It further appeared that the agent | of the maker had represented to the plaintiff, before he signed the agreement, that the defendant would continue liable for the residue of the debt secured by the note, and that the agreement would be void, unless all the creditors signed: Held, first, that the execution of this agreement had the effect of discharging the surety; secondly, that the representa- tions being as to the legal effect of the agreement, were immaterial, and had not the effect of avoiding it, and that as the latter of them gave to the agreement a meaning different from that which ap- peared upon the face of it; parol evi- dence of that representation was not ad- missible, per Bayley, J. Lewis v. Jones, T. 6 G. 4.
24. A. paid a nominal rent to the king of one thousand acres of woodland, the wood being all reserved to the crown. During four months in the year, A. exer- eised the privilege of shooting over the land, and by his permission another per- son took the grass: Held, that the pay- ment of the rent, the exercise of the pri- vilege of shooting, and the taking of the grass was sufficient evidence to show that A. was in the actual possession of the land, so as to entitle him to maintain trespass.
A public footway over crown land] was extinguished by an inclosure act, but for twenty years after the inclosure took place the public continued to use the way: Held, by Bayley, J., that this user was not evidence of a dedication to the public, as it did not appear to have been with the knowledge of the crown. Harper v. Charlesworth, T. 6 G. 4. 25. A public right of navigation in a river or creek, may be extinguished either by an act of Parliament or writ of ad quod damnum and inquisition thereon, or under certain circumstances, by com- missioners of sewers, or by natural causes, such as the recess of the sea, or an accumulation of mud, &c., and where a public road obstructing a channel (once) navigable) has existed for so long a time that the state of the channel at the time when the road was made, cannot be proved; in favor of the existing state of things it must be presumed that the right of navigation was extinguished in one of the modes before mentioned, and the road cannot be removed as a nuisance to that navigation.
Every creek or river into which the tide flows is not on that account neces- sarily a public navigable channel, al- though sufficiently large for that purpose, per Bayley, J. The King v. Montague and others, T. 6 G. 4.
62. Trespass for breaking and entering two closes, parcel of Forton Farm. Plea,
that one J. W. before and at the time when, &c. was seised in fee of fifty acres of land, next adjoining the locos in quo, and that by deed of the 17th of February, 1736, between F. C. who was seised in fee of the locus in quo, and one R. W. who was seised in fee of the fifty acres, F. C. granted to R. W. and his heirs and assigns, for the time being owners in fee of the fifty acres, the liberty and privi- lege of hunting for game with dogs in the locus in quo. The plea then justifisd the trespass as the servant of J. W. Re- plication, that F. C. did not grant the liberty and privilege as in that plea men tioned, upon which issue was joined. At the trial there was no proof of any such grant as that stated in the plea, but it ap peared that by a deed of that date R. W. being then seised in fee of the manor of Middleton, and all royalties, conveyed Forton Farm to F. C., reserving all roy- alties; but it appeared further, that from the year 1753, the gamekeepers of the lord of the manor of Middleton, were ac- customed to sport over Forton Farm, with the knowledge of the plaintiff and his landlords, the owner of Forton Farm; that about fourteen years ago, the plain- tiff by desire of his landlord gave notice to the then gamekeeper of the lord of the manor not to trespass, but he afterwards continued to sport there by order of the lord, without any further interruption : Held, that upon this evidence a jury ought not to have presumed a grant.
Another plea stated, that before the said time when, &c., R. W. was seised of the closes in which, &c., and by in- denture of the 17th of February, 1786, granted unto F. C., his heirs, &c., the closes in which, &c., with a reservation of all royalties. The plea then deduced a title in said royalties from R. W. to J. W., and then justified entering the closes as his servant. Replication, that the de- fendant did not enter in order to exercise the said royalties, upon which issue was joined. Held, that it lay upon the de- fendant upon this issue to prove, first, that he had such a royalty; and, secondly, that at the time in question he was in the due exercise of it; and, semble, that that could only be done by proving a grant of a free warren from the crown. ering v. Noyes, T. 6 G. 4.
27. Case for slander. Declaration stated, that plaintiff was treasurer and collector of certain tolls, and that defendant spoke of and concerning the plaintiff as such treasurer and collector, certain words "thereby meaning that the plaintiff as such treasurer and collector had been guilty of, &c." Held, that the plaintiff was bound by the inuendo to prove that he was treasurer and collector. Sellers v. 655 Till, M. 6 G. 4.
28. Where in case against a sheriff, for re- moving goods seised under a fi. fa. with- out satisfying the landlord the rent due to him, the declaration alleged that the fi. fa. issued out of K. B. and the writ produced in evidence appeared to have issued out of C. P. Held, that this was a fatal variance. Sheldon v. Whittaker and another, M. 6 G. 4. 657 29. An action may be maintained by the several partners of a firm, upon a gua- ranty given to one of them, if there be evidence that it was given for the benefit of all. Garrett and Bodenham, surviving partners of Phillips v. Handley, M. 6 G. 4.
Assumpsit for goods sold and delivered Plea, that the goods were sold and deli vered to defendant by A., the factor and agent of plaintiff, with the privity of plaintiff, as and for the goods of A., and that defendant did not know that the goods were not the property of A.; that at the time of the sale and delivery A. was and still is indebted to defendant in more than the value of the goods, and that defendant is ready and willing to set off and allow to the plaintiff the value of the goods out of the monies so due and owing from A. Held, on special de- murrer, that the plea was good. Carr v Hinchliff, T. 6 G. 4.
30. Indictment for perjury alleged to have been committed in an affidavit sworn before a commissioner of the court of chancery, stated that a commission of bankruptcy issued against the defendant, under which he was duly declared a bankrupt. It then stated that the defend- In ant preferred his petition to the Lord Chancellor, setting forth various matters, and amongst others the issuing of the commission, that the petitioner was de- clared a bankrupt, and that his estate was seized under the commission, and that at the second meeting one A. B. was appointed assignee, and an assign- ment made to him, and that he possessed himself of the estate and effects of the petitioner. It then stated, that at the several meetings before the commission the petitioner declared openly and in the presence and hearing of the said as- signee to a certain effect. At the trial the petition was produced, and it ap- peared that the allegation was, that at the several meetings before the commissioners the petitioner declared to that effect: Held, that this was no variance, inas- much as it was sufficient to set out in the indictment the petition in substance and effect, and the word commission was one of equivocal meaning, and used to de- note either a trust or authority exer- cised, or the persons by whom the trust or authority was exercised; and that it sufficiently appeared from the context of the petition set forth in the indictment, that it was used in the latter sense. King v. Dudman, M. 6 G. 4.
EXECUTION.
See PLEADING, 4.
EXECUTORY CONTRACT. See VENDOR AND VENDEE, 2.
assumpsit against executors, declara- tion stated that testator made his pro- missory note, and thereby promised to pay J. Y. on demand 2001., and delivered the note to him, whereby testator became liable to pay, but did not pay, and at the time of his death was indebted to J. Y. for the amount of the sum secured by the note, and interest. It then averred, that afterwards, and after the death of J. Y., the money specified in the note being and remaining wholly due and unsatis- fied, to wit, on, &c., at, &c., before A. B., one of the coroners for the county of N., it was found upon view of the body of J. Y., then and there lying dead, by the oaths of honest and lawful men of, &c., that the said J. Y. feloniously did kill and murder himself, as by the inquisition be- fore the coroner remaining of record more fully appeared, by reason of which said inquisition, and by force of the felony, the said J. Y. forfeited to the king the promissory note and the money due thereon. The declaration then set forth a grant under the king's sign manual to the plaintiff of the note and money due thereon, as mentioned in a certain other inquisition, and that his majesty delivered the note to the plaintiff, of which the defendants, after the death of the testator, had notice. Breach, nonpayment by tes- tator or the defendants since his death. Plea, first, non-assumpsit testator. condly, that the note became due and payable to J. Y. in his lifetime, and that the causes of action did not accrue to him within six years before the exhibit- ing of the bill; upon which plea issue was taken and joined. Thirdly, nul tiel record of the inquisition taken before the coroner; upon which issue was taken. Fourthly, that there was no such grant as alleged in the declaration. The issue on the plea of the statute of limitations
having been found for the defendants,| and all the other issues for the plaintiff, it was held, on motion, to enter a non- suit:
First, that it was not necessary for the plaintiff to produce at the trial the inqui- sition mentioned in the king's grant, inas- much as that was an office of instruction only, and not of entitling; the title of the crown having accrued by the felony under the coroner's inquisition.
Secondly, that the grant under the sign manuel was sufficient to pass the pro- perty in the note.
Held, thirdly, on motion in arrest of judgment, that inasmuch as the declara- tion alleged that the testator was, at the time of his death, indebted to J. Y., the payee of the note, in the principal and interest due thereon, it sufficiently ap- peared that the note was a security for a debt, and that the debt and security hav- ing passed to the crown by operation of law, were assignable by the crown with- out indorsement.
Held, fourthly, assuming it to be neces- sary, in order to vest the chattels of a felo de se in the crown, that the coroner's inquest should be found by twelve men, that it must be taken after verdict that the inquest was so found.
Held, fifthly, on motion by the plaintiff for judgment non obstante veredicto, that the plea of the statute of limitations, that the causes of action did not accrue to J. Y. within six years, was bad, inasmuch as it did not show that J. Y. was barred A by the statute at the time of his death; and if he was not, then the king, not being expressly mentioned in the statute, was not within the statute, and his rights were not barred.
Held, sixthly, that the averment, that the note became due to J. Y. in his life- time, being an acknowledgment that he, at one time, had a good cause of action (which had passed to the crown by for- feiture, and from the crown to the plain- tiff;) a cause of action was thereby con- fessed by the plea, and the matter pleaded in avoidance being insufficient, the plain- tiff was entitled to judgment non obstante veredicto. Lambert v. Taylor, and another, executors, E. 6 G. 4.
FORFEITURE.
See COVENANT, 5. EJECTMENT.
By letters patent, reciting that the liberty of H. was an ancient liberty, and that the lords were bailiffs of the same, and had 4 G
exercised returns and executions of writs and processes within the liberty, the king granted to A. B., his heirs and assigns, that he should have within the liberty of H. the return and execution of all writs, processes, and precepts of his majesty, by the lord's proper bailiffs, officers, and ministers, so that no sheriff of the king, his heirs or successors, should enter into the liberty to execute anything, unless it touched his majesty or his crown, or in default of the lord's bailiffs and officers. The bailiffs of the liberty had regularly attended the quarter sessions, and made returns of the jurors resident within the liberty Held, that the bailiff of the lib- erty was bound, in obedience to the pre- cept of the sheriff, to summon the jury within the liberty to attend the quarter
The court of quarter sessions made an order that A. B., the acting bailiff of the lordship of H., be fined 104. for refusing, contrary to the duty of his office and to ancient usage, to summon the jury from the lordship to attend at the quarter ses- sions, he, the said A. B., having been duly required so to do by warrant from the sheriff: Held, that this order was good, although it did not appear that the bailiff was summoned to attend at the sessions, it being his duty to do so with- out summons. The King v. Jaram, M. 6 G. 4. 692
FRAUDS, STATUTE OF. tenant held under a demise from the 26th of March, for one year then next ensuing and fully to be complete and ended, and so on from year to year, for so long as the landlord and tenant should respec- tively please. The tenant, after having held more than one year, gave a paro' notice to the landlord, less than six months before the 25th of March, that he would quit on that day, and the landlord accepted and assented to the notice: Held, on demurrer, in replevin, that the tenancy was not thereby determined, there not having been either a sufficient notice to quit, or a surrender in writing, or by operation of law, within the meaning of the statute of frauds. Johnstone v. Hud- lestone, clerk, and another, M. 6 G. 4. 922
In an action on a policy of insurance on freight, it appeared that the ship in the course of her voyage, having been in- jured by a peril of the sea, was obliged to put into a port and land the whole of her cargo. Part of the cargo had been so wetted by sea water that it could not be re-shipped without danger of ignition, unless it went through a process which would have detained the vessel six weeks,
Another plea stated that before the said time, when R. W. was seised of the closes in which and by indenture of the 17th of February, 1786, granted unto F. C., his heirs, &c., the closes in which, &c., with a reservation of all royalties. The plea then deduced a title in the royalties from R. W. to J. W., and then justified enter- ing the closes as his servant. Replication that the defendant did not enter in order to exercise the said royalties, upon which issue was joined: Held, that it lay upon the defendant upon this issue, to prove, first, that he had such a royalty; and, secondly, that at the time in question, he was in the due exercise of it; and, semble, that that could only be done by proving a grant of a free warrant from the crown. Pickering v. Noyes, T. 6 G. 4. 639
An action may be maintained by the seve- ral partners of a firm upon a guaranty given to one of them, if there be evidence that it was given for the benefit of all. Garrett and Bodenham v. Handley, M. 6 G. 4.
Trespass for breaking and entering_two closes, parcel of Forton Farm. Plea, that one J. W., before and at the time when, &c., was seised in fee of fifty acres of land next adjoining the locus in quo, and that by deed of the 17th of February, 1736, between F. C., who was seised in 1. fee of the locus in quo, and one R. W., who was seised in fee of the fifty acres, F. C. granted to R. W., and his heirs and as- signs for the time being, owners in fee of the fifty acres, the liberty and privilege of hunting for game with dogs in the locus in quo. The plea then justified the tres- pass as the servant of J. W. Replication, that F. C. did not grant the liberty and privilege as in that plea mentioned, upon which issue was joined. At the trial, there was no proof of any such grant as that stated in the plea; but it appeared, that by a deed of that date, R. W., being then seised in fee of the manor of Middle- tom, and all royalties, conveyed Forton Farm, to F. C, reserving all royalties; but it appeared further, that from the year 1753, the gamekeeper of the lord of the manor of Middleton, were accustomed to sport over Forton Farm, with the know- ledge of the plaintiff and his landlords, the owner of Forton Farm; that about fourteen years ago, the plaintiff, by desire of his landlord, gave notice to the then. gamekeeper of the lord of the manor not to trespass, that he sported there by the orders of the lord, and he afterwards con- tinued to sport there without any further interruption: Held, that upon this evi- dence, a jury ought not to have presumed a grant.
A surveyor of highways is not authorised under the 13 G. 3. c. 78, s. 6 & 64, to re- move a fence in front of a house for the purpose of widening the road, which, in that part, was not more than twenty-four feet in breadth, unless the fence be on the highway. Lowen v. Kaye, E. 6 G. 4.
By the eighth section of the Black Act, which gives a remedy to any party dam- nified by the felonious destruction of his premises by fire, it is enacted, "that no person shall be entitled to recover dam- ages unless he give notice as therein mentioned, and within four days after such notice, given in his, her, or their examination upon oath, or the examina. tion upon oath of his, her, or their ser
vant or servants, that had the care of his] or their houses, outhouses, &c., before a justice of peace, whether he or they do know the persons that committed such fact, or any of them." Held, that where the premises consumed by fire were in the care of several servants, they ought all to have been examined.
The lessee of a farm having quitted the premises demised, in the middle of the. hay harvest. the steward of the lessor, who resided at a distance of a mile and a quarter from the farm, employed and paid several persons to get in the hay, and the persons so employed had posses- sion of the barn, and used the stables on the farm with their teams and horses. An under steward, who lived at the dis- tance of five miles from the farm, super- intended the executive part of the work. Some of these premises having been wil- fully destroyed by fire, the steward of the lessor gave in his examination upon oath before the justice: Held, that the persons who had possession of the barn, and used the stables, were the persons having the care of the premises within the meaning of the act, and that they ought to have been examined. The Duke of Somerset v. The Inhabitants of the Hundred of Mere,
2. Where the damages sustained by means of the unlawfully and maliciously setting fire to any house, barn, outhouse, mow or stack of corn, &c., is less than 30/., the remedy by action given by the 9 G. 1, c. 22, s. 7, to the party grieved is taken away, and a summary remedy established for it by the 3 G. 3, c. 33, although the injury has not been done by a riotous and tumultuous assembly. The King v. The Justices of Somerset, M. 6 G. 4.
1. By an inclosure act, the commissioners were to allot unto the rector of the parish of Waddingham, cum Snitterby, such par- cel of the arable lands and common pas- tures within the township of Snitterby, and also of the titheable parts of the town- ship of Waddingham, as should, (quantity) quality, and situation considered,) be equal in value to two-fifteenth parts of the titheable places of the last mentioned lands and grounds, in lieu of tithes be- longing to the rector, and arising within the same lands and grounds; and imme- diately after the enrolment of the award, all tithes arising within the lands or grounds directed to be inclosed were to be extinguished. By another clause, there was saved to all and every person,
bodies politic and corporate, their heirs, successors, and administrators (other than and except the respective persons to whom any allotment should be made, by virtue of the act in respect of the in- terest or property for which such allot- ment or compensation should be made) all such estate and interest as they had and enjoyed in respect of the said fields, common, pastures, and waste grounds before the passing of the act, but that no other person should have power to dis- turb any of the allotments to be made in pursuance of the act, but should accept their respective allotments which should be made in lieu of the lands, tithes, com- mon rights, and interests which they would have been entitled to in case the act had not passed. The commissioners, by their award under the head " Wad- dingham allotments," alloted to the rec- tor land in lieu of his glebe lands in Waddingham; and then under the head
Snitterby allotments," there was an al- lotment to the rector of the land in lieu of glebe, and they then alloted to him 223 acres, which they adjudged to be in lieu of and as a full compensation for the tithes belonging to the rector within the open fields, common pastures, and lands in the townships of Snitterby and Atterby; and they further assigned to the rector other lands in lieu of the tithes of the an- cient inclosed lands in Snitterby.
The lands alloted to the rector in lien of tithes was more than two-fifteenths of the lands inclosed in Snitterby and Atter- by, but less than two-fifteenths of the lands inclosed in Snitterby, Atterby, and Wad- dingham, but there was not any allotment expressed to be in lieu of the tithes of W. Held, that under this award, the commissioners had not made any allot- ment to the rector in lieu of the tithes of Waddingham, and that being so, the rec- tor's right to the tithes in kind was re- served to him by the saving clause in the act. Cooper v. Walker, E. 6 G. 4. 36 2. Where an inclosure act enacted, that the tithes of a certain parish should be ex- tinguished, and that in lieu of them the commissioners should award to the rec- tor a certain annual rent, equal in value to a certain portion of the lands in the parish, to be paid by the owners of those lands in such proportions as the commis- sioners should award: Held, that the rec- tor was liable to be rated to the poor in respect of this rent or annual payment, the act not having expressly exempted it from that burthen. The King v. Boidero, clerk, T. 6 G. 4. A public footway over crown land was extinguished by an inclosure act, but for twenty years after the inclosure took place the public continued to use the way: Held, by Bayley, J., that this was
« ΠροηγούμενηΣυνέχεια » |