HeinOnline is a subscription-based resource containing thousands of academic and legal journals from inception; complete coverage of government documents such as U.S. Statutes at Large, U.S. Code, Federal Register, Code of Federal Regulations, U.S. Reports, and much more. Documents are image-based, fully searchable PDFs with the authority of print combined with the accessibility of a user-friendly and powerful database. For more information, request a quote or trial for your organization below.
![handle is hein.slavery/ssactsengr0963 and id is 1 raw text is: IN BANCO REGIS
CASE 613.
Semb. S. C. Jepson v. Jackson, 2 Lev. 194. 3 Keb. 755, 761.
In trespass, defendant pleaded a licence to him for himself, wife, and children; the
plaintiff replied no licence to him and his wife, modo et forma: a repleader was
awarded after verdict. A licence to A. and his wife to enter, survives to the wife;
secus of a licence to A. to enter with his wife.
Trespass. The defendant pleads a licence to him for himself, his wife, and children,
by the plaintiff. The plaintiff replies, that he did not give a licence to him and his
wife modo etformd. After verdict for the plaintiff, it was moved in arrest of judgment,
that here was no issue joined; for the defendant pleads a licence to himself, and the
plaintiff says he gave none to him and his wife. And the Court held this to be naught,
and not to be aided by the modo et formd; for here is a substantial difference; for if
the licence were given to him for to bring on his wife and children, if he died, this
would not serve the wife; but if it were a licence to him and his wife, if the husband
died, it would survive to the wife; as where a man makes a lease at will to two, if
one dies, the lease is not determined (a); and thereupon the Court ordered a
repleader (b).
CASE 614.
Trover lies by one tenant in common or joint-tenant against another, for destroying
or actually converting the goods.
Memorandum. It was said by Wylde, that if there be two jointenants or tenants
in common of goods, and the one gets all into his possession, the other hath no remedy
but to take them again ; but if one destroys them, or [451) actually converts them,
the other may have trover, &c. 1 Inst. 200. [Et semble q' le reason est, because when
the thing is destroyed, the other is deprived of the remedy of taking it again.] (a).
CASE 615. GARDINER V. SEDGWICK.
S. C. 3 Keb. 763, 780.
Upon the escape of a prisoner in execution on civil process, qucere, whether the party
can retake him after a recovery (without satisfaction) in an action of escape against
the gaoler?
Audita querela. The plaintiff declares, that he being before in execution and escap-
ing, the defendant had brought his action of escape against Sir John Lenthall, who
was the gaoler, and judgment against him; but did not say, that he was satisfied by
Sir John Lenthall.
And it was argued by Leviston, that although the defendant at the first had his
election, either to sue the gaoler, or to take the party again, yet here he having made
Selw. 374. Fowle v. Welsh, I Barn. & Cress. 29. S. C. 2 Dow. & Ryl. 133. Wotton
v. Hele, 2 Saund. 181, n. 10. And there seems to be no difference in this respect
between an assumpsit and a covenant ; see Hayes v. Bickerstaff, Vaugh. 120. Bloxam v.
Walker, ubi supra.
(a) Co. Lit. 55 b. 5 Co. 10. Dyer, 269 b.
ib) According to Levinz and Keble, this decision was upon error on a judgment
in . B., which was reversed.
(a) This dictum probably occurred in Bastard v. Stukely, 3 Keb. 756. See acc.
Fennings v. Ld. Grenville, 1 Taunt. 241. Heath v. Hubbard, 4 East, 110. And a sale
by one tenant in common of the whole property is a conversion of the share of the
other. Semb. Barton v. Williams, 5 Barn. & Ald. 395. Sed vid. Heath v. Hubbard,
supra. An action of account lies between joint-tenants and tenants in common, by
stat. 4 & 5 Anne, c. 16.
I1FREEMA.N,451.](ViewImageLocal?handle=hein.slavery/ssactsengr0963&div=1&collection=&method=preview&ext=.png&size=3)