appeared at nisi priat that it hap-
pened after the action brought, it
seems that the defendant cannot
avail himself of the defenee under
such a general plea, which is only
given by the statute in case any
bankrupt who has conformed to the
law shall afterwards be arrested or
impleaded for any debt due before
such time as he became bankrupt.
Toner v. Cameron, East. 45 G. 3.


7. Where the defendant in replevin
made cognizance for two years and
a quarter's rent in arreaf; and al-
leged that for a long time, vis. for
two years and a quarter, ending at
Christmas, 1803, the plaintiff held
and enjoyed the premisses as tenant
thereof to A. B. by virtue of a cer-
tain demise, &c.; to which the
plain (iff pleaded in bar, that he did
not hold and enjoy the premisses
as tenant thereof to A. B. by virtue
of the supposed demise modo et for-
ma, it is sufficient to entitle the
defendant to a verdict on such issue
if he prove that the plaintiff held of
A. B. from the 23d of December,
1801, and to recover for two years
rent. Forty v. Imber, E. 45 G. 3.


6. In assumpsit by the vendor against
the vendee of land for not accept-
ing it and paying the purchase-
money, the plaintiff averred that
he was seised in fee of the land, and
that the defendant agreed to pur-
chase it on having a good title, and
that his title to the said land teas
made good, perfect, and satisfactory
to the defendant, and that he, the
plaintiff, had been always ready and
Killing, and offered to convey the
lands to the defendant, but that the
defendant did not pay purchase-
money; and, on demurrer, held,
That such general allegation of title
in the plaintiff, and that his title
was made good and satisfactory to
the defendant, and that the plaintiff
was ready and willing, and offered
to convey to the defendant, were a

, sufficient performance of the agree-
ment on his part to entitle him to


recover for a breach of the defend-
ant's part in not paying the pur-
chase-money. M(triin v. Smith, T.
45 G. 3. 555

9. In declaring upon a contract, not
under seal, consisting of several
distinct parts and collateral provi-
sions, it is sufficient to state so
much of it as contains the entire
consideration for the act, and the
entire act or duty which is to be
done (including the lime, manner,
and other circumstances of its per-
formance) in virtue of such consi-
deration; the breach of which act
or duly is complained of; but such
part of the contract which respects
only the liquidation of damages after
a right to them has accrued by a
breach of the contract, is not ne-
cessary to be set forth in the decla-
ration, but is only matter of evi-
dence to be given to the jury in
reduction of damages. Clarke v.
Gray, Trin. 45 G. 3. 564

10. Therefore, assumpsit may be main-
tained in the common form of de-
claring against a carrier for the loss
of goods which were of above 5 /.
value, and were not in fact paid for
accordingly; although it were part
of the contract, proved by general
notice fixed up in the carrier's office
and presumed to be known and as-
sented to by the plaintiff, that the
carrier xzvuld not be accountable for
more than 5 1. for goods, unless en-
tered as such, and paid for accord-
ingly, ib.

11. Every plea to the jurisdiction of
the Court ought to givesome other
Court by which the matter may be
tried. Therefore, it is not sufficient
for a native of Ireland, charged with
the publication of a libel in Middle-
sex, to plead to the jurisdiction of
B. R. that Ireland before the Union
was governed by its own laws, and
not by the laws of Great Britain,
and that since the Union it is vet
governed by its own laws, &c.; and
that there always have been and
now are courts and jurisdictions in
Ireland distinct from those in G, B.
and competent for the trial of all

M m pffence.

offences committed by the natives
resident there; and that the defend-
ant is a native of and was resident in
Ireland at the time of the offence
alleged^ and tnat the subject-mat-
ter of the supposed libel related to
things in Ireland; for the objection,
if any, going to the total want of
jurisdiction in any of the courts of
this part of the kingdom to try the
defendant for such an offence, it
should either be taken advantage of
by a plea in bar, or by evidence
under the general issue. Rex v.
Johnson, Justice, Trin. 45 G. 3.

3. In debt on bond, conditioned to
perform an award, the plaintiff must
assign a breach under the stat. 8 and
8 W. 3, c. 11, and cannot have
judgment for the penalty, and take
out execution for the single sum
awarded, though the measure of
damages be ascertained by the
award. Welsh v. Ireland, T. 45
G.3. 613

See Principal and Factor, No. 1.

See Bastard, No. 1.


Sec Replevin, No. 1.

Under a local act, 10 Ann. c. 6, for
■ rating persons to the relief of the
poor" in Norwich for lands, &rc.
stock, and, personal estates in the
parish,"&c."" and money out at inte-
rest, thev are not liable to be rated
for government stocks or funds,
vhich are no more than perpetual
annuities, the principal of which
can never be recalled by the holder
from government, though redeem-
able Vt the pleasure of the latter.
Bex v. The Churthizarde.ns and
Overseers of the'Parish of St. John
Jiaddcr market, in Norwich, Ml.
45 G. 3. '*8*


1. An order of two justices founded
on the stat. 5 G. I, c. 8 (for provid-
ing for the families of absconding
men out of their estates) should
slate Aote much of the goods or rents
of the fugitive should be seized by
the parish officers; and the subse-
quent order of confirmation by the
Sessions should specify the quantum
of relief to be appropriated out of
the goods and rents so seized, and
limit a period for such appropria-
tion, supposing such prospective or-
der to be good, and that the order is
not to be confined to the discharge
'of expences already incurred by the
parish. Stable v.' Dixon, Hit. 45
G. 3. 16*

2. And quare, if the original order be
defective in the particular mention-
ed, whether the Sessions can make
it good by an order of confirmation
directing the parish officers " to re-
ceive 7 /. 16s. rent of the rents and
profits, 6>c. towards the discharge-
of the parish for providing for the
party's wife," &c. •&•

3. But, at any rate, a payment of one
sum of 7 /.' 16*. is a sufficient com-
pliance with such order, on the only
ground-of construction on which it
can be supported j and the tenant
in whose hands the rent was seized
cannot justify, in covenant by his
landlord for rent in arrear, the re-
taining a second sum of 7 /. 16*.
out of the second year's rent, upon
the supposition that such order of
Sessions extended 'to enable the pa-
rish officers to receive so much an-
nually out of the rents; for in that
view the order would be bad in law
upon the face of it, as an indefinite
order for the annual payment of
such a sum, without any limitation
of lin.e, or until further order, ic.


1. The mere cancelling in fact of a
■ lease is not a surrender of the tenant
thereby granted,' within the statute
of frauds, which requires such sur-
render to be by deed er note in terit- *»t»

tng, or by act or operation of lam;
nor is a recital in a second lease,
that it was grounded in part consi-
deration 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 purporting
in the terms of it to be of itself a
surrender or yielding up of the inte-
rest: though in some instances the
acceptance of a second lease for part
of the same term before demised
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 re-
cited) of the surrender of a prior
term of 99 year? (of which above oO
were unexpired) and certain charges
to be •incurred by the tenant for re-
pairs and improvements, ice. grant-
ed to him a new lease of the pre-
misses for 99 years by virtue of the
fouer reserved to her, or any other
power vested in or in anyrtise be-
longing to her, which new lease was
void by Jhe power for want of re-
serving 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
leyor, 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 hy the tenant of
the premisses in bar to an ejectment
by the remainder-man after the
death of tenant for life, however
such second lease might have ope-
rated by way ol estoppel as against
the lessor during her lite. Koe d.
'Jne Earl of Btrktlej v. The Arch-

bishop of York, Hilary, 45 Geo. 3.

2. Where an estate was conveyed to a
trustee, habendnm to him and his
heirs, to the use of such person and
for such essate as W. should by
deed, Src. appoint; arid for want of
.«uch limitation to the use of IV. and
his heirs: and the same conveyance
reserved a certain fee-farm rein to
the chief lord, and contained a cove-
nant by W. his heirs and assigns fo?
the payment of it: held, That YV.
tm>k a vested fee. liable to be divest-
ed by the execution of his power of
appointment j and W. having con-
tracted to sell the estate afterwards,
'by indentures of lease and release, to
which he and his trustee were par-
ties, ailer reciting the former con-
veyance, the trustee, by direction of
W. did grant, bargain, sell, and re-
lease; and W. did grant, bargain,
sell, alien, release, ratify, and con-
Jim, and Also direct, limit, and ap-
point to the purchaser and his heirs
all their estate, title, interest, u?e,
trust, ice. in law and equity, sub-
ject to the reserved rent, and to the
performance of covenants on the
part of W. to be performed ; and
the purchaser also covenanted with
W. to pay the said rent, and to in-
demnify and save him harmless:
held, That the purchaser took the
estate by the appointment of, and
not by conveyance from IV.: the
instruments (a lease and release)
though more commonly and pro-
perly adapted to pass an interest,
and containing words of grant for
that purpose, yet professing in terms
to be an appointment; and the trus-
tee having joined in it by the direc-
tion of IV. which unnecessary it"
it had been intended that the pur-
chaser should take an estate derived
only out of the inleie t of YV. ; and
it being obviously for the benefit of
the purchaser to take by appoint-
ment; and such appearing upon
the whole to have been the inten-
tion of the parties; and held, in
consequence, That the defendant
(the heir, devisee, aud executor of
M m 2 th«

the purchaser) was not liable in co-
venant for rent in arrear, either as
executor or assignee of the land,
which was not bound in the hands
of W.'s appointee by W.'s cove-
nant. Roach v. Wadham, and the
same v. the same, Executor of Wad-
ham, H. 45 G. 3. * 289


1. The granting of day rules to pri-
soners in the K. B. prison dnring
term is in the discretion of the Court
on application, the same as before
JE. 30 G. 3; but prisoners upon
•uch day rules must return at or be-
fore 9 o'clock in the evening. Re-
gula General*, H. 45 G. 3. 2

2. The Court will enter an exonere-
tur on the bail-piece on payment of
the sum sworn to and costs, though
less than the sum acknowledged to
be due, as well where the action is
by original as by bill. Jacob v.
Botees, E. 45 G. 3. 312

3. An appearance entered after the
essoign-day, and before the day of
full term, may be entered as of the
preceding tertn; and, therefore, a
non prss entered after the second
term, for want of declaring before
the end of such second term, is good.
Prigmore v. Bradley, E. 45 G. 3.


4. Rule absolute in the first instance
for changing the venue from an
English to a Welsh county on the
usual affidavit. Hopkins v. Lloyd,
East. 45 G. 3, ami Hughes y.
Hughes, Hit. 45 G. 2. 355

f. The Court refused (o proceed sum-
marily against a steward, who was
an atjorney, to compel him to ac-
count before the Master for receipts
and payments in respect of a mort-
g?ged estate, and to pay the balance
jo his employer, and to deliver up
»pon oath all deeds, writings, &c.
jelative to the estate; this being the
proper subject of a bill in equity,
and no( a case for a mandamus to
compel a steward of a manor to de-
liver up court rolls, &c. in lieu of
jyhich this summary mode of pro-

ceeding has been adopted where the
steward of the court is an attor-
ney. Cocks v. Harmon, £.4*
G. 3. 404

6. Though the venue be changed by
the defendant upon a false affidavit,
yet the plaintiff cannot bring it back
to the county where it was first laid,
without the usual undertaking to
give material evidence in that coun-
ty. Price, Bart. v. Woodburne, E.
45 G. 3. 433

7. The lessor of the plaintiff in eject-
ment, suing in forma pauperis, will
be dispaupered in case of vexatious
delay. Doe d. Leppingwell, suing
in forma Pauperis, v. TrusscH, E.
45 G. 3. 505

8. The irregularity of giving a rule to
plead before the delivery of the de-
claration is waved by putting in any
plea, though a nullity; but such in-
operative plea having been put in
without authority by a new attor-
ney for the defendant, without any
order to change the attorney, the
judgment which had been signed
as for want of a plea was set aside.
Perry v. Fisher, Trin. 45 G. 3.

9. Besides the common four-day rule
on a defendant in misdemeanor to
join in demurrer to his plea, there
must be a peremptory rule, giving
him a certain day in the discretion
of the CourIi without which judg-
ment cannot be signed against him.
Rex v. The Hon. R. Johnson, Trin.
45 G. 3. 383


A factor cannot pledge the goods of
his principal by indorsement and
delivery of the biWcf lading, any
more than by the delivery of. the
goods themselves; though the in-
dorsee knew not that he was factor;
and where goods were consigned on
the joint account of the consignors
and consignee, and a bill of lading
was sent to deliver the goods to the
consignee or his assigns; who after-
wards indorsed and delivered it to
the defendants, upon condition of


their making an advance to him on
it, which they failed to do, but
claimed to retain it as a security for
prior advances: held, That such in-
dorsement and delivery of the bill
of lading did not divest the consign-
or's right to slop the goods in tran-
situ upon the insolvency of the con-
signee, who had not paid for them.
Newsom v. Thornton, Hil. 45 G. 3.



The granting of day-rules to prison-
ers in the K. B. prison during term,
is in the discretion of the Court
on application, the same as before
East. 30 G. 3; but prisoners out
upon such day-rules must return
at or before 9 o'clock in the even-
ing. Regula Generalise Hil. 45
G.3. 1

mand. Sir Henry Hervey, Knt
v. Cooke, H. 45 G. 3. 220

See Bills of Exchange*


In HU. 45 Geo. 3.

On the resignation of floiham, B.

Sir T. M. Sutton, Solicitor-General,
was made a Baron of the Exchequer,
and called Serjeant. 1

Mr. Gibbs, appointed Solicitor-Gene-
ral, and knighted. ib.

Mr. Dallas, appointed Chief Justice
of Chester. ib.

Mr. Adam, made Attorney-General
to the P. of W. ib.

Mr. Jekyll, made Solicitor-General to
the P. of W. and King's Counsel.



One of the ships of a squadron is de-
tached by the commanding flag-
officer to lie off a certain place
within the limits of the station, from
whence the captain, without any
further orders for that purpose,
though he had written for such to
his superior officer, and waited for
them gome time, takes upon him on
hi> own responsibility (though from
laudable motives which were after-
wards approved of by the Admi-
ralty) to depart, and lo proceed as
convoy with the homeward-bound
trade; and in the course of the voy-
age home, out of the limits of his
station (but nothing turned on the
question of limits) he takes a prize:
held, That the superior flag-officer
who had before the capture suc-
ceeded the one by whom the order
for being detached had been ori-
ginally issued (admitting him to
stand ih the same situation in point
of right) was not entitled to share
the flag-officer's share of l-8th given
By the King's proclamation to a
Bag-officer directing or assisting in
a capture by a ship under his cora-

QUO WARRANTO,' Information
in Nature of,

1. The stat. 15 Car. 3, c. 17, creating
the corporation of the Bedford Le-
vel, directs, That they shall appoint
a registrar, Sec. and other officers at
their pleasure; the duty of which
registrar is to register titles to land
within the level; and he takes an
oath of office t held, That an infor*
maiion in nature of quo warranto
does not lie against such an officer;
he being a mere servant of the cof •
poration, and his office not affect-
ing any franchise or other authority
hoklen under the crown. Rex v.
The Corporation of the Bedford
Level, E. 45. G. 3. 358

2. But an information in nature of
quo warranto was granted against

• several for exercising the office of
comissioners for paving the town of
Taunlon, under an act of the 9 G. 3,
to whom a power was given to im-
pose rates and taxes on the inhabit-
ants. Rex v. Badcock and others,
H. 22 G. 3. 359

[ocr errors][merged small]
« ForrigeFortsett »