respect to it, that if it is to be considered as a case in which a landlord is to be held liable because he had demised the buildings on which the nuisance existed, or because he had relet them after the buildings had created the nuisance, and because he had undertaken the cleansing and had not performed it, they thought the judgment right, and it did not militate against their present position; but that if it is to be taken as a decision that a landlord is responsible for the acts of his tenant, in creating a nuisance, they thought it went beyond any principle laid down in any previously decided cases, and did not merit their assent.

WHAT CONSTITUTES A SURRENDER BY LAW.

Nichols v. Atherstone, 11 Jurist, 778.

THE doctrine of surrender by operation of law was, as will be remembered, very elaborately gone into in a learned judgment of the Court of Exchequer, in the case of Lyon v. Reed, 13 M. & W. 285. Not so much the decision itself as some remarks it contains threw a doubt upon the question, whether the class of cases there alluded to, of which Thomas v. Cook, 2 Barn. & Ald. 119, is the first, in truth, authorized the position which they had been usually relied upon as establishing, viz. where by the consent of all parties a new tenant is substituted, and such substituted tenant occupies, this amounts to a valid surrender in law of the interest of the first lessee. In a note upon Lyon v. Read, in an earlier volume,1 we ventured to predict that since that decision the accuracy of the above proposition was likely to be called in question. This occurred in the case before us; but the Court of Queen's Bench have now dispersed all doubt, by deciding that such facts do constitute a surrender by operation of law. Extracting from the judgment in Lyon v. Reed what are there stated to be the essential characteristics of a surrender by law, the Court of Queen's Bench proceed to show that such, if requisite, are found in the facts of the present case. The court express their full acquiescence in the decision of Lyon v. Reed, where the point was as to the surrender of a reversion, and where no change of possession of the reversion could be made apparent, but claim to dissent from the comments of the Court of Exchequer upon the class of cases above alluded to, and which comments had given rise to the argument in the present

case.

'Law Mag. vol. iii. N. S. p. 140.

Now therefore it is certain, at least in the case of demises in possession, that the consent of all parties to a new and substituted tenancy, accompanied with a change of possession, will operate as a surrender in law of the lease of the first tenant.

PRACTICE.

EXECUTION AGAINST MARRIED WOMEN.

Newton v. Boodle, Newton v. Rowe and Norman, 11 Jurist, Q. B. 628. THIS was a decision upon the liability of a married woman to be taken in execution. The action was brought by husband and wife, for knowingly and maliciously suing out and prosecuting against the wife a writ of capias ad satisfaciendum, the writ having been issued upon a judgment for the defendant for his costs, in a previous action of libel brought against him by the husband, in which the wife was joined. Here the question was, not whether the court would interfere to discharge the wife, but whether it was legal to have taken her at all. It was contended, on behalf of the plaintiffs, that the writ of ca. sa. ought not to have included the wife. It was urged that in the case of a judgment against a man and his wife, defendants, a valid writ of ca. sa. may issue against both; this rule obtained, because a wife was not joined as defendant, except where the cause of action was in respect of her own personal interference or misconduct, the cases favouring the inference that it is only where she is the party in fault that such a writ is allowed, as if in an action for an assault, the assault were committed by her; but where husband and wife were plaintiffs, and judgment is given for the defendant, inasmuch as the wife has no control over the action, and the profits of it would belong to the husband, it was said to be unauthorized, and unjust towards the wife, to make her liable to be arrested for the defendant's costs. A passage from 3 Blackstone's Comment. p. 414, was much relied upon as showing that there are cases in which, at common law, though the judgment is against husband and wife, the husband alone is the party against whom execution ought to issue. Moreover, it was contended, that if this were so at common law, so a fair and equitable construction of the statute 23 Henry VII. c. 5, would lead to the same result. That statute (sect. 1) enacts that in the case of a nonsuit or verdict against the plaintiff, the defendant shall have judgment to recover his costs against the plaintiff, and shall have such process

and execution for the recovery of the same against the plaintiff as the plaintiff should or might have had against the defendant, in case judgment had been given for the plaintiff. Hitherto there was no decision upon this statute, in which the liability of a married woman, joined with her husband as plaintiff, to the process conferred by it, had been discussed; and it was argued that as the wife could not at common law be taken upon a capiatur pro falso clamore, therefore under the statute which substituted the liability to costs for the common law amercement, pro falso clamore, she ought not to be taken. But the court were unanimously of opinion that the writ of execution must in this as in other cases pursue the judgment, and therefore properly issued against husband and wife; they said that it is clear at common law this was a good writ against husband and wife defendants; and next, it is equally clear that the statute makes the liability of plaintiffs correlative and coextensive to that of defendants. The case cited and adopted in the text by Mr. J. Blackstone is observed upon by the court as applying only to the writ of capiatur pro fine, and even as to that, as being directly opposed to other early authorities, which he has omitted to cite. Denman, C. J. says, "Upon the whole the books recognize the right to arrest the wife, and that appears in some cases cited to prove the contrary; for instance, why should she be bailed if there is no power to arrest her on mesne process? The arrest is throughout treated as legal, though under various circumstances the court will interfere, and save the wife from the inconveniences which would arise from it." The absence of all precedent for such an action as the present is added, as in itself a strong authority against the plaintiffs. And next with regard to the statute, it is said, "The words of the statute do not bear out the argument; they are quite general. If the cause of action survives to the wife in case of the death of her husband, there is no reason why she should not be taken for the costs, if the action fails. It is true, that if the action succeeded, the husband would take the money levied upon the judgment, as he would any other property of the wife; but if he dies, the action survives to the wife, and therefore she is interested in it."

A wife, therefore, joined with her husband either as plaintiff or defendant, is no more exempt from process in execution than the husband himself; her only remedy is by application for discharge, an indulgence which hitherto has not been refused to her upon a joint execution (Hoad and wife v. Matthews, 2 Dow. P. C. 149), where the court or judge applied to are satisfied she has no separate property.

PLEADING.

NE UNQUES ADMINISTRATOR-HOW SUCH A PLEA SHOULD

CONCLUDE.

Scott v. Wedlake (in Error), 7 Q. B. 766.

In this case was decided a technical but still important point of pleading,-viz. as to the proper form of conclusion to a plea of ne unques administrator. The defendant was sued in assumpsit as administratrix with the will annexed, upon promises by the testator. She pleaded that she is not nor ever hath been administratrix in manner and form as the plaintiff has alleged, and concluded with a verification. For this conclusion the plea was demurred to. Judgment was given for the defendant in the Queen's Bench, upon which the plaintiff brought error in the Exchequer Chamber. The question was argued at length. That the verification is a proper form of conclusion to pleas of ne unques executor the oldest authorities show, Co. Ent. 144 b; Rast. Ent. 322 a, 330 b; Winch. Ent. 344; this was not now disputed, but a distinction was taken by the plaintiff. It was said the plea of ne unques executor introduced new matter in the averment nor ever administered, intended to exclude the supposition that the defendant was executor de son tort, and so such a plea denied more than the declaration alleged, and therefore properly concluded to the court; whereas as no necessity existed for excluding such a supposition in the case of an administrator, because a person cannot be sued as administrator de son tort, for which was cited 2 Chit. Plead. 2d ed. 808, n. a; so the plea of ne unques administrator contained no such averment; it did therefore no more than deny the allegation in the declaration, and consequently ought to have concluded to the country. The court took a different view and gave judgment for the defendant. They said the statute the 31 Edw. I. c. 11, which enables persons to sue or be sued as administrator, does not prescribe the form, but enables them to sue "as executors," and makes them liable to be sued "in the same manner as executors," the intention and spirit of the act being, that no unnecessary difference should exist between executors and administrators. Practice and decisions had established that a conclusion to the court was proper in the case of executors; the reason it was difficult to discover, probably with a view to lead to a narrower issue, by leaving it open to the plaintiff in his replication to show in what manner he sought to charge the defendant, which

reason then equally existed in the case of a defendant charged as administrator, as the plaintiff might reply, not by repeating his general allegation, but by showing a particular grant of administration. But as to the reason suggested by the plaintiff, and insisted on as showing a distinction between the pleas of ne unques executor and ne unques administrator, it did not appear to the court to be well founded. "A declaration against an executor does indeed describe him as the executor of the last will and testament, but this is because there is no other form of writ or count, and every executor of his own wrong is so named, Coulter's case. The plea, therefore, which in denying that the defendant is executor of the last will, or ever administered as executor, does no more than deny that he is executor, either by right or by wrong; does no more than deny what the allegation in the declaration, that the defendant is executor of the last will, is to be understood as importing." Therefore it was determined that as such a plea was not introductory of new matter, in the case of an executor, it was not distinguishable from the present plea; and that as there was no reason for making any difference, the same rule which is clear in the case of an executor must apply here, and the defendant was at liberty to plead by concluding to the court in the manner she had done.

PAYMENT OF MONEY INTO Court.

Tattersall v. Parkinson, 16 Law Jour. N. S. 196.

THE best mode of pleading payment before action brought, or payment into court as to part, to a declaration containing several counts, is frequently a matter of very difficult determination amongst pleaders, especially where there is more than one count in the declaration applicable to that portion of the demand which is sought to be covered by the plea. At one time it was decided in the Queen's Bench (Mee v. Tomlinson, 4 Ad. & El. 262), on an occasion when Mr. J. Patteson presided, that upon a plea of payment in accord and satisfaction as to a portion of two or more counts, it was necessary for the plea to show how much of the sum was paid upon each count. But the case of Jourdain v. Johnson, 2 C. M. & R., which was unknown to Mr. J. Patteson at the time, laid down a contrary rule as to a plea of payment into court; and there have been other cases since, in which Mr. J. Patteson himself has coincided, where his former decision has been treated as incorrect. Now, therefore, there is no doubt but that a plea of payment into court,

5 Rep. 30 a.