the sheriff on the company's warrant. It was also enacted that, upon such assessment, the satisfaction for damages should be settled and ascertained separately from the value of the lands.

A jury was summoned on warrant as above, stating the subject of the inquiry to be, the purchase-money to be paid for lands of T. K., and the compensation to be made to him for damage. The jury returned a general verdict for 15,000l. Neither the proprietor nor the company (unless by the form of the warrant) required a distinct assessment to be made of value and

damages. This Court refused to grant a mandamus to the sheriff, at the company's instance, to summon a jury for a new inquiry.

It being objected that, for want of a distinct assessment, the ad valorem duty to be put upon the conveyance to the company could not be ascertained, the Court recommended that the finding of the jury should be specially stated in the conveyance, and duty paid as upon a purchase for 15,000l. In re London and Greenwich Railway Company, 678.

XXXIX. 54 G. 3. c. cxxiv. (Turnpike Act).

By a local statute prior to the General Turnpike Act, 3 G. 4. c. 126., trustees of a turnpike road were empowered to let the tolls by writing under their hands and seals; the rent to be made payable to their treasurer, in default of which every such lease should be " null and void to all intents and purposes whatsoever."

Held, that this clause was still imperative, though by the General Turnpike Act, s. 55., it is enacted, that after the tolls shall have been let, as there directed, the purchaser shall "enter into a proper agreement" for the taking thereof, and paying the rent, under such conditions and in such manner" as the trustees shall think fit.

66

Held, further, that a lease making the rent payable to the trustees or their treasurer, was not conformable to the local act:

That the words "null and void" in that act were not to be construed as "voidable," but that the lessee or his surety might treat the lease as absolutely void:

TENANCY.

And that the lessee's surety might take advantage of the above defect, in an action brought against him by the trustees for non-payment of the rent, though the lessee had taken the tolls for several years under the lease. Pearse v. Morrice, 84. (See Deed, 3.)

STOLEN PROPERTY.

In what case recoverable in trover. Market Overt.

STOPPAGE IN TRANSITU.

Withholding goods from vendee at request of vendor, when a good consideration for promise by vendor to indemnify. Assumpsit, I. 1.

SUBMISSION.

To arbitration, whether partner can bind his co-partners by. Award, 1.

SURETY.

Of lessee, when he may take advantage of defect in lease. Statute, XXXIX.

SURVEYOR.

Allowance of his accounts.

An allowance of a surveyor's accounts at special sessions is irregular if they have not first been carried before a single justice, though the vestry did not desire it, and though no notice was taken of the omission on the accounts being discussed at the special sessions. Rex v. Goodenough, 465. (See Days,1.)

TAXATION.

1. When court will order master to review. Costs, 14. (1).

2. What items in attorney's bill are taxable. Attorney, I. 4.; Statute, XIII. (2). [1].

TAXES.

What demand of, necessary for distress under 45 G. 3. c. 99. s. 33. Statute, XIV.

TENANCY.

What gives a settlement. See Poor, II.,

V.

TENANT.

TENANT.

See Landlord.

TENDER.

When it may be pleaded. Pleading, III. 2.

TENEMENT.

Settlement by renting. Poor, II.

TIMBER.

See Trees.

TIME.

See Reasonable time, Unreasonable time, 'Days.

TITLE.

1. Of declaration in ejectment. Ejectment, 3.

2. How to be stated in pleadings. Pleading, II. 5.

3. Adverse. Adverse title.

TOLLS.

Lease of, under Local Turnpike Act, how to be made. Statute, XXXIX.

TRADE.

1. Offensive trade.

In a lease of a house (made in 1802) there was a covenant, with a clause of forfeiture, not to use or exercise the trades or businesses of a butcher, baker, slaughterman, melter of tallow, tallow chandler, tobacco-pipe maker, tobaccopipe burner, soap maker, sugar baker, fellmonger, dyer, distiller, victualler, vintner, tavern keeper or coffee-house keeper, tanner, common brewer, or any offensive trade, without licence: Held, that the lease was not forfeited by carrying on any occupation besides a trade, and that it was not a trade to use the house as a private lunatic asylum; the word trade in this covenant being applicable only to a business conducted by buying and selling. Doe dem. Wetherell v. Bird, 161.

2. Custom in restraint of trade, when good. Custom, 1.

TREES.

Reservation of, in lease under power, when within power. Power, 1.

TRESPASS.

1. Evidence requisite to support issue as to locus in quo. Evidence, XIV. 3. (2).

2. What variance material, as to plaintiff's title, between declaration and evidence. Pleading, II. 5.

3. What put in issue by plea of not guilty. Pleading, II. 5.

4. When judge may certify to deprive plaintiff of costs. Statute, II.

TRIAL.

New trial, when granted.

1.

1. Erroneous decision at trial.

If a Judge at nisi prius decides erroneously as to the right to begin, the Court will not on this account (at least, without other reasons) grant a new trial. Bird v. Higginson, 160. 2. Proof of matters not in issue.

Where a party, sued for money had and received, rested his defence on his having obtained the money bonâ fide, in satisfaction of an equitable claim; and the plaintiff, at the trial, merely endeavoured to impeach the fairness of the receipt, and the claim generally; and the jury found for the defendant; the Court refused to entertain a motion for a new trial, made on the ground that, admitting the fairness of the transaction, the defendant appeared, upon the plaintiff's case at the trial, to be not entitled to retain more than a part. Moore v. Eddowes, 133. (n.)

3. Motion to reduce damages on ground not taken at trial. Warranty.

B. died in the vacation of Hilary term 1854, which term commenced more than a year and a day from the date of the warrant. In the same vacation, and before the rules of Hilary term 4 W.4. came into operation, H. entered up judgment, without the leave of the Court or a Judge's order, and took out execution, without scire facias. The Court, at the instance of B.'s administrator, set the warrant, judgment, and execution aside, and ordered the proceeds of the execution to be paid to the administrator, on the ground that, notwithstanding the agreement, judgment could not be entered up after B.'s death.

Quære, Whether the distance of time, if that had been the only objection, could be dispensed with by the agreement? Heath v. Brindley, 355.

(2). On proof of party being alive within reasonable time.

Since the Rules of Court, Hil. 4 W. 4., judgment may be entered up on a warrant of attorney, the affidavits shewing that the defendant was alive within a reasonable distance of time.

The eighth day preceding the day of the application, though not within the term in which the application is made, is at a reasonable distance of time.

On a warrant of attorney to suffer judgment to be entered up against two, or either of them, judgment may be entered up against one only. Jordan v. Farr, 437.

(3). After demand on insane person. A party executed a warrant of attorney to secure the re-transfer, upon demand, of stock lent to him: afterwards he became insane, and continued so to this time. A formal demand of the re-transfer was made upon him. The Court refused to allow judgment to be entered up. Capper v. Dando, 458.

(4.) Against one of two. Antè, II. 2. (2).

3. Entering satisfaction on judgment

roll.

J. executed a warrant of attorney to confess judgment; the defeazance recited a mortgage made by M. to A.,with a proviso for redemption on payment of the principal on a day named, with interest in the mean time; the defeazance further recited, that J. gave

the warrant of attorney as a security for the payment of the interest after the rate, at the time, and in manner appointed by the mortgage deed; and that it was intended that judgment should be entered up forthwith; it further provided, that no execution should be issued till default should be made in payment of the interest at the times, &c. (as before); but that, if default should be made in such payment execution might be issued, at any time and from time to time thereafter, for all the arrears of interest then due, and thenceforth to accrue due. Judgment was entered up on the warrant. The interest due up to the day named in the mortgage inclusively was paid soon after the day. Afterwards, demand was inade on J. for payment of interest accruing after the day. On application to the Court to order satisfaction to be entered on the roll:

Held, that the motion was at all events premature, execution not having issued; and, per Littledale and Williams Js., that it was not sufficiently clear, from the defeazance, that the warrant of attorney was intended to cover only the interest up to the day named, inclusively, for the Court to interfere. Atkinson v. Jones, 439.

WARRANTY.

Of horse, course to be taken by purchaser on breach of warranty.

If the purchaser of a horse on warranty discovers him to be unsound, he should immediately tender him back to the seller; and, if the seller refuse to take him, should sell him as soon as possible, for the best price that can be procured. The seller is liable for his keep, in the meanwhile, for a reasonable length of time.

What length of time is reasonable, in any particular case, is a question for a jury.

In an action upon such warranty, if defendant wishes to reduce plaintiff's claim for keep on the ground that the time was unreasonable, he must make that point at the trial. If he then defends solely on the ground that there was no breach of warranty, and the jury give damages in respect both of the price and keep, he cannot move to reduce them because the Judge did

not