Of Deed thirty years old. T. W. occupied land under one W., who was lessee for lives, and paid the rent reserved by the lease. The day after the lease expired, T. W. went and obtained the lease from W. and J., who claimed no interest in it, and delivered it up to the lessor, from whom he took a fresh demise of the land. The lease was produced from the custody of the lessor at the trial: -Held, that it came from the proper custody. Rees v. Walters, 527

EXCISE ACTS.

See MONEY HAD AND RECEIVed, 3.

EXECUTOR AND ADMINISTRATOR.

1. Assets, what are.

A. had commenced a suit in Chancery for an account under a will, in which she employed as her solicitors, first, B., then C., who successively gave up the suit, and then D., who continued to conduct it till her death in 1829.. After her death, E., her executor, filed a bill of revivor, and D. continued to conduct the suit for him. In 1833, a decree was made, whereby it was ordered that the Master should settle the costs of all the parties, and that the same, when taxed and settled, should be paid out of the fund in the following manner: viz., the plaintiff's costs (consisting of the costs both of A. and E.) to D., his solicitor, and the costs of the defendants to their several solicitors. The plaintiff's costs were taxed, and certain sums in respect of them were

paid to D. C. sued E., as executor of A., for the amount of his bill, and had judgment of assets quando acciderent. He afterwards brought another action on the judgment, and had given notice of trial; and it was then agreed between them, that, on C.'s withdrawing the record, E. would then pay him 1001. on account of his bill, and the remainder out of the assets which should first come to his hands as executor of A.; and the record was accordingly withdrawn. A further sum was afterwards paid out of the Court of Chancery to D. in of the same costs :respect -Held (by Parke and Alderson, Bs., Lord Abinger, C. B., dissentiente), that this sum was assets in the hands of E., within the meaning of the agreement. Smedley v. Philpot,

2. Actions against.

573

Counts for goods sold to and work and labour done for the defendant, as executor, cannot be joined with a count for money found to be due on an account stated with the defendant as executor.

Where work is contracted for by a testator, who dies before the contract is completed, but it is completed afterwards, semble, that in an action against his executor, the plaintiff should declare specially, stating those facts. Corner v. Shew, 350

FIXTURES.

A lessee cannot, even during his term, maintain trover for fixtures attached to the freehold. Mackintosh v. Trotter, 184

FOREIGN ATTACHMENT. W. sued out of the Tolzey Courtof Bristol a writ of foreign attachment against C., and seized goods of his under it. The writ was returned on the 14th February. On the 17th

B. filed a claim of property, alleging the goods to be his, and praying a return of them. To this W., on the 10th April, replied, alleging that the property was in C., and not in B., concluding to the country; and added the similiter. On the 11th May, the suit was entered in the issue book for trial, and it came on for trial on the 12th July, when B. tendered a certiorari, sued out ex parte in the ordinary way, in this Court, to remove the suit then pending in the Tolzey Court "under the title of W. plaintiff, C. defendant, and B. claimant:"Held, on motion for an attachment against the Judge of the Tolzey Court for refusing to receive this certiorari, that B. was not entitled to sue it out, under the stat. 21 Jac. 1, c. 23, s. 2. Bruce v. Wait,

FRAUDS, (STATUTE OF.)

See RAILWAY SHARES, 1. Acceptance of Goods within.

21

GOODS SOLD AND DELIVERED.

See INTEREST.

HUSBAND AND WIFE.
See INSURANCE, I.

MONEY HAD ANd Received, 2.

1. Discharge of Wife from Arrest. A married woman will be discharged from arrest on entering a common appearance, unless the plaintiff swears that when he her gave credit, she represented herself to be a feme sole. Hollingdale v. Lloyd,

416

2. Liability of Husband on Contracts of Wife.

Where a husband, living apart from his wife, allows her sufficient for her, maintenance, he is not liable for necessaries supplied to her, and notice to the tradesmen of that allowance is immaterial, and need not be given. Mizen v. Pick, 481

INNKEEPER.

An innkeeper cannot detain the person of his guest, or take off his clothes, in order to secure payment of his bill. Sunbolf v. Alford, 248

INSOLVENT ACT.

1. What Rights vest in Assignees,

Assignees of a bankrupt or an insolvent debtor take only such property as he was equitably as well as legally entitled to at the time of the bankruptcy or assignment.

Therefore, if A. agree to assign to B. certain specific goods, by way of security for money advanced by B. for the purchase of them; and afterwards, in pursuance of such agreement, actually assign them; although the assignment itself be under such circumstances as would have rendered

it void under the Insolvent Debtors' Act, and A. subsequently takes the benefit of that act, his assignees are not entitled to such goods.

Secus, if the agreement related to such goods as A. might have at the time of the execution of the assignment, their corpus not being ascertained at the time of the agreement. Mogg v. Baker, 195

2. Notice to Creditors by Insolvent.

To an action of indebitatus assumpsit in 100l. for goods sold and delivered, &c., the defendant pleaded his discharge from the cause of action under the Insolvent Act; to which the plaintiff replied, that although he, the plaintiff, was named and inserted by the defendant in his schedule, yet he had not any notice of the filing of the petition, or of the time appointed for the hearing upon it :-Held, on demurrer, that the replication was bad, as it did not allege that the plaintiff was a creditor to the amount of 5l., so as to be entitled to notice under the 42d section of the 7 Geo. 4, c. 57. Troup v. Boffi,

INSURANCE.

I. On Life.

615

(1). Concealment of Material Facts.

In an action on a policy of insurance effected by the plaintiff on the life of his wife, the declaration averred that the plaintiff had made statements, (inter alia), that the wife was not afflicted with any disorder which tended to shorten life, and that she had led, and continued to lead, a temperate life. The defendant pleaded, that before the making of the policy, and on divers times after that day, the wife had been and was afflicted with certain disorders, maladies, or diseases, to wit, delirium tremens and erysipelatous inflammation of the legs, all which the plaintiff before and at the

time of the making of the policy well knew. It appeared that at the time the policy was effected, the wife had been examined at the insurance office, and answered several questions put to her, but did not apprise the company of her having been affected with those complaints. The jury found that the plaintiff had not any knowledge of her having had these disorders: Held, that upon the issue raised on these pleadings, the wife not being the general agent of the husband to effect the policy, but only sent to answer particular questions, her knowledge was not in this respect the knowledge of the husband.

The wife had for several years been attended by A. B. up to her marriage with the plaintiff, and nearly to the time when the policy was effected. After her marriage, C. D., the medical attendant of her husband's family, had, on one or two occasions, when called in to the other members of the family, prescribed for her for a cold or some trifling matter. In answer to the question put to her at the office, "Who is your usual medical attendant?" she replied, C. D. :-Held, that the learned Judge ought not to have left it to the jury, on this evidence, to say which of the two was her usual medical attendant, but whether C. D. could be called her usual medical attendant at all. Huckman v. Fernie,

II. Marine.

(1). Deviation.

505

Assumpsit on a policy of insurance on the goods of a vessel called the Clipper, at and from Liverpool to any port or ports, place or places of loading and trade on the Coast of Africa and African Islands, during her stay and trade on the said coast and islands, and at and from thence to her port or ports of discharging in the United Kingdom, with leave to call at all

ports and places backwards and forwards, and forwards and backwards, without being deemed any deviation; with liberty for the said ship in that voyage to proceed and sail to and stay at any ports or places whatsoever, and with leave to load, unload, &c., goods wheresoever she might proceed to, with any ships, boats, &c., in loading and unloading included, particularly with liberty to tranship on board any vessel or craft in the same employ ; with an agreement that the vessel might be employed or used as a tender to any other vessel or ship in the same employ. The vessel arrived at Benin, in Africa, and stayed there thirteen months, during which time she was employed in conveying goods from a vessel in the same employ at the mouth of the river, to Camaroones, and putting them on board another vessel also in the same employ; but on her return with a homeward cargo was lost:-Held, that the learned Judge who tried the cause was right in telling the jury that the voyage to the Camaroones was a deviation, and that it was not an acting as a tender within the meaning of the policy:Held, also, that it was a proper question for the jury, whether her stay at Benin was unreasonable or no; and they having found in the affirmative, that it was warranted by the evidence. Hamilton v. Sheddon,

49

See COMMITMENT.

LANDLORD AND TENANT, 3.
TRESPASS, 1.

LANDLORD AND TENANT. 1. Payment of Rates by Tenant.

By a memorandum of agreement, certain marsh lands were demised by the plaintiff to the defendant, subject to a condition that the defendant should pay all outgoings whatsoever, rates, taxes, scots, &c., whether parochial or parliamentary, which then were or should be thereafter charged or chargeable upon or on account of the said marsh lands (the then présent land-tax only excepted):-Held, that an extraordinary assessment made by Commissioners of Sewers upon the lands, for a work of permanent benefit to the land, was within the meaning of the agreement.

The assessment was made in certain proportions upon the owners and

occupiers. For four years the defendant (the tenant) paid, in the first instance, both his own share and that of the plaintiff (his landlord), and upon each half-year's settlement of accounts for rent due, with the plaintiff's agent, who was ignorant of the agreement, the sum so paid was allowed towards the rent, and receipts were given for the balance:-Held, in an action brought upon the agreement, to recover the sums so allowed as arrears of rent, that the facts supported a plea of payment. v. Andrews,

2. Surrender.

Waller

312

LEGACY DUTIES.

1. The pendency of a suit in equity, at the instance of a legatee, praying that an account may be taken of the personal estate and effects of a testator received by the executors, and that the personal estate may be administered, and his legacy paid, is no answer to an application by the commissioners of stamps under the 42 Geo. 3, c. 99, if any duties have be come payable on legacies which have been paid, notwithstanding the 36 Geo. 3, c. 52, which provides that the Court in which such suit shall be instituted shall, in giving directions concerning the payment of legacies, take care that no allowance shall be made in respect of any legacy, &c., without due proof of the payment of the duties thereby imposed.

It is the duty of an executor to deduct the amount of legacy duty on payment of the legacy; and if he omit to do so, he will become personally responsible for it. In re Sam

2. A testator devised real estates to W. T. for life, with remainder to his first and other sons in tail, with remainder to T. P. for life, remainder to his first and other sons in tail, remainder to G. P. for life, with remainders over; and gave a power to the several persons who, by virtue of the limitations in the will, should be in actual possession of the estates, by deed or will to appoint any woman or women they should marry, by way of jointure, rent charges not exceeding 750l. per annum for life, to be issuing out of and chargeable upon the devised estates, clear of all taxes and deductions whatsoever. W. T. died without issue, and T. P. entered into possession of the estates, and by his will charged them with 750l. per annum by way of jointure to his wife, under the power, and died without