EJECTMENT.

1. It is not necessary in the Court of Exchequer to enter an appearance for the casual ejector before signing judgment, nor will the costs of such entry be allowed. Doe d. Morgan v. Roe, 72.

2. The title of the affidavit of service, in a motion for judgment against the casual ejector, is sufficient, if it contains the names of all the lessors, without stating the demises with the same particularity as in the declaration. Doe d. Bankes v. Roe, 4.

3. The doctrine of non-adverse possession is done away with by the 3 & 4 Will. 4, c. 27, ss. 2, 3, except in cases provided for by the 15th section. Nepean, Bart., v. Doe, d. Knight, (in error,) 291.

4. The service of the declaration on a servant of the defendants on the premises, is not of itself sufficient to entitle the plaintiff to a rule nisi for judgment against the casual ejector. Doe d. Lord Dinorben v. Roe, 140.

ERROR.

1. The new rules H. 2 W. 4, s. 83, and H. 4 W. 4, s. 9, do not apply to errors in fact. A writ of error coram vobis operates as a superseIdeas from the time it issued out, and not from the time of allowance only. Levi v. Price, 158.

2. The 6 Geo. 4, c. 96, s. 1, as to bail in error, does not apply to errors in fact. Id.

EVIDENCE.

1. In trover against the sheriff, the warrant under which goods were seized under a fi. fa., was not produced at the trial, nor was notice to produce it given. The bailiff who made the levy was proved to have delivered the warrant to his son; the son could only state his belief that he had either returned it to his father or to the sheriff's officer. It was alleged to be the custom to deliver the warrant to the auctioneer, to be by him forwarded, together with the auction sheet, to the supervisor of the district, whose duty it was to transmit them to the head office of excise in London. Search had been made for it among the bailiff's papers, and at the sheriff's office; as also among the auctioneer's papers, and at the head office of excise: but the supervisor was not called, and no proof was given of a search among his papers:-Held, that sufficient proof was given from which the loss of the warrant might be inferred, so as to let in secondary evidence to connect the sheriff with the act of the bailiff. Minshall v. Lloyd, 125.

2. An IO U, bearing date before the bankruptcy, is no evidence of a petitioning creditor's debt, unless it is shewn to have been in existence before the bankruptcy. Wright v. Lauinson, 202.

3. Semble. That where in an action against the sheriff for a false return, he sets up the bankruptcy of the debtor as a defence, the petitioniug creditor who has not indemnified the sheriff, is a competent witness. Id.

The

4. A. & Co. were bankers at Calcutta. defendant became a partner in the firm in the year 1816, and continued a partner until the year 1822. During all this time, and for some years subsequently, the plaintiff was a creditor of the firm. The plaintiff had been for many years in India, but had returned to England, and resided at Hythe, at and after the time the defendant ceased to be a partner. No formal notice was given to the plaintiff of the defendant's retirement from the partnership, but an advertisement to that effect was inserted in the gazette in India. During the time the defendant was a partner, and subsequently, the firm had sent to the plaintiff circular letters, stating the rate of interest they allowed on deposits. It further appeared that the defendant had inserted advertisements in two newspapers which were taken in at a reading-room to which the plaintiff subscribed, stating defendant's intention to be a candidate for an East India directorship. In the year 1831, the plaintiff executed a power of attorney to the house of A. & Co., in which the names of all the partners were mentioned; and in the year 1833, he executed another power of attorney to a person who had become one of the partners of the firm of A. & Co. to prove his claim against the firm, which had failed:-Held, per Lord Abinger, C. B., Parke and Alderson, Bs., Bolland, B., dissentiente, that this was sufficient evidence to go to the jury that the plaintiff had knowledge of the defendant having left the firm. Hart v. Alexander, 63.

5. The plaintiff declared on an agreement by the defendant to purchase certain fixtures, at a valuation to be made by J. C. The defendant

pleaded, that J. C. did not value the fixtures. The valuation was in fact made by A., who was in the employ of J. C., of which the defendant was aware, and made no objection until he was told the amount of the valuation:-Held, that in order to support the issue, the plaintiff must prove an agreement that A.'s valuation should be taken as J. C.'s; and that if it was intended to substitute A. for J. C., the declaration should have been framed accordingly. Ess v. Truscott,

75.

6. The plaintiff claimed the whole bed of a stream which flowed between his and the defendant's farm. The plaintiff's farm extended lower down on the one side of the stream than the defendant's, and terminated opposite another farm, called C., which adjoined the defendant's, and which was bounded by the same continuous hedge:-Held, that acts of ownership, exercised by the plaintiff on the bed and banks of the stream, and on the hedge at the farm C., were admissible in support of the plaintiff's claim. Jones v. Williams, 51,

EXECUTOR.

See PRACTICE, 7.

1. An executor, after paying the debts of the testator, of which he had notice, invested certain parts of the residue in the funds, and on mortgage security, in his own name, for the benefit of the legatees, and paid them the dividends:— Held, that the executor could not be considered as having apportioned the residue in payment of any legacies, so as to bar the claim of a specialty creditor, although he had no notice of such claim till fifteen years after the testator's death. Smith v. Day, 185.

2. A. agreed with B., by a written agreement, that B. should have A.'s tenement for 201. a-year, and the whole of A 's keep and maintenance, during the life of B.; the said B. to take off the stock at 75l. 10s. B. took off the stock, and had possession of the tenement for his life:-Held, that the executrix of B. was liable, in an action of indebitatus assumpsit for goods sold and delivered, for the 75l. 10s., the price of the stock.

3. Held, also, that as the document amounted only to an agreement to grant a future lease, and not to a present demise, it was properly stamped with a 17. stamp. Stone v. Rogers, 146.

4. Executors are prima facie liable to the payment of costs if they fail in an action; and it is not enough, to exempt them, to shew that they brought the action bona fide. Lewis v. Marfelt, 5.

FALSE IMPRISONMENT.

The plaintiff had been arrested by the defendant in two actions. In one of the actions the defendant had received authority to discharge him out of custody, but detained him for an hour:-Held, that as there was no proof that he was detained longer than the defendant was justified in detaining him on account of the other action, that no action lay against the defendant for false imprisonment. Blessley v. Sloman, 304.

FIXTURES.

A., the tenant for life in 1824, leased to B., the remainder-man, for twenty-one years, a colliery, with a power of re entry by the lessor for non-payment of rent, or on insolvency of lessee. B. erected steam-engines, which were affixed to the freehold in the ordinary way, and in the year 1827, having borrowed 8501. of C., assigned the colliery, together with the steam-engines and other implements used in the working of it, to the plaintiffs, as trustees in trust, to permit B. to have the use of them, and to remain in possession until default made by him in the payment of an annuity which he had granted to C. A. brought ejectment to recover the premises under the power of re-entry, and possession was deli

vered in the month of June, 1829. In November, 1829, the steam-engines and other implements were seized under a fi. fa. issued by an execution creditor of B.:-Held, that the steamengines, although removable by B. during his tenancy, had, on the re-entry of A., become fixtures which vested in the lessor, and that the plaintiffs, who could only recover in right of B., could not maintain trover for them against the sheriff. Held, also, that B.'s having remained in possession after default in payment of the annuity, by reason of the omission of the trustees to enter, did not render the assignment invalid. Minshall v. Lloyd, 125.

FRAUDS, STATUTE OF.

The plaintiffs' agent agreed with the defendant for the sale of certain hops, when the defendant made an entry in a book of his own, commencing "Sold John Dodgson, &c." This entry was signed by the plaintiffs' agent, at the defendant's request:-Held, a sufficient memorandum in writing to satisfy the Statute of Frauds. Johnson and others v. Dodgson, 271.

FRADULENT PREFERENCE.

C., who had an account with L. and Co., bankers, was a director of an insurance company, who also banked with L. and Co. The latter being about to stop payment, one of the partners, who had married a daughter of C., communicated to C.'s son the embarrassed state of the firm, and it was agreed that C.'s private account only should be drawn out, and C.'s son was requested not to inform any other person. One of the partners subsequently told C. that the bank must stop. In consequence of these communications the assurance company drew out their money. The jury having found that there was no intention to give the assurance company a preference, the Court refused to disturb the verdict. Belcher v. Jones, 34.

HORSE-RACING.

1. Where the rules of certain races provided that all disputes should be settled by the stewards: - Held, that the plaintiff could not recover the stakes upon an award in his favour by one steward, although the other had stated he would acquiesce in whatever his colleague did. To make the award of one steward available, there must be clear evidence that both parties, and also the stakeholder, consented to abide by his sole decision. Marriott v. Broderick,

96.

2. Semble, that where a horse-race is legal, a party cannot recover back his stake after the race has been run, though the stakeholder has not paid over the money at all events, he must demand it before the race is run. Id.

HUSBAND AND WIFE.

1. An action was commenced against a feme sole; between the service of the writ and declaration she married; the plaintiff proceeded to judgment, and sued out a capias ad satisfaciendum against her, and took her in execution. The affidavit, upon which it was moved to discharge her out of custody, stated that no settlement had been made upon the marriage, but did not state that she had no separate property:-Held, that on this affidavit she was not entitled to her discharge. Evans v. Chester, 243.

2. A counterpart of a deed of separation is not such a necessary for the wife as to entitle her trustee to sue the husband for the costs of it. Lad v. Syme, 27.

INCLOSURE ACT.

1. By an inclosure act passed in the year 1813, the commissioners were empowered to set out, allot, and award any lands within the parish of A., in exchange for any other lands within that parish, provided (among other things) "such exchanges were made with the consent of the owner or owners, proprietor or proprietors, of the lands which should be so exchanged, whether such owner or owners, proprietor or proprietors, should be a body or bodies politic, corporate, or collegiate, or a tenant or tenants in fee simple, tail, for life or lives, terms of years absolutely, or for term of years determinable upon a life or lives," upon such consent; to be testified under his or their hand or hands in writing. Lands in mortgage had been exchanged under this act, and the award of the commissioners set forth the consent of the mortgagor who remained in possession, but it did not appear that the consent of the mortgagee had been obtained:Held, that as the Court were not called upon to presume that the mortgagee had not given his consent, it was unnecessary to decide whether such consent was essential. Goodtitle d. Baker v. Milburn, 207.

2. In ejectment by the mortgagee against the assignee (under the Lords' Act) of the mortgagor:-Held, that a letter from the mortgagor to the mortgagee, dated before the assignment, as against the defendant, was prima facie evidence of having been written at the time it bore date. Id.

INSURANCE.

1. Two vessels, the Fruiter and the King George, sailed from Malaga for London, the former on the 9th, the latter on the 10th of October. A policy of insurance was effected on the King George on the 3rd of November, warranting her departure from Malaga on the 10th of October. The two vessels were together off Oporto on the 21st of October, after which they

2. Assumpsit on a policy of insurance on the goods of a vessel called the Clipper, at and from Liverpool, to any port or ports, place or places of landing and trade, on the coast of Africa or African islands, during her stay and trade on the said coast and islands, and at and from thence to her port or ports of discharging in the United Kingdom, with leave to call at ports or places backwards and forwards without being deemed any deviation, with liberty for the said ship in that voyage to proceed and sail to, and stay at, any port or places whatsoever, and with leave to load, unload, &c., goods, wheresoever she might proceed to, with any ships, boats, &c. in loading and unloading, included, particularly with liberty to tranship on board any vessel or craft in the same employ. And by a memorandum it was agreed, that the vessel might be used as a tender to any other ship or vessel in the same employ. The vessel arrived at Benin, and stayed there twelve months, during which time another vessel of the plaintiff's having struck on a bar at the mouth of the river, she was employed in carrying the cargo of that vessel to Camaroones, and, on her return home, was lost. Held, that the carrying the goods to Camaroones was not an act of tendering within the meaning of the policy. Held, also, that it was a proper question for the jury, whether her stay at Benin was unreasonable or not; and, they having found that it was, the verdict was warranted by the evidence. Hamilton and others v. Sheddon, 334.

INTERPLEADER ACT.

1. A. sold cattle to B., for which B. paid by an acceptance, in which a blank was left for the drawer's name, and which he remitted through the post to A. D. & Co. afterwards received this bill, (purporting to be in the name of A., as drawer and indorser,) for a valuable consideration. A. denied that he had ever received the bill, or that he had ever authorized paymant by an acceptance, and also stated that the drawing and indorsement were forgeries. A. having brought an action against B. for the debt, and D. & Co. having threatened to sue him also upon the bill-Held, that B. was not entitled to relief under the Interpleader Act. Farr v. Ward,

244.

2. The sheriff must apply to the Court under the Interpleader Act, within such time in the term following the claim, as to enable the parties to show cause in that term, and if he is guilty of laches, the rule will be discharged, or he must pay the costs of both parties. Beale v. Overton, 172.

3. A sheriff who has abstained from seizing goods on the premises of a defendant, in consequence of a claim being made thereto, and who, consequently, at the time of applying to the Court, has not possession of the goods, is not entitled to relief under the Interpleader Act. Holton v. Guntrip, 324.

ISSUE.

The issue mis-stated the date of the writ, used the word defendant, instead of defendants, and concluded with "thereupon the then sheriff's are commanded," &c. :-Held, that the issue was not irregular, but merely informal; and that the defendant should have applied to a judge at chambers, to amend it at the plaintiff's cost. Ikin v. Plevin, 90.

JUDGMENT, Arrest of. See LANDLORD AND TENANT, 5.

JUDGMENT AS IN CASE OF A NONSUIT.

1. Where there has been no notice of trial, the defendant cannot move for judgment as in case of a nonsuit, until after two terms, in a town cause, and two assizes in a country cause. Smith v. Miller, 323.

2. In a town cause, where issue has been joined in vacation, the defendant cannot move for judgment as in case of a nonsuit, until two actual terms have elapsed after issue joined. Gough v. White, 157.

his cause on the 10th of April, gave a fresh notice of trial for the 18th, when the cause was taken as undefended, and the plaintiff had a verdict. On the 14th of April the defendant moved for judgment as in case of a nonsuit, having given but one day's notice of the motion:-Held, that the Court could not give judg ment as in case of a nonsuit. Jones v. Howe, 90.

4. One day's notice of motion for judgment as in case of a nonsuit, is not a stay of proceedings in this Court. Id.

LANDLORD AND TENANT.

See EVIDENCE.

1. By agreement, dated 8th of September, the defendant let to the plaintiff certain premises for seven years, at an annual rent, payable quarterly, the first payment to be made on the 25th of March then next following:- Held, that the defendant could only distrain for one quarter's rent on the 25th of March. Hutchins v. Scott, 194.

2. A broker went to the plaintiff's house for the purpose of making a distress, when the plaintiff paid to him, under protest, the rent claimed and expenses of levy; upon which the broker withdrew, without seizing the goods or making an inventory:-Held, that, in an action for an excessive distress, the landlord could not say that there had been no distress. Id.

3. The defendant let to the plaintiff a house, described in the agreement as No. 38. After the execution of the agreement, and whilst it was in the plaintiff's possession, the number was altered to 35, but it did not appear by whom: No. 35 was, in fact, the house let:-Held, that in an action for an excessive distress, the demise was admitted upon the plea of not guilty, and that the altered agreement was evidence of the terms of the holding. Id.

4. A., B., and C., before the marriage of C., entered into an agreement, dated the 25th of December, 1834, to rent a house of the plaintiff for seven years. This agreement was never signed by the plaintiff. In September, 1835, C. married, and, in the following December, A. became bankrupt. The defendants proved payment by A.'s assignees of the quarter's rent, due at Michaelmas, and that the plaintiff had admitted the receipt of the two previous quarters, but it did not appear when or by whom these latter payments were made:- Held, that there was no evidence from which a yearly tenancy could be inferred, so as to charge all the defendants, as it was not shown that the payments were made before C.'s marriage, or with her assent after her marriage. Doidge v. Bowers,

170.

threatened to commit waste unless he received a certain sum from the incoming-tenant, and that the tenant was, in consequence, compelled to pay the said sum to prevent him from so doing:Held, bad. General damages having been assessed where one of the breaches in the declaration was bad, the Court refused to arrest the judgment, but granted a venire de novo. Leach v. Thomas, 119.

6. A. being seised in fee, granted a lease to B. for sixty-one years, and afterwards granted a lease to C., to take effect at the expiration of the first lease-Held, that A had not parted with the reversion so as to prevent him from distraining for rent due from B. Smith v. Day,

185.

7. The lessee of premises demised under seal, required the lessor to make certain alterations and additions, and in consideration thereof paid an increased rent. The lessee afterwards became bankrupt, and his assignees took possession of the premises :-Held, that the assignees were not liable for the increased rent. Lambeth v. Norris, 29.

LEGACY.

A testator by his will, which took effect in 1791, devised the residue of his personal estate, (after the payment of his just debts and legacies,) as also the real estates of which he was seised as mortgagee in fee, to trustees, upon trust, to convert the whole into money, and lay it out in the purchase of real estate, to be conveyed to the same trustees, to and upon the same uses and trusts as were therein- before declared concerning his real estate. The will also directed, that, until such real estate was purchased, W. V. and W. M., the executors, should lay out the residue, at interest, on mortgage of real estate, in their own names; or, if such could not be procured, then at interest in the public funds; and the dividends and interest were directed to be paid to the parties who would, under his will, be entitled to the profits of the real estates so directed to be purchased. The executors took upon themselves the burden of the will, and, in the year 1792, and before the passing of the 36 Geo. 3, c. 52, invested the residue, which amounted to 14,000l. on mortgage. W. V. died, leaving W. M. the surviving executor. W. M. died in 1825, and appointed the defendants his executors. The money had never been laid out in the purchase of real estate. A suit was instituted, in order to ascertain the right heir of the original testator; and, upon his being ascertained, the defendants, as executors, paid over to him the residue of the personal estate :-Held, that this was a legacy, given by the will of a person dying before the 5th of April, 1805, and paid, satisfied, or discharged after the 31st of August, 1815, within the 55 Geo. 3, c. 184, and was liable to the payment of a legacy duty under that act. The Attorney-General v. Hundcock, 159.

LIMITATIONS, STATUTE OF.

1. The defendant being indebted to the plaintiffs in a considerable sum of money, gave them two promissory notes in payment, which were dishonoured when they arrived at maturity. In 1827, the debt due to the plaintiffs amounted to 2245.; and it was agreed that the defendant should discharge that amount by his draft for 245., which was paid, and also by annual payments of 300l. out of his salary as a consul, together with the proceeds of certain wines which he had consigned to India. The overdue promissory notes were also to stand as a security for the payment of the account. The defendant having made default in payment of one of the instalments of 300l. in the year 1830:-Held, that the plaintiffs were remitted to their original right of action, and that they might sue the defendant at any time within six years of his default in 1830, either upon the promissory notes or upon an account stated. Held, also, that a bill operates as part payment, so as to take a case out of the Statute of Limitations from the time of its delivery, and not from the time of payment. And quare, whether a part payment by an agent operates as an acknowledgment, so as to take a case out of the Statute of Limitations. Irwing and another v. Veitch, 313.

2. Where a note is payable on demand, with interest, the Statute of Limitations runs from the date of the note. Norton v. Ellum, 69.

LIVERY OF SEISIN.

Semble, that no possession short of twenty years is sufficient to warrant a jury in presuming livery of seisin. Doe d. Lewis v. Davies, 98.

MASTER AND SERVANT.

In an action on the case, the declaration stated that the plaintiff was a servant of the defendant, in his trade of a butcher, and that the defendant ordered the plaintiff, as such servant, to take certain goods of the defendant in a van, driven by another servant of the defendant; that the plaintiff was accordingly being conveyed by the said van, with the said goods, and it became the duty of the defendant to use due and proper care that the said van should be in a proper state of repair, and that it should not be overloaded, and that the plaintiff should be securely carried thereby; nevertheless that, in consequence of the defendant's want of care, the van broke down, and the plaintiff's leg was broken-Held, on motion in arrest of judgment, that the declaration was insufficient, as there was nothing in it to show that the defendant was liable by law. Priestly v. Fowler, 305.