he has fuftained it. The Plaintiffs themselves in this cafe. confidered that that was neceffary, becaufe they alledged in their count that it was to the damage of the Plaintiffs; and damages were even given at the trial, though they were afterwards remitted. The arguments of the Defendants in error are drawn, firft, from analogy to other cafes, and next from the precedents but not from principles of reafon or policy. As to the first, I think there is a strong analogy between this writ and that of monftraverunt. The latter was brought by the tenants in ancient demefne, in order (amongst other things) to be quit of toll; and it only takes its name from one of the Latin words used in the writ. Finch indeed confidered this only as a prohibitory writ; in this I differ from him; I confider it as a remedial as well as a prohibitory writ. In the first inftance it is to prohibit the party to take the toll from those who claim the exemption; and on that prohibition not being attended to comes the attachment, which is the remedial part of the writ; and under it those who have fuffered by the difobedience of the former writ may recover damages. Then if there be this analogy between this writ and the monftrave runt, it will appear from all the writers on this fubje& (except Lord Coke), that thefe proceedings cannot be fupported. Fitzherbert, commenting on the monstraverunt, fays, if the lord diftrain, then the tenants may fue an attachment and recover their damages; and, in page 34, he: fays, "the Plaintiffs in the writ of attachment may count feverally, and recover feveral damages; but they may count together in one count, and declare how they were feverally diftrained, &c." But throughout the whole comment there is not a fingle paffage, which does not confider the proceedings upon the attachment as founded upon a grievance actually fuftained by the party fuing. So in his comment on the writ de theolonio, he fays, "the party may have an attachment against the bailiffs, or thofe that do grieve him, &c." The general principle therefore to be collected is, that on both thefe writs the party grieved may count. precedents too, which have been cited, all agree with this; they all state an actual grievance. In one, which was not alluded to at the Bar, Lib. Intrat. 97, it is exprefsly stated in the count in monftraverunt, that the Defendant diftrinxit ; fo do thofe in Ryley, Madox, and 2 Inft. In that in Ryley it is obfervable, that there was a claim of exemption from The all all tolls; and yet, as the parties afterwards infifted on an exemption from fome in particular only, there was a judgment for those parts. In the one in Modex, there was not only a distress, but an avowry on it. So alfo in 2 Inft. a diftrefs was stated; and a judgment given for 20 marks, and an inhibition to the Defendants, not to distrain again. In addition to these cafes, which were all cited on the first argument, a paffage from Co. Lit. has been cited this day: but, after giving it the best confideration, I continue of the fame opinion that I held before. Notwithstanding Lord Coke's opinion is always of confiderable authority, yet it has been fometimes doubted in particular inftances; and in this his comment is totally different from the text. Littleton was only speaking of a diftrefs: and if what Lord Coke fays relative to the judgment of acquittal were meant to apply to any other writ than that of mefne, which was the fubject before him, he is certainly mistaken; it is merely an opinion of his own, not fupported by any authority, and it is contradicted hy those of Finch and Fitzherbert, and by all the precedents in the law books. On the whole, therefore, I am of opinion, that the Plaintiffs have not alledged any real injury in their count, and confequently cannot recover a judgment. I think it is not neceffary to give any opinion on the laft point made at the Bar, becaufe this is fufficient to reverse the judgment in the Common Pleas. At the fame time I must make one obfervation refpe&ing the claim ftated in the declaration. I believe it has been decided that the word "citizens" ex vi termini, means refident citizens:" however, I do not wish to give any decided opis nion on this point. Judgment reverfed, I N D EX OF THE PRINCIPAL MATTERS. A Appeal difmiffed because previous conditions required by Page 37 agaift an order of removal, Juftices rated in either parish cannot vote upon, American confifcations invalid here 369 I 20 Apprentice, inlifting as a foldier, and obtaining the bounty- money, indicted for a fraud, to an infant gains fettlement, 392, 587 Arreft, in the Palace Court, cafe of, 198 Arfon, cafes of, 217, 299, 300, 301 nant in poffeffion of the house burnt, Acceptance, (vide Factor), to constitute this crime, the offender must not be te- Acceffary, cannot be indicted for receiving money knowing 304 290 Bankruptcy does not bar an action of covenant, interest allowed creditors, I 465 -274 Bankrupt, cafe of a commitment of one by the Comiffi- oners, having indorfed a bill, creditor cannot compound with the acceptor, 385 257 Bail in error, four clear days allowed for 473 Bill made to a fictitious payee within the knowledge of the 474 acceptor not bound to pay if it afterwards to proteft, - 393 inland, have 3 days grace, and not fubjec query if the tender be good before 12 at night on the day it becomes due, - 583 585 307 Bond given to the patron to refide upon a living, or refign, Burglary, cafes of, Debtor, infolvent, need not align army half pay under the 39 Lord's Act, iffue, then over, gives the former an estate-tail, where executor takes an estate in fee, Dungarvon, Lord, his trial, E. Evidence, hearfay, how far admiffible, 420 423 446 83 witness, refreshing memory from written-papers, 203 child under 7 years of age may be sworn, if it appears to have difcretion, 310 ibid of perfon liable to be rated, but not rated, in indenture of apprenticeship must be proved by Evidence Evidence of a market toll, viva voce of what paffed before the Juftice, not to be taken in case of felony, of an accomplice, of a confpirator rejected, 74 79 8.6 138 Evans, Mrs. cites her husband in the Confiftory Court for admiffion of affets, 211 271 1, 406, 420, 423 Erskine, the Hon. Thomas, his argument on the Rights of indebted to the estate, Ejectment, cafes in,... Juries in Cafe of Libel, Earnest money deposited, fettlement, 513 Examination taken before a Justice, how far evidence of a 81 F. Factor accepting bills on faith of confignments, and both he Fonton, Francis, trial for forgery, 290 125 Forgery, cafes of, 125, 238, 239, 297, 387, 457,458, 463 Hufband, not bound to maintain his fon-in-law, 471 Houfe of Lords, Cafe of Minet and Gibfon determined there, 474 I. Infants at any age may be fworn if they have a knowledge of the confequences, Infane perfon may be arrested, 310 473 Le |