1822. A covenant by a lessee that he will sufficiently muck and manure the land with two sufficient sets of muck within of the last years of the term, the last set of muck to be laid upon the in three years of the expiration of the term, is satisfied by the tenants laying on two sets of muck with in the three last years of the term. POWNALL against MOORES. COVENANT. Declaration stated that one Hugh ant, the 8th March, 1808, by indenture of lease demised to the defendant, amongst other premises, a meadow called the space of six the Pinfold Meadow, to hold for the term of 16 years. The declaration then stated a covenant by the defend"that he should and would sufficiently muck and premises with manure the said field, called the Pinfold Meadow, with two sufficient sets of muck, within the space of six of the last years of the said term, the last set of muck to be laid upon the said premises within three years of the expiration of the said term." The declaration then stated the entry of the defendant upon the premises, deduced a title to the plaintiff as assignee of the reversion, and alleged as a breach, that the defendant had not manured the said Pinfold Meadow according to the said covenant; but on the contrary, that although the three first years of the last six years had elapsed, and considerably less than three years of the term was all that remained, yet the defendant had not laid any manure at all upon the said meadow. The defendant pleaded, that the said term of 16 years, of and in the said demised premises, was still unexpired. General demurrer and joinder. D. F. Jones, in support of the demurrer. The question intended to be raised, is whether the defendant, upon the true construction of the lease in question, can satisfy satisfy the covenant into which he has entered, by laying two sets of manure upon the meadow at any time within the last six years. The intention of the parties appears to have been, that one set of manure should be laid within the first three, and the other set within the last three of the last six years. It is true, that the terms of the covenant are not expressed with exactness; but the Court will give them a reasonable construction, and in case of ambiguity, will, according to the general rule, take the words most strongly against the covenantor. The course of good husbandry requires, that the meadow should be kept in heart by manuring every three years, and this must have been what the parties had in contemplation. The object was, not merely that the land should be left at the determination of the lease with a sufficient quantity of manure then upon it, but that it should be kept in a good state of husbandry from time to time during the lease. From its being expressed, that the last set of manure was to be laid on within the last three of the last six years, it is not too much to infer that the meaning of the covenant was, that the first set of manure should be laid on within the first three of the last six years. If a different construction prevail, the lessee may then protect himself by laying on both the sets of manure within the last six months of the term, the effect of which would be evasive of the spirit of the covenant, and would also be contrary to the course of good husbandry, and injurious to the land. Creswell, contrà, was stopped by the Court. ABBOTT C. J. The lessee has only covenanted, that 1822. POWNALL against MOORES, 1822. POWNALL against MOORES. he will lay on two sets of manure within the last six BAYLEY J. If the plaintiff intended to draw any argument from the course of good husbandry, an allegation to that effect should have been introduced upon the record. But in truth, no such allegation could have availed to extend the covenant in question in the way which is now suggested. HOLROYD J. and BEST J. concurred. Judgment for the defendant. ment of had been given in an action an infant, it is BIRD against PEGG and Another. Where judg-UPON a writ of error brought to reverse a judgment of non-suit in the Court of Common Pleas, it apbrought against peared upon the record, that the defendants below had appeared by attorney. The error assigned was, that one of the defendants at the time of his appearance, and at the time of giving judgment, was an infant under the age of 21 years. Comyn, for the plaintiff in error, contended, no ground of error that the infant had appeared by attorney. that that this was a good ground for reversing the judgment, although it was in favour of the infant. In Bird v. Orms (a), an entire judgment against two was reversed, on the ground, that one was an infant and appeared by attorney instead of guardian, and he referred to Serjt. Williams's note to the case of Foxwist v. Tremaine (b), where several authorities on the subject are collected. ABBOTT C. J. There can be no doubt, that where judgment is given against the infant, he may assign his appearance by attorney as a ground of error. The law will protect an infant where a judgment has been recovered against him; but the circumstance, that the plaintiff below has been defeated in his claim against an infant, shews that he had no cause of action whatever, and therefore, that he is not entitled to judgment. It would be greatly to the prejudice of the infant, to allow the plaintiff below to avail himself of the infant's appearing by attorney as a ground of error. Unless, therefore, there be some decided case in which judgment given in favour of an infant defendant has been reversed on the ground of his infancy, we are of opinion that this judgment ought to be affirmed, Comyn admitted, that he could not then cite any such case, but he requested further time to look into the authorities, and afterwards informed the court, that upon search, the only authorities he could find were cases in which the original judgment had been obtained against the infant. Judgment affirmed. 1822. BIRD against PEGG. 1822. a an inclosure act, a commis sioner was au REX against TOWNSEND. By clause in BY 55 G. 3. c. 43. s. 15., (an act passed for inclosing lands in the parish of Hartlebury, in the thorised to stop county of Worcester,) the commissioner thereby approvided it be pointed was authorised to stop up, alter, or change up any way, done by the and that order was to be subject to an appeal in like manner, and under such form and re order, and with any old carriage road, bridle way or footpath, passing the concurrence or leading through any of the old inclosures within of two justices, the said parish, provided that no such carriage road, bridle way or footpath, leading through any of the old inclosures of the said parish, should be stopped up, altered or changed without the concurrence and order of two justices of the peace, and which order should be been original subject to an appeal to the quarter sessions for the county of Worcester, in like manner, and under such forms and restrictions as if the same had been originally made by grieved was to such justices. By section 36., any person thinking himself aggrieved by any thing done in pursuance of the strictions as if the same had ly made by such justices. By a subsequent clause, ag be at liberty to appeal at any time within six months after the cause of complaint. Under this act, the commis sioner, with the concurrence giving the pub lic notices required by the 55 G. 3. c. 68. Held, that a party aggrieved might, under act, was to be at liberty to appeal to the general quarter sessions of the peace, which shall be holden for the county of Worcester, within six months next after the cause of complaint should have arisen. Under this act the defendant was appointed commissioner, and on the 17th August, 1820, made an order with the concurrence of two justices of the peace for the county of Worcester, for stopping up a certain footpath leading through the old inclosures. Against this order, one S. Bateman these circumstances, appeal at any time within six months. Quere, whether it be necessary to give such notices where roads are stopped up under the provisions of an inclosure act. appealed |