPP against FRANK. HIS was an action on the case, wherein the plaintiff declared, that he was possessed of South Ferry, over the Humit does not pre- ber; and that the defendant wrongfully carried persons and cattle vent persons from going by any other boat from A. directly to C. though it lie near to B. provided it be not done fraudulently, and as a pretence for avoiding the regular ferry. from from Kingston upon Hull to Barton, and other parts of the coast, whereby the plaintiff was injured in his right to his ferry, and lost his tolls. There was an exception stated with respect to the inhabitants of Barton: strangers who do not stay longer than flood-tide, and market-people from the different parts of the Lincolnshire coast, passing and repassing on market and fair days in market-boats. At the trial before Buller, J. at the last assizes for York, it appeared that the plaintiff was lessee of the corporation of Kingston upon Hull; and he proved a prescription in them to an exclusive ferry between that place and Barton, on the opposite coast of Lincolnshire, with the exceptions before stated. And it appeared that the defendant, who was the owner of a market-boat at Barrow, had carried over persons at different times than on market-days from Kingston upon Hull to Barrow, to which place they were going, and which lies two miles lower down the Humber than Barton, upon the same coast. It was shewn that there was a daily ferry between Kingston and Barton, but none to any other part of the Lincolnshire coast. A verdict was taken for the plaintiff of 1s. with liberty for the defendant to enter a nonsuit in case the Court should be of opinion that the plaintiff was not entitled to recover under these circumstances. A rule nisi having been granted for that purpose, Law and Wood now shewed cause; contending, that if the conduct of the defendant could be justified in this instance, it would render a right of ferry perfectly nugatory. Every person then, by going a little to the right or left of the usual track of the ferry, may equally avoid the ferry: but that would annihilate the right itself. Perhaps it might be difficult to draw the exact line to which the exclusive right extended; but that ought to be governed by usage: now here the usage attaches upon these market-boats on certain occasions; and while it allows the use of them for such purposes, it prohibits them from all others. Then as the defendant carried over several persons, who were not going to market, the plaintiff is entitled to recover. Ferries in general must have some considerable extent upon which their right may operate, otherwise the exclusive privilege would be of no avail. That extent must be governed by local circumstances; and therefore a central situation is for the most part chosen, as that which upon the whole will be most convenient, though, from the nature of the thing, it cannot be equally convenient to all. And there is the greater reason for supporting such rights, because the owners of ferries are bound at their 1792. TRIPP against FRANK. 1792. TRIPP against FRANK. peril to supply them for the public use; and are therefore fairly entitled to preserve the exclusive advantage arising from them. But they admitted, on a question being asked by the Court, that the ferryman was not compellable to provide boats to any place on the Lincolnshire coasts besides Barton. Lord KENYON, Ch. J.-It seems to me that the evidence does not support this action. If certain persons wishing to go to Barton had applied to the defendant, and he had carried them at a little distance above or below the ferry, it would have been a fraud on the plaintiff's right, and would be the ground of an action. But here these persons were substantially, and not colourably merely, carried over to a different place; and it is absurd to say that no person shall be permitted to go to any other place on the Humber than that to which the plaintiff chuses to carry them. It is now admitted that the ferryman cannot be compelled to carry passengers to any other place than Barton: then his right must be commensurate with his duty. ASHHURST, J.-The plaintiff's claim is so unreasonable, that it cannot be supported. According to his argument, if a passenger wished to cross over from Kingston to the Lincolnshire coast three miles eastward, he must necessarily be first carried to Barton, where he would be many miles distant from his place of destination; whereas, if it were not for this ferry, he might go over directly. But the admission which the counsel have made is decisive against the plaintiff. BULLER, J.-The question here is, what right the plaintiff has established by evidence; and that extends only from Hull to Barton, and back again. The question of fraud might arise in this way; by saying that, though the defendant really meant to go to Barton, he went in fraud of the plaintiff's claim a little above or below the ferry. But in this case the defendant had no intention of going to Barton: his place of destination was Barrow, at the distance of two miles from Barton; to which place the plaintiff's right does not extend, and to which he says he is not compellable to go. GROSE, J. of the same opinion. Rule discharged. STEAD |