DEMISE. A. leaves a fulling mill, together with a water-course and floodgates, to a trustee for 99 years if either his daughter or wife should so long live, for their use, and in order to make provision forthem, with an exception of free liberty for the lessor, his heir, &c. his servants and tenants, at all times at pleasure, to divert the water from the mill, for watering all meadows which they should think proper, and to take up and put down all proper sluices. Part of the profits of the mill consisted of waterrents, for flooding meadows, for water which was wholly diverted from the mill. Held that, by the exception, the heir of the lessor was entitled to the water-rents, the exception not being repugnant to the grant. Lambert v. Bennet, M. 46 Geo. III. DESCENT TOLLING ENTRY. See COPY HOLD, No. 1. DEVASTAVIT. See PLEADING, No. 3. DEVISE. 84 1 A testator having an estate settled on himself for life, remainder in trust, to secure sool. a year to his wife in lieu of dower; remainder to trustees for 200 years, for the better securing of the annuity, remainder to himself in fee, gives 200l. per annum to his wife in addition to her jointure, his just debts being previously paid, and appoints three persons" as trustees of inheritance for the execution hereof;" held, dissentiente LAWRENCE, J. "that the trustees take an estate in fee in remainder, subject to the term of 200 years. Trent and Others v. Hanning and Others, M. 46 Geo. III. 69 2 A. devised a term to C. for life, and after his decease to his child or children and their executors, &c. but upon condition that in case he should die an infant unmarried and without issue, then the devise should go over to D. &c. C. survived 21, and married and died without issue; held, that the condition must be read as entire, and the devise over to D. was void. Doe dem. Everett v. Cook, H. 46 Geo. III. 236 3 A devise of all my estate, lands, &c. called the Coal Yard in the parish of A. 4 Devise to A. for life, remainder to the lawful issue of her body in such parts, shares, and proportions, manner and form as she by will should limit and appoint; and in default thereof, to all and every the children of A. and their heirs, as tenants in common and not as joint tenants, and in default of such issue to the right heirs of the testator: Held that a child of A. took an estate in fee and not in tail. The King v. the Lord and Steward of the Manor of Chertsey, Surry, E. 46 Geo. III. 459 DRAWER AND INDORSER. See BANKRUPT, No. 1; and BILL of EXCHANGE. EJECTMENT. I A. devised customary or copyhol estates to B. and his heirs in tail male, and remainder over to C. his daughter in tail. A. makes a surrender to the use of his will. B. enters and dies without admittance, and, living B., C. de vises the remainder in the premises to D. her second son, in fee, subject to several charges, and afterwards dies living B. without surrendering to the use of her will, and without being admitted. There is a custom for reversioners or tenants in remainder, not in possession to be admitted upon payment of half fines, and to surrender to the use of their wills. D. the devisee of C. and her heir at law, are both admitted as tenants, and F. is in possession. Held, that at law, B. the devisee, cannot maintain ejectment, the admission of D. not being capable of being connected with the surrender of A. to the use of his will. Semble. D. has an equitable interest and F. may be a trustee for D. and a court of equity may compel him to surrender, but D. has no legal estate, nor any remedy at law. Doe dem. Veinar v. Vernar, M. 46 Geo. III. 6 2 A. is admitted tenant of a copyhold in reversion for the life of B. after the deaths of C. and D.; before the reversion or remainder vested in possession, A. the grantee died, and afterwards, upon the death of the first taker, and his cestui que vie, the administrator of A. was admitted, as administrator for the life of B. and brought ejectment: Held, that he could not recover, for copyholds are not within the statutes of special occupancy, viz. the statute 29 Car. II. c. 3, and 14 Geo. 2, c. 20, and the admission gave no title and granted no interest, but such as he claimed as administrator. Zouch on the Demise of Tho mas Forse v. Henry Forse, H. 46 Geo. 191 See COPY HOLD, No. 1. ESTATE CUSTOMARY. ESTATE IN FEE. ESTATE LEGAL. EVIDENCE. iA libel written in Dublin, and received in London from an unknown hand, with the Dublin poft-mark, was published in Middlesex in the form of 3 Where a tenant entered on meadow letters, which contained internal eviland at December, on pasture at March, dence of a request by the writer to the and the houses consisting of mills, and publisher, to publish them in Middlesex. other buildings for a manufactory, at the Held, upon a trial at bar, upon probable 1st of May, and was to pay rent at Pen- evidence of the loss of the envelopes, tecost; held that the day of entering on and probable evidence of their being rethe manufactory, which was the princi- ceived by the post, that this was a pubpal day of entry, and not the rent day.lication by the writer living in Dublin, Doe dem. Bradford v. Watkins and Had- by his agent in Middlesex, and sufficient kinson. 517 evidence of publication, both to autho rize the reading of the libel and to go to the jury, upon an indictment charging the publication in Middlesex, the handwriting of the defendant to the letters being proved by persons acquainted with its character. The King v. Johnson, M. 46 Geo. III. EMBARGO. See INSURANCE, No. 2. ENTRIES IN BOOKS BY PER- ERROR. Error in parliament on judgment in B. R. Plaintiff in error dies in vacation. Plaintiff in B. R. sues out execution tested in the term preceding, held irregular because at the teste of the writ there was error pending, and execution could not be taken out in that case without leave. And where, in the next term after the defendant in B. R. died, the plaintiff moved for leave to sue out execution tested of the term preceding, it was refused, because the error must appear on the record. Lord Kinnaird and Others . Lyall, H. 46 Geo. III. 280 See PRACTICE, No. 25. See PRACTICE, No. 16. ESTATE. See DEVISE, No. 3. ESTATE BY IMPLICATION. 94 2 Where in a qui tam action for usury the principal witness, the borrower, had distributed a printed memoir containing a statement of the case which was only in effect what he proved, and it did not appear to have been seen by the jury, nor to be calculated to influence them; held that the discovery of this circumstance after the trial was not a sufficient cause for a new trial. Spencely (qui tâm)v. De Willott, E. 46 Gro. III. 321 3 Where an attorney in a cause had been served with a notice to produce an agreement entered into by his client, held that he was bound to give evidence of the conteres of such notice; for the privi ledge as to evidence is confined to the oral or written communications of the client himself; and does not extend to all papers and communications which the attorney receives in the course of the cause.Spencely (qui tam) v. Schullenburgh, E. 46 Geo. III. 325 4 By order of two justices, not appealed from, J. S. and Betty his wife were removed to M. N. as their last place or settlement, and, afterwards, the said Betty as the wife of J.S, was removed from the parish of W. to the said parish of M. N., without appeal. Betty went and saved in the parish of B. and resided forty days there, for under a hiring of a year and returned to M. N. and there became chargeable. J. S. was at the quarter sessions, convicted of vagrancy, for deserting his said wife; but upon appeal against an order of justices removing the said Betty from M. N. to the parish of B. the appellants produced evidence to shew the marriage a nullity, which was not denied; held, that, after the orders unappealed from, and the conviction, the respondents were estopped from producing such evidence. " Order of removal upon complaint that the paupers lately came and intruded into the said parish of K, endeavouring there to settle as inhabitants thereof,contrary to law, not having anyway acquired or obtained a legal settlement therein, and are likely to become chargeable thereto, and we do upon due examination, adjudge the said complaint and premises to be true, and we do further, upon the examination of the said Betty the wife of J. S. upon her oath, adjudge that they were last legally settled at, &c." held to contain a sufficient averment of their being then actually intruding, and of their then present settlement, and also to be upon sufficient examination, although only upon that of the wife; for a wife may know her husband's last place of settlement of her own knowledge. The King v. the Inhabitants of Binegar, E. 46 Geo. III. 353 5 Where the indorser of a bill of exchange, upon being called upon for payment by a subsequent indorsee, on failure of the drawee, said that he had no notice, but it was a just debt,and he would payit; and offered a bill on London at two months; held that this promise was a sufficient admission of the due presentment and a waiver of the want of notice, and not a conditional promise, upon which itwas necessaryto declare specially. Lundie v. Robertson, H. 46 Geo. III. 225 under a power, the remainder-man brings ejectment against the lessee; held that the letter to, and account of receipts by the first tenant for life, found amongst his muniments being an authentic recognition of the amount of the rent in his time, is good evidence of the ancient rent as against the tenant under the leasing power, because that tenant for life had perfect knowledge of the fact, and had an interest to state it favourably for the tenant, by keeping down the ancient rent to enhance the fines or renewal under his own power, and it could not be used for him. Ree dem. Brune v. Rawlins, H. 46 Geo. III. 254 7 One claimed the first grass or prima tonsura by copy of court-roll under a grant of tres acras prati; but another had the aftergrass, and lopped the trees and cleansed the ditches, and repaired the fences, and exercised all other acts of ownership. And upon trespass quare clausum fregit, and an issue whether it was the plaintiff's close, soil, and freehold, or copyhold of a certain manor, held that the plaintiff as owner of the after grass, and pasture, might establish his claim to the freehold by evidence of acts of ownership, notwithstanding the grant of tres acras prati by copy. For there may be a freehold right in the one thing (the soil) and a copyhold in the other (prima tonsura). And pratum may mean only the first grass therein, if warranted by the possession, which guides the construction of old grants.And prima tonsura is not conclusive but merely prima facie evidence of the freehold, but the word close must mean, in pleading, the freehold. And this was so held; though he who has prima tonture paid all the taxes, for that was merely by his negligence. Stammers v. Dixon, H. 46 Geo. III. 261 8 The sessions must find as a fact whether a parish can or cannot have the benefit of the 43 Eliz. The King v. Watsen, H. 46 Geo. III. 283 9 In the case of an injury done to church lands, by a rivulet being penned . 6 Tenant for life with leasing power, back upon them by a headstock, the reserving the ancient rent, receives a let-proof of the existence of the headstock ter from his steward with an account of the rents, which he indorses thus; "From H. account of my estate at C." and preserves amongst his muniments, and also makes entries of the receipt of rent from the same estate in his books, a subsequent tenant for life grants a lease for about 20 years, though it would be evidence of a grant in other cases, is not sufficient to warrant the continuance of it. For the grant of the prior incumbent will not bind the successor. But it may be used as evidence to shew an ancient grant, yet even that cannot be if the commencement of the first erection be shewn, for that rebuts the presumption of antiquity. Wall v. Nixon, H. 46 Geo. III. See SETTLEMENT, 2. 316 9 On cross examination to try the credit of a witness held, that only general questions can be put, or such as relate to the issue in question, and he must not be examined as toparticular and distinct facts collateral to the issue, in order, if he mis-state them, to contradict him by another witness. Spencely (qui tam) v. De Willot, H. 46 Geo. III. 289 2 On a quantum meruit for work and labour, the defendant may give evidence that the work was not done well; and need not be put to his cross action. Aliter where the demand is upon an agreement for a stipulated sum, and the plaintiff has no notice of the defence; because he may be taken by surprise: which cannot happen upon a quantum meruit. Baston v. Butter, T. 46 G. 3. 486 See ASSUMPSIT, 2. EXCEPTION. See DEMISE, 1. EXECUTION. See PRACTICE, 17. See BANKRUPT, 1. EXECUTION, LEAVE TO TAKE OUT. See ERROR, 1. EXECUTOR. See PLEADING, 3. EXTORTION, See PLEADING, 7. FEE OR FOR LIFE. See DEVISE, 3. FEME COVERT. See PRACTICE, 24. FINE. See PRACTICE, 10. FISHERY. See NUISANCE, 1. FORFEITURE. See COPY HOLD, I' FRAUD AND COLLUSION. See BILL of EXCHANGE, 3. FRAUDS, STATUTE OF. See AGREEMENT, I. FRAUDULENT DEVISE. See PLEADING, 8. GRANT. I See EVIDENCE, 9. 2 Grant to one his heirs and assigns, in consideration of a sum of money, of a liberty for him his heirs and assigns, to carry up a sough (or a drain for a col. liery) from the bottom of a piece of land of the grantor to an adjoining piece of land of the grantee, and also liberty for him his heirs and assigns to make two little sough pits in the said land of the grantor, in a certain place there, for the more easy and safe carrying up the tail of the sough, one of them to be covered from the top of the intended sough to the surface of the ground, as soon as conveniently may be done, after the making thereof, and the other to be kept open for examining the sough as long as is necessary for that purpose and no longer; held; that the grant of the sough is a continuing grant, and the right of opening the sough pit occasionally, for the necessary repair of the sough, is incident thereto by virtue of the grant. Hodgson v. Field, T. 46 Geo. 3. HABEAS CORPUS. See PRACTICE, 11. 538 the conviction, and is likely to continue So. The King v. the Inhabitants of Loughton.T 46 Geo. 3. 575 INFANT. See HABEAS CORPUS, No. 1. INFERIOR COUrts. See LORD'S ACT, No. 1. INFORMATION CRIMINAL. See PRACTICE, No. 12. INHERITANCE TRUSTEE OF. See DEVISE, No. 1. INSOLVENT ACT. See BANKRUPT, No. 1. INSOLVENT DEBTOR. See BANKRUPT, No. 3. INSURANCE. 1 Corn was insured free from average, unless general from Waterford to Liverpool. The vessel was run on shore at Waterford on the 28th of January, and was wholly under water at high water. Part of the corn was taken out by the insurers and kiln dried, and the assured received the net produce. On the 18th of February, 21 days after the loss, the assured gave notice of abandonment which the insurers refused to accept, Held, that the notice of abandonment was too late to entitle the assured to recover as for a total loss. Anderson . the Royal Exchange Assurance Company, M. 46 Geo. III. 48 2 Upon an embargo or detention where there is an abandonment of both ship and freight to the respective insurers and the owner is paid as for a total loss and notwithstanding the ship is relcased and earns freight, the wages of the crew, the port, and other charges are quasi, a general average or salvage on the ship and freight, according to the particular nature of such charges and the persons to whom they belong, and in an action formoney had and received by theunderwriters on the freight against the assured who has received it, he may deduct the same out of the sum to be recovered. Sharp v. Gleadstone, M. 46 Geo. III. 39 3 Where the trial ofone of seveupon ral causes which were consolidated, there was a rule nisi obtained for a new trial, on à point of law reserved, and the des fendant agreed to abandon it, the defendants in other causes were permitted upon motion to have the name of another defendant inserted in his place in order where the benefit of the rule to shew cause. Lubbock v. Claggett, E. 46 Geo. III. 397 4 Where, upon the trial of one of several causes which were consolidated there was a rule nisi obtained for a new trial, on a point of law reserved, and the defendant agreed to abandon it, the defendants in other causes were permitted upon motion to have the name of another defendant inserted in his place in order where the benefit of the rule to shew cause. Lubbock v. Potts, E. 46 Geo. III. 397 5 An insurance of British property, from all risks whatever, British capture, seizure and detention included, is legal, for it may be intended to guard the assured against unlawful or occasional seizure and detention, aliter if enemy's property. Colonial produce of the plantations cannot be transported from thence direct to Gibraltar or any place in Europe, under the statute 12 Car. II. c. 4, s. 8, &c. called the navigation acts, and an insurance upon a ship on such voyage, with colonial produce, is illegal, and there can be no return of premium. Lubbock v. Potts, T. 46 Geo. III. 401 6 It is sufficient if the assured in making the insurances communicate fairly the present state of the ship, and lay open such circumstances pro et contra, as may lead the insurer to make further enquiries concerning the prior state of the ship, so, where on a policyírom twenty-four hours after the arrival of an African trader at her first place of trade on the coast of Africa, &c. a letter was communicated stating the arrival in March at Gabon river, that they had got part of their red wood and expected to get all in the next month and would sail in May, that they had now got nine men, but provisions were low, that they were so weakly handed that the natives did as they pleased, and referred to a prior letter which was not communicated, but in which had been previously stated the loss of several men, by an insurrection of the natives and by disease, reducing the crew to five, and the loss of running rigging, and other necessaries; held, that this lase |