Although upon some of the issues in trespass qu. cl. fregit the freehold or title may come in question, yet, if one special plea, which excludes all question of title, is found against the defendant, the plaintiff is entitled to full costs. Purnell v. Young, 288

3. Trespass for breaking and entering the plaintiff's house, and assaulting the plaintiff. Pleas, 1. not guilty; 2. that the dwelling-house in which, &c., was not the dwellinghouse of the plaintiff; and issues thereon. Verdict for the plaintiff, damages one farthing:-Held, that the plaintiff was entitled to full costs, without a certificate under the stat. 22 & 23 Car. 2, c. 9, s. 136. Pugh v. Roberts,

458

4. Trespass for breaking and entering the plaintiff's house and distraining his goods. Plea, as to the breaking and entering, leave and licence; as to the residue of the declaration, not guilty. Verdict for the plaintiff, damages 6d. :-Held, that the Judge might certify under the 43 Eliz. c. 6, to deprive the plaintiff of costs. Mills v. Stephens,

460

5. In an action for false imprisonment, the plaintiff will be entitled to full costs, although he only recovers a farthing damages, unless the Judge certifies under the statute of Elizabeth to deprive him of costs; and a certificate under 22 & 23 Car. 2, c, 9, is not necessary. Gould v. Drake, 543

II. On recovering under 201.

A cause was referred to arbitration, and by the order of reference, the party in whose favour the award should be made was to be at liberty to enter up judgment for the sum awarded, as if a verdict had been obtained. The arbitrator awarded a sum under 201.:-Held, that the costs must be taxed according to the reduced scale directed by the "Direc

tions to Taxing Officers," H. T. 4 Will. 4. Wallen v. Smith, 138 III. After Summons to stay Proceedings on Payment of a certain Sum.

Where the defendant takes out a summons to stay proceedings on payment of a certain sum, which the plaintiff refuses, alleging more to be due; and the defendant does not afterwards bring the money into Court; the plaintiff will not therefore be liable to the costs subsequently to the summons. Gover v. Elkins, 216 IV. Taxation.

(1). Delivery of Bill.

1. A judgment on demurrer is not a rule, order, town postea, or inquisition, within the rule of the Exchequer, Mich. Term, 1 Will. 4, s. 10, which requires the delivery of a copy of the bill of costs before taxation.

An omission to comply with the rule is no ground for setting aside the judgment and execution, but only for a review of the taxation. Taylor v. Murray,

141

2. Where the defendant does not appear, but an appearance is entered for him according to the statute, it is not necessary to deliver a copy of the bill of costs before taxation, notwithstanding the rule of this Court, M. T. 1 Will. 4, s. 10. Burch v. Pointer, 310

(2). On Cognovit.

The defendant gave a cognovit, whereby it was stipulated that no judgment should be entered up thereon, unless default should be made in payment of the debt, with interest, and costs, on the 9th November: and in case the defendant made default in payment as aforesaid, the plaintiff wast to be at liberty to enter up judgment and proceed to execution, and take the whole of the said debt and costs, together with the costs of such judg

V., the lessee of a mill and premises at a rack-rent, being in insolvent circumstances, executed an assignment, whereby, after reciting his insolvency, and that he had agreed to assign "all his debts, personal estate, and effects of every description, to C. & B., in trust for the benefit of his creditors," he conveyed and assigned to the said C. & B. all and singular the stock in trade, implements and utensils in trade, corn, grain, hay, horses, carts, and carriages, crops of every kind, as well severed as not, and personal estate whatsoever of him the said V., in, upon, or about the said mill and premises now in his use or occupation, or elsewhere, &c., (except the wearing apparel of himself and family); and also all debts, securities, writings, &c., and all other the personal estate and effects of him the said V., whatsoever and wheresoever, or in or to which he is anywise interested or entitled: habendum, in trust out of the proceeds, first, to pay the costs of the assignment, &c.; secondly, to pay the rent due and in arrear for the said mill and premises, or accruing due until and at and up to the 6th of April then next; and, thirdly, to distribute the residue for the benefit of his creditors :-Held, that the words of the assignment were large enough to comprehend the lease of the mill; and the jury having found that the assignees had accepted the lease, that it passed to them under the assignment. Ringer v. Cann,

343

DISTRESS.

Goods of Stranger, when privileged.

Salt was manufactured and publicly sold at certain salt works, and carried away in boats of the purchaser which came for the purpose of being loaded with it into a cut or canal on the premises, communicating with a public navigation. The boat of the plaintiff, an alkali manufacturer, was lying in this cut or canal for the purpose of receiving and carrying away salt bought by him for the purposes of his manufacture:-Held, on error, that the boat was not privileged from distress for arrears of an annuity issuing out of the land on which the salt works were erected, and granted by the manufacturer and seller of the salt, Muspratt v. Gregory,

EASEMENT.

677

If a party builds a house on his own land, which has previously been excavated to its extremity for mining purposes, he does not acquire a right to support for the house from the adjoining land of another, at least until twenty years have elapsed since the house first stood on excavated land, and was in part supported by the adjoining land, so that a grant by the owner of the adjoining land, of such right to support, may be inferred; for rights of this sort can have their origin only in grant.

And semble, such grant ought not to be inferred until after the lapse of twenty years since the owner of the adjoining land knew or had the means of knowing that the land had been so excavated.

Therefore, the owner of the adjoining land is not liable to an action on the case, if, within such period, he works mines under his own land so near its boundary as to cause the excavated land on which the house stands to sink, and the house to be

Ejectment by one tenant in common against his three co-tenants in common, and the D. & S. Railway Company, to whom the other three defendants had demised the premises in question. The three co-tenants in common defended as landlords, and the company as tenants. The usual special order had been obtained, admitting the landlords to defend, and to admit ouster in case actual ouster should be proved. It was proved on the trial that rent had formerly been paid to all the tenants in common by certain other persons; and there was no evidence to shew that any notice to quit had been given, or that that tenancy had been otherwise determined-Held, that the Railway Company, who defended as tenants, were not precluded, by the order admitting the landlords to defend, from insisting that the former tenancy still existed, and therefore that the legal title was not in the lessor of the plaintiff on the day of the demise.

The premises in question (consisting of houses) had been pulled down by the Railway Company, and the rail-road constructed on the site of them. Semble, that this was such an occupation as amounted to an actual ouster. Doe d. Wawn v. Horn,

333

II. Service. (1). Where Premises are unoccupied. Where there were four tenants, lessees of four adjoining houses, three of whom were personally served with a declaration in ejectment, but the fourth having left the premises unoccupied, the declaration was affixed to the door of his house-the Court

f

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 527 custody. Rees v. Walters,

EXCISE ACTS.

See MONEY HAD AND RECEIVED, 3.

EXECUTOR AND ADMINIS-
TRATOR.

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 100%. 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 respect of the same costs:- -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

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, 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 gave her 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