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![handle is hein.slavery/ssactsengr0234 and id is 1 raw text is: AARONS, V. WILLIAMS
not belong to modern decisions ;-[302] not for being more consonant with justice,
but that they have the sanction of time ;-but no such authority belongs to this case,
for this case is quoted but once during all the period of time since Fitzherbert, and
that quotation destroys its authority, and is not confirmed by the authority of any
learned author who has since written on the law. Instead, therefore, of being an
ancient case entitled to weight, it is entitled to none at all; the authority of it is
destroyed ; and it is impossible but that the diligent professors of the law who have
written on the subject, would have admitted it, or that it should have been quoted by
Kitchen as he has quoted it, if up to the extent of Fitzherbert, it had been entitled to
be considered as any authority. We must apply the contrary of the rule; we must
say that the remoteness of the case, instead of strengthening, weakens its authority.
I have stated, that the books furnish us with no other authorities to guide us, and
unless we are compelled by authority to say that this is law, I for one will never say
so; for, instead of doing what-has been done by our predecessors, namely, giving
stability to this species of interest, and doing that which would confer a benefit by
raising a class of people from slavery to independence and opulence, and consequently
to respectability and power.-Instead of giving stability to the interest and enlarging
the rights of the copyholders,-we should be establishing a rule which would destroy
their estates. Unless compelled by authority I will not do that. After the greatest
diligence in our researches, we can find no other authority to warrant the doctrine
in the case of. Attree v. Scutt, but the one to which I have referred. If we had not
discovered that Attree v. Scutt stood on a false foundation, we should have been much
embarrassed by it. We see the only ground on which the case of Aitree v. Scutt rests,
and we find it cannot be supported. We find, that if the learned judges had [303]
endeavoured to trace the case in Fitzherbert to its source, they would have seen it
had no solid foundation. There is nothing on which it can stand, and therefore we
have no difficulty in deciding against it. This has been argued as a question of general
copyhold law: if the jury had found that there was a custom of this kind .within this
manor, and it had been put to us to say whether the custom was good or not, perhaps
we might have been of a different opinion. It is not necessary to say what our opinion
would have been. There is no custom found, that on a reunion the multiplied heriots
are to be paid. It has been discussed as a question of law, and we are to say, whether,
without any custom being found, it is the necessary legal consequence, that when an
estate has been divided and again reunited all the heriots are to be paid, after the
reunion of the several estates, that were paid whilst it was divided; we say there is
no such doctrine. Our judgment therefore, is, that two heriots only are payable, not-
withstanding the tenancy in common that has intervened in the passage of this
property down to Sir Charles Bunbury, and we are of opinion that only two heriots
.were payable on the death of Sir Charles Bunbury.
PARK J. The verdict must be entered for the value of the two first heriots,
1581. 11s., and the judgment accordingly.
(304] AARONS V. WILLIAMS, SEARLE, AND CANN. July 6, 1824.
[S. C. 9 Moore, 563.]
If one of many Defendants who have severed in defence, sues out a writ of error, the
Plaintiff cannot proceed to execution, because one of the other Defendants makes
an admission that the writ was sued out for delay.
The Defendants, who were bankers, were sued in this action on their acceptance of
a bill of exchange. Williams and Searle appeared jointly and pleaded a judgment
'recovered ; Cann employed a separate attorney, appeared separately, and demurred to
the declarati6ii; upon which demurrer and an issue of nul tiel record, judgment was
obtained in Easter term last. A writ of'error was thereupon sued out on behalf of
Cann, allowed by the officer of the court, and notice of the allowance served on the
ittorney for the Plaintiff:. Searle afterwards admitted that the writ of error was sued
out for delay, and the plaintiffis attorney thereupon issued a Ca. Sa. against all the
Defendants: no admission of delay having been made by Cann, or her attorney,
Bosanquet Serjt. obtained a rule nisi to set aside the writ,. and subsequent pro-
ceedings, with costs.
2 BING]. 302.](ViewImageLocal?handle=hein.slavery/ssactsengr0234&div=1&collection=&method=preview&ext=.png&size=3)