« ForrigeFortsett »
1806. There is therefore no objection to the direction) and Stiumem Et'U 'ess to the finding of the jury."
Dixon. Lawrence, J. Of the same opinion. "I understand the learned judge, as the report state it, to have told the jury uot to consider the admissions, because the construction of them was with him. He did not mean to deny, that they were to find that the party was admitted to tres acrus prali, but that they were not to attend to the construction of deeds, but to find on which side the weight of the evidence was as to the usage, and then to find the verdict accordingly. As to the taxes, they were clearly wrong, for admitting it to be one way or the other, the burthen of the taxes ought to he thrown equally upon both, and payment by one proves only that by the negligence of the persons concerned the burthen of the taxes was improperly thrown."
Le Blanc, J. was of the same opinion ; and " that if it wxnt down for a new trial, it would only be for the judge to tell the jury to find according to the usage, and that the admissions would not be inconsistent with such a us;ige.
Line against Lowe.—11/A Feb. 180<sIf a defendant is supersededfor -want of being chargrd in exe- Practice. Exe.
... f , .. . , . , cutioii. Ca. s».
cution, he cannot be taken m execution again, vpon thatjudg- Supersedeas. ment.
'J'HIS was a rule to shew cause why the defendant
should not be discharged out of custody upon a Lowe. ca. sa. and why the writ should not be set aside with posts for irregularity, the defendant having been once in custody before, and superseded for want of being duly charged in execution, upon the same judgment.
Wigley, in support of the rule, Wood shewed cause.* The court took time to consider, and ou the next day the judgment of the court was delivered in this case to the effect following, by
Lord Ei.lenborough, C.J. "The party being superseded for want of being duly charged in execu-» tipn, the question now arises, whether, haying been so superseded for want of being charged in execution in due time, according 10 the practice, he could be afterwards taken in execution upon a ca. s<i. on that judgment. Having some doubt upon this subject, and looking at the printed book of rules and orders in the court of King's Bench, Trinity, 2 Geo. I. there is a note in the margin, which lays down the practice oa this subject, and we wished to see if it was warranted by authority. It states, if the defendant supersede for want of proceedings before judgment, yet the plaintiff" may afterwards take the defendant in execution; but otherwise, if the party is superseded for want of charging in execution. And upon searching, we find this is warranted by authority. For
♦ I was not present when cause was shewu,
in Clarke v. Venner,* which was a motion lo discharge the defendant out of execution, who was before discharged for want of the plaintiff's proceeding to judgment, afterwards the plaintiff proceeded to judgment, and took the defendant in execution. Mr. Justice Denton said he had consulted with tiie justices of the court of King's Bench, and one of the judges told him the constant practice of that court was, that where a defendant is discharged for want of proceeding to judgment, the plaintiff may afterwards proceed to judgment, and take him in execution thereon, and he shall not be discharged. But if the plaintiff had proceeded to judgment, and the defendant was discharged for want of being charged iu execution, he should be totally discharged, and cannot after that be charged jn execution. And in JVright v. Kenswell,f which is also recognized in Cowper, 72. a supersedeas was granted, to discharge the defendant for the plaintiff's not proceeding to judgment; afterwards the plaintiff proceeds to judgment, and the defendant being taken in execution, now moved for a supersedeas, the defendant having been discharged on the former supersedeas; the court took time to consider of it, and afterwards determined that the defendant might be taken in execution, though he had been discharged for want of proceeding to judgment; but if it had been for want of proceeding, after judgment, to charge the defendant in execution, then it would have been otherwise, and he would have been entitled to his discharge.
Upon these authorities we think; that the party cannot be taken in execution having been opce discharged for want of proceeding to execution. And although, jn that case of Clarke v. Venner, it is, said that Mr. Justice De/iison was informed by one of the judges of
* Cases of Practice, C. B. p. J36. } lb. 135, and
the King's Bench, that such was the practice, yet it was upon consultation had with both the courts. And as this is a question of irregularity the rule must be
Discharged with costs, Lot the defendant not to bring any action for the imprisonment.
Iggctlden against May— 11th Feb. Lease for 21 years in coinideration of 51. 8s. for a fine, and a rent of 6s. Sd. ttith a proviso of distress if the rent should he btltind 14. days. Covenant liy tUe lessor at the end of 13 years, nr In for? at the request o f tie lessee, " to grant a neio lean for the it *<• fine, for the like term of 21 years, at the' like yearly rent, with all covenants, grants, and articles, as it that indenture contained." 'The lessor upon request tendered a lease with all covenants, except a covenant for a, renewal. The lessee brought covenant for not executing a lease, and averred that the said covenants corresponded with those in various other leasts, before then successively made and executed of the premises, on renewals from time to time granted. Held, that the hate tendered uas sufficient; and, admitting that such an averment could properly be introduced upon the record, to explain the intent of the parties, if vhich there vsas great doubt, yet ic might be satisfied, although there were many instances of leases to the contrary.
^pHE plaintiff declared in covenant upon an indenture of lease, dated the 29th September, 1783, at Deal, between one John Dilnot, of the one part, and the said John lggulden, Elizabeth Fleetwood, and Sarah lggulden, of the other part; whereby in consideration of 5l. 8s. by way of fine and of the rent therein after reserved, the said John Dilnot did demise to the said John lggulden, E. Fleetwood, and Sarah lggulden, their executors, administrators, yand assigns, all those '2.7 perches of ground, and the severul messuages or tenements, outhouses, and buildings thereon situated, lying and being in Lower Deal to have and to hold, to them, their executors,, adiuiI
380$. nistrators and assigns, for the full end and term of 21 JveuLnEK years, from thence next ensuing and fully to be comMat p'ete and ended; yielding and paying therefore yearly the rent and sum of fis. Qd. of lawful money of Great Britain, at the feast day of St. Michael the archangel, or within fourteen days next after the said feast day. .And if it should happen that the said yearly rent should be behind, and unpaid in part or in all by the space of 14 days next after any feast day of St. Michael the archangel, during the said term, that then and from thenceforth it should and might be lawful to and for the said John Dilnot, his heirs and assigns, into and upon the said demised premises, or any part thereof, to enter and distrain, and the distiess and distresses there found and taken from thence to bear, carry away, detain, withhold, and keep until the said yearly rent and the arrears thereof, should be to him the said John Dilnot, his heirs and assigns, well and truly satisfied and paid; and the said John Dilnot, for himself, his heirs, and assigns, did covenant and grant to and with the said John Iggulden, Elizabeth Fleetwood, and Sarah Iggulden, their executors, administrators, mid assigns, and every of them by the said indenture in manner following; that is to say, that the said John Dilnot, his heirs and assigns, at the end of 18 years of the said term of 21 years, or before, upon, request to him or them, made by the said John Iggulden, Elizabeth Fleetwood, and Sarah Iggulden, their executors, administrators, and assigns, and at the proper costs and charges of the said John Iggulden, Elizabeth Fleetwood, and Sarah Iggulden, their executors, administrators,or assigns, should and would make, seal, and deliver unto the said John Iggulden, Elizabeth Fleetwood, and Sarah Iggulden, their executors, administrators, or assigns, a new lease of the said 27 perches of ground, with the appurtenances, for the , like fine or consideration of 51. 8s. for the like time and term of 21 years, at the like yearly rent of 6s. 9d,