the defence, under the stat. 11 Geo. 2, c. 19, s. 3, that the goods had been seized after having been fraudulently removed to prevent a distress for rent, cannot be gone into unless specially pleaded; but where, in trespass against a landlord and his broker for taking goods, there was no evidence against the landlord, and this defence was opened, but could not be gone into, as not guilty, by statute, was the only plea, the judge would not certify, under the stat. 8 & 9 Will. 3, c. 11, s. 1, that there was reasonable cause for making the landlord a defendant, in order to deprive him of his costs. Spencer v. Harrison, 2 C. & K. 429.

8. Pleading-Justification under 1 & 2 Vict. c. 74-De injuriâ. -Trespass for breaking and entering plaintiff's house. Plea, a justification by defendant, as acting in aid of a constable, to whom a warrant had been issued to give possession to plaintiff's landlord P., under stat. 1 & 2 Vict. c. 74. The plea stated the holding of plaintiff under P. and the terms, that the reversion in fee was in P., notice to quit, P.'s right to possession, plaintiff's refusal to quit, notice by P. of his intention to proceed under the act, P.'s application to the justices, his complaint, plaintiff's non-appearance, P.'s proof to the justices of the matters of his notice and complaint, and of his right to possession, and the issuing of the warrant by the justices. Replication, de injuriâ: Held, on special demurrer, that all the above facts necessary to constitute the jurisdiction might be traversed in that form, even assuming that sect. 5 does not protect persons other than peace officers not named in the warrant, and acting in aid of the constables, and would therefore not limit the effect of the traverse; as to which assumption, quære. Edmunds v. Penniger, 7 Q. B. 558.

9. Use and occupation-Re-entry-Forfeiture-Determination of term-General issue.-To a declaration in debt by J. for use and occupation of a messuage, defendant pleaded, that the sum demanded became due from him to plaintiff for such use and occupation for the space of one year; that the Brewers' Company had demised the messuage and certain land to J. by indenture for seventy-one years, with a proviso (in the usual form) for the re-entry, if J. or his assigns should erect any building on the land exceeding seven feet in height; that J.'s term by assignment vested in plaintiff, who demised to defendant for a year, and from thence from year to year, &c., at a rent payable quarterly; that defendant entered and occupied the premises as tenant to plaintiff during the year first mentioned; that after making the indenture, and before the term vested in plaintiff, J. erected a building on the land, contrary to his covenant, and without the company's consent, and that plaintiff continued the same so erected without the consent of the company or defendant until the re-entry after mentioned; and that afterwards, and after the expiration of the said year, and after the accruing of the causes of action, and while the company were reversioners, and before action brought, the company under the said proviso did, for the causes aforesaid, and for the purpose of determining the said term of seventy-one years, from the commencement of the said space of one year re-enter and eject plaintiff, and defendant as his

tenant; and that the company, after the expiration of the said space of one year, and after the accruing of the said causes of action, and before this action was brought, did elect to determine, and did determine, the term of seventy-one years from the time of the commencement of the said one year, for the said breaches of covenant so continuing at and after the commencement of the one year. On special demurrer: Held, that the plea was bad, for-1. No authority appeared by which the company could or did determine the term of seventy-one years from any period, except that of actual re-entry; 2. If the plea showed that the term had ceased before the rent accrued, it amounted to the general issue; 3. If it showed only a determination of the term after the rent accrued, it was no answer to the action. Selby v. Browne, 7 Q. B. 620.

10. Use and occupation-Vendor and purchaser-Imperfect title. -Where the vendee of an estate sold by auction has been suffered to enter upon and hold the premises while the title was under investigation, and the contract has afterwards been determined for want of title, the vendor cannot on these grounds only recover for use and occupation, although the jury find that the occupation has been beneficial. Winterbottom v. Ingham, 7 Q. B. 611.

And see COVENANT. NUISANCE.

LEASE. See COVENANT. TENANT, 2, 3, 9.

EJECTMENT.

LIFE POLICY. See NISI PRIUS, 4.

LANDLORD AND

LIMITATIONS, STATUTE OF.-Evidence of payments on account within six years.--A., an attorney, being indebted to B. in several sums on bond and simple contract, bearing interest, from time to time stated accounts with B. in which he debited himself with the interest and took credit for payments, which he made from time to time, on account of B., for the rent and tithes of a farm occupied by B. and other disbursements. The latest of these accounts was stated in 1823, and a balance was struck therein in favour of B.: up to that time the rents and tithes had nearly balanced the interest; but the rents were then considerably reduced. Afterwards A., who took considerable part in the management of B.'s affairs, continued to pay the rents and tithes on B.'s account, and stated a further account with B., in writing, in which he took credit for the payment of rent and tithes, but inserted no item on the debit side. The latest account stated was in 1842. B., in 1843, sued A. for the sums due on simple contract and interest thereon: Held, that the facts above stated were evidence for the jury, from which they might find that the payments of rent and tithes since 1823 were payments made on account of the interest due on the simple contract debts, so as to take the case out of the Statute of Limitations. Worthington v. Grimsditch, 7 Q. B. 479.

And see AMENDMENT. EJECTMENT, 4.

LOCAL ACT. See NUISANCE.

VOL. VII. NO. XII.-DIG.

B

MANDAMUS.-1. Return.-Where on the face of a return the law and facts are mixed, the court will, before argument on the law, reserve liberty for the prosecutor to file a traverse if necessary. Regina v. The Corporation of Dublin, 9 Ir. L. R. 65.

2. Trinity College statutes.-This court will grant a mandamus to compel the visitors of Trinity College, Dublin, to proceed to hear and determine the appeal of a party who complains of an undue election of a scholar in said college. The power vested in the visitors by common law to hear such appeal is unrestrained by the college charters or statutes. Regina v. Trinity College, Dublin, 9 Ir. L. R. 41.

MANOR COURT.-1. Judgment of, how proved.—The judgment of a manor court in a plea of debt is sufficiently proved by production of a minute in the court books containing entries of the pleadings, but setting forth as to the judgment only a form of caption, names of parties and suitors of the court, and a memorandum that a venire facías was executed, verdict found for plaintiff, and final judgment entered for debt and costs, specifying the amounts; the deputy steward of the court stating that he was present at the trial, and that it was not usual to draw up a more formal judgment, and it appearing that a levari facias had issued reciting a judgment in terms corresponding with the entry. Dawson v. Gregory, 7 Q. B. 756.

2. Pleading-Devastavit-Administrator.—An administrator, sued in the manor court for a debt due from the intestate, pleaded no assets. Replication, that he had assets. Issue thereon and a verdict for plaintiff. Judgment was entered up, execution issued, and nulla bona returned. Plaintiff declared in debt, setting forth these proceedings, and alleging that defendant had at the time of the recovery assets to be administered, and had eloigned and wasted them. Plea, that at the time of the recovery defendant had fully administered, &c. without this, that he eloigned or wasted, &c. Issue thereon: Held, that on the trial of this issue defendant could not prove that all assets which had come to his hands at the time of the former recovery had been duly administered, and that the plaintiff might take his objection without having applied the former recovery as an estoppel.

S. C. ib.

MARRIED WOMAN. See FEME COVERT.
MATERIALITY. See ASSUMPSIT, 2.

MEMORIAL OF REGISTRY. See EVIDENCE, 4.
MUTUALITY. See CONTRACT.

NAVIGABLE RIVER.-Case for injuring oyster beds-Pleading-Notice of facts, how to be averred-Suspension of corporate functions by ouster of functionaries-Merger of franchise-Licence to fish-Lease of fishery.-In a declaration on the case for injuring plaintiff's oyster beds in a river by improper navigation of defendant's vessel: averments,-that plaintiffs were lawfully possessed of oyster beds situate in the river and covered with water; that defend

ant was possessed of a ship of a certain size and draught, then navigating the said river under the management of defendant's servants; that the tide ebbed and flowed in that part of the river; and that at certain periods and states of the tide there, the depth of water covering the said oyster beds was insufficient to float the said ship, "as the defendant and his said servants before and at the time of the committing, &c. well knew," are not equivalent, after verdict, to a formal allegation of notice to defendant that the oyster beds existed and were liable to be injured by attempting to pass over them at the times mentioned. The Mayor of Colchester v. Brooke, 7 Q. B. 339.

2. Navigation in public river, right of—Argumentative plea.-To a count alleging that plaintiffs were possessed of oyster beds in a part of the river, and defendant of a vessel thereon, and that he navigated the vessel over the said part so negligently and at such unseasonable and improper times and states of the tides that she struck the bottom of the said part of the river and injured the oyster beds; defendant pleaded that the said part of the said river, before and at the time when, &c., was open to the sea, and within the flux and reflux of the tide, and was a public navigable river, and the queen's highway for all her subjects with their ships and vessels, " to navigate, sail, pass and repass, in, upon, through, over and along the same and all parts thereof every year and at all times of the year, and at all times and states of the tide" at their free will, &c.: Held, after verdict, a sufficient plea in denial of having navigated at unseasonable and improper times, though it might have been bad on special demurrer as argumentative. S. C. ib.

3. Navigation in public river, right of-Low water.-The liberty of passage on a public navigable river is not suspended when the tide is too low for vessels to float. The public right in this respect includes all such rights as, with relation to the circumstances of each river, are necessary for the convenient passage of vessels along the channel. It is therefore no excess if a vessel, which cannot reach her place of destination in a single tide, remains aground till the tide serves; although, by custom or agreement, a fine may be payable to the lord of the soil for such grounding. S. C. ib.

4. Nuisance-Mischief by negligence. If property, as oysters, be placed in the channel of a public navigable river so as to create a public nuisance, a person navigating is not justified in damaging such property by running his vessel against it, if he has room to pass without so doing; for an individual cannot abate a nuisance if he is not otherwise injured by it than as one of the public. And therefore the fact that such property was a nuisance is no excuse for running upon it negligently. S. C. ib.

5. Suspension of corporate functions by ouster of functionariesMerger of franchise-Licence to fish-Lease of fishery.-A corporation which had an immemorial right to the oyster fishery in a navigable river, to be managed by certain functionaries and courts of the corporation, became, in 1740, by the ouster of several of its members, unable to continue itself or to carry on the management of

the fishery. In 1763 the corporation was re-incorporated by charter, under the old name, and the charter ratified, confirmed and restored to it all fisheries, &c.: Held, that there having been no actual dissolution, the fishery had never come to the crown, and would therefore be in the corporation as it existed under the new charter. Whether if the fishery had come to the crown it could (after Magna Charta) have been regranted by charter, quære. The corporation, by a written document, purporting to be an order of a court of the corporation, held for the conservancy of the fishery, granted a licence to certain dredgermen to dredge and take the oysters during the oyster season: Held, that this did not operate as a demise of the fishery, putting the corporation out of possession. S. C. ib.

NEGLIGENCE.-Allegation of, in declaration.-A declaration alleged that the defendant wrongfully kept a ram, well knowing that the said ram was accustome! to butt and injure mankind, and that whilst the defendant kept the same it did butt and gore the wife of plaintiff: Held, on motion in arrest of judgment, that the declaration was sufficient, without averring that the defendant negligently kept the ram. Jackson v. Smithson, 4 D. & L. 45.

And see NAVIGABLE RIVER, 4.

NEW TRIAL.-Common Pleas of Lancaster-Writ of trial.— Where a cause has been tried in a borough court on a writ of trial issuing out of the Court of Common Pleas at Lancaster, a motion for a new trial cannot be made to a judge sitting in banco at Westminster under the 4 & 5 Will. 4, c. 62, s. 26. Bury v. Peers, 4 D. & L. 163.

And see EVIDence, 1.

NISI PRIUS.-1. Acquittal of co-defendant in trespass.-In an action of trespass against three, who had all jointly, and by one attorney, pleaded not guilty by statute, the judge at nisi prius would not, on the application of the plaintiff's counsel just before the jury was sworn, allow a nolle prosequi to be entered as to one of the defendants, in order that he might be called as a witness for the plaintiff. Neither would the judge, immediately after the jury were sworn, allow one of the defendants to be acquitted on the application of the plaintiff's counsel, it being stated by the defendant's counsel that he appeared for all the defendants, and objected to such acquittal. If, in an action of trespass against several defendants, there be at the end of the plaintiff's case no evidence against one of the defendants, it is in the discretion of the judge whether such defendant shall be then acquitted; and if from the nature of the evidence given for the plaintiff, it is probable that evidence, which will be given for the other defendants, will fix this defendant with liability, the judge will not allow his acquittal at the end of the plaintiff's case. Spencer v. Harrison, 2 C. & K. 429.

2. Practice Notice to produce.-A cause at the sittings at nisi prius was called on upon Thursday, the 4th of February, and the plaintiff's case was closed on that day at four p. m. The case was then adjourned to Friday, the 5th of February, at ten a. m.

All the