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
|