1805. GIBSON versus WELLS. can turn him out of possession, upon six months notice,* The declaration in every count but the first states an express condition, which is not proved; or if it be presumed to be an inference of law, the jury must understand that there is no such law. That which the Jaw imposes on all mankind cannot properly be said to be a condition of a lease. It is also stated to be to the injury of the reversioner, but even the crack in the wall which was done, not wilfully, but by accident, is not an injury to the reversion, because it may be repaired before the expiration of the lease, and there is really no way of assessing the damages. Tenantable repair is what one hears of every day, but one knows not what it is, unless it is explained by a covenant or an express assumpsit. Every want of repair in every house in the kingdom may be said to have arisen from the neglect of the tenant, who might have repaired, at a great expense. The rule laid down in 2 Espinasse, 590, is to be found in no other book; the action must have been in assumpsit." Whereupon the plaintiff was nonsuited. He moved for a new trial, as I understood, and with great difficulty obtained a rule to shew cause, but afterwards abandoned it. With respect to permissive waste, no remedy lies against a tenant at will; for he is not bound to repair or sustain houses like tenant for years. 3 Rep. 13, b. 1 Show. 288. END OF TRINITY TERM. I. See BILLOF EXCHANGE, No. ACTION UPON THE CASE.. definite use of the water by the 321 2. An action for criminal con- ACTION. concerning abuses, yet if one 1. See PLEADING, No. 2. where no excuse is set up by the 1. Semble, the right to the use 4. See COMMON CARRIER, and 5. See PRACTICE, No. 16. AFFIDAVIT OF DEBT. 1. See PRACTICE, No. 13, and Wood v. Jenkins, M. 157 2. See PRACTICE, No. 34, and Anonymous, M. AGREEMENT. 207 1. See PLEADING, 2; and Hunt v. Silk, M. 15 2. Agreement to let to A. a house, at a yearly rent, to continue during the life of the lessor, supposing it to be occupied by the 6. A corporation being entitled by prescription to toll on all wheat brought into the market, and there sold on a market-day, but in which of late it had become the practice to sell by sample, and upon which sale by sample they had claimed the like toll for corn sold in the market; held, that where A. bought of B. in the market by sample to be delivered in the Borough, A. knowing B. not to be a freeman exempt from the toll, and the corn not to have been in the mar-lessee himself, or a tenant agreeket, and the toll not to have been able to the lessor;" held, that no paid, and which corn was the interest passes, under a lease to next day delivered, the corpora- be made under this agreement, tion could not maintain case to the executors, but it must be against A. for such sale in fraud a lease for the life of the lessor, of the toll. Q. whether it would if the lessee occupies himself, or lie against B Held also, that by a tenant agreeable to the such sale by sample is not lessee; and that upon his death evidence of a sale by bulk, upon the lessor may eject the executor a count for purchasing corn in without a notice to quit. Doe the market in bulk, and not pay-dem. Bromfield v. Smith, T. 45 Gec. ing the toll. The Bailiff, &c. of III. Tewkesbury v. Diston, E. 45 Geo. III. 508 ALIENATION, RE- AMENDMENT: 570 1. One may agree not to insist upon ascire facias, to revive a judgment against him after the year has elapsed; and execution sued out without a scire facias will then be good. Where one gives a counter-security to another, containing a covenant to pay an annuity and indemnify him, and also a warrant of attorney by way of collateral security, and it is agreed, that, in default of any one payIment of the annuity, judgment I shall be entered up, and execu tion issue for the whole sum specifically, being the price of the annuity, it is not necessary to APPOINTMENT. assign breaches under the statute 8 and 9 W. III. c. 11, s. 8; but execution may issue for the whole 1. Where A. was seised in fee, sum. Howell and Another v. Strat- and conveyed to B. and his heirs ton and Another, M. 45 Geo. III. 66 to the use of such persons and 2. Where a judgment entered for such estates as he 4. should up to secure an annuity was set appoint by deed or will, remainaside, the party brought assump-der to the use of A. and his heirs ; sit for money had and received, and afterwards granted a rentand produced the annuity-deed charge, with a covenant for him as evidence of the consideration; and his assigns to pay the same; held, that, although this deed, and then A. and B. by lease and upon the face of it, does not ap-release, &c. release, and also appear to be void, yet upon prov-point to C. the premises subject to ing the rule to set aside the judg- the rent-charge, and C. enters into ment, and to deliver up the a covenant with A. to pay the same warrant of attorney to be can- rent-charge: held, that C. is not celled, the plaintiff might recover, liable personally to an action of because one of the securities covenant, at the suit of the failing upon which the annuity grantee of the rent-charge as was granted, the whole fails, and assignee, the conveyance operatthe consideration money becomes ing under the power and not out money had and received to the of the estate of A. Roach and use of the plaintiff. Scurfield v. Another v. Wadham, H. 45 GeoGowland, H. 45 Geo. III. 332 III. APPEAL. I. Where upon a conviction on the stat. 29 Geo. II. c. 33, S. 7, an appeal is allowed to the sessions, upon giving eight days, notice, held, that it is only necessary to give notice to the prosecutor, &c. and not to the overseers of the parish, although part of the penalty is given to the poor of the parish. Anonymous.-Conviction, H. 45 Geo. 111. 241 2. No appeal lies to the sessions from a conviction by two justices for an offence under 42 Geo. III. c. 38, s. 30; notwithstanding the act contains a general clause of reference to all former excise laws, and incorporates all the powers and provisions of 12 Car. II. c. 24, and of all other laws relating to the excise or inJand duties, under the management of the commissioners of excise for the managing, raising, mitigating, and levying the duties ARBITRATION. 376 1. In assumpsit, the plaintiff by the said act 42 Geo. III. c. 38. declared, that in consideration The King v. kone, T. 45 Geo. III.that he would permit the defen643dant to occupy a house for four III. 225 5. In assumpsit on the warranty of a horse, where the warranty was "sound in the eye, &c. except a slight snap, which will be well in a few days;" held that the exception was material, and should be stated in the decla weeks, at ten guineas per week, | Northwick v. Stanton, H. 45 Geothe defendant undertook to pay "the said rent," and the plaintiff recovered, though the defendant never took possession, and, though no other promise was proved, than that the defendant said she would take the house upon the terms. The said rent, in such a declaration, means the said sumration, although, if the exception in gross. The letting and hiring had not been made, it might not is evidence of an express promise have been an unsoundness under sufficiently to enable the party to the general warranty. Morris v. bring assumpsit. Gregory v. Bad- Lithgor, E. 45 Geo. III. cock, M 45 Geo. III. 18 395 6. If an auctioneer places a ticket of a bidding under a candlestick for the vendor, it is not sufficient to avoid the duty, in case there is no sale to a bona fide purchaser. And where one said to the vendor that he had done all to avoid the duty, and upon this, was called upon to pay, held, that he could not recover against the vendor for the duty paid. Capp v. Topham, E. 45 Geo. 2. A. and B. interchangeably accept accommodation-bills; B.'s bills are discounted with C. who, upon their becoming due, agrees to renew them; but 4. having fallen into discredit, C. does not take his name to the bills, but draws for the amount on B. only; before these new bills become due, A. becomes bankrupt: Semble, B. might have proved under A.'s conmission, for the former accom-III. modation-bills, this being a payment as it were of those bills. B. having arrested A. for the amount of the bills paid to C. after A. obtained his certificate, the court discharged A. upon filing common bail. Franco v. Dubuis, M. 46 Geo. III. 36 8. Where a declaration stated an undertaking to carry safely certain goods by water, with an exception of all accidents arising from the act of God, the king's enemies, fire, pirates, and all other dangers and accidents of the seas, rivers, and navigation of what nature or kind soever, held, that this exception, being beyond the common law exception, must be specially proved. Richardson v. Sewell, H. 45 Geo. III. 205 4. In assumpsit for a fine on admission to a copyhold, where the lord remitted a part of the fine, held, that it was not necessary to prove an entry on the court-rolls, either of the original assessment of the fine, or the reassessment; for the lord, and not the homage, is to assess the fine, 443 7. See PLEADING, No. 18, and Martin and Others v. Smith, E. 543 ATTACHMENT. L. See COSTS, No. 2. AWARD; | No. 1. and Stokes v. Lewis, M. 12 2. See PRACTICE, No. 11; and Kenyon v. Grayson, M 61 3. See PRACTICE. No. 17; and The King v. the late Sheriff of Middlesex. H. 243 4. See AWARD, No. 3; and Hnfree v. Bromley and Others, H. 400 ATTORNEY, 1. Se PRACTICE, No. 30; and Corks v. Harman, E. 409 2. Applications, upon special circumstances, to be admitted an attorney, must be made by petition to the judges, at the treasury chamber, and not by motion. to the court. But under statute 37 Geo. III. c. 90, § 31, where an attorney has discontinued practice, and is therefore struck off the rolls, for not paying the certificate duty, he must apply by motion to the court, and state, upon affidavit, how he ha✿ |