demise in the ejectment. Hodgson and Others, Assignees of Seaton v. Gascoigne, M. 2 G. 4. Page 88 2. The declarations of a widow in possession of premises, that she held them for her life, and that after her death they would go to the heirs of her husband, are admissible evidence to negative the fact of her having had twenty years' adverse possession. Doe dem. Human v. Pettett, M. 2 G. 4. 223

3. Where

a defendant's ancestor came into possession of certain lands in 1752, as a creditor, under a judgment obtained against the then owner of the land, and defendant's family had continued in possession ever since: Held, that the original possession having been taken not under any conveyance, the length of possession was only primâ facie evidence from which a jury might infer a subsequent conveyance by the original owner, or some of his descendants, but that it might be rebutted, and that the jury must not presume such conveyance from length of possession, unless they were satisfied that it had actually been executed. Doe dem. Fenewick v. Reed, M. 2 G. 4.

232 4. Where a rule has been obtained for staying the proceedings in ejectment, till the costs of a former ejectment have been paid, the Court will not interfere, and permit the defendant, in case those costs are not paid before a certain day, to be named by the Court to non pros. the ejectment pending. Doe dem. Sutton v. Ridgway, H. 2 and 3 G.4. 5. Where a copyholder has been ad

523

6.

lord at the time of admittance. Doe dem. Nepean v. Budden, E. 3 G. 4. Page 626 The notice to the tenant in possession at the foot of the declaration in ejectment, need not be in the name of the plaintiff; but, if in the name of the lessor of the plaintiff, or even any other person, the Court will permit the rule for judgment against the casual ejector to be drawn up. Goodtitle dem. Duke of Norfolk v. Notitle, T. 3 G. 4.

EMANCIPATION.

$49

1. A pauper being eighteen years of age, and residing with his father, was drawn as a militia-man, and served for five years as a ballotted man. During his service he, several times when on furlough, and finally after his discharge from the militia, returned to his father's house: Held, that by his so remaining separated from his father's family after twenty-one, he was emancipated, although the original separation was not voluntary on his part. Rex v. The Inhabitants of 176 Hardwick, M. 2 G. 4. During the minority of a child there can be no emancipation, unless he marries, and so becomes himself the head of a family, or contract some other relation, so as wholly and permanently to exclude the parental controul. Semble, that the acquiring a settlement of his own does not properly constitute an emancipation. Rex v. The Inhabitants of Wilmington, H. 2 and 3 G. 4.

2.

ESTOPPEL.

525

fealty to the lord of a manor, he is estopped in an action by the lord for a forfeiture, from shewing that the legal estate was not in the

ESTREAT.

See PRACTICE, 19. EVIDENCE.

EVIDENCE.

as

1. Declaration stated, that, in consideration that plaintiff would sign to the defendant a bill of exchange, defendant undertook, &c., and then averred that plaintiff did assign the bill. It appeared that the parties had agreed that the plaintiff should give up the bill to the defendant, the latter however paying over the proceeds of the bill to the plaintiff. In pursuance of the agreement the plaintiff, by deed, assigned to the defendant the bill, and all sums of money due thereon, to and for the defendant's own use; and the defendant covenanted to pay to the plaintiff a sum equal to any money he should receive on account of the bill: Held, that the declaration imported that the plaintiff had made an absolute assignment of the bill, and, consequently, that the assignment in evidence being only conditional, this was a fatal variance. Vansandau v. Burt, M. 2 G. 4. Page 42 2. In trespass, the first count of the declaration stated, that defendant assaulted and imprisoned plaintiff; and, during such imprisonment, struck, pulled, and pushed him about; justification, that defendant arrested plaintiff under process of court, and that plaintiff, whilst in custody, having conducted himself in a violent manner, defendant necessarily, and to prevent his escape, struck, &c. : Held, that this latter part of the justification not being proved, the plaintiff was entitled to judgment, and that it was not necessary to new assign the battery by the defendant. Held, also, the second count of the declaration (which omitted the battery) having been justified by proof of the writ and warrant, and arrest under them, the plaintiff, although one assault only was proved, was still

entitled to judgment, having proved the trespasses as laid in the first count. Phillips v. Howgate, M. 2 G. 4. Page 220 3. The declarations of a widow in possession of premises, that she held them for her life, and that after her death, they would go to the heirs of her husband, are admissible evidence to negative the fact of her having had 20 years adverse possession. Doe dem. Human v. Pettett, M.2 G. 4. 223 4. Where a defendant's ancestor came into possession of certain lands in 1752, as a creditor under a judgment obtained against the then owner of the land, and defendant's family had continued in possession ever since: Held, that the original possession having been taken not under any conveyance, the length of possession was only primâ facie evidence, from which a jury might, infer a subsequent conveyance by the original owner, or some of his descendants, but that it might be rebutted, and that the jury must not presume such conveyance from length of possession, unless they were satisfied that it had actually been executed. Doe dem. Fenwick v. Reed, M. 2 G. 4. 232

5. Where an assignment of a lease by deed, taken in execution was made in the name and under the seal of office of the sheriff, by A.B., acting as under-sheriff: Held, that such assignment was sufficiently proved, without proving further the appointment of A. B., as under-sheriff, and that he had power by deed to execute deeds in the name of the sheriff. Doe dem. James v. Brawn, M. 2 G. 4. 243 An issue having been directed to satisfy the Court as to the forgery of a signature to a warrant of attorney, a verdict was found, establishing the genuineness of it, upon evidence

6.

evidence satisfactory to the Judge who tried the cause, and to the Court upon his report of it. In the course of the trial, an inspector of franks, who had never seen the party write, was called to prove, from his knowledge of hand-writing in general, that the signature in question was not genuine, but an imitation; this evidence having been rejected, the Court refused to disturb the verdict, on the ground that such evidence, even if admissible, was entitled to very little weight, and that the issue being to satisfy the Court, a new trial ought not to be granted, unless for the rejection of evidence which might reasonably have altered the verdict. Quære, if such evidence : be admissible at all. Gurney v. Langlands, H. 2 and 3 G. 4. Page 330 7. An estate in fee, upon the determination of a life estate, was devised to the wife of A. B. A. B. was one of the attesting witnesses to the will. The testator died in - 1179, and the wife of A. B. died in 1813, before the previous life estate was determined: Held, that A. B. was not a good attesting witness to this will. Hatfield v. Thorp, E. 3 G. 4. 589

8. Where a libellous paragraph, as proved, contained two references, by which it appeared to be in fact the language of a third person, speaking of the plaintiff's conduct, and the declaration in setting it out, had omitted those references: Held, that these omissions altered the sense of the remainder, and that the variance was fatal. Cartwright v. Wright, E. 3 G. 4. 615 9. Where a copyholder has been admitted to a tenement, and done fealty to the lord of a manor, he is estopped in an action by the lord for a forfeiture, from shewing that the legal estate was not in the lord

at the time of admittance. Doe dem. Nepean v. Budden, E. 3 G. 4.

Page 626 10. To an action on bill of exchange the defendant pleaded non assumpsit to all but a part, and as to that part a tender. Replication, that after the cause of action accrued, and before the tender, the plaintiff demanded the smaller sum; Held, that this issue would only be supported by proof of the demand of the precise sum tendered. Rivers v. Griffiths, E. 3 G. 4.

630 11. A petition, addressed by a creditor of an officer in the army to the secretary at war, bonâ fide and with a view of obtaining, through his interference, the payment of a debt due, and containing a statement of facts which, though derogatory to the officer's character, the creditor believed to be true, is not a malicious libel for which an action is maintainable. In such an action, even upon the general issue, evidence may be received to shew that the writer bonâ fide believed the facts stated in the petition to be true. Fairman v. Ives, E. 3 G. 4.

642

12. A bill against an attorney was

filed of Michaelmas term, and appeared by the memorandum to have been filed on the 28th November: Held, that evidence was admissible to shew that it was actually filed on the 24th December: Held, also, that a demand and refusal is evidence of a prior conversion; and, therefore, where deeds were in defendant's possession prior to Michaelmas term, and the demand and refusal proved were on the day after that term, it was held, that this was evidence of a conversion before the term. Wilton v. Girdlestone, T. 3 G. 4. 847

13. Where premises had been demised by two tenants in common,

and

and the rents for a time paid to the agent of both, but afterwards the tenant had notice to pay a moiety of the rent to each of the two, and the rent was so paid accordingly, and separate receipts given: Held, that it then became a question of fact for a jury to say, whether it was the intention of the parties to enter into a new contract of demise, with a separate reservation of rent to each. Powis v. Smith, T. 3 G. 4. Page 850

EXECUTION.

See FIERI FACIAS.

EXECUTOR.

The property of a deceased person vests in his executor from the time of his death, in an administrator, from the time of the grant of the letters of administration; and, therefore, where A. took out letters of administration under a will, by which he was appointed executor; and after notice of a subsequent will, sold the goods of the testator: Held, that the rightful executor in an action of trover was entitled to recover the full value of the goods sold, and A. was not entitled, in mitigation of damages, to shew that he had administered the assets to that amount. Woolley, Executrix, v. Clark, E. 3 G. 4.

EXECUTORY DEVISE. See DEVISE, 8.

EXTRA-PAROCHIAL DISTRICT.

See SETTLEMENT, 4.

FACTOR.

744

The owner of goods being indebted to a factor in an amount exceeding

for sale; the factor being also similarly indebted to I. S., sold the goods to him. The factor afterwards became bankrupt; and, on a settlement of accounts between I. S. and the assignees, I. S. allowed credit to them for the price of the goods, and he then proved the residue of his claim against the estate: Held, that as the factor had a lien on the whole price of the goods, such settlement of accounts between the vendee and the assignees, afforded a good answer to an action against the vendee for the price of the goods, brought either by or on the account of the original owner.

By 47 G. 3. sess. 2. c. 28. s. 29. "All contracts for coals are to be fairly entered in a book to be kept by the factor, subscribed by the buyer; and a copy of such contract is to be delivered by the factor to the clerk of the market, within an hour after the close of the market." A factor having coals consigned to him for sale by A., sold the same, and entered the contract in his book, as having been made for C., the master of the ship. It was not signed by the purchaser; but, in the copy delivered to the clerk of the market, the purchaser's náme, as well as that of the factor, was inserted; the factor had no authority to insert the name of the master in his contract, but it was a common practice in the coal trade so to do. Quare, whether, under the circumstances, an action might be brought in the name of C. for the price of the coals. Hudson v.. Granger, M. 2 G. 4. Page 27

having

having been seized under a fi. fa., a writ of hab. fac. poss. was subsequently delivered to the sheriff, in an ejectment, at the suit of the landlord, founded on a demise made long before the issuing of the fi. fia. Held, that the sheriff was not bound to sell the growing crops under the fi. fa., inasmuch as they could not in point of law be considered as belonging to the tenant, the latter being a trespasser from the day of the demise laid in the declaration. Hodgson v. Gascoigne, M. 2 G. 4. 2. A sheriff has no right, under a fi. fa., to seize fixtures, where the house in which they are situated.is the freehold of the person against whom the execution issues. Winn v. Ingilby, Bart. and Another, E. 3 G. 4.

FINE.

Page 88

See MORTGAGOR AND MORTGAGEE, 2.

625

By marriage settlement, dated December, 1806, certain manors and lands were limited to the husband for life, remainder to the wife for life, remainder to the use of the first and other sons of the marriage successively in tail male; remainder in case the wife should survive the husband, to her in fee; but if she should die in the lifetime of her husband, remainder to the daughters successively in tail male; remainder to the use of such persons related by blood or consanguinity, and in such estates or interests, and in such manner, and charged with such sums of money in favour of such persons so related, as she by her will might appoint; and in case of no such appointment, to her in fee. The settlement also contained a power for the trustees there named, at the request, and by the direction of the husband

and wife, or the survivor, to sell or exchange the settled estates, and for that purpose, to revoke all and any of the uses contained in the settlement; and also a covenant by the husband for further assurance on his part, and that of his wife, and all persons claiming under him. In pursuance of this settlement, certain fines were levied. By deed, dated March, 1807, reciting the settlement, and the fines levied in pursuance thereof, and the limitations therein contained, and further, that the wife was desirous of acquiring an absolute power of appointment over the manors, &c. comprised in the settlement, in the event of her surviving, or dying in the lifetime of her husband, and there being a general failure of issue of her body, inheritable to the manors, &c. under the settlement, the husband and wife covenanted to levy certain fines, sur conusance de droit come ceo, with proclamations, to J. G. and his heirs, of all the manors, &c. comprised in the settlement: which fines were to operate, and to be taken to operate, first, for corroborating the uses contained in the settlement antecedently to the limitations to the use of the wife in fee-simple, and subject thereto to the use of such persons, &c. as the wife by will or deed might appoint. In pursuance of this latter deed, several fines come ceo were levied by the husband and wife: Held, that, under these circumstances, these latter fines did not operate to extinguish, destroy, or suspend the right or power of the husband and wife, and the survivor of them, to request and direct a sale or exchange of the settled estates under the powers for that purpose contained in the settlement, so as to prevent an exercise of those powers