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INDEX.

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.

506

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.

574

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.

598

62. Trespass for breaking and entering two
closes, parcel of Forton Farm. Plea,

899

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.

Pick-
639

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.

664

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.

F.

FACTOR.

See PARTNER, 2.

The

852

FALSE IMPRISONMENT.

See TRESPASS, 4.

FELO DE SE.

547

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

Se-

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.

FINE.

See FRANCHISE.

FORFEITURE.

See COVENANT, 5. EJECTMENT.

FRANCHISE.

138

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

:

sessions.

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

FREIGHT.

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,

[blocks in formation]

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

GUARANTY.

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.

2.

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.

|

H.

HABEAS CORPUS.

664

[blocks in formation]

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.

1.

HUNDRED, ACTION AGAINST.

3

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,

E. 6 G. 4.

167

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.

I.

INCLOSURE ACT.

913

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

66

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

3.

467

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