of No. 2, is subtracted from the possession of the lessee; but the lease, nevertheless, contains a description and plan, in the margin, of the whole ground plot, including that part. Held, that although in equity B. should not be entitled to enforce the covenants in the lease as to that part of the ground, yet that the particulars of sale being with reference to the lease, without an exception of the plot subtracted from the possession; A. the purchaser is extitled to call upon the vendor to complete his purchase, by making a good title to the whole estate contained in the lease, and that an assignment of the lease is not a compliance with the conditions of sale, the vendor not being able to convey the above-mentioned small plot of ground. Tomkins v. White, T. 46 Geo. 3.

435

2 Sugars were sold by auction, by a broker according to a certain catalogue, which did not contain the entire particulars or conditions of sale; the conditions or very material parts of them, were written on a separate paper and read by the broker at the sale, and laid by him on the desk with the catalogue, the catalogue was entitled only "a catalogue of sugars, to be sold 20th September, for particulars apply, &c.; the conditions were entitled conditions of sugar sale, 20th September, but there were no direct words of reference to either in the one or the other, and they were not pinned together; at the time. of the sale the broker's clerk wrote a memorandum of the name of the purchaser (the defendant) against the article sold with the price and samples, of about half a pound each, were delivered, which were calculated on the weight of the commodity: Held, that, although the broker must be considered as the agent of both parties, yet as the catalogue did not contain all the conditions of sale, and the conditions were chiefly on a separate paper, the memorandum was not a memorandum in writing within the statute of frauds; but, by the delivery of the sampie, the case was taken out of the statute, for although a sample is a thing delivered alio intuitu, and not principaly as a part performance of the contrict, yet, where it is a part of the commodity and taken in the weight or measure, it may also operate to comply with the terms of the ex eption in the statute. Sares o

1 A bankrupt was a prisoner in the Fleet, for a greater sum than 1,500l. on the 1st of January, 1804; part of it was for a debt due to a creditor, who was allowed, by the Lord Chancellor, till the first dividend, to elect whether he would proceed at law, or under the commission, and before the 1st January 1804, that creditor signed his commission, and afterwards, in January, 1805, by consent a judge's order was obtained to discharge him out of custody pro tanto, by which the debts wherewith he was charged wete reduced to less than 1,500l. Held that the prisoner was legaily in custody on the 1st of Ja nuary, 1804, for more than 1,50, and not entitled to the benefit of the insoivent aci, 44 Geo. III. c. 108.

Semble, a judge will not discharge a defendant out of execution, UDON the plaintiff having signed his certificate. without the consent of parties. Exparte King, M 46 Geo y 115

2 To an action on a proibissory role given to all uncertificated bankrupt

the commission issued, the defendant pleaded the bankruptcy of the plaintiff, and the commissioners' assigninent: aud that the assignees demanded payment of him; the plaintiff replied that there had been no new assignment to the assignees, after the making of the note, and that the defendant treated with the plaintiff as one capable of contracting personally. Held, on demurrer, that the demand by the assignees vested the right in them, that a new assignment of personal property was not necessary, and that the mode of contracting was immaterial. Hitchen v. Bartsch, M. 46 Geo. 3. 58 3 Action of covenant by the assignee of an insolvent debtor, under the 41 Geo. III. c. 79, on a covenant with the latter to pay him 120l. on the death of A. B. The defendant pleaded an assignment thereof by way of mortgage for 611. to C. previous to the assignment to the plaintiff, which mortgage became forfeited, and that C. gave notice thereof to the defendant. He also pleaded, that before the assignment Jones became indebted in 100l.and was a bankrupt, and that a commission issued, and that the insolvent was found a bank rupt, and his effects were assigned, &c. Replication, that the sum due on the covenant exceeded the sum in the mortgage; and to the plea of bankruptcy, the plaintiff, admitting the commission and the finding of the commissioners, and their assignment, traversed the residue of the plea. Held, upon general demurrer to the former plea, and special demurrer, for use multifarious traverse, to the latter, that the plaintiff might recover the surplus of the money due beyond the mortgage, and also, that the residue of the plea of bankruptcy made but one point of defer.cc, and might well be put in issue together. Lane v. Chandler, M. 46 Geo.

3.

7.7

4 Quere. Whether it a trader depart from his dwelling-b use with a clear intent to delay credi ors, it be not an act of bankruptcy, alough no creditor be delayed. Se stanic 1 Jac. I. c. 15. Robertson v. Licked, E, 46 Ges. 3. 347

5 Where the assignees of a bankrupt, who was possessed of a term, merely, put the same up to auction, to ascertain whether it was of value, without giving themselves out to be the proprietors, and, there being no bidders, interfered

no farther in the matter, and never received rents; held, that they were not answerable in covenant to the lessor. Turner v. Richardson and Retberam, assignees of Barber, E. 46 Geo. 3. 330

6 Where money belonging to a bankrupt was, after a secret act of bankruptcy, attached in the hands of a garnishee, by the custom of foreign attachments in London, and paid over by him; held, that such receipt of money was not protected by stat. 19 Geo. c. 32, s. 1, as a receipt of money under compulsion of law; for that statute extends only to payments by the bankrupt himself in the ordinary course of trade, and not to payments by other persons unauthorised by him; and, therefore, the assignees recovered of the person receive ing such money, under the foreign attachment, as for money had and received to the use of the bankrupt. Hevil and Others, Assignees of Wardell (a bankrupt) v. Joseph Browning, H. 46 Geo. 3. 156

7 A. commits an act of bankruptcy and quits England, having, previous to his act of bankruptcy, become indebted, as indorser of a bill of exchange, to B. which bill is dishonoured and due notice thereof given. In A.'s absence, his wife makes insurances, the broker being still a creditor for the premiums paid by him. B. having sued the drawer and obtained judgment, is induced by A.'s wife to take a bill in part payment indorsed by her for A. and stay execution, upon depositing the policies; which being done a loss happens. This bill not being paid, B. the broker, accepts another for the amount in his favour, upon the policies being delivered to him for A. with the consent of A.'s wife, and having received the money thereon, pays that bill,and deducts in account with A.'s assignees, against whoma commission is issued after such payment; Held, that the assignees could not recover of B.; forA.'s wife, and the broker, were their agents, and they could not take the benefit of the policies, effected by her, without taking the burthen. Hovil and Others, Assignees of Wardell (a Bankrupt) v. Park and Another, H. 46 Geo. 3. 164

8 A trader in insolvent circumstances, and under arrest in execution, at the suit of a creditor, assigns all his goods and effects to him, in payment of his debt, with a trust for payment of the

11 W. III. c. 23, of conviction of a burglar in the parish of Man hester, which consists of several townships having separate parish officers, held upon demurrer, to exempt a persoir from serving the office of constable for the separate township of Manchester, although the manor of Manchester at the leet for which such constable is chosen, is not co-exter sive with the parish of Manchester. Held, also, that the office of constable is a parish office within the said act oarliament. Mosely, bart. v. Stonehouse, H.`46 Geo. 3. 181

CONSTRUCTION OF COURT

ROLLS.

See EVIDENCE, No. 7.

CONTRACT. See ASSUMPSIT, No. 1.

CONVICTION. See EVIDENCE, No. 8.

COPYHOLD.

IT. T. possessed of a customary estate, parcel of the manor of S., held of the lord of the manor according to the custom of the manor, demiseable by copy of court roll, to which she was admitted on payment of a fine, saving the right of the lord, and which she surrendered to such use as should be declared by her will in writing, and of which she had granted a lease for forty-one years, upon licence, by the lord, devised the same by the description of "all that copyhold messuage at S. to Mary C. wife of C." The devise was contained in a paper of instructions written by her attorney in her presence, for the purpose of preparing a formal will, but which was not signed by her, she dying before the will could be prepared, in 1780. The paper was not proved as a will in the ecclesiastical court till 1782. Her heir was admitted to the estate heir, in 1782, and upon his death, his son also in 1791, and they received rent upon the lease till the expiration thereof in 1800. After which, Elizabeth, not Mary Cook, the actual devisee, was admitted as devisee and brought eject

ment.

as

The lease contained a clause of re-entry for non-payment of rent, and a forfeiture was committed by the tenant, twenty years before ejectment brought. Held as follows: The treehold of this customary estate is in the lord, though it is not held ad voluntatem domini, and it may well pass by the

description of copyhold in a will, if the intent be so, whether strictly copyhold or customary freehold. It is not within 39 Car. 2, c. 3, s. 5, nor within the 7th and 9th sections, where the words by will in writing, mean a will of lands, as in section 5 attested by three witnesses. A will directing the use of a copyhold or customary estate, is neither a declaration nor an assignment of a trust within that statute, for there is no separation of the legal and equitable estate which is essential to a trust. Such customary estate passes by the surrender and will according to the custom, and such a paper in writing proved in the ecclesiastscal court, is a good will in writing under the custom, by analogy to the cases upon the statute of wills, 34 H. 8. Also, the receipt of rent for twenty years, under the lease granted by the testatrix, is no adverse possession to bar the entry of the devisee under the statute of limitations, 51 Jac. I, c. 16, and the time begins to run against her, only when the lease expires, for till then, she could not bring ejectment or enter, and she was not bound to enter for the forfeiture. Neither did the descent from the heir of the testatrix to his son, during the lease, toll the entry; for the entry is not tolled where the only remedy is by entry, as in the case of a devise, nor where the estate of freehold is in the lord. Held also, notwithstanding the misnomer of Mary for Elizabeth, Elizabeth shall take under the devisee, if the jury find that Elizabeth was the devisee meant by the testatrix. Doe dem. Cook v. Danvers, H. 46 Geo. III. 291

6

2 Where, in a manor, the copies of admissions, were anciently to hold of the lord according to the custom of husbandry of the said manor,' but other copies were to hold at the will of the lord,' also, and all the modern copies were so, held that this land was copyhold and not customary freehold. Bourn v. Rawlins, T. 46 Geo. III. 495 See DEVISE, No. 1. See EJECTMENT, No. 2. See EJECTMENT, No. 1. See EVIDENCE, No. 7.

CORPORATION. See MANDAMUS, No. 2.

COSTS.

1 Where upon application to the ar torney for the defendant to admit certi facts in proof, and he refused, and after

wards upon going to trial, it appeared that by having pleaded a tender, it be came unnecessary to prove them, but the plaintiff took witnesses to the assizes for that purpose, and was allowed their expences to a large amount, in the taxed costs, notwithstanding they were not called upon the trial, the court refused to revise the taxation. Hanborn v. Thomas, E. 46 Geo. III. 361

See PRACTICE, No. 16.

2 A plaintiff having declared in trespass in a certain close for pulling up and burning 40 perches of hedge there standing and being, the defendant pleaded the general issue, and also a special plea that the hedge was erected on a common where he had right of common, and justified abating the same as a nuisance thereto; and the jury found for the defendant on the special plea, and for the plaintiff, damages 20s. on the general issue; held, that the plaintiff could not have full costs; the action being trespass, quare clausum fregit, in which the title to the land might have come in question, and the judge not having certified, the court could not look to the special plea, which was found for the defendant, to see that the title could not come in question. Stead v. Gamble, H. 46 Geo. III.

248 3 Two several petitions werepresented against the return of a member for G. which being referred to a committee were pronounced each frivolous, held that the costs could not be taxed jointly under 28 Geo. 3, c. 52. Strachey and Giles v.Turley and Others, T. 46 Geo. III.560 See PRACTICг, No. 16. See PRACTICE, No. 23.

COURTS PROCEEDING OF. See PLEADING, No. 9. See PLEADING, No. 12.

COVENANT.

1 Lease for 21 years in consideration of 51. 8s. for a fine, and a rent of 6s. 81. with a proviso of distress if the rent should be behind 14 days. Covenant by the lessor at the end of 18 years, or before at the request of the lessee, "to grant a new lease for the like fine, for the like term of 21 years, at the like yearly rent with all covenants, grants, and articles, as in that indenture contained." The lessor upon request teadered a lease with all covenants, except NO. XXXVII. N. S.

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 leases, before then successively made and executed of the premises, on renewals from time to time granted. Held, that the lease tendered was sufficient; and, admitting that such an averment could properly be introduced upon the record, to explain the intent of the parties of which there was great doubt, yet it might be satisfied, although there were many instances of leases to the contrary. Iggulden v. May, H. 46 Geo. III. 269 See PRACTICE, No. 22.

2Covenant by lessor, to give the lessee of a messuage free ingress and egress through a certain passage with a yard, with the free use of the pump in the said yard, jointly with the lessor, whilst the same should remain there, paying half the expence of keeping it in repair. Held, this is not an absolute demise of the use of the pump, but the lessor might remove it at pleasure, and an action is not maintainable, though it is alledged that the lessor moved it wilfully and without cause. Rhodes v. Bulland, H. 46 Geo. 173

See BANKRUPT, No. 5. See PLEADING, No. 8.

CROSS EXAMINATION. See EVIDENCE, No. 13.

CURACY.

See MANDAMES, No. 1.

CUSTOM TO DEVISE. See COPY HOLD, No. 1.

CUSTOMARY FREEHOLD. See COPY HOLD, No. 1.

DAYS AND YEARS. See EVIDENCE, No. 8.

DEBT.

See PLEADING, No. 2.

DEBITUM IN PRESENTI. See BANKRUPT, No. 1.

DEBITO MODO ELECTUS. See MANDAMUS, No. 1.

DECLARATION.

See PLEADING, No. 1.

DECLARATION SERVICE OF. See PRACTICE, No. 1. 4 F