until demand made or left at their usual place of abode, &c. by the party intending to bring such ac- tion, &c. Fletcher v. Wilkins and Others, Hil. 45 G. 3. 283
LAND, SALE OF, See Assumpsit, No. 3.
LANDLORD AND TENANT,
See Poor Relief, No. 3.
1. The mere cancelling in, fact of a lease is not a surrender of the term thereby granted within the statute of frauds, which requires such sur- render to be by deed or note in writ- ing, or by act or operation of law. Nor is a recital in a second lease, that it was granted in part consider- ation of the surrender of a prior lease of the same premisses, a sur- render by deed or note in writing of such prior lease; it not purport- ing in the terms of it to be of itself a surrender or yielding up of the in- terest, though in some instances the acceptance of a second lease for part of the same term before de- mised may be a surrender of such prior term by operation of law; and this even though the second lease be voidable, if it be not merely void; but where tenant for life with a special power of leasing reserving the best rent, in consideration (as recited) of the surrender of a prior term of 99 years (of which above 50 were unexpired) and certain charges to be incurred by the te- nant for repairs and improvements, &c. granted to him a new lease of the premisses for 99 years, by virtue of the power reserved to her, or any other power vested in, or in anywise belonging to her; which new lease was void by the power for want of reserving the best rent; held, That the second lease, which was intend-
ed and expressly declared to be granted by virtue of and under the power, and being apparently not intended by the parties to be carved out of the estate for life of the lessor, being void under the power, should not operate in law as a sur- render of the prior term, as passing an interest out-of the life-estate of the grantor, contrary to the mani- fest intent of the parties; and con- sequently that the prior term, tho' the indenture of lease were in fact cancelled and delivered up when the new lease was granted, might be set up by the tenant of the premisses in bar to an ejectment by the remain- der-man after the death of tenant for life however such second lease might have operated by way of es- toppel as against the lessor during her life. Roe d. The Earl of Ber- keley v. The Archbishop of York, H. 45 G. 3.
A. agreed to let her house to B. "during her life, supposing it to be occupied by B. or a tenant agreeable to A." and "a clause was to be added in the lease," to give A.'s son an option to possess the house when of age: held, That this was only an agreement for a lease, and not a perfect lease; the latter clause shew- ing it to be executory: and that a lease granted in pursuance of such agreement would only enure for the joint lives of A. and B.: and, therefore, that B. having continued in possession of the premisses un- der the agreement to the time of his death, his interest then deter- mined; and that A. might maintain ejectment against B.'s executrix who had possessed herself of the premisses. Doe d. Bromfield v. Smith, T. 45 G. 3.
1. The lien of a common carrier for his general balance, however it may
arise in point of law from an im- plied agreement to be inferred from a general usage of trade, proved by clear and satisfactory instances suf- ficiently numerous and general to warrant so extensive a conclusion affecting the custom of the realm, yet it is not to be savoured, nor can be supported by a few recent in- stances of detention of goods by four or five carriers for their gene- ral balance: but such a lien may be inferred from evidence of the parti- cular mode of dealing between the respective parties. Rushforth and Another, Assignees of B. and W. Rushforth, v. Hadfield, T. 42 G. 3.
2. The dyers at Halifax were found by verdict to have no lien for their general balance; and, therefore, the Court held, That they could not retain for the price of dying any other than the particular goods dyed, or at most only for the dying of such goods as were delivered to them at one and the same time un- der one entire contract; but certainly not for different parcels delivered at several times, which they happened to collect in their hands at one time, and some of which they had after- wards parted with without obtain- ing payment. Close and Another, Assignees of Riddell v. Waterhouse and Others, T. 42 G. 3. 3. A vendor has a general lien for the price of the goods sold while in his possession. Hanson and Another, Assignees of Wallace and Hawes, v. Meyer, T. 45 G. 3.
And vide Vendor and Vendee. 4. One having purchased of the con- signee all the tar on board a ship, under two bills of lading, and hav- ing obtained delivery from the cap- tain of the greater part of the goods under one of the bills of lading, the captain has a lien on the rest of the tar under the other bill of lading for the freight of the whole: and this, though some of it had been removed into a lighter alongside of the ship sent by the vendee, which
See Action on the Case, No. 2.
Where the ancestor died seised, leaving a son and daughter infants, and on the death of the ancestor a stranger entered, and the son soon after went to sea, and was supposed to have died abroad within age: held, That the daughter was not entitled to 20 years to make her entry after the death of her bro- ther, but only to 10 years; more than 20 years having in the whole elapsed since the death of the per- son last seised. Doe d. George and Frances his wife v. Jesson, H. 45 G. 3.
the court granted a mandamus to the corporation to admit and swear in the other, who appeared upon the athidavits to have the greater number of legal votes: and this, although the first was admitted and sworn into the office; there being no other specific, or at least no other such convenient mode of try- ing the right. Rex v. the Corpora tion of the Bedford Level, E. 45 G. 3. 356 2. A mandamus lies to the lord and steward of a manor to admit one to a copyhold tenement who has a prima facie legal title, in order to enable him to try his right; though equity had before refused to compel the lord to admit him for want of his shewing an equitable right to the property; but if there be a claim of a previous fine due the lord in respect of the ancestor from whom the party claims, the rule will only be granted on payment of such fine or fines as shall be due. Res v. Coggan and Another, East, 45 G. 3.
431 3. A similar mandamus was just be- fore granted to the Duke of Leeds to admit Mr. Conolly to certain cus- tomary tenements in the manor of Wakefield in Yorkshire, to enable him to try his title thereto. ib. 432
MARKET TOLL.
An action on the case by the owners
of a market, who had a prescriptive right of toll on all corn brought into the market to be sold, and there sold; alleging that the defendant intending to deprive them of their toll, fraudulently bought corn in the market by sample, knowing that the commodity was not there in bulk at the time of the sale, whereby the plaintiffs were prevented from tak- ing their toll; is not sustained by
evidence of the mere fact of such
purchase by sample in the market, though with knowledge of the plain- tiffs' claim of toll, coupled with the fact of not paying the toll on de-
mand afterwards when the corn was delivered to the defendant in the same borough but out of the market; for non constat that the corn would otherwise have been brought into the market, or that the defendant did any act to induce the owner of it not to bring it there in the first instance. Neither will the fact of such purchase by sample in the market, though coupled with the subsequent delivery out of the mar ket, sustain a count for toll as for corn brought into the market and there sold. The Bailiffs, &c. of Tewkesbury v. Diston, B. 45 G. 3.
MARQUE, LETTERS OF, See Insurance, No. 1, 2:
Where a policy described the insur- ance to be on goods on board the ship called "The American ship President," this was taken to be all name of the ship, and not a war- ranty of her being an American ship called The President; and where the policy after such name had the words, 66 or ly whatever other name the same ship should be called," it was holden to be no variance that the real name of the ship was The Prssident; the identity of the ship meant to be insured with that name being proved. Le Mesurier v. Vaughan, E. 45 G. 3.
Hall v. Molineaux, at Guildhall in 1774, cor. Lee C. J. S. P. cited. ib. 385
retaining more than 6d. in the pound for receiving and paying over wages, &c. to any officer, seaman, or other person in the royal navy, and for all their trouble and attendance in rela- tion thereto, is not confined to in- ferior officers and seamen, as many of the provisions of the statute are; and, therefore, navy agents demand- ing and receiving of a lieutenant in the navy more than 6d. in the pound upon the sum in fact receiv- ed and paid over to him by them, though not more than 6d. in the pound upon the whole account of debtor and oreditor, including sums drawn for by the lieutenant himself upon the Navy-office, and paid and carried to his account by that office (which is authorized by statute 35 G. 3, c. 94, making special provi- sion for paying the wages, &c. of commissioned officers) are liable to the penalty; and the latter act is not a repeal of the former provision as to the payment of wages, &c. of commissioned officers. Walsh v. .Toulmin, T. 45 G. 3.
I. The Court are not restrained from granting a new trial in a case of crim. con. for excessive damages, if they be satisfied that the jury acted under the influence of undue mo- tives, or of gross error or miscon- ception of the subject. Chambers v. Caulfield, H. 45 G. 3. 214 2. The Court refused to grant a rule nisi for a new trial after a verdict for the defendant upon an indict- ment for non-repair of a church- yard fence, which was moved on the ground of the verdict being against evidence. Rex v. Reynell, Clerk, E. 45 G. 3.
1. Under an agreement by a tenant of a farm" to enter on the tillage land at Candlemas, and on the house and all other the premisses at Lady-day following, and that when he left the
farm he should quit the same accord- ing to the times of entry as afore- said," and the rent was reserved half-yearly at Michaelmas and Lady- day: held, That a notice to quit delivered half a-year before Lady- day, but less than half a year before Candlemas, was good; the taking being in substance from Lady-day, with a privilege for the incoming tenant to enter on the arable land at Candlemas for the sake of plough- ing, &c. Doe d. Strickland v. Spence, H. 45 G. 3.
2. It is said that three months' notice to quit lodgings is sufficient, per Lord Mansfield, C. J. in Throgmor. tond. Woodbyv. Whelpdale, B.R.H. 9 G. 3.
A waggoner occupying one side of a public street in a city, before his warehouses, in loading and unload- ing his waggons for several hours at a time, both day and night, and hav- ing one waggon at least usually standing before his warehouses, so that no carriage could pass on that side of the street, and sometimes even foot-passengers were incom- moded by cumbrous goods lying on the ground on the same side ready for loading, is indictable for a pub- lic nuisance, although there were room for two carriages to pass on the opposite side of the street. Rex v. Russell, E. 45 G. 3.
OATHS, UNLAWFUL, See Evidence, No. 7, 8; Indictment, No. 2.
OFFICE AND OFFICER,
See Deputy; Mandamus, No. 1; Quo Warranto, No. 1, 2.
ORDER OF JUSTICES,
See Poor Relief.
PARISH and PARISH OFFICERS, See Bastard, No. 1; Justice of the Peace, &c. No. 1; Replecin, No. 1.
1. Upon an indictment for perjury, in falsely taking the freeholder's oath at an election of a knight of the shire in the name of J. W.; it ap pearing by competent evidence that the freeholder's oath was admini- stered to a person who polled on the second day of the election by the name of J. W. who swore to his freehold and place of abode ; and that there was no such person; and that the defendant voted on the second day, and was no free- holder; and sometime afterwards boasted that he had done the trick, and was not paid enough for the job, and was afraid he should be pulled for his bad vote; and it not appearing that more than one false vote was given on the second day's poll, or that the defendant voted in his own name, or in any other than the name of J. W.; held, That there was sufficient evidence for the jury to presume that the defendant voted in the name of J. W. and consequently to find him guilty of the charge as alleged in the indict- ment. Rex v. Thomas Price, alias John Wright, E. 45 G. 3. 2. The punishments directed by the stat. 21 G. 2, c. 18, to be inflicted upon perjury, in falsely taking the freeholder's oath at an election of a knight of the shire, and cumulative under the stat. 5 Eliz. c. 9, s. 6, and 2 G. 2, c. 25, s. 2, to which the first-mentioned statute refers. ib.
See Replevin, No. 2, Trespass. 1. A count stating that the plaintiff had delivered a note to the defend- ant, to get it discounted, or account with the plaintiff for the money raised on it, and that the defendant
received the note for that purpose; both intending to defraud the plain- tiff, had not, though requested, ac- counted with him, &c. is laid in tort (whether formally or not in its frame) and not in assumpsit; and no objection can be taken upon a ge- neral demurrer to the whole decla- ration, because such count Sa- joined with a count in trover. muel v. Judin, in Error, E. 45 333 G. 3. Debt lies for use and occupation generally, without stating the place where the premisses lie, or any of the particulars of the demise. King v. Fraser, East, 45 G. 3. Where the plaintiff complained of a plea of trespass, for that the defend- ant with force and arms assaulted and seduced the plaintiff's wife, whereby he lost the comfort of her society, &c. against the peace, &c. to his damage, &c. Whether this be trespass or case (and former
authorities have considered it to be case) at any rate a plea of not guilty infra sex annos is good on general demurrer. Macfadzen v. Olivant, E. 45 G. 3.
A declaration, charging that the defendant on such a day, and on divers other days and times, &c. made an assault on the plaintiff; held bad on special demurrer, as one assault cannot be laid on different days. English v. Purser, E. 45 G. 3.
A count upon a promise to the plaintiff as administratrix, for goods sold and delivered by her after the death of the intestate, may be join- ed with a count upon an account stated with her as administratrix; for the damages and costs when re- covered would be assets. Cowell and Wife, Administratrix, v. Watts, E. 45 G. 3. 6. The general plea of bankruptcy, and the certificate given by stat. 5 G. 2, c. 30, s. 7, may be pleaded, without averring that the bank- ruptcy happened before the com- mencement of the suit; but if it
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