Statute of limitations. There was no plea nor notice of set-off. It was proved, that on the plaintiff shewing the defendant the note within six years, the latter said, "You owe me more money, I have a set-off against it." Held, by Bayley and Holroyd, Justices, Best, J. dissentiente, that that was not a sufficient acknowledgment within six years, to take the case out of the statute of limitations. Swan v. Sowell, T. 59 G. 3. Page 759 13. A term of years was created in 1762 and assigned over to a trustee in 1779, to attend the inheritance. In 1814 the owner of the inheritance executed a marriagesettlement; and in 1816 he conveyed his life-interest in the estate to a purchaser, as a security for a debt; but no assignment of the term or delivery of the deeds relating to it took place on either occasion. In 1819 an actual assignment of the term was made by the administrator of the trustee in 1779 to a new trustee for the purchaser in 1816: Held that under these circumstances on an ejectment brought by a prior incumbrance against the purchaser, the jury were warranted in presuming that the term had been surrendered previously to 1819. Doe, Dem. Putland v. Hilder, T. 59 G.3. 782 EXECUTION, See PRACTICE, 21. FACTOR. The character of broker is materially different from that of factor; and therefore, where a broker sells goods without disclosing the name of his principal; held that he acts beyond the scope of his authority, and that the buyer cannot set off a debt due from the A. being possessed of a term of years, demised his whole interest to B., subject to a right of reentry on the breach of a condition: Held that A.might enter for the condition broken, although he had no reversion. Doe v. Bate168 man, M. 59 G. 3. FRAUDS, STATUTE OF, See LANDLORD and TENANT, 1. A. had wrongfully, and without the licence of B., ridden his horse, and thereby caused its death: Held that a promise by a third person to pay the damage thereby sustained, in consideration that B. would not bring any action against A., is a collateral promise within the statute of frauds, and must be in writing. Held, also, that a mo tion for a new trial where the cause has been tried during the term may be made at any time within four days after the distringas is returnable. Kirkham v. Marter, E. 59 G. 3. Page 613 FREIGHT. By charter-party the freighter covenanted to pay to the owner freight at and after the rate of so much per ton per month, for the term of six months at least, and so in proportion for less than a month, or for such further time than six months as the ship might be detained in the service of the freighter until her final discharge, or until the day of her being lost, captured, or last seen or heard of; such freight to be paid to the commander of the ship in manner following; viz. so much as might be earned at the time of the arrival of the ship at her first destined port abroad, to be paid within ten days next after her arrival there, and the remainder of the freight at specific periods: Held that this constituted one entire covenant, and that the arrival of the ship at her first destined port abroad was a condition precedent to the owner's right to recover any freight, and that the ship having been lost on her outward voyage, the owner was not entitled to recover freight at so much per calendar month to the day of the loss. Gibbon v. Mendez, M. 59 G. 3. FREIGHTER, See CHARTER-PARTY, 3. GIFT. 17 HIGHWAY. 1. A bridge is not a highway within the meaning of the 13 G. 3. c. 84. s. 60. by which carriages employed in carrying materials for the repair of any turnpike road or public highway, are exempted from toll; and therefore toll is payable for a carriage employed in carrying materials for the repair of a bridge along a turnpike road. Osmond v. Widdicombe, M. 59 G.3. Page 49 2. Where a local turnpike-act, after empowering the trustees under it to take tolls, directed that the roads should from time to time be repaired by the trustees out of the money arising by virtue of the act: Held that this only made the tolls an auxiliary fund in the hands of the trustees, and that the inhabitants of the township where the road was situate, who by prescription were bound to repair all roads within it, were nevertheless liable to be indicted for non-repair of the road. Held, also, that such inhabitants may, after conviction, apply by motion for relief against the trustees under 13 G. 3. c. 84. s. 33. Held, also, that 13 G. 3. c.84. s.63. 3. only refers to diversions under writs of ad quod damnum, and under 13 G. 3. c.78. s.19. The Kingv. The Inhabitants of Netherthong. M. 59 G. 3. 179 Where a turnpike act exempted persons from toll "in going to and returning from their proper parochial church, chapel, or other place of religious worship on Sundays:" Held that the word "parochial" extended over the whole clause; and therefore that a Dissenter was not within the exemption in going to and returning from his proper place of religious wership, situate out of the parish in which he resided. Lewis v. 206 Hammond, M. 59 G. 3. INCLO INCLOSURE ACT. INDICTMENT. 1. An indictment charged that defendants conspired, by divers false pretences and subtle means and devices, to obtain from A. divers large sums of money, and to cheat and defraud him thereof: Held that the gist of the offence being the conspiracy, it was quite sufficient only to state that fact and its object, and not necessary to set out the specific pretences. The King v. Gill and Henry, M. 59 G. 3. Page 204 A prosecutor of an indictment has no right to address the jury, and state the case for the prosecution. The King v. Brice, E. 59 G. 3. 2. INSURANCE. 606 By the general inclosure act the legal title to an allotment is not acquired until the execution and proclamation of the commissioners' award. And where a local act directed that the commissioners by notice might cause all rights of common to be extinguished, and might then allot the waste land amongst the proprietors, and that the owners might fence their allotments after they had been marked, staked out, and confirmed, and before the signing of the award, and might also, within three months before the execution of the award, sell and convey their interests in the allotments, the commissioners being The King v. Milne and Others. ib. thereby authorized to allot to the purchasers, and the latter, after the execution of the award, to hold 1. the allotted lands in such manner as the vendor would have done if there had been no sale; provided that where the allotments were copyhold, that the deed should be enrolled in the court-rolls of the manor, and that the purchaser should be admitted tenant thereto at the same time as the other allottees of copyhold lands, viz. after the execution of the award: Held that this authority to enclose and so to enjoy in severalty, and the power to sell and convey, might well (considering the language in which that power was given) be enjoyed and exercised without the legal seisin of the land; and that, therefore, these provisions, not sufficiently countervailing those of the general inclosure act, the legal freehold did not pass to the allottee till after the execution and proclamation of the award. Farrer v. Billing, M. 59 G. 3. Page 171 In an action on a policy on ship, by which, amongst other risks, the underwriters insured against fire, and barratry of the master and mariners, they are liable for a loss by fire occasioned by the negligence of the master and mariners. Held, also, that where the assured had once provided a sufficient crew, the negligent absence of all the crew at the time of the loss was no breach of the implied warranty, that the ship should be properly manned. Busk v. The Royal Exchange Assurance Company, M. 59 Ğ. 3. 73 2. A transport in government service was insured for twelve months, during which she was ordered into a dry harbour, the bed of which was uneven, and on the tide having left her, she received damage by taking the ground: Held that this was a loss by a peril of the sea. Fletcher v. Inglis, H. 59 G. 3. 3. 315 A ship insured at and from a port, sails on her voyage in an unseaworthy thy state, in consequence of having a greater cargo than she could safely carry. The defect is discovered before any loss accrued, and part of the cargo is discharged, and a loss subsequently accrues, in nodegree attributable to her having been overladen in the early part of her voyage: Held that the underwriters were liable for such loss. The vessel having sailed and put back to the Downs, and then sailed again, and laboured and strained much from being overloaded, and then put back a second time; and upon an application to the underwriters for liberty for the ship to go into port to discharge part of the cargo, it was only communicated to them that the ship was too deep in the water: Held that as the subsequent loss had not in any degree arisen from her having so strained and laboured, the communication of that fact was immaterial, and that the communication made was quite sufficient. Held, also, that the memorandum giving such liberty did not require a new stamp. Weir v. Aberdeen, H. 59 G. 3. Page 320 4. Policy on ship for four months, at and from a place to any port or ports whatsoever: Held that an open roadstead (being the usual place of loading and unloading) was a port within the meaning of this policy. Cockey v. Atkinson, 460 E. 59 G. 3. 5. A ship received considerable damage from tempestuous weather, and the crew, completely exhausted, deserted the ship on the high seas for the mere preservation of their lives; and the ship was then taken possession of by a fresh crew, who succeeded in conducting her safely into port: Held that such desertion of the crew did not of itself amount to a total loss; and, secondly, VOL. II. That the ship having been sold under the decree of the Admiralty Court to pay the salvage, and it not appearing that the assured had taken any means to prevent such sale, that they had no right to abandon, and that there was no more than a partial loss. Thornely v. Hebson, E. 59 G.3. P. 513 INTEREST, See BANKRUPTCY, 5. AWARD, 4. BILL OF EXCHANGE, 7. JUDGMENT. A verdict obtained by the defendant in a former action, which, if pleaded in bar, would be an estoppel, when given in evidence under the general issue, is not conclusive against the plaintiff, but is only evidence to go to the jury. Vooght v. Winch, T. 59 G. 3. 662 JURY, See PRACTICE, 13. The 15 G. 2. c. 24. is a declaratory act, and should have a liberal construction. And therefore where justices of a borough, contribubutory to the county-rate, have committed prisoners to the county house of correction for offences cognizable within the county, the justices at their borough sessions, have a right to order such prisoners to be brought before them for trial there. Quære, also, where a county magistrate having concurrent jurisdiction, has committed a prisoner for an offence within the borough, whether the borough sessions have not the same power of ordering such prisoner to be brought before them for trial, The King v. Amos, E. 59 G.3. 533 838 LANDLORD & TENANT. to require surety of the peace for a limitted time, according to his discretion, and need not bind the party over to the next sessions only. Willes v. Bridger, H. 59 G. 3. P. 278 LANDLORD AND TENANT, See EVIDENCE, 4. PARTY WALL, 1. COVENANT, 3. 1. A. being tenant from year to year, underlet the premises to B., and the original landlord, with the assent of A., accepted B. as his tenant, but there was no surrender in writing of A.'s interest; rent being subsequently in arrear, the landlord distrained on B.'s goods: Held that these circumstances constituted a valid surrender of A.'s interest by act and operation of law within the 29 Car. 2. c. 3. s. 3. Thomas v. Cook, M. 59 G. 3. 2. Certain parts of a machine had been put up by the tenant during his term, and were capable of being removed without either injuring the other parts of the machine or the building, and had been usually valued between the outgoing and incoming tenant: Held that these were the goods and chattels of the outgoing tenant, for which he might maintain trover. Davis v. Jones, M. 59 G.3. 119 165 3. By the custom of the country the outgoing tenant was entitled to an allowance for foldage from the incoming tenant. Where a lease, however, specified certain payments to be made by the incoming to the outgoing tenant, at the time of quitting the premises, among which there was not included any payment for foldage: Held that the terms of the lease excluded the custom, and that the outgoing tenant was not entitled to any allowance in respect of foldage. Where the lease provided that the MANDAMUS. tenant should during the term fold his flock of sheep which he should keep on the demised premises under a penalty if he omitted to do so. Held that this amounted to a covenant to keep a flock of sheep upon the premises. Webb v. Plummer, T. 59 G. 3. Page 746 4. Where a tenant came into possession of premises in 1816, and the lessor of the plaintiff claimed under a writ of elegit and an inquisition thereon issued in 1818, but founded on a judgment recovered prior to 1816; it was held that no notice to quit was necessary. Doe, Dem. Putland, v. Hilder, 782 T. 59 G. 3. LEASE, See COVENANT, 2, 3. CONDITION, 1. EJECTMENT, 2. LANDLORD AND TENANT, 3. LETTER, See STAMP, 3. LIMITATIONS, STATUTE OF. Assumpsit on a promissory note, Plea, 1st, General issue. 2dly, Statute of limitations. There was no plea nor notice of set-off. It was proved, that on the plaintiff shewing the defendant the note within six years, the latter said, "You owe me more money, I have a set-off against it." Held, by Bayley and Holroyd, Justices, Best, J. dissentiente, that that was not a sufficient acknowledgment within six years, to take the case out of the statute of limitations. Swan v. Sowell, T. 59 G. 3. 759 MANDAMUS. 1. The court will not grant a man damus to a trading corporation at the instance of one of its members to compel them to produce their accounts for the purpose of declar |