and the defendants plead thereto that they arrested him in Scot-
land, whether they must not also proceed further to shew that
they were authorized so to do by the law of Scotland; for upon
the other point, there can be no doubt that this arrest, with
reference to the law of England, under which the defendants
have justified, is not well pleaded, but that the pleas are in this
respect insufficient. The substance of them is this, that a forgery
is committed by certain persons unknown, by means of which
(inter alia) a bank note for 100l. is obtained at the Bank of Eng-
land, which is afterwards exchanged there for (inter alia) one of
10%., the date and number of which is altered to prevent its being
traced. The pleas then state, that the plaintiff was possessed of
this altered note, that he disposed of it to A. B., and left England,
and went into Scotland. These are the acts stated to have been
done by the plaintiff, in order to implicate him in a suspicion of
being connected with the forgery: and for that purpose, as each
of these acts is alleged, the word suspiciously is added to the alle-
gation. But what circumstances of suspicion are stated as accom-
panying either of them? 1st, As to the plaintiff's being possessed
of the note, it is not shewn in what manner, nor how soon after
the Bank parted with the note, nor at what distance of time after
the alteration, he became possessed of it. Next, as to his dis-
posal of it: there are no circumstances disclosed in the pleas to
take it out of the ordinary course of payment, neither is there one
fact of suspicion stated as attending his journey into Scotland, which
might not equally attend the journey of any other man, who might
go thither from motives either of pleasure or business; and it must
not be understood that using the word suspiciously will compensate
these omissions, or make it less necessary to state such circum-
stances, as may enable the Court to judge whether they give rise
to a well-grounded suspicion or not. If it had appeared that the
plaintiff had improperly come by the note, or, upon application
made to him, had given a false or unsatisfactory account of it,
had paid it out of the ordinary course of trade, or had left this
country in a strange and unusual manner, as by absconding from
his home and business, there might have been good grounds for
the Court to have given effect to the defendant's suspicion; but
there are none such stated in these pleas, and of the few circum-
stances which are stated, there are none, as it seems to me, to
raise such a suspicion as warranted the defendants in arresting
the plaintiff. I think, therefore, that judgment must be given
for the plaintiff.

HEATH,

1811.

MURE

บ.

KAYE.

[ 43 ]

1811.

MURE

V.

KAYE.

[ 44 ]

[ 45 ]

HEATH, J. As to the first point, it has generally been understood, that wheresoever a crime has been committed, the criminal is punishable according to the lex loci of the country against the law of which the crime was committed, and by the comity of nations the country in which the criminal has been found, has aided the police of the country against which the crime was committed in bringing the criminal to punishment. In Lord Loughborough's time the crew of a Dutch ship mastered the vessel, and ran away with her, and brought her into Deal, and it was a question whether we could seize them and send them to Holland; and it was held we might. And the same has always been the law of all civilized countries. As to the last point, I concur with my Lord in the opinion that these pleas cannot be supported for the reasons by him stated. It is necessary, in order to make good a justification of this description, for the defendants to shew, by pleading, that they had reasonable cause of suspicion, upon which they acted: but these pleas (as it has been shewn) are in this respect wholly insufficient.

LAWRENCE, J. I agree also with my Brothers on the last point, and cannot help again expressing my doubts whether the defendants, who justify a taking in Scotland, should not also have pleaded the law of Scotland to make that justification complete; but I wish not to be considered as giving any opinion how it is to be pleaded in future.

CHAMBRE, J. I am inclined to think it is no objection to the defence, that the arrest appears to have taken place in Scotland, and that the inference is not well founded, that we therefore cannot judge of its validity without taking notice of the law of Scotland, which I agree we have no means afforded us of doing: on the contrary, I think that the Court unnecessarily go out of their way to notice the law of Scotland, when they presume, without either allegation or evidence, that the principles of arrest which would bear out the defendants in this country, would not bear them out in making the arrest there; but as it is unnecessary, I mean to give no opinion on the point. Upon the main point, I will only add, that if it had appeared in these pleas, as in the case cited of stolen goods it usually does, that the note had been found in the plaintiff's hands recently after the transaction, it might have varied the case; but so far from that appearing to be so, it is not inconsistent with this mode of pleading, that both that circumstance and the plaintiff's journey into Scotland might have happened a considerable time after,

nor

nor is it shewn that he departed hastily, leaving his business here unfinished, nor are any other circumstances shewn that indicate a reasonable ground of suspicion.

1811.

MURE

บ.

Judgment for the plaintiff.

KAYE.

BAKER V. HOltpzaffell.

It ap

ACTION for the use and occupation of certain premises in
Long-Acre. At the trial before Mansfield, C. J., at the
Westminster sittings, in this term, a verdict was found for the
plaintiff for three quarters of a year's arrears of rent.
peared that very shortly after the accrual of the first quarter's
rent the premises had been consumed by fire, and since that time
had been in a ruinous state and not inhabited by the defendant.
An agreement, not by deed, was given in evidence, by which
the defendant agreed to pay the rent during the demise of the
term specified in the agreement.

Shepherd, Serjt. moved to set aside the verdict, except as to
the first quarter's rent, on the ground that the action for use and
occupation does not lie for premises which no longer exist, and
therefore cannot be said to be occupied; but in such case the
landlord must resort to his agreement, in order to entitle him-
self to the rent.
He contended that as the stat. 11 G. 2. c. 19.
s. 14. which gave this form of action for use and occupation, en-
ables the landlord to recover a satisfaction for such premises as
are held or occupied by the defendant, it must be implied from
thence that it was not meant to be extended to premises, which,
so far from being held or occupied by the defendant, were not
even capable of occupation.

MANSFIELD, C. J. The land was still in existence, and there was no offer on the part of the defendant to deliver it up (a). The landlord could not enter to rebuild, the tenant might have rebuilt the premises if he had so pleased, and occupied them at any time within the term, he therefore must be taken still to hold the land, which is sufficient to satisfy the words of the

statute.

(a) But see Holtpzaffell v. Baker, 18 Ves. 116., where the plaintiff in equity did offer to surrender his term, praying relief from this action; but Lord Eldon, Chancellor, held he was entitled to no relief, although the agreement contained an engagement by the tenant to repair the premises and keep them in repair, "reasonable use and wear, and damage by fire excepted."

VOL. IV.

1811.

BAKER

บ.

HEATH, J. This point has frequently been decided at nisi prius, though I do not recollect any case reported. The defendant might have rebuilt at any period of the term, whereas the HOLTPZAF- landlord would have been a trespasser if he had entered for that purpose, which shews that the former held the land. Per Curiam,

FELL.

Rule refused.

The Court will not, upon motion, give leave to examine an attesting witness to a deed

upon interroga

tories, and to give such examination in evi

dence at the trial, on the

ground that he is incapable, through iliness,

ON

JONES V. BREWER.

Na former day in this term Lens, Serjt. obtained a rule nisi on behalf of the plaintiff, for leave to examine the subscribing witness to the bond on which this action was brought, upon interrogatories, and to give such examination in evidence at the trial, upon the ground, as appeared by the affidavit on which he moved, of his being incapable, through illness, of at*tending in person, and of its being improbable that he would ever recover so as to be capable of attending. The affidavit also stated that the defendant, upon one occasion, had admitted his execution of the bond, but afterwards upon hearing of the illness of the witness, had retracted that admission, and declared he would neither make nor receive admissions. At the time when the rule was moved, Mansfield, C. J. doubted whether it were not notwithstanding unnecessary, inasmuch as under the circumstances disclosed, eviit also appears dence of the handwriting of the witness would be admissible at the trial, but upon the suggestion of Lawrence, J., that the admissibility of such evidence had been objected to at nisi prius, the rule was granted.

of attending in person, and that he is not likely to recover so as to be able to attend,

by the affidavit that the defen

dant had at one

time admitted

the execution of the deed; nor will the Court, on these grounds, grant a rule for dispensing with the attendance of such witness

at the trial.

Best, Serjt. was now about to shew cause, but was stopped by MANSFIELD, C. J., who said he was afraid that the Court had no power to make the rule absolute: if a subscribing witness is incapable of attending from inevitable cause, such as death, or absence from the country, or even perhaps in some instances of sickness, his handwriting may be proved, but it is not necessary for the Court upon motion to try what degree of necessity will dispense with his presence, which question, when it arises at nisi prius, will come more regularly before the Court.

HEATH, J. The practice now attempted would be very dangerous, for the presence of an attesting witness is in many cases of the utmost importance, and ought not to be dispensed with upon such grounds. If this were permitted to be done, it

might lead witnesses to feign sickness in order to keep out of the

way.

1811.

JONES

V.

BREWER.

*Lens, Serjt. admitted that in the case of a bond it had been held, that the acknowledgment of the obligor would not dispense with the proof of its execution by the production of the attesting [ 48 ] witness, but he submitted to the Court, whether, coupling this admission with the other circumstances of the case, he might not be permitted to change the form of his rule into a motion for dispensing with the attendance of the attesting witness.

MANSFIELD, C. J. We cannot permit that, for the defendant's admission is a fact which we cannot try upon affidavits, because if it were admissible evidence, it would decide the cause, and ought therefore to be submitted to the consideration of a jury.

Per Curiam,

Rule discharged.

EVANS V. MUNKLEY and Another.

TRESPASS for seizing and detaining the plaintiff's horses
until he paid a sum of money to redeem them. The defen-
dants justified (in separate pleas), under mesne process out of the
court of the city of Hereford, (and shewed that the Court had
jurisdiction of all manner of pleas, actions, suits, and demands
whatsoever, trespasses with force and arms or otherwise, in con-
tempt of the king, and of whatsoever trespasses, faults, and
offences within the said city and the suburbs, and liberties, limits,
and precincts of the same, done, moving, arising, had, or com-
mitted,) the defendant Owen, as an officer of the Court, on a
plaint levied by the defendant Munkley against the plaintiff of a
plea of trespass on the case for a cause of action personal, to the
damage of the defendant of 421. 8s. (without stating that the
cause of action arose within the jurisdiction of the court). To
the plea of the defendant Owen, the plaintiff replied, de injuriá
suá propria, &c., and to that of the defendant Munkley, he de-
murred specially, assigning for cause (inter alia) that it did not
appear by the plea, that the plaint of a plea of trespass on the
case therein mentioned, was levied against the plaintiff for a
cause of action arising or happening within the city of Hereford,
or the suburbs, limits, or precincts thereof.
Runnington, Serjt., in support of the demurrer, relied upon

June 26.

In trespass, if justify as plaintiff in a suit in court, under mesne process

the defendant

an inferior

of that court,

he must allege

in his plea that

the cause of action arose within the jurisdiction,

otherwise the

plaint ff may demur.

[ 49 ]