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![handle is hein.slavery/ssactsengr0965 and id is 1 raw text is: DE TERM. S. TRIN. 1677
his election, and sued and recovered against the gaoler, shall never after resort to take
the party ; as in a debt upon a bond, where a man binds himself and his heirs, and
dies, the obligee hath election either to sue the heir or executor ; but if he once sues
the heir, and recovers against him, he shall never after resort to the executor; and so
in a case of a grant of a rent, if the party elects to have it by way of annuity, it shall
be a rent no more ; and if he elects to have it a rent, it shall be an annuity no more ;
and he cited Cro. Car. 240, where this point seems to be admitted. And Wylde
seemed to incline to this opinion (a). But afterwards it was agreed.
[452] DE TERM. S. TRIN. 1677. IN BANCO REGIS.
CASE 616.
Semb. S. C. Butts v. Penny, 2 Lev. 201. 3 Keb. 785.
Trover lies for a negro slave.
Trover and conversion. Held per Curiam, that although by the law with us a
man cannot have an absolute property in the body of another, yet the custom of India
concerning buying and selling of slaves being found, it was held, that a trover and
conversion would lie well enough (a).
CASE 617. FORTESCUE v. ABBOT.
S. C. 2 Lev. 202. T. Jo. 79. 3 Keb. 788, 824. Pollexf. 479.
See S. C. post, p. 481.
Ejectment. Special verdict. The plaintiff claimed by a devise. And Saunders
took exceptions to the verdict, because it did not find that the land was socage tenure,
for otherwise it should be intended knight's-service; and he cited Cro. Eliz. 667.
4 Leon. 196. Moor, 279. Sed Dy. 329, cont. And the Court said that of late they
do usually intend socage tenure, if the contrary do not appear.
For the matter in law, it was the very same with Wood and Ingersole, 2 Cro. 260,
for here was a devise to four children for life, and if either died, his part should go
to the survivor; and the eldest son died first, and the plaintiff was the heir. Et
adjournatur. And by the descent of the reversion to him his estate was drowned.
[S. C. post, p. 481.]
[453] CASE 618. TAYLOR v. BAKER.
S. C. 2 Lev. 203. T. Jo. 97. 2 Mod. 214. 3 Keb. 748, 788, 802.
Payment to the gaoler by a party in execution, under a ca. sa. is no discharge. Pay-
ment to the sheriff upon a fi. fa. is good: semb. aliter, upon a ca. sa. post, p. 482.
Payment is no plea to matter of record.-Sed vid. 4 Ann. c. 16, § 12. 2 Salk. 508.
Sci' fa' upon a judgment in this Court. The defendant pleaded, that he was
taken in execution by a ca' sa' and that he, being there, sent about after the plaintiff,
(a) The inclination of the rest of the Court seems to have been contrary to this.
See S. C. 3 Keb. 763: but the report of Keble differs in several respects from the
above, and is very confused.
(a) The report of Keble is curious. Special verdict in trover for 10 negroes and
a half, finds them usually bought and sold in India, &c. Per Curiam, they are by
usage tanquam bona, and go to administrator until they become Christians; and there-
by they are enfranchised. N.B. The plaintiff was not possessed of these negroes in
England, but in India; and no judgment was ever given; see the argument of
Hargrave (who had the roll examined) in Sommersett's case, 20 How. State Tri. p. 52.
And see Chambers v. Warkhouse, 3 Lev. 337. Gelly v. Cleve, 1 Ld. Raym. 147.
338
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